United States District Court, D. South Carolina
Vernanza C. Gibson, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant.
V. Hodges, United States Magistrate Judge
appeal from a denial of social security benefits is before
the court for a final order pursuant to 28 U.S.C. §
636(c), Local Civ. Rule 73.01(B) (D.S.C.), and the order of
the Honorable Bruce Howe Hendricks dated July 14, 2016,
referring this matter for disposition. [ECF No. 9]. The
parties consented to the undersigned United States Magistrate
Judge's disposition of this case, with any appeal
directly to the Fourth Circuit Court of Appeals. [ECF No. 8].
files this appeal pursuant to 42 U.S.C. § 405(g) of the
Social Security Act (“the Act”) to obtain
judicial review of the final decision of the Commissioner of
Social Security (“Commissioner”) denying the
claim for disability insurance benefits (“DIB”)
and Supplemental Security Income (“SSI”). The two
issues before the court are whether the Commissioner's
findings of fact are supported by substantial evidence and
whether she applied the proper legal standards. For the
reasons that follow, the court reverses and remands the
Commissioner's decision for further proceedings as set
April 18, 2012, Plaintiff protectively filed applications for
DIB and SSI in which he alleged his disability began on
January 1, 2009. Tr. at 98, 99, 237-43, and 244- 49. His
applications were denied initially and upon reconsideration.
Tr. at 142-46, 147- 51, 157-59, and 160-62. On April 17,
2014, Plaintiff had a hearing before Administrative Law Judge
(“ALJ”) Peggy McFadden-Elmore. Tr. at 30-61
(Hr'g Tr.). The ALJ issued an unfavorable decision on
October 29, 2014, finding that Plaintiff was not disabled
within the meaning of the Act. Tr. at 8-29. Subsequently, the
Appeals Council denied Plaintiff's request for review,
making the ALJ's decision the final decision of the
Commissioner for purposes of judicial review. Tr. at 1-4.
Thereafter, Plaintiff brought this action seeking judicial
review of the Commissioner's decision in a complaint
filed on March 1, 2016. [ECF No. 1].
Plaintiff's Background and Medical History
was 47 years old at the time of the hearing. Tr. at 34. He
was promoted to the tenth grade, but did not complete it. Tr.
at 36. His past relevant work (“PRW”) was as a
welder. Tr. at 37. He alleges he has been unable to work
since January 1, 2009. Tr. at 237 and 244.
presented to the emergency room (“ER”) at
Palmetto Health Baptist (“PHB”) on August 1,
2009. Tr. at 335. He reported fleeting thoughts of suicide,
but was laughing and smiling. Id. Ricky A. Ladd,
M.D. (“Dr. Ladd”), assessed alcohol intoxication
and depression and referred Plaintiff to the
Lexington/Richland Alcohol and Drug Abuse Council
(“LRADAC”). Tr. at 336.
again presented to the ER at PHB on April 8, 2010, with
symptoms of pancreatitis. Tr. at 340. He indicated he
continued to drink alcohol, despite a history of
pancreatitis. Id. Hubert D. Sammons, M.D.
(“Dr. Sammons”), urged Plaintiff to stop drinking
and smoking cigarettes and prescribed Phenergan and Vicodin.
Tr. at 341.
presented to the ER at Palmetto Health Richland
(“PHR”) complaining of left foot pain on June 11,
2010. Tr. at 343. Jeremy Ryan Smith, M.D. (“Dr.
Smith”), indicated Plaintiff had a history of coronary
artery disease and myocardial infarction. Id. He
observed Plaintiff to have some tenderness over the third and
fourth metatarsals of his left foot. Tr. at 344. Dr. Smith
assessed a chronic healing scar and advised Plaintiff to
follow up with his primary care doctor. Id.
10, 2010, Plaintiff returned to PHR with worsening of the
left foot wound. Tr. at 351. He stated he felt like something
was inside the wound and had “seen what had appeared to
be worms crawling out” of it. Id. Jeter P.
