Chalmers v. Berryhill

          REPORT AND RECOMMENDATION

          BRISTOW MARCHANT UNITED STATES MAGISTRATE JUDGE.

         The Plaintiff filed the complaint in this action 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 Civil Rule 73.02(B)(2)(a)(D.S.C.).

         Plaintiff applied for Disability Insurance Benefits (DIB) on November 7, 2011, alleging disability beginning February 15, 2011 due to shoulder/neck pain, arthritis in his shoulder, back problems, and high blood pressure. (R.pp. 15, 173, 197). Plaintiff's claim was denied both initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge (ALJ), which was held on June 3, 2014. (R.pp. 32-80). The ALJ thereafter denied Plaintiff's claim in a decision issued October 15, 2014. (R.pp. 15-26). 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. 1-5).

         Plaintiff then filed this action in United States District Court. Plaintiff asserts that the ALJ's decision is not supported by substantial evidence, and that the decision should be remanded for further consideration and a new decision. 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 (8^th cir. 2008)[Noting that the substantial evidence standard is “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 reveal that Dr. Lee Patterson of Carolina Bone and Joint Clinic performed a left shoulder arthroscopy with debridement of Plaintiff's left (dominant) shoulder on August 22, 2007. (R.pp. 509-511).^[1] This was three and a half (3 ½) years before Plaintiff alleges he became disabled. On February 22 and 27, 2010, Plaintiff was treated in the emergency room at Self Regional Healthcare for complaints of headache and low back pain after a motor vehicle accident. CT scans without contrast were noted to be normal (February 22, 2010) and unremarkable (February 27, 2010). (R.pp. 293-297, 308-315).

         On February 15, 2011 (the date Plaintiff alleges he became disabled), Plaintiff was injured in another motor vehicle accident and was treated for left shoulder pain and fractured ribs at Self Regional. CT scans (with contrast) of Plaintiff's abdomen and pelvis, chest, and head showed possible non-displaced fractures of his right ninth and tenth posterior ribs with adjacent atelectasis as well as bullous emphysematous changes in the right apex of his lung with faint nodular densities in the right apex for which follow-up was needed to ensure stability. However, a CT scan (with contrast) of Plaintiff's head showed no acute intracranial abnormalities, while an x-ray of his shoulder showed no fracture or subluxation. Plaintiff was discharged the same day and cleared to return to work on February 17, 2011 with no limitations. (R.pp. 326-339, 518).

         On February 25, 2011, Plaintiff received follow up treatment with Dr. Vincent S. Toussaint for residuals of his motor vehicle accident. (R.p. 561). Plaintiff continued to complain to Dr. Toussaint of left shoulder pain on March 7, 2011. (R.p. 558). On March 11, 2011, he reported that his left shoulder pain had not improved and that he also had chest pain. (R.p. 558). On March 16, 2011, Plaintiff complained of numbness down his left arm while sleeping, and Dr. Toussaint noted that Plaintiff had decreased range of motion. (R.p. 557). On March 21, 2011, Dr. Toussaint referred Plaintiff to an orthopedist. (R.p. 556).

         On April 14, 2011, Dr. William S. Owens, Jr. of Palmetto Bone and Joint examined Plaintiff for complaints of left shoulder injury with pain in his neck and pain and numbness radiating down his left upper extremity into his entire hand. Examination revealed that Plaintiff had no tenderness at the S.C. joint, but his neck pain and some of his left upper extremity pain was reproduced with motion in his neck and he had tenderness at the AC joint and the anterior lateral aspect of the acromion, some pain with passive motion of his shoulder, pain throughout the impingement region with cross chest adduction, essentially full range of motion of his shoulder, and hyporeflexia in his cervical spine (C5, 6, and 7). Dr. Owens' impression was left shoulder and arm pain, and he ordered an EMG and an MRI of Plaintiff's shoulder. (R.p. 416). An MRI of Plaintiff's left shoulder was then performed on April 27, 2011, which indicated the presence of a moderate-sized bone contusion of the distal clavicle at the AC joint with accompanying sprain of Plaintiff's shoulder ligaments. (R.p. 417).

         On May 5, 2011, he was examined by Dr. Daniel Sheehan at Palmetto Bone and Joint. Cervical range of motion testing reproduced neck pain, and Plaintiff complained of discomfort with attempted range of motion of the left shoulder, tenderness of the left AC joint, absent deep tendon reflexes in the bilateral upper extremities, atrophy of the thenar eminence, mild tenderness of the left volar wrist, and left shoulder pain with crossed adduction of his left shoulder. Plaintiff also complained of pain and paresthesias in the peri-scapular muscles. Dr. Sheehan opined that the electrodiagnostic findings and clinical assessment were consistent with cervical radiculopathy affecting the C5 and C6 nerve root distributions on the left, mild/moderately severe median neuropathy at the left wrist, mild ulnar neuropathy at the left elbow, and rib fractures. Plaintiff planned to follow up with Dr. Toussaint regarding further evaluation of his rib fractures and the chest CT scan, and to follow up with Dr. Owens regarding further management of his neck, shoulder, and left upper extremity symptoms. (R.pp. 415, 421).

         Plaintiff saw Dr. Owens on May 11, 2011. On examination Plaintiff complained of tenderness at the distal clavicle and AC joint; he had good range of motion of his elbow; was a bit tender at the ulnar nerve at the cubital tunnel but had negative Froment and Wartenberg signs; he had positive Tinel and Phalen signs at the carpal tunnel but was negative at the pronator region; and he had full filling of his hand from the radial and ulnar arteries. Dr. Owens' impression was EMG documented left C5-6 radiculopathy, left carpal tunnel syndrome, early left cubital tunnel syndrome, and left AC sprain. He injected Plaintiff's AC joint; set up a cervical spine MRI, and indicated that Plaintiff was to have an epidural at ¶ 5-6 following the MRI. (R.p. 414). However, on May 25, 2011, Dr. Owens noted that worker's compensation would not approve the cervical MRI, and he did not think there was anything he could do until Plaintiff's neck situation was resolved. (R.p. 413). Plaintiff thereafter returned to Dr. Owens on August 24, 2011 with complaints of left shoulder pain. Examination indicated that the majority of Plaintiff's pain was at the AC joint, and x-rays revealed post-traumatic arthritic changes. It was noted that worker's compensation wanted Dr. Owens to deal only with Plaintiff's left shoulder injury. Plaintiff requested narcotic pain medication, but Dr. Owens said it would be inappropriate at that stage of treatment. He did, however, give Plaintiff an injection in his shoulder. (R.p. 412).

         On September 16, 2011 (now seven months post his February 2011 motor vehicle accident), an MRI of Plaintiff's cervical spine revealed multilevel cervical spondylosis with no significant area of spinal canal or neural foraminal compromise. There was also normal signal intensity within the spinal cord. (R.pp. 281-282). On September 20, 2011, Dr. Michael N. Bucci of Piedmont Spine and Neurosurgical Group noted that an MRI of Plaintiff's cervical spine showed no areas of significant stenosis or disc herniation, although an EMG was suggestive of radiculopathy. Plaintiff complained of left neck pain radiating to his left hand with numbness and a cold sensation in his hand, and that lifting aggravated his symptoms. However, an examination revealed that Plaintiff had normal tone, strength, reflexes, coordination, and gait. It was also noted that Plaintiff had an appropriate fund of knowledge, no attention deficit, no impairment of concentration, no impairment of global orientation, and no impairment in ...