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Threatt v. Colvin

United States District Court, D. South Carolina

December 5, 2016

NELSON R. THREATT, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          BRISTOW MARCHANT, UNITED STATES MAGISTRATE JUDGE

         The Plaintiff filed the complaint in this action, pro se, pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner wherein he was denied disability benefits. This case was referred to the undersigned for a report and recommendation pursuant to Local Rule 73.02(B)(2)(a), (D.S.C.).

         Plaintiff applied for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI)[1] on August 21, 2013 (protective filing date), alleging disability beginning July 17, 2008 due to sciatic nerve problems; numbness and pain in his left arm; problems with the L4, L5, L6 discs in his back with lower back pain; pain in his neck; pain in both legs; an inability to stand or sit for more than five minutes; the need to sleep in the fetal position; an inability to lay on his back or stomach; limited mobility; and side pain with liver problems. (R.pp. 10, 155, 159, 174, 179). Plaintiff's claims were denied both initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge (ALJ), which was held on April 29, 2015. (R.pp. 25-39).[2] The ALJ thereafter denied Plaintiff's claims in a decision issued May 26, 2015. (R.pp. 10-19). The Appeals Council denied Plaintiff's request for a review of the ALJ's decision, thereby making the determination of the ALJ the final decision of the Commissioner. (R.pp. 1-3).

         Plaintiff then filed this action in United States District Court, pro se. Plaintiff appears to assert that the ALJ's decision is not supported by substantial evidence, and that this case should be reversed and remanded for further proceedings.[3] The Commissioner contends that the decision to deny benefits is supported by substantial evidence, and that Plaintiff was properly found not to be disabled.

         Scope of review

         Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If the record contains substantial evidence to support the Commissioner's decision, it is the court's duty to affirm the decision. Substantial evidence has been defined as:

evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify refusal to direct a verdict were the case before a jury, then there is “substantial evidence.” [emphasis added].

Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also, Hepp v. Astrue, 511 F.3d 798, 806 (8th cir. 2008)[Noting that the substantial evidence standard is even “less demanding than the preponderance of the evidence standard”].

         The Court lacks the authority to substitute its own judgment for that of the Commissioner. Laws, 368 F.2d at 642. “[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by ‘substantial evidence.'” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

         Medical Records

         Plaintiff's medical records show that Dr. Alfred Rhyne, III of OrthoCarolina performed lower back surgery on the Plaintiff in July 2007, about a year before Plaintiff alleges he became disabled. (R.pp. 239-241). By August 2, 2007, Plaintiff reported “feeling about 75% better” and walked without difficulty. (R.p. 247). Plaintiff was temporarily restricted from work until September 2007, at which time Dr. Rhyne released him back to work without restrictions. (R.pp. 245, 254-261).

         On December 13, 2009 (well over two (2) years after he had last seen Dr. Rhyne, and about a year and a half after Plaintiff alleges he had become disabled), Plaintiff was admitted to the Carolina Pines Regional Medical Center (Carolina Pines) for complaints of “swelling”. Plaintiff was noted on admission to be suffering from severe anemia, alcohol intoxication, and other complaints. (R.p. 348). He was discharged the following day with diagnoses of severe anemia, status post blood transfusion, likely secondary to chronic gastrointestinal blood loss; alcohol intoxication; severe alcohol abuse; pancytopenia, likely secondary to chronic alcohol use; poor nutrition; jaundice; tobacco abuse; and elevated liver enzymes with probable liver disease secondary to alcohol use. Plaintiff was counseled (although Plaintiff was thought not to be receptive, as he did not listen while being spoken to and instead watched television) as to his alcohol and tobacco use. (R.pp. 302-340, 348-358). A CT of Plaintiff's liver in December 2009 reportedly revealed a large fatty liver (R.p. 341).

         On December 23, 2009, Plaintiff reported to Dr. George T. Mills that he had back and leg pain with constant pain of 6 or above all the time, and that he had been fired from his job at Tyson's Foods because he could not do the work due to his back.[4] He stated that he could walk short distances, but could not do any lifting or long distance walking. The only medicine Plaintiff was taking at the time was Hemocyte Plus 2. On examination, Dr. Mills noted that Plaintiff had full range of motion with tenderness of his cervical spine, 2 tenderness in his lumbar spine and also in his cervical and thoracic spine between 3 and 8, no loss of motion in his back, full arm strength, fairly full straight leg raising, and 5/5 (full) strength in both legs with 2 reflexes and positive pinprick. Dr. Mills noted that Plaintiff was not getting any treatment, and that his prognosis was “certainly guarded because of the constant pain”. (R.pp. 272-276).