Taylor, III, M.D. (“Dr. Taylor”), observed the
wound to have some mild erythema surrounding it and to have
larvae within it. Tr. at 352. Catherine L. Loflin, M.D.
(“Dr. Loflin”), performed a shallow debridement
procedure. Tr. at 355-56. She indicated Plaintiff should
change his wound dressings twice a day and should use
postoperative shoes, but would not require vascular follow
up. Tr. at 356.
was hospitalized at Morris Village Alcohol and Drug Addiction
Treatment Center (“Morris Village”) from August
31 through October 4, 2011. Tr. at 389. He indicated he had
started drinking at the age of 12 and that his drinking had
become problematic at age 30. Id. He indicated he
had a history of alcohol-related seizures and had recently
developed distortions of his face, mouth, and eyes.
Id. Upon discharge, Plaintiff was encouraged to
attend Alcoholics Anonymous Meetings, to obtain a sponsor, to
seek individual or group therapy, to secure a group home, and
to get a job and practice responsible behaviors. Tr. at 402.
visited Pamela Carlton, Ph. D. (“Dr. Carlton”),
for an adult psychological evaluation on August 28, 2012. Tr.
at 361-68. He reported symptoms of depression and described a
history of abuse and tragic deaths within his family. Tr. at
362. He denied problems getting along with coworkers and
supervisors. Tr. at 364. He stated he enjoyed making people
laugh, but had no friends and preferred to keep to himself.
Id. After interviewing claimant and assessing his
intelligence quotient (“IQ”) on the Fourth
Edition of the Wechsler Adult Intelligence Scale
(“WAIS-IV”) and his mathematical and reading
levels on the Fourth Edition of the Wide Range Achievement
Test (“WRAT-4”), Dr. Carlton concluded that he
appeared to have mild difficulties handling typical ADLs;
would likely have difficulty concentrating and persisting at
a task for more than an hour; and would likely require
assistance to handle funds. Tr. at 367. However, she noted
Plaintiff had no limitations in his ability to function in a
socially-appropriate manner in a work setting. Id.
She assessed alcohol dependence in remission; cognitive
disorder, not otherwise specified (“NOS”); and
post-traumatic stress disorder (“PTSD”).
presented to Damon Daniels, M.D. (“Dr. Daniels”),
for a consultative examination on August 30, 2012. Tr. at
370-73. He reported having sustained a heart attack nine
years earlier. Tr. at 370. He endorsed progressive shortness
of breath and chest pain with exertion. Id. He
reported a history of chronic abdominal pain and
pancreatitis. Id. He endorsed a history of alcohol
abuse, but indicated he had been clean since his
hospitalization at Morris Village, aside from a brief
relapse. Id. He reported tremors and cramps in his
feet. Tr. at 371. He stated he smoked half a pack of
cigarettes daily and had last consumed alcohol six months
earlier. Id. Plaintiff weighed 136 pounds and was
5' 11 ½” tall. Id. He had 1
pitting edema in his bilateral lower extremities.
Id. He moved from the chair to the exam table
without difficulty, but was unable to tandem or heel-to-toe
walk and had difficulty squatting. Id. He had normal
range of motion in his cervical spine, lumbar spine,
shoulders, elbows, wrists, knees, hips, and ankles. Tr. at
372. He had 4/5 grip strength and intact fine and gross
manipulation bilaterally. Id. He had 4/5 strength in
the proximal and distal muscle groups of his upper
extremities and 3/5 strength in the proximal and distal
muscle groups of his lower extremities. Id. He had
diminished sensation to light touch and pinprick on the
dorsal and plantar surfaces of his bilateral feet.
Id. He scored 22 of out 30 points on the Mini-Mental
State Exam (“MMSE”) and demonstrated deficits in
attention, calculation, recall, and language. Id.
Dr. Daniels assessed coronary artery disease, alcohol abuse,
chronic pancreatitis, memory loss, and alcoholic neuropathy.
