United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
BRISTOW MARCHANT, UNITED STATE 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 Supplemental Security Income (“SSI”)
on September 12, 2012 (protective filing date) alleging
disability beginning October 31, 2010 due to seizures. (R.pp.
18, 166, 187). Plaintiff s claims were denied both initially
and upon reconsideration. Plaintiff then requested a hearing
before an Administrative Law Judge (“ALJ”), which
was held on March 24, 2015. (R.pp. 38-89). At the hearing,
Plaintiff amended his request to one for a closed period of
SSI benefits, from September 12, 2012 (the date he filed his
application for SSI) until June 30, 2014. (R.pp. 18, 43).
The ALJ thereafter denied Plaintiff's claim in a decision
issued May 1, 2015. (R.pp. 18-32). The Appeals Council denied
Plaintiff's request for review, thereby making the
ALJ's decision the final decision of the Commissioner.
then filed this action in United States District Court.
Plaintiff asserts that there is not substantial evidence to
support the ALJ's decision, and that the decision should
be reversed with an award of benefits or alternatively that
it be remanded for further consideration. 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)[Nothing that the substantial evidence standard is even
“less demanding than the preponderance of the evidence
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 show that he has been diagnosed with seizures
since approximately April 2006. A brain MRI performed on July
25, 2008 showed “findings suggesting mesial temporal
sclerosis on the left.” (R.pp. 370-371, 416).
After being involved in a motor vehicle accident in August
2010, Plaintiff was admitted to the hospital for seizures and
respiratory failure secondary to seizures. (R.p. 440). On
October 30, 2010, Plaintiff had a seizure while at work and
was taken to the hospital by EMS. (R.pp. 654, 664). A drug
screen was positive for cannabinoids. (R.p. 659). Plaintiff
was then hospitalized from October 31, 2010 to November 3,
2010, for seizure disorder, acute renal failure, lactic
acidosis, and rhabdomyolysis. (R.pp. 654-663). An EEG on
November 5, 2010 revealed abnormal findings for a person of
claimant's age. Specifically, it was noted that Plaintiff
had interictal expression of an epileptiform discharge over
bi-temporal lobes independently, which indicated a
predisposition for epilepsy. An independent showing over both
hemispheres (left > right) was nonspecific in etiology but
suggested a structural or functional lesion. (R.pp. 679-680).
January 2011, Plaintiff's renal function had returned to
normal. Dr. Dinesh Chatoth noted that Plaintiff reported that
his seizures began when he was nineteen years old after he
started using drugs and alcohol. Dr. Chatoth advised
Plaintiff to stop using recreational drugs, to continue
taking Keppra and follow up with his neurologist, and to
follow up with his primary care physician for complaints of
depression. (R.pp. 665-66).
February 22, 2011, a brain MRI showed “volume loss in
the bilateral hippocampi with abnormal bright T2 signal most
consistent with bilateral mesial temporal sclerosis.”
2012, Plaintiff underwent neuropsychological testing by Dr.
C. Richelle Fitzsimmons, a psychologist at Peace
Rehabilitation Hospital (PRH). This testing revealed:
Severe memory impairments in both the verbal and visual
context. Specific measures with a high sensitivity to brain
damages were also decreased for [Plaintiff] (i.e. verbal
fluency measure, processing speed tasks). These deficits are
in the context of a very strange neuropsychological profile
characterized by average to well above average performance
across domains of attention, language, visuospatial skills
and executive function. Intelligence and achievement testing
indicate high average to superior abilities. Time pressured
tasks proved to be a relative weakness for [Plaintiff] and
this information would be helpful to keep in mind during job
began a rehabilitation program at PRH on August 3, 2012, and
Dr. Fitzsimmons noted that Plaintiff presented with severe
memory deficits and ongoing depressive symptoms. (R.p. 356).
On August 14, 2012, case manager Lorraine Greene of PRH
Outpatient Brain Injury Program and Dr. John McBurney signed
a Team Treatment Plan Summary for Plaintiff that identified
Plaintiff's deficits as functional memory, awareness of
deficits, limited social support, and select aspects of
emotional health. It was thought that these deficits limited
Plaintiff's functional life in the areas of independent
living, academic re-entry, work re-entry, community
integration, coping skills, and leisure. The plan was for
occupational therapy, physical therapy, speech therapy, and
psychologic treatment. (R.pp. 303-304).
September 12, 2012, Plaintiff began treatment with
neurologist Dr. McBurney (at Greenville Hospital System
University Medical Group). It was noted that Plaintiff had
been seizure free for two years, since October 2010.
Plaintiff reported that his main issue was persistent memory
disturbance; specifically, that his procedural memory and
remote memory were intact, but the learning of new
information was impaired. Dr. McBurney reviewed
neuropsychological testing and noted that it indicated
profound amnestic syndrome. His impression was that the
findings suggested mesial temporal sclerosis on the left.
(R.pp. 365-366). On January 2, 2013, Plaintiff reported to
Dr. McBurney that he had had no seizures since his last visit
and felt better since starting Aricept. (R.p. 374).
January 18, 2013, state agency psychologist Dr. Martha Durham
completed a psychiatric review technique form and a mental
RFC assessment in which she opined that Plaintiff had mild
limitations in his activities of daily living and social
functioning; moderate limitations in concentration
persistence or pace; and no episodes of decompensation. She
further opined that Plaintiff was able to understand,
remember, and carry out short and simple instructions;
maintain concentration and attention for at least two hours;
perform in situations that required ongoing interaction with
the public; and was able to be aware of normal hazards and
take appropriate precautions. Dr. Durham thought that while
Plaintiff had some memory deficits following a seizure, he
had good social skills and good functioning including the
ability to drive, perform chores, cook, manage ...