United States District Court, D. South Carolina, Florence Division
MELVIN C. BAKER, JR., Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security; Defendant.
REPORT AND RECOMMENDATION
E. Rogers, III United States Magistrate Judge.
an action brought pursuant to Section 205(g) of the Social
Security Act, as amended, 42 U.S.C. Section 405(g), to obtain
judicial review of a “final decision” of the
Commissioner of Social Security, denying Plaintiff's
claim for disability insurance benefits (DIB). The only
issues before the Court are whether the findings of fact are
supported by substantial evidence and whether proper legal
standards have been applied.
filed an application for DIB on November 10, 2010, alleging
inability to work since July 15, 2010. (Tr. 71). His claims
were denied initially and upon reconsideration. Thereafter,
Plaintiff filed a request for a hearing. (Tr. 47). A hearing
was held on September 19, 2012, at which time the Plaintiff
and a vocational expert (VE) testified. (Tr. 256-89). The
Administrative Law Judge (ALJ) issued an unfavorable decision
on October 31, 2012, finding that Plaintiff was not disabled
within the meaning of the Act. (Tr.15-26). Plaintiff filed a
request for review of the ALJ's decision, which the
Appeals Council denied, making the ALJ's decision the
Commissioner's final decision. (Tr. 4-14). Plaintiff
filed an action in this court on August 26, 2013.
Plaintiff filed a second application for benefits on August
7, 2013, again alleging disability as of July 15, 2010. (Tr.
382-385). The Commissioner issued a Notice of Award on
December 13, 2013, awarding benefits. (Tr. 354-359). The
Notice stated that Plaintiff became disabled as of August 1,
2011, had filed for benefits in August 2013, and thus was
eligible for benefits as of August 2012.
20, 2014, this Court granted the Commissioner's motion to
remand Plaintiff's claim for further proceedings with
respect to his first application for benefits. (Tr. 312-313).
The Appeals Council reviewed the claim itself and affirmed
the subsequent award of benefits, but also remanded the
determination to the ALJ, noting that the state agency did
not have jurisdiction to adjudicate the period already
considered in the ALJ's decision issued on November 2,
2012. (Tr. 320-327). The ALJ held a second hearing on June
12, 2015. (Tr. 510-519). On July 2, 2015, the ALJ issued a
decision denying Plaintiff's claim for the period prior
to November 1, 2011. (Tr. 293-302). This appeal followed.
period at issue here is from July 2010, Plaintiff's
alleged onset, to November 1, 2011, the onset acknowledged by
Plaintiff's Background and Medical History
was born on October 3, 1957, and was 53 years old at the time
of the alleged onset. (Tr. 300). Plaintiff completed his
education through tenth grade and has past relevant work
experience as a repair technician, truck/auto mechanic, and
shop supervisor/general manager. (Tr. 261, 300). Plaintiff
alleges disability due to Multiple Sclerosis (MS) and
Medical Records and Opinions
saw his primary doctor, Dr. Evans of East Cooper Family
Practice, on February 11, 2010. He had a history of
diverticulitis two or three years prior and presented on that
date with left lower quadrant pain. He was visibly
uncomfortable, holding the lower left quadrant. There was
tenderness to palpation over that area, but no rebound. Dr.
Evans' assessment was diverticulitis and he prescribed
Cipro. As Ms. Baker was 50 years old, Dr. Evans reminded him
that a screening colonoscopy was in order. (Tr. 153).
returned to Dr. Evans on March 2, 2010 stating “I just
don't feel right.” He described a two or three day
history of severe fatigue and mild muscle aches as well as
some dizziness and two episodes of blurred or double vision.
Dr. Evans' initial assessment was generalized fatigue and
malaise and hyperthyroidism. Due to the sudden onset of
Plaintiff's symptoms, he ordered lab work. Plaintiff was
overdue for thyroid function readings, so this was initially
thought to be contributing to his symptoms. (Tr. 154).
of Plaintiff's brain on March 12, 2010 revealed multiple
lesions within the periventricular and central white matter.
There was also a faintly enhancing lesion involving the left
superior cerebellar peduncle. These findings were consistent
with multiple sclerosis. (Tr. 158).
March 15, 2010, Plaintiff returned to Dr. Evans' office
with his wife. Dr. Evans noted the MRI findings which had
suggested MS. Some of his symptoms had resolved, his fatigue
and motor weakness persisted but had improved. Ms.
Baker's wife reported that he had been depressed and
“snappy” since his symptoms began. Dr. Evans
referred Plaintiff to a neurologist to discuss proper
treatment and further testing. Dr. Evans was “highly
concerned” about Plaintiff's change in mood, noting
that he had a history of depression and anxiety previously
treated with Zoloft. In light of this, he provided a four
week sample supply of Lexapro. Plaintiff was to contact him
by phone to discuss his results after this month-long trial.
Walker saw Plaintiff on September 14, 2010. Plaintiff told
Dr. Walker that he had no new symptoms, but did experience
continued fatigue and tiredness as well as his impaired gait.
“Everything else seems to be improving
day-by-day.” Plaintiff also reported a number of falls.
Copaxone injections caused a site reaction and abdominal
discomfort. He admitted that he sometimes missed shots, and
actually felt better overall. He reported poor concentration
and decreased dexterity. On exam, Plaintiff was in mild
distress. Tandem walking was poor - neurologic exam was
otherwise negative. Dr. Walker also noted a history of
debilitating migraines, and elected to “treat as
symptoms suggest and dictate.” Plaintiff was changed
from Copaxone to Betaseron, which would be dosed every other
day, as he was having problems administering the Copaxone
daily. He was prescribed Nuvigil for his fatigue. (Tr.