Id. He stated Plaintiff's “primary issues
are that of his balance and gait.” Tr. at 373.
September 4, 2012, Jody Lenrow, Psy. D. (“Dr.
Lenrow”), completed a psychiatric review technique form
(“PRTF”). Tr. at 67-71. She considered Listings
12.02 for organic mental disorders, 12.04 for affective
disorders, 12.06 for anxiety-related disorders, and 12.09 for
substance addiction disorders and determined that Plaintiff
had moderate restriction of activities of daily living
(“ADLs”), mild difficulties in maintaining social
functioning, and moderate difficulties in maintaining
concentration, persistence, or pace. Tr. at 67-68. Dr. Lenrow
wrote the following:
CL has long hx of alcohol dependence as well as PTSD,
BIF/cognitive d/o NOS, and hx of mood px
associated w alcohol. He reports he is no longer consuming
alcohol. CE notes IQ scores ranging 65-74 with consistent
achv scores. Functionally, he has a long work hx, including
welder, landscaper, and meat cutter/stocker. He has no px
socially, mild to moderate px with ADL's, but some
moderate px with CP&P. He retains the ability to perform
simple repetitive work related tasks.
Tr. at 69. She also indicated she found Plaintiff's
statements about his impairments and functional limitations
to be partially credible because his unusual answers during
the consultative examination raised the possibility that he
might not have been putting forth adequate effort. Tr. at 70.
She cited Plaintiff's work history and daily activities
and concluded that he was likely “functioning at the
BIF level” and would likely have problems with written
instructions and keeping up pace with his coworkers. Tr. at
she concluded Plaintiff was capable of performing simple,
repetitive tasks. Tr. at 71. She found that Plaintiff was
moderately limited with respect to the following mental
abilities: to understand and remember detailed instructions;
to carry out detailed instructions; to maintain attention and
concentration for extended periods; to perform activities
within a schedule, maintain regular attendance, and be
punctual within customary tolerances; to sustain an ordinary
routine without special supervision; to complete a normal
workday and workweek without interruptions from
psychologically-based symptoms; to perform at a consistent
pace without an unreasonable number and length of rest
periods; to respond appropriately to changes in the work
setting; and to set realistic goals or make plans
independently of others. Tr. at 73-75. Timothy Laskis, Ph. D.
(“Dr. Laskis”), indicated the same degree of
limitation and restrictions in a PRTF and mental RFC
evaluation on February 21, 2013. Tr. at 106-08 and 113-15.
presented to the ER at Providence Hospital on September 10,
2012, with a complaint of left foot pain. Tr. at 375. Cale
Michael Davis, M.D. (“Dr. Davis”), observed
Plaintiff to have soft tissue tenderness and erythema in his
left foot. Tr. at 378. He diagnosed early cellulitis and
prescribed an antibiotic. Id.
September 26, 2012, state agency consultant Lindsey Crumlin,
M.D. (“Dr. Crumlin”), reviewed the evidence and
assessed Plaintiff's physical residual functional
capacity (“RFC”). Tr. at 72-73. She indicated
Plaintiff was capable of performing work with the following
limitations: occasionally lift and/or carry 20 pounds;
frequently lift and/or carry 10 pounds; stand and/or walk
about six hours in an eight-hour workday; sit for a total of
about six hours in an eight-hour workday; occasionally climb
ramps and stairs, balance, stoop, kneel, crouch, and crawl;
and never climb ladders, ropes, or scaffolds. Id.
