United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
V. Hodges, United States Magistrate Judge
appeal from a denial of social security benefits is before
the court for a Report and Recommendation
(“Report”) pursuant to Local Civ. Rule
73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action
pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to
obtain judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”)
denying his claim for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”). The two issues before the court are
whether the Commissioner's findings of fact are supported
by substantial evidence and whether she applied the proper
legal standards. For the reasons that follow, the undersigned
recommends that the Commissioner's decision be affirmed.
December 31, 2013, Plaintiff protectively filed applications
for DIB and SSI in which he alleged his disability began on
November 1, 2013. Tr. at 69, 180-84, and 185-86. His
applications were denied initially and upon reconsideration.
Tr. at 123-27 and 134-39. On February 26, 2016, Plaintiff had
a hearing before Administrative Law Judge (“ALJ”)
Nicholas Walter. Tr. at 40-68 (Hr'g Tr.). The ALJ issued
an unfavorable decision on April 21, 2016, finding that
Plaintiff was not disabled within the meaning of the Act. Tr.
at 18-39. Subsequently, the Appeals Council denied
Plaintiff's request for review, making the ALJ's
decision the final decision of the Commissioner for purposes
of judicial review. Tr. at 1-6. Thereafter, Plaintiff brought
this action seeking judicial review of the Commissioner's
decision in a complaint filed on May 22, 2017. [ECF No. 1].
Plaintiff's Background and Medical History
was 44 years old at the time of the hearing. Tr. at 45. He
obtained a high school equivalency certificate. Tr. at 46.
His past relevant work (“PRW”) was as a
maintenance repairer. Tr. at 60. He alleges he has been
unable to work since November 1, 2013. Tr. at 46.
presented to St. Francis Downtown on November 2, 2013, with
aphasia and altered mental state. Tr. at 308. He reported an
incident one day prior in which he had become hot and sweaty
while working outside and had hit his head and experienced
near-syncope upon entering his home. Id. He
complained of slurred speech and difficulty with
word-finding, but indicated his symptoms had improved since
the incident. Id. He denied weakness and numbness.
Id. He demonstrated normal range of motion
(“ROM”), muscle tone, and coordination. Tr. at
309-10. A neurological examination showed no discernable
aphasia, but 5-/5 right finger and wrist extension, right
foot and toe dorsiflexion, and right hip and knee flexion.
Tr. at 319. The exam was otherwise normal. Id.
resonance imaging (“MRI”) of Plaintiff's
brain indicated multiple areas of acute infarction in the
left brain, most prominent in the left parietal lobe. Tr. at
320. The radiologist noted that the MRI findings were
“[m]ost consistent with an embolic event that fractured
producing multiple downstream areas of injury” and
“reported aphasia” and “subtle right sided
weakness on exam.” Tr. at 321.
attending physician diagnosed cerebral vascular accident
(“CVA”) and indicated Plaintiff's other
active problems included chronic cluster headache, diabetes
mellitus, hypertension, and patent foramen ovale. Tr. at 322.
Sundar Natarajan, M.D. (“Dr. Natarajan”),
discharged Plaintiff on November 5, 2013, and noted that his
aphasia had resolved and that he had no residual deficit.
followed up with Stephanie E. Phillips, M.D. (“Dr.
Phillips”), on November 12, 2013. Tr. at 379. He
reported problems with word finding and memory and indicated
he felt tired and had no energy. Id. Dr. Phillips
noted no abnormalities on physical examination. Tr. at 380.
She prescribed Atorvastatin and advised Plaintiff to decrease
his dose of Prednisone until after his appointment with his
complained of dizziness, slow speech, impaired memory, and
difficulty with word finding on November 20, 2013. Tr. at
382. He reported moderate fatigue and shortness of breath
with minimal exertion. Id. Dr. Phillips noted no
abnormalities on physical examination. Tr. at 383. She
referred Plaintiff to a cardiologist and indicated work
restrictions that included no climbing, no operating heavy
machinery, and no heavy lifting. Tr. at 384.
presented to Barbara Moran-Faile, M.D. (“Dr.
Moran-Faile”), for an initial cardiac assessment on
November 22, 2013. Tr. at 366. He reported that his speech
was “nearly back to normal, ” but indicated he
continued to have some word-finding issues and to repeat
things when he felt fatigued or stressed. Id. He
complained that he felt very fatigued and had mild,
intermittent numbness in his left hand. Id. He
reported increased nervousness. Tr. at