United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
BRISTOW MARCHANT UNITED STATES MAGISTRATE JUDGE.
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
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).
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.
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
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 “less demanding than the
preponderance of the evidence standard”].
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 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). 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,
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).
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).
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).
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).
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.
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 ...