United States District Court, D. South Carolina, Beaufort Division
Wesley C. Lowther, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, Defendant.
Bryan Harwell United States District Judge.
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].
Findings and Procedural History
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,
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].
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.
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.
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.
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
(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.
(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