December 28, 2010, Dr. Walker's notes were identical to
the September visit. He had stopped Betaseron after six weeks
due to increased fatigue and myalgia. Plaintiff was to
restart Copaxone and continue Provigil. (TR 162-64).
Mark Williams, a psychologist, interviewed Plaintiff on
February 7, 2011, at the request of the State Agency
examiner. Plaintiff identified chronic fatigue as his main
functional-related limitation but also reported problems with
balance, weakness and numbness as well as episodes of double
vision. He also noted some perceived cognitive decline and
some fine motor skill reduction. He felt he was easily
agitated and was still trying to adjust to the life changes
which had occurred since developing MS. (Tr. 169-72).
Williams' examination consisted of an interview and brief
symptom validity test. He did not administer a mental status
exam, nor any sort of objective testing. He described his
observation as “casual and brief.” Based on
Plaintiff's complains, Dr. Williams guessed that he may
suffer from adjustment disorder, mixed with depressed and
anxious mood and probable mild cognitive disorder. Despite
the informality of his “examination” Dr. Williams
was comfortable opining that Plaintiff's adjustment
disorder was “not likely significantly limiting”
and that the symptoms related to his MS “would be
expected not to be more than mildly limited.” He felt
that Plaintiff had the capacity for simple work, provided
that the work did not override his capacities from a physical
perspective.” (Tr. 169-72).
April 26, 2011, Plaintiff saw Dr. Walker and reported that he
felt poorly. He endorsed decreased energy, anhedonia, and
generalized fatigue. He was taking his medications as
prescribed. He also reported decreased concentration and
intermittent numbness. Dr. Walker was concerned that there
may be a new lesion, so he ordered another MRI and started
Plaintiff on Celexa. (Tr. 195-96). An updated MRI showed no
new lesions. (Tr. 198). A cervical spine x-ray showed a
demyelinating lesion on the spinal cord at C2 and
degenerative changes in the cervical spine with no stenosis
or neuroforaminal narrowing. (Tr. 197).
Kerri Kolehma, a physical medicine and rehabilitation
specialist and anesthesiologist, examined Plaintiff on April
27, 2011 at the request of the State Agency examiner. She
noted that Plaintiff's “available records indicate
he has multiple sclerosis.” She performed a brief
physical and noted that he had trouble with finger-to nose
testing, no coordination in the left hand, had trouble with
heel-to-shin testing on the left, a positive Romberg test
(loss of balance while standing still with eyes closed) and
could not heel-toe walk without losing balance. (Tr. 200-01).
Kolehma concluded that Plaintiff had difficulty with fine
movements in both upper extremities and would have difficulty
performing tasks which required exact placement of objects,
could not work at heights in tight areas, but was independent
in his daily activities and could communicate without
restriction. She felt he could place a box on a shelf. (Tr.
November 29, 2011, Plaintiff saw Dr. Walker again. He felt
his MS was progressing. He reported a constant struggle
getting up, using his hands, and had ongoing balance issues.
He had numbness in his hands and face. He reported that he
was taking his medications. He could only participate in
activities of daily living a few days per week. Dr.
Walker's neurologic examination was unchanged from the
prior visits. His note from this visit is added to the end of
the history of present illness which appears in the notes
from every visit to this clinic. Copaxone and Provigil were
continued. (Tr. 230-31).
22, 2012, Plaintiff returned to Dr. Walker. Dr. Walker's
notes were the same as on prior visits. He added an entry
under “history of present illness” which stated
that Plaintiff had increased complaints of fatigue and poor
balance. He was using a cane. The injections hurt a great
deal and he did not feel they were helping, and he asked Dr.
Walker to change his medication. Dr. Baker added an entry
under “neurologic testing” indicating that a 25
foot walk test took 25 seconds. He was started on Gilenya and
Ampyra for the lower extremity weakness. Dr. Walker also
signed off on a disabled placard for Plaintiff's car.
The Administrative Proceedings
The Administrative Hearing
September 19, 2012, Hearing
time of the first hearing, Plaintiff was 52 years old with a
tenth grade education. (Tr. 261). He lived in a two-story
home with his wife. She had driven him to the hearing.
Plaintiff's wife paid the couple's bills by working
outside of the home. Prior to his onset of disability,
Plaintiff had worked repairing engines, air conditioners,
refrigeration units. (Tr. 263). He testified that he had
worked as a manager and supervisor for 17 years. (Tr. 264).
He oversaw up to 16 workers, reviewed their performance and
estimated the cost of jobs he also worked alongside them and
was “a hands-on type.”
used a cane occasionally which had not been prescribed by a
doctor. (Tr. 262). He later explained that his legs felt weak
and he had fallen, so he purchased it on his own for
stability. (Tr. 274). He tried not to use it, but every few
months felt the need.
Plaintiff identified fatigue as the most troublesome symptom
of his MS. He said at first he had good and bad days, and as
time had progressed, he had bad and worse days. (Tr. 265).
His feet were numb, he was weak, noticed reduced “brain
function, ”and suffered joint and muscle pain on a
daily basis. (Tr. 266). He didn't take anything other
than Aleve. He didn't know of any way to ...