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Laws v. Berryhill

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

July 11, 2017

Andre Laws, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, Defendant.

          ORDER

          R. Bryan Harwell, United States District Judge

         Plaintiff Andre Laws (“Plaintiff”) seeks judicial review, pursuant to 42 U.S.C. § 405(g), of a final decision of the Commissioner of the Social Security Administration (the “Commissioner”) denying Plaintiff's claim for disability insurance benefits (“DIB”) under Title XVI of the Social Security Act (the “Act”). The matter is before the Court for review of the Report and Recommendation of United States Magistrate Judge Shiva V. Hodges, made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2) for the District of South Carolina. The Magistrate Judge recommends the Court affirm the Commissioner's decision. [ECF #20');">20');">20');">20');">20');">20');">20');">20]. Plaintiff now seeks a second remand of this case for further administrative proceedings.

         Factual Findings and Procedural History

         Plaintiff applied for DIB on August 3, 20');">20');">20');">20');">20');">20');">20');">2009, alleging an onset date of May 26, 20');">20');">20');">20');">20');">20');">20');">2009. Plaintiff's application was denied initially and upon reconsideration. On October 4, 20');">20');">20');">20');">20');">20');">20');">2011, Plaintiff had a hearing before an Administrative Law Judge, but ultimately the ALJ determined Plaintiff was not disabled. [ECF #9-2]. The case was subsequently remanded back to the Appeals Council from the United States District Court for the District of South Carolina to reconsider claimant's mental impairments and subjective complaints. Plaintiff again testified at a hearing on June 25, 20');">20');">20');">20');">20');">20');">20');">2015. A vocational expert was present at the hearing. Plaintiff's Title II application that he filed on June 13, 20');">20');">20');">20');">20');">20');">20');">2013 was also consolidated with this remanded claim.

         Plaintiff's background and medical history have previously been set forth in the R&R, as well as in the R&R from Plaintiff's prior case. See Laws v. Commissioner of Social Security Administration, No. 1:13-1309-RBH (D.S.C. July 17, 20');">20');">20');">20');">20');">20');">20');">2014). Briefly stated, in 1990, Plaintiff sustained gunshot wounds to his left lower extremity, right forearm, left forearm, and left thigh in an attack that occurred while he was stationed at Fort Hood in Texas. [ECF #9-7, Ex. 1F]. In July of 20');">20');">20');">20');">20');">20');">20');">2008, Plaintiff had surgery on his left foot and ankle. [ECF #9-7, Ex. 2F]. Later that year, Plaintiff went for a rehabilitation consultation, which included a nerve conduction study and x-rays. These results revealed no acute abnormality but did show prominent deformity in the distal shafts of the left tibia and fibula, as well as osteodegenerative changes. [ECF #9-7, Ex. 2F]. Plaintiff was diagnosed with degenerative joint disease and diminishing ankle range and distal tibial angulation. [ECF #9-7, Ex. 2F]. In May 6, 20');">20');">20');">20');">20');">20');">20');">2009, Plaintiff presented to Dr. Nosizwe A. Sellers for left ankle and foot problems because he had difficulty standing after sitting for a period of time, as well as he was frequently tripping over his feet. [ECF #9-7, Ex. 1F]. Dr. Sellers observed Plaintiff and noted he had an antalgic gait with foot drop; abnormality of the lateral foot and ankle, hammerfoot, and tenderness in the posterial ankle, Achilles tendon and metatarsals. [ECF #9-7, Ex. 1F]. Plaintiff was diagnosed with Achilles tendinitis and post-traumatic arthralgia. [ECF #9-7, Ex. 1F]. Plaintiff was referred to Dr. Gene Massey, as well as prescribed physical therapy and a controlled ankle motion walker. [ECF #9-7, Ex. 1F]. Over the course of the remainder of that year, Plaintiff continued to suffer from pain in his left heel, foot and ankle. [ECF #9-7, Ex. 1F]. In June of 20');">20');">20');">20');">20');">20');">20');">2009, Dr. Sellers provided Plaintiff with a note indicating Plaintiff was not to return to work until July 8, 20');">20');">20');">20');">20');">20');">20');">2009. [ECF #9-7, Ex. 1F]. Moreover, in July of 20');">20');">20');">20');">20');">20');">20');">2009, Dr. Robert Santrock, who performed surgery on his left foot and ankle in 20');">20');">20');">20');">20');">20');">20');">2008, opined that Plaintiff qualified for 100% disability and compensation from the Office of Veterans Affairs (the “VA”), stating that Plaintiff could not return to work without significant pain or dysfunction, despite giving it a “valiant try.” [ECF #9-7, Ex. 2F]. Later in that month, Dr. Santrock provided Plaintiff with a letter stating Plaintiff was at maximum medical improvement, had a 100% disability of the left lower extremity, could not stand more than fifteen minutes without pain, and had drop foot and poor sensation. [ECF #9-7, Ex. 2F]. At the end of 20');">20');">20');">20');">20');">20');">20');">2009, Plaintiff presented to Dr. Harriet R. Steinert for a neurological consultative examination with complaints related to his left foot, as well as lumbar pain and a tingling sensation in his left hand. His examination was generally normal, but he was assessed by Dr. Steinert with decreased motor strength and sensation in Plaintiff's dominant left hand, left foot drop, and pain in his lower left extremity and hand. [ECF #9-7, Ex. 6F]. State agency physician Dr. Elva Stinson completed an RFC assessment on Plaintiff in December 20');">20');">20');">20');">20');">20');">20');">2009 and indicated he could occasionally lift and/or carry 10 pounds; frequently lift and/or carry less than 10 pounds; stand and/or walk for at least two hours in an eight-hour workday; sit for about six hours in an eight-hour workday; frequently stoop, kneel, reach with left upper extremity, and perform fine fingering with the left hand, occasionally climb ramp/stairs, balance, crouch, and crawl, and never operate foot controls with the left lower extremity, climb ladder/rope/scaffold, or work on uneven terrain. [ECF #9-7, Ex. 5F].

