United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
BRISTOW MARCHANT, UNITED STATES 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 Disability Insurance Benefits (DIB) on January
15, 2013 (protective filing date), alleging disability
beginning May 15, 2008 due to social anxiety disorder,
obsessive compulsive personality disorder, depression, panic
disorder with agoraphobia, lower back pain, and shoulder pain
due to arthritis/torn rotator. (R.pp. 19, 179, 213).
Plaintiff's claim was denied both initially and upon
reconsideration. Plaintiff then requested a hearing before an
Administrative Law Judge (ALJ), which was held on May 20,
2015. (R.pp. 41-89). The ALJ thereafter denied
Plaintiff's claim in a decision issued July 16, 2015.
(R.pp. 19-36). The Appeals Council denied Plaintiff's
request for a review of the ALJ's decision, thereby
making the determination of the ALJ the final decision of the
Commissioner. (R.pp. 1-5).
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 and remanded to the Commissioner for an award of
benefits, or alternatively that the case should be remanded
for further proceedings. The Commissioner contends that the
decision to deny benefits is supported by substantial
evidence, and that Plaintiff was properly found not to be
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.”
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).
Khizar Khan, a psychiatrist, initially assessed Plaintiff
with depression and anxiety on May 28, 2008. Plaintiff
reported he had been given “time off” from his
job as an assistant manager at Advanced Auto Parts after he
verbally assaulted his district manager. Plaintiff reported
that he could not control his emotions and threatened people
at work, and had problems with sleep, anhedonia, feeling
overwhelmed/helpless, low energy, concentration, poor
appetite, and mood irritability. He took Paxil without seeing
a difference in mood. Dr. Khan diagnosed moderate to severe
major depressive disorder, generalized anxiety disorder, and
panic disorder. Effexor and Xanax were prescribed. (R.pp.
280-281). On June 11, 2008, Plaintiff told Dr. Khan that he
felt a little jittery and avoided social interactions, but
was not experiencing as immense an amount of panic attacks as
in the past. (R.p. 279). Plaintiff was thereafter seen by Dr.
Khan one or twice a month until November 4, 2008. (R.pp.
September 30, 2009, Plaintiff was treated by Dr. Kimberly
Rothman at AnMed Health Family Medicine Center (AnMed) for
bilateral shoulder pain and hypertension. Plaintiff reported
that his shoulder had been hurting for about eight months
after he lifted a heavy transmission. Dr. Rothman noted
weakness in Plaintiff's right hand and paresthias in his
lateral arm and finger; diagnosed left rotator cuff syndrome,
cervical radiculopathy, and anxiety; and prescribed a Medrol
dose pack to help reduce inflammation. (R.pp. 324-325).
Joseph McElwee, a psychiatrist at AnMed, began treating
Plaintiff's anxiety on October 13, 2009. Plaintiff
reported he had discontinued previous psychological
medications due to side-effects of feeling emotionally numb
or drunk. He described having an obsession with order
(needing to see things in their right place), compulsions to
clean, and washing his hands at length multiple times a day
from a young age. This led to conflict at work where he would
have issues with others' disorderliness. Plaintiff
reported strong anxiety toward being around people and being
out in groups to the point of avoiding those situations
altogether. He appeared mildly anxious and was tearful at
times when talking about his childhood and raising his son,
and reported feelings of hopelessness, anxiety, stress, and
sadness. Dr. McElwee diagnosed compulsive personality
disorder and prescribed Celexa. (R.pp. 295-298).
October 20, 2009, Plaintiff reported to Dr. Rothman that he
had improvement of his shoulder and neck pain with medication
and three physical therapy sessions. (R.pp. 311-314).
October 28, 2009, Plaintiff told Dr. McElwee that he had a
slight decrease in his anxiety in social situations, but no
change in his obsessive-compulsive symptoms. Dr. McElwee
wrote that Plaintiff had “long standing difficulty with
cleanliness issues, superstitious behaviors, intrusive
thoughts and other issues.” He noted that
Plaintiff's prior medications had not worked well,
diagnosed obsessive compulsive disorder (OCD), directed
Plaintiff to begin work in an anxiety workbook and continue
individual therapy, and prescribed Celexa. (R.pp. 291-294).
Plaintiff returned to Dr. McElwee in January 2010 and again
in February 2010, at which time Plaintiff reported being
better able to control some of his compulsions. No depression
and decreased anxiety were noted. (R.pp. 286-290).