         Plaintiff was seen again at Carolina Pines a little over a year later, on February 23, 2011, for rectal bleeding. Plaintiff admitted he drank one pint of alcohol before admission, and that he drank alcohol every day. Blood work and x-rays were taken (which showed no evidence of obstruction) and a GI cocktail was administered. It was noted that Plaintiff was able to ambulate independently, could perform all daily activities without assistance, had normal range of motion, was neurologically intact, had full motor strength, and had intact sensation. Plaintiff was discharged with clinical impressions of internal hemorrhoid(s) and acute gastrointestinal bleed. (R.pp. 278-300).

         On February 16, 2012, Plaintiff was seen at Tri-County Mental Health because he reported “seeing things”. It was recognized that Plaintiff had symptoms of delirium tremens, and he was sent to the emergency room for treatment. The provider concluded that there was no need for further services from the mental health facility. (R.pp. 394-395).

         Plaintiff had a consultative examination performed by Dr. Pravin Patel on June 8, 2012. Plaintiff reported a history of back pain of at least eight years stemming from a work injury, with back surgery about seven years prior that did not help him. He also told Dr. Patel that his back pain radiated to his leg and that drinking alcohol helped his back pain. Plaintiff reported that he had GERD for which he did not take any medication, that he lived with his girlfriend, was independent in his activities of daily living, that he did not do any household chores, that he occasionally cooked and watched television, and that his girlfriend went to the grocery store. On physical examination Dr. Patel found that Plaintiff had good peripheral pulses in his extremities with no clubbing, cyanosis, or edema; deep tendon reflexes; and full range of motion of his cervical spines, both shoulders, elbows, wrists, and small joints of his hands. Plaintiff was able to bend forward to touch his toes, but stopped about six inches from his toes. Straight leg raising was 50 degrees supine and 90 degrees sitting. Plaintiff's hips, knees, ankles, and feet were normal with full range of motion and 5/5 lower extremity power. Plaintiff's gait was normal without an assistive device. Plaintiff could perform tandem walk and managed to walk on his heels and toes with some external support. He could squat, put on his own shoes and socks, and had 5/5 handgrip strength. Dr. Patel thought that Plaintiff could travel without a companion on public transportation, walk around a block on a rough and uneven surface, prepare a simple meal and feed himself, care for his personal hygiene, and handle his own funds if provided (unless he was intoxicated). Dr. Patel's impression was ongoing alcohol abuse, history of gastrointestinal bleed with severe anemia requiring blood transfusion, GERD, alcoholic liver disease, and degenerative disc disease of the lumbar spine, status post surgery. (R.pp. 341-344). Lumbar spine x-rays were unremarkable. (R.p. 345).

         Over a year later (in August 2013), Plaintiff began treatment with Dr. Emanuiel Cooper, a general practitioner at Sandhills Medical Foundation (Sandhills). Plaintiff stated that he occasionally drank beer, smoked a pack of cigarettes a day, and reported he had not seen a physician for his back for seven years. Screening for depression was within the normal range, while a physical examination revealed that Plaintiff had normal posture and was neurologically intact with intact sensation, normal motor strength, normal reflexes, and a normal gait. Examination also revealed that Plaintiff had no back pain or muscle spasms, negative straight leg raise testing, and full range of motion of his back (R.pp. 358-360). On August 28, 2013, an MRI of Plaintiff's lumbar spine indicated L3-4 moderate central and paracentral diffuse disc bulge with mild facet hypertrophy causing mild bilateral neural foraminal stenosis; L4-5 post-surgical changes with a focal central/right central recurrent disc protrusion with mild posterior extrusion along with facet arthropathy causing mild-to moderate lateral recess and neural foraminal stenosis bilaterally, with anterior effacement of the right and left descending L5 nerve roots, 2-3 mm of ventral and posterolateral effacement of the thecal sac compatible with moderate acquired spinal canal stenosis, and Grade 1 degenerative retrolisthesis of L4 on L5; and L5-S1 small central diffuse disc bulge with facet hypertrophy causing mild neural foraminal encroachment and transitional anatomy with partial sacralization at ¶ 5. (R.pp. 361-362).