         On January 20');">20');">20');">20');">20');">20');">20');">20, 20');">20');">20');">20');">20');">20');">20');">2010, Dr. Douglas R. Ritz performed a mental status examination on Plaintiff. Dr. Ritz noted that Plaintiff could perform certain tasks and functions, such as cooking, grooming and household chores. He diagnosed Plaintiff with posttraumatic stress disorder and adjustment disorder with depressed mood and provided a global assessment of functioning (GAF) score of 65. [ECF #9-7, Ex. 7F]. A week later, state agency consultant Dr. Samuel Goots completed a psychiatric review form, and after considering Listing 12.04 (affective disorder) and Listing 12.06 (anxiety disorder), found Plaintiff's psychiatric impairments to be non-severe, and further, that he had no restrictions in activities of daily living, mild difficulty in social functioning, mild difficulties in maintaining concentration, persistence, or pace; and no episodes of decompensation. [ECF #9-8, Ex. 2F]. Plaintiff also sought treatment for left shoulder pain in 20');">20');">20');">20');">20');">20');">20');">2010 and was diagnosed with osteoarthritis. [ECF #9-8, Ex. 9F]. In May of 20');">20');">20');">20');">20');">20');">20');">2010, Dorothy Bevis at the Veterans Affairs Medical Center performed Plaintiff's mental health evaluation and found him to be neat and clean, but exhibiting a depressed mood. [ECF #9-8, Ex. 10F]. Plaintiff was assessed a GAF score of 55 by a social worker, Crystal Preston, in May of 20');">20');">20');">20');">20');">20');">20');">2010. [ECF #9-8, Ex. 13F]. Dr. Sellers diagnosed Plaintiff with depression in May of 20');">20');">20');">20');">20');">20');">20');">2010, as well. [ECF #9-8, Ex. 13F]. Plaintiff continued psychotherapy and other psychiatric treatment throughout 20');">20');">20');">20');">20');">20');">20');">2010. [ECF #9-8, Ex. 13F]. In August of 20');">20');">20');">20');">20');">20');">20');">2010, Dr. Ritz assessed Plaintiff with a GAF score of 60 and indicated that Plaintiff has had these mental symptoms for quite some time, but being that he has been able to work in a work-related setting, he hypothesized he currently was still able to do so, as well. [ECF #9-8, Ex. 14F]. On August 26, 20');">20');">20');">20');">20');">20');">20');">2010, state agency consultant Dr. Samuel D. Williams completed a Psychiatric Review Technique Form (“PRTF”) and concluded Plaintiff's impairments were not severe, with only mild difficulties in social functions, concentration, persistence and pace. [ECF #9-8, Ex. 15F]. That same day, Dr. Robert Heilpern completed an RFC assessment on Plaintiff indicating Plaintiff could perform the following: occasionally lift and/or carry 10 pounds; frequently lift and/or carry less than 10 pounds; stand and/or walk for at least two hours in an eight-hour workday; sit for about six hours in an eight-hour workday; never push and/or pull with the left lower extremity; occasionally climb ramp/stairs; never climb ladder/rope/scaffolds; occasionally balance; frequently stoop; frequently kneel; occasionally crouch; occasionally crawl; never work on uneven terrain; frequently reach with left upper extremity; and frequently perform fine fingering with the left hand. [ECF #9-8, Ex. 16F]. Plaintiff sought the care of Dr. Eric Byrd in September of 20');">20');">20');">20');">20');">20');">20');">2010 who did not notice any major impairments other than those previously discussed. Plaintiff also sought the care of Dr. Mahajan in November of 20');">20');">20');">20');">20');">20');">20');">2010 for a two-week history of on-and-off chest pain. This continued for another week, and nurse practitioner Julia M. Hucks, as well as Dr. Mahajan, noted Plaintiff was tender in his anterior chest wall and had epigastric tendernesss. [ECF #10-9, Ex. 29F].

