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Baker v. Colvin

United States District Court, D. South Carolina, Florence Division

December 12, 2016

MELVIN C. BAKER, JR., Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security; Defendant.

          REPORT AND RECOMMENDATION

          Thomas E. Rogers, III United States Magistrate Judge.

         This is 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.

         I. RELEVANT BACKGROUND

         A. Procedural History

         Plaintiff 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.

         Meanwhile, 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.

         On June 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[1], 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.

         The period at issue here is from July 2010, Plaintiff's alleged onset, to November 1, 2011, the onset acknowledged by the Commissioner.

         B. Plaintiff's Background and Medical History

         1. Introductory Facts

         Plaintiff 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 mental/emotional issues.

         2. Medical Records and Opinions

         Plaintiff 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).

         Plaintiff 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).

         An MRI 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).

         On 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. (Tr. 157).

         Dr. 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. 166-68).

         On 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).

         Dr. 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).

         Dr. 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).

         On 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).

         Dr. 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).

         Dr. 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. 200-01).

         On 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).

         On May 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. (Tr. 243-45).

         C. The Administrative Proceedings

         1. The Administrative Hearing

         a. September 19, 2012, Hearing

         At the 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.”

         Plaintiff 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.

         Overall, 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 ...


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