         Plaintiff returned to Sandhills on October 7, 2013, where he was found to have a normal neurologic examination, no pain and full range of motion in his spine, negative crossed straight leg raising, and no paraspinous muscle spasm. Dr. Cooper wrote that the August 2013 MRI supported a finding of L4-5 focal central/right central recurrent disc protrusion with mild posterior extrusion causing foraminal stenosis, for which Norco and Neurontin were prescribed. (R.pp. 363-364). On November 19, 2013 Plaintiff told Dr. Cooper that he was concerned about elevated enzymes in the past and reported that he occasionally drank beer. Plaintiff also requested a referral to an orthopedist for consideration of back surgery, and the plan was to schedule an orthopedic appointment with Dr. Rhyne in January 2014. Norco was prescribed. (R.pp. 365-366).

         On November 19, 2013, state agency psychologist Dr. Leslie Burke reviewed Plaintiff's medical records, noted that while Plaintiff used to be a heavy liquor drinker he now drank a beer a day, and opined that Plaintiff's alcohol abuse was not a severe impairment. (R.pp. 43-44). On December 3, 2013, state agency physician Dr. Robert Kukla opined that Plaintiff could perform light work, [5] restricted to occasional climbing, balancing, stooping, kneeling, crouching, and crawling. (R.pp. 45-47). On March 6, 2014, a second state agency psychologist, Dr. M. Jane Yates, also opined that Plaintiff's alcohol abuse was in full sustained remission and was a non-severe impairment. (R.pp. 69-71). On March 18, 2014, state agency physician Dr. Lisa Mani opined that Plaintiff had the RFC to perform light work with the same postural limitations as had been noted by Dr. Kukla. (R.pp. 72-74).

         Plaintiff returned to Dr. Cooper on August 18, 2014, complaining about chronic lower back pain. A neurologic examination was normal as to sensory, reflexes, and motor; Plaintiff had a normal gait; full range of motion of his spine; negative crossed straight leg raising; and no paraspinous muscle spasm. Norco and Ibuprofen were prescribed. (R.pp. 409-410). On October 28, 2014, Plaintiff had an elevated glucose level and complained of back pain. Plaintiff was given a glucometer and test strips and Metformin was prescribed. He again reported he only occasionally drank beer. For back pain, Norco and Ibuprofen were to be taken. Per Plaintiff's request, he was referred to South East Pain Management in Monroe, North Carolina. (R.pp. 403-404).

         On December 18, 2014, Plaintiff's neurologic and musculoskeletal examinations were again normal, although his glucose (405) and A1C (9.2) levels were elevated. It was noted that Plaintiff had not brought his blood sugar log book, and that the office had received a telephone call stating that Plaintiff had been selling Norco to the son of the caller. Plaintiff was given a phone number for a diabetic class, prescribed Metformin and Glucotrol XL, given a prescription for Norco, and referred to South East Pain. (R.pp. 400-402).

         On January 19, 2015, Plaintiff was seen by Dr. Cooper for a check-up and medication refill. Plaintiff reported that he occasionally drank beer, and he denied having sold his medication. Dr. Cooper gave Plaintiff prescriptions for Norco and Mobic, and advised Plaintiff to follow up with pain management as soon as possible. It was noted that Plaintiff's blood sugar control was improved, even though Plaintiff stated he had been taking Metformin only (and not his prescribed Glucotrol). Glucotrol was prescribed for Plaintiff's diabetes, and Dr. Cooper assessed back pain. (R.pp. 397-399).

         It is noted that, as attachments to his Brief, Plaintiff submitted copies of medical records from Sandhills. The majority of these records were already part of the record as discussed above (records from August 22, October 7, and November 19, 2013; August 8, October 28, and December 18, 2014; and January 19, 2015); however, Plaintiff did also submit one additional record (dated April 17, 2015) from the time before the ALJ's decision which is not part of the record. On April 17, 2015, Plaintiff complained that he did not feel well and had blood sugars running in the range of 300-400. It was noted that Plaintiff had no side effects from his medication, but had been non-compliant with the dosing regime and had inadequate caloric intake. Plaintiff appeared well groomed, was not in acute distress, and had an alert mental status. APRN Kari Joyner noted that Plaintiff's blood pressure was at goal, his neurologic evaluation was grossly intact, he had normal attention span and ability to concentrate and normal coordination, he was oriented times three, he had appropriate mood and affect, and he had intact associations. Plaintiff reported occasional alcohol use (beer and ...


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