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Lowther v. Berryhill

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

January 31, 2018

Wesley C. Lowther, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, Defendant.


          R. Bryan Harwell United States District Judge.

         Plaintiff Wesley C. Lowther (“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 his claim for disability insurance benefits (“DIB”) under Title II 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 Bristow Marchant, 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 affirming the Commissioner's decision. [ECF #18].

         Factual Findings and Procedural History

         This Court is tasked with reviewing the denial of benefits for Plaintiff's first application for disability. This time period covers May 2008 through August 26, 2010. Plaintiff initially applied for disability insurance benefits (“DIB”) in July 2008, alleging disability beginning two months prior due to anxiety, back problems, seizures, and sleep apnea. Plaintiff's claim was denied initially and upon reconsideration. After he requested and was granted a hearing, the ALJ denied his claim. Plaintiff's request for a review by the Appeals Council was denied, however in October of 2013, the United States District Court vacated the ALJ's decision and remanded the claim back to the Commissioner. [ECF #11-5, Ex. 7A]. While Plaintiff's claim was pending before the district court, Plaintiff filed a second application for DIB alleging disability beginning August 10, 2010. On February 20, 2013, the ALJ reviewing that application issued a decision awarding Plaintiff benefits beginning August 27, 2010. [ECF # pp. 1183-1193]. Therefore, the present appeal focuses only on whether Plaintiff was disabled from May 6, 2008 to August 26, 2010.

         The Magistrate Judge adequately set forth Plaintiff's medical history in his Report and Recommendation (the “R&R”). Briefly stated, Plaintiff alleges he became disabled on May 6, 2008 as a result of his epilepsy, anxiety, back problems, and sleep apnea. The records reveal that as early as 2005, Plaintiff underwent an MRI of his brain. That MRI revealed Plaintiff had a mass within the superior aspect of the right mastoid air cells that was isoattenuating to brain parenchyma, but no cause for the seizure was seen. [ECF #10-8, Ex. 3F]. Since at least that date, he received medical care related to myoclonic jerks and a history of seizures. On December 26, 2007, when Plaintiff sought medical care because he was experiencing chest pain and shortness of breath, his medical records indicate he had seizure disorder, asthma, and anxiety attacks. [ECF #10-7, Ex. 1F]. In early 2008, Plaintiff was seen for medical issues related to tennis elbow and carpal tunnel syndrome, as well as back pain and numbness in his fingers. [ECF #10-8, Ex. 3F]. Then, on May 6, 2008, Plaintiff was involved in a motor vehicle accident and received medical care due to seizure activity. [ECF #10-7, Ex. 1F]. He was again seen on August 24, 2008 for seizure activity and loss of consciousness, and on August 25, 2008, where he reported intermittent headaches. [ECF #10-9, Ex. 4F]. During this period, a CT scan of Plaintiff's head was negative. [ECF #10-9, Ex. 4F]. In September of 2008, Plaintiff's medical notes indicate that he reported his first generalized tonic clonic seizure in 2002; and since that time, he stated he had 10 seizures. [ECF #10-10, Ex. 9F]. Plaintiff reported an occurrence of a seizure on December 29, 2008 and in January of 2009, he stated he had experienced 3 grand mal seizures since May of 2008, with small seizures occurring, as well. By February of 2009, Plaintiff reported an absence of seizures since he began taking Lamictal. Over this relevant time period, Plaintiff has also sought medical care for spondylosis (his back condition) and diabetes. [ECF #10-9, Ex. 8F]. On March 3, 2009, Plaintiff received a 100% disability evaluation from the Veterans Administration Medical Center. Specifically, his adjustment disorder with anxiety was 70%, sleep apnea was 50%, seizure disorder was 40%, lumbar strain was 10%, and tinnitus was 10% disabling. [ECF #10-12, Ex. 13F]. Plaintiff was also seen and fitted for hearing aids on May 1, 2009.[ECF #10-12, Ex. 17F]. After a seizure in the summer of 2009, followed by small seizures approximately once a month for that year, Plaintiff was seen by a neurologist on April 14, 2010. After this appointment, he was again seen in September of 2010 (after the relevant time period), where he reported approximately 20 petit mal seizures since the April 2010 appointment. [ECF #10-12, Ex. 18F].

         Plaintiff has also been seen for mental health problems. In June of 2008, Plaintiff reported trouble concentrating and keeping his thoughts straight, as well as feeling sad and experiencing trouble sleeping. Plaintiff appears to have reported that his mental issues began around the same time as his seizure onset in 2002. Plaintiff was enrolled in the Mental Health Center. [ECF #10-8, Ex. 3F]. Plaintiff continued treatment for his mental issues throughout the remainder of 2008. In December of 2008, a mental health therapist wrote that Plaintiff experienced mild, intentional tremors likely due to a side effect of Depakote, a medication he was taking for seizure disorder. [ECF #10-12, Ex. 16F]. He continued to seek treatment for depressed mood and sleeping difficulties in 2009 and 2010.

         On September 3, 2008, state agency psychologist Dr. Mary K. Thompson noted that Plaintiff had a personality disorder, a panic disorder and an impulse control disorder. On September 17, 2008, state agency physician Dr. Katrina B. Doig completed a physical evaluation wherein she opined Plaintiff had no exertional limitations, but provided some physical limitations as well as limited his exposure to hazards. On January 14, 2009, state agency psychiatrist Dr. Richard L. Gann concluded Plaintiff suffered from panic disorder and impulse control disorder. On January 26, 2009, state agency physician Dr. William Cain came to similar findings and opinions as Dr. Doig.

         In September 2010, an ALJ held a second hearing on Plaintiff's initial disability claim, and thereafter issued an unfavorable opinion. Plaintiff appealed this decision to the Appeals Council, and the Appeals Council remanded the matter back to the ALJ in June of 2015. Another ALJ then held a third hearing in February 2016 and also found Plaintiff was not disabled prior to August 27, 2010. The Appeals Council denied Plaintiff's request for review, making this ALJ's findings the final decision of the Commissioner of Social Security.

         The ALJ's findings were as follows:

(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 2012.
(2) The claimant did not engage in substantial gainful activity during the period from his alleged onset date of May 6, 2008 through August 26, 2010 (20 C.F.R. 404.1571 et seq.).
(3) Through August 26, 2010, the claimant had the following severe impairments: degenerative disc disease, seizure disorder, asthma, panic disorder with agoraphobia, and impulse control disorder, not otherwise specified (20 C.F.R. 404.1520(c)).
(4) Through August 26, 2010, 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 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525 and 404.1526).
(5) After careful consideration of the entire record, I find that, through August 26, 2010, the claimant had the residual functional capacity to perform medium work as defined in 20 C.F.R. 404.1567(c). Specifically, the claimant was capable of lifting and/or carrying 50 pounds occasionally and 25 pounds frequently. He was capable of standing and/or walking about 6 hours in an 8-hour workday and sitting about 6 hours in an 8-hour workday. He could never climb ladders, ropes, or scaffolds, and he could frequently climb ramps and/or stairs, balance, stoop, kneel, crouch and crawl. He had to avoid concentrated exposure to fumes, odors, dusts, gases, and other respiratory irritants, and all exposure to workplace hazards. The claimant was limited to unskilled work, defined ...

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