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McClung v. Commissioner of Social Security Administration

United States District Court, D. South Carolina

November 16, 2017

MICHAEL STEPHEN MCCLUNG, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          REPORT AND RECOMMENDATION

          BRISTOW MARCHANT, UNITED STATE 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 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.[1] (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. (R.pp.1-5).

         Plaintiff 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.

         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 (8th Cir. 2008)[Nothing that the substantial evidence standard is even “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 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[2] 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.[3] (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).

         By 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).

         On 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.” (R.p. 676).

         In July 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 selection.

(R.p. 338).

         Plaintiff 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).

         On 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).

         On 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 ...


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