         On January 13, 20');">20');">20');">20');">20');">20');">20');">2011, Plaintiff went to visit with Dr. Kithianis, where the doctor observed that Plaintiff denied taking his medications regularly and complained of difficulty sleeping. [ECF #9-9, Ex. 20');">20');">20');">20');">20');">20');">20');">20F]. Plaintiff also reported feeling isolated. [ECF #9-9, Ex. 20');">20');">20');">20');">20');">20');">20');">20F]. Plaintiff also continued with psychotherapy and mental health treatment in 20');">20');">20');">20');">20');">20');">20');">2011 and was assessed a GAF score of 55 by Ms. Preston. [ECF #9-9, Ex. 20');">20');">20');">20');">20');">20');">20');">20F]. Dr. Kithianis also assessed Plaintiff with a GAF score of 55 in April of 20');">20');">20');">20');">20');">20');">20');">2011. [ECF #9-9, Ex. 20');">20');">20');">20');">20');">20');">20');">20F]. On May 23, 20');">20');">20');">20');">20');">20');">20');">2011, Plaintiff presented to nurse practitioner James A. Grzech with complaints of a headache, elevated blood pressure, and blurred vision. [ECF #10-9, Ex. 29F]. A few days later, he was still complaining of headaches and chronic pain, as well as interrupted sleep. [ECF #9-9, Ex. 20');">20');">20');">20');">20');">20');">20');">20F]. On June 9, 20');">20');">20');">20');">20');">20');">20');">2011, Plaintiff visited Dr. Sellers for primary care because he was having pain in his back, and pain radiating down his leg. Dr. Sellers observed that Plaintiff had left upper extremity weakness and decreased grip strength. His gait was otherwise normal, and an x-ray showed a loss of disc height at ¶ 5-S1, but no other abnormalities. During the summer and fall of 20');">20');">20');">20');">20');">20');">20');">2011, Plaintiff continued to seek treatment from Dr. Kithianis. On November 29, 20');">20');">20');">20');">20');">20');">20');">2011, Plaintiff sought care from Dr. Gregory J. Roberts for a gastroenterology consultation. Plaintiff complained of chronic constipation, as well as pain in his back and rectum. He was referred for a colonoscopy.

         On January 4, 20');">20');">20');">20');">20');">20');">20');">2012, Dr. Sellers saw Plaintiff who noted that his EMG was normal. On February 24, 20');">20');">20');">20');">20');">20');">20');">2012, MRI results revealed that Plaintiff had degenerative disc disease with annular bulging or a broad-based disc protrusion and a posterior annular tear at ¶ 4-5. [ECF #10-8, Ex. 23F]. In March of 20');">20');">20');">20');">20');">20');">20');">2012, Dr. Jacqueline Pineda stated Plaintiff had mild compression of the nerve and recommended conservative treatment for his back. [ECF #10-6, Ex. 23F]. Plaintiff also continued to seek treatment in 20');">20');">20');">20');">20');">20');">20');">2012 for depression and anxiety, that according the medical records appeared to ebb and flow. On September 14, 20');">20');">20');">20');">20');">20');">20');">2012, Plaintiff attended a compensation and pension examination, where he reported difficulty standing for long periods and difficulty with tasks involving reaching and lifting. [ECF #10-7, Ex. 24F]. At that time, Plaintiff had reduced flexion of his lumbar spine, and 5/5 strength on all muscle strength testing, aside from a finding of 3/5 strength with left ankle dorsiflexion. [ECF #10-7, Ex. 24F]. Otherwise, he had no muscle atrophy, and no signs of radiculopathy. [ECF #10-7, Ex. 24F]. On October 10, 20');">20');">20');">20');">20');">20');">20');">2012, an occupational therapist approved Plaintiff for a shower chair, hand-held shower hose, a sock aid, and a long-handled bath sponge because Plaintiff was indicating problems with balance due to nerve damage in his foot. [ECF #10-7, Ex. 24F].