Darla Mullaney, M.D. (“Dr. Mullaney”), assessed
the same physical RFC on February 21, 2013. Tr. at 111-13.
presented to Kim E. Davis, D.O. (“Dr. Davis”), to
establish care on October 29, 2012. Tr. at 415-22. He
complained of a wound on his left foot that had failed to
heal, bilateral foot numbness, chest pain, shortness of
breath, dyspnea on exertion, orthopnea, and vitiligo. Tr. at
416. Dr. Davis debrided and cleaned a six-centimeter wound to
Plaintiff's left foot and referred him for a deep
debridement procedure. Tr. at 419. She prescribed Coreg and
instructed Plaintiff to obtain it through Well Vista. Tr. at
November 5, 2012, Plaintiff underwent surgical wound
exploration and excision of a two-centimeter left foot
abscess. Tr. at 409. He followed up with Dr. Davis on
November 21, 2012. Tr. at 423. He reported his left foot
wound was feeling much better. Id. He complained of
paresthesias in his bilateral distal toes. Tr. at 424. Dr.
Davis debrided some necrotic tissue at the base of
Plaintiff's wound. Tr. at 425. She refilled
Plaintiff's prescription for Doxycycline for two more
weeks and instructed him to continue using wet-to-dry
dressings. Tr. at 423. She noted Plaintiff had not started
Coreg because he had neglected to apply for Well Vista. Tr.
at 424. She referred Plaintiff to a cardiologist to address
his complaints of chest pain, shortness of breath, orthopnea,
and dyspnea on exertion. Id.
November 29, 2012, Plaintiff reported having sustained a fall
and injured his left side on the prior day. Tr. at 429. Dr.
Davis noted that Plaintiff had not been taking his antibiotic
medication, despite the fact that it was available for free
at Publix and was not taking Coreg because he had not
completed the paperwork for Well Vista. Tr. at 429 and 430.
Plaintiff informed Dr. Davis that he was not taking aspirin
because his family members would not lend him a dollar to
purchase it. Tr. at 430. Dr. Davis debrided Plaintiff's
left foot wound and changed his dressing. Tr. at 431. She
noted Plaintiff's sensation was diminished to pinprick in
his bilateral distal toes. Id.
followed up with Dr. Davis on January 16, 2013. Tr. at 434.
He reported he was unable to obtain his prescribed
medications and indicated Doxycycline was no longer free at
Publix. Id. However, Dr. Davis noted that Plaintiff
filled his prescription for Percocet and continued to drink
alcohol. Id. Plaintiff complained of paresthesias in
his bilateral feet. Id. Dr. Davis observed
Plaintiff's left foot wound to be “[m]uch improved
over previous.” Tr. at 436.
presented to the ER at Providence Hospital on April 8, 2014,
complaining of abdominal pain, nausea, and vomiting. Tr. at
447. He stated he developed symptoms after having consumed
alcohol four days earlier. Tr. at 450. Joshua Philip Baird,
M.D. (“Dr. Baird”), diagnosed acute pancreatitis.
Tr. at 453. Georges T. Postic, M.D. (“Dr.
Postic”), discovered a gastric mass, but indicated it
was likely benign. Tr. at 456.
hearing on April 17, 2014, Plaintiff testified he worked as a
welder at CMC Steel Fabricators. Tr. at 37. He indicated the
work was placed in front of him and he operated the welding
equipment. Tr. at 47. He stated he left the job because the
plant shut down. Tr. at 37. He denied having worked or
collected unemployment benefits since January 1, 2009.
testified that he had recently been hospitalized for
pancreatitis. Tr. at 41. He described his pancreatitis as
causing pain and cramping and indicated his symptoms occurred
nearly every other day and were exacerbated by bending down.
Tr. at 49. He endorsed pain in his feet and his back. Tr. at
45. He endorsed problems with concentrating and completing
tasks. Tr. at 46. He stated his mind often wandered.
Id. He indicated he experienced hallucinations
approximately twice a month. Tr. at 47. He stated his right
hand was shaky. Tr. at 47-48. He indicated he had numbness
and sharp pain in his bilateral feet. Tr. at 48. He testified
he had sustained some falls and had blackouts or fainting
spells two to three times per month. Tr. at 48 and 50.
testified that his driver's test had been administered
orally. Tr. at 49. He denied having the ability to read the
questions on the driver's examination. Id. He
indicated he could perform ...