2010, Dr. Rothman completed a mental impairment questionnaire
in which she stated that Plaintiff was diagnosed with OCD and
depression for which he was taking Celexa and Xanax, and that
she had referred Plaintiff to Dr. McElwee. She indicated that
Plaintiff was oriented x4 and had obsessive thought content,
a worried/anxious mood/affect, adequate
attention/concentration, and good memory. Dr. Rothman opined
that Plaintiff had a slight work-related limitation in
function due to his mental condition, consisting of outbursts
of anger with coworkers, OCD behaviors, and exhibiting
significant anxiety. She thought he was capable of managing
his funds. (R.p. 356).
Brian Keith, a psychologist, performed a consultative
examination on the Plaintiff on November 18, 2010. Plaintiff
told Dr. Keith that he experienced panic attacks and had
trouble being with people. He complained of nervousness,
depression, no motivation, trouble failing asleep, feeling
fatigued, and feeling hopeless. Plaintiff stated that people
made him feel nervous, he was scared of people, and that he
was unable to work because he could not deal with people and
was afraid of hurting somebody. For activities, Plaintiff
reported driving his son to school three or four times a
week, rarely doing grocery shopping, occasionally going to
Wal-Mart at midnight, and getting food from a drive-through
restaurant. On examination Plaintiff was found to be oriented
in all spheres; he had appropriate eye contact, a broad
(normal) affect, and a nervous mood; his psychomotor
functioning was normal, although he appeared at times
somewhat nervous and fidgety and rubbed his hands in a
nervous manner; and his remote memory appeared generally
intact and he was able to correctly repeat five numbers after
immediate presentation and two of three items after a
five-minute delay with interference. Dr. Keith diagnosed
Plaintiff with bipolar disorder and generalized anxiety
disorder, and opined that Plaintiff should be able to
complete moderately complex tasks, follow moderately detailed
directions, and complete two to three-step activities. (R.pp.
December 2, 2010, State agency psychologist Dr. Robbie Ronin
opined after a review of Plaintiff's records that
Plaintiff could maintain attention and concentration for
extended periods, ask simple questions and request
assistance, interact appropriately with coworkers and
supervisors, adapt to basic workplace demands, perform simple
unskilled tasks, but could not work with the public.
April 13, 2012, Plaintiff returned to AnMed to reestablish
primary care and resume treatment with Dr. McElwee (he had
not had treatment for approximately two years due to lack of
insurance). Dr. McElwee reviewed the case with primary care
physician Dr. Jason Perey, who diagnosed plantar fasciitis,
OCD, depression, left rotator cuff syndrome, hypertension,
and hyperlipidemia, and prescribed Medrol, Xanax, Celexa, and
Lisinopril-Hydrochlorothiazide. (R.pp. 384-388). On May 14,
2012, Plaintiff reported that his feet were better, that
exercises and medication had diminished his shoulder pain
some, but that he had had an episode of severe pain when
working in the yard the prior weekend. (R.pp. 396-399). On
May 16, 2012, Plaintiff reported to Dr. McElwee that he was
still living with his father and that he had his son 75% of
the time. He also reported that he had broken up with his
girlfriend because his OCD was bothering her, and that he
continued to have a lot of social anxiety. Dr. McElwee noted
that Plaintiff had a very obsessive thought process, was
anxious, and was sweating at times; assessed OCD; increased
Plaintiff's Celexa dosage, and continued Xanax. (R.pp.
2012, an x-ray of Plaintiff's left shoulder was normal,
an x-ray of his cervical spine showed normal alignment with
no tissue swelling or evidence of atlanto-axial dislocation.
and an x-ray of his right shoulder revealed a “well
circumscribed sclerotic density in the right humeral head
most consistent with a bone island” and a degenerative
change of the right acromioclavicular joint. (R.pp. 400-405).
14, 2012, Plaintiff reported to Dr. McElwee that his anxiety
was “some” better and that he did
“ok” attending his son's school program.
Plaintiff's affect was more reactive with improved mood
and less anxiousness. Celexa was continued. (R.pp. 539-541).
On July 9, 2012, Plaintiff reported some success as to his
excessive handwashing, but still had difficulty turning off
repetitive thoughts when he tried to sleep. Dr. McElwee noted
that Plaintiff had an anxious, obsessive, and passive mood
and diagnosed social phobia and OCD. (R.pp. 534-536). On
August 15, 2012, Plaintiff reported to Dr. McElwee some
progress in checking ...