         In March of 20');">20');">20');">20');">20');">20');">20');">2013, Plaintiff denied taking his mental health medications regularly, indicating his mood was stable. [ECF #10-7, Ex. 24F]. On July 11, 20');">20');">20');">20');">20');">20');">20');">2013, Plaintiff discussed problems he was experiencing sleeping, and his doctor indicated that these may be the result of untreated sleep apnea. [ECF #10-7, Ex. 24F]. Dr. Kithianis recommended Plaintiff consult with Dr. Sellers to obtain a replacement CPAP machine. [ECF #10-7, Ex. 24F]. He eventually received a new CPAP machine. On February 17, 20');">20');">20');">20');">20');">20');">20');">2014, Plaintiff followed up with Ms. Hucks after an emergency room visit for chest pain. [ECF #10-9, Ex. 29F]. On September 10, 20');">20');">20');">20');">20');">20');">20');">2014, Ms. Hucks indicated that Plaintiff showed poor compliance with treatment and did not follow a diet and exercise regimen. [ECF #10-9, Ex. 29F]. While Plaintiff complained of left leg pain and foot drop, Ms. Hucks did not observe any abnormalities. [ECF #10-9, Ex. 29F]. On September 15, 20');">20');">20');">20');">20');">20');">20');">2014, Plaintiff presented to Dr. Deborah Louise Mitchell for a primary care visit, and at that time complained of left lower extremity pain and slightly swelling that had onset approximately two weeks prior. [ECF #10-9, Ex. 26F]. Dr. Mitchell indicated Plaintiff had a slight limp and was favoring his left lower extremity. [ECF #10-9, Ex. 26F]. He was diagnosed with left lower extremity pain and tension headache. [ECF #10-9, Ex. 26F]. On November 10, 20');">20');">20');">20');">20');">20');">20');">2014, Plaintiff presented to Ms. Hucks, complaining of right foot pain after completing four miles on an elliptical trainer. [ECF #10-9, Ex. 29F]. She observed Plaintiff was tender near his Achilles tendon. [ECF #10-9, Ex. 29F].

         In March of 20');">20');">20');">20');">20');">20');">20');">2015, Plaintiff had x-rays performed which showed no change in his distal left lower leg; postsurgical changes in his left great toes since May 20');">20');">20');">20');">20');">20');">20');">2008, mild degenerative joint diseases and degenerative changes to his ankles. [ECF #10-9, Ex. 30F]. Plaintiff attended a consultative examination with Dr. Pravin Patel on April 2, 20');">20');">20');">20');">20');">20');">20');">2015 wherein Dr. Patel observed Plaintiff was mentally clear and coherent, had multiple gunshot wound injuries to his left arm, right arm, and left leg; left shoulder bursitis, degenerative disc disease of the lumbar spine, hypertension, borderline type II diabetes; PTSD, hiatal hernia, and gastroesophageal reflux disease. [ECF #10-9, Ex. 27F]. Dr. Patel also completed a medical source statement. His statement included the following information: Plaintiff could frequently lift up to 20');">20');">20');">20');">20');">20');">20');">20 pounds and could occasionally lift 21 to 50 pounds with his right hand, but could lift much less with his left hand. [ECF #10-9, Ex. 28F]. Plaintiff could frequently carry up to 10 pounds and could occasionally carry 11 to 20');">20');">20');">20');">20');">20');">20');">20 pounds. [ECF #10-9, Ex. 28F]. Plaintiff could sit for approximately one hour without interruption, stand for 30 minutes without interruption, and walk 30 minutes without interruption. [ECF #10-9, Ex. 28F]. Plaintiff could sit for six hours in an eight-hour workday; could stand for one hour in an eight-hour workday; and could walk for one hour in an eight- hour workday. [ECF #10-9, Ex. 28F]. Plaintiff could frequently reach overhead and in other directions, and handle, finger, feel and push/pull with his right hand. [ECF #10-9, Ex. 28F]. Occasionally, Plaintiff could reach overhead and in other directions and handle, and push/pull with his left hand. [ECF #10-9, Ex. 28F]. Plaintiff could frequently finger and feel with his left hand. [ECF #10-9, Ex. 28F]. Plaintiff could frequently use his right foot and occasionally use his left foot to operate finger controls. [ECF #10-9, Ex. 28F]. Plaintiff could frequently balance, occasionally climb stairs and ramps but not ladders or scaffolds, could stoop, kneel, crouch, and crawl, and frequently be exposed to humidity, wetness, dust, odor, fumes and other like elements. [ECF #10-9, Ex. 28F]. Plaintiff could occasionally be exposed to unprotected heights, moving mechanical parts, and could operate a motor vehicle. [ECF #10-9, Ex. 28F]. Plaintiff could shop, travel without a companion, ambulate, walk a block at a reasonable pace, use public transportation, climb a few steps at a reasonable pace with use of a handrail, prepare simple meals, and feed and care for himself. [ECF #10-9, Ex. 28F].

         As previously mentioned the first ALJ to review this case issued an unfavorable decision on November 10, 20');">20');">20');">20');">20');">20');">20');">2011. On March 12, 20');">20');">20');">20');">20');">20');">20');">2013, the Appeals Council denied Plaintiff's request for review. Plaintiff subsequently brought an action seeking judicial review of the Commissioner's decision on May 14, 20');">20');">20');">20');">20');">20');">20');">2013. On July 30, 20');">20');">20');">20');">20');">20');">20');">2014, this Court issued an order reversing the ALJ's decision and remanding the case for further administrative proceedings related to claimant's mental impairments and subjective complaints. Thereafter, Plaintiff had a second hearing on June 25, 20');">20');">20');">20');">20');">20');">20');">2015. At the time of Plaintiff's second hearing, Plaintiff was forty-four years old. Plaintiff has a Bachelor of Science degree in workforce education. His past relevant work includes his employment as a cemetery worker. On July 25, 20');">20');">20');">20');">20');">20');">20');">2015, the ALJ issued an unfavorable decision, finding that Plaintiff was not disabled within the meaning of the Act. On March 7, 20');">20');">20');">20');">20');">20');">20');">2016, the Appeals Council declined to assume jurisdiction, making the ALJ's decision the final decision of the Commissioner.

         The ALJ's findings in July of 20');">20');">20');">20');">20');">20');">20');">2015 were as follows:

(1) The claimant last met the insured status requirements of the Social Security Act through December 31, 20');">20');">20');">20');">20');">20');">20');">2014.
(2) The claimant did not engage in substantial gainful activity during the period from his alleged onset date of May 26, 20');">20');">20');">20');">20');">20');">20');">2009, through his date last insured of December 31, 20');">20');">20');">20');">20');">20');">20');">2014 (20');">20');">20');">20');">20');">20');">20');">20 C.F.R. 404.1571 et seq.).
(3) Through the date last insured, the claimant had the following severe impairments: multiple fractures, left lower extremity, status post gunshot wound, with residual neurological damage, including left foot drop; peripheral neuropathy; left ankle Achilles tendonitis, status post gastroc slide procedure; osteoarthritis; degenerative joint disease, left shoulder; obesity; adjustment disorder with depression; and post-traumatic stress disorder (20');">20');">20');">20');">20');">20');">20');">20 C.F.R. 404.1520');">20');">20');">20');">20');">20');">20');">20(c)).
(4) Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20');">20');">20');">20');">20');">20');">20');">20 C.F.R. Part 404, Subpart P, Appendix 1 (20');">20');">20');">20');">20');">20');">20');">20 C.F.R. 404.1520');">20');">20');">20');">20');">20');">20');">20(d), 404.1525, 404.1526).
(5) After careful consideration of the entire record, I find that, through the date last insured, the claimant had the residual functional capacity to perform a range of sedentary work as defined in 20');">20');">20');">20');">20');">20');">20');">20 C.F.R. 404.1567(a) in that he could lift and carry up to ten pounds occasionally and less than ten pounds frequently; stand for about thirty minutes at one time and a total of about one hour in a workday; walk for about thirty minutes at one time and a total of one hour in a workday; and sit for about one hour at a time and a total of about six hours in a work day. He was limited to frequent pushing and pulling with the right upper extremity and no more than occasional pushing and pulling with the dominant left upper extremity. He could frequently balance and occasionally climb ramps and stairs, but never stoop, kneel, crawl, or climb ladders, ropes and scaffolds. He could frequently reach overhead and in any other direction or perform gross handling with the right upper extremity, but no more than occasionally perform those tasks with the dominant left upper extremity. He could frequently perform fine motor tasks with the bilateral upper extremities. He could frequently use the right lower extremity to operate foot pedals or other controls and only occasionally do so with the left lower extremity. He had to avoid exposure to unprotected heights, vibration, dangerous machinery, and uneven terrain and concentrated exposure to dust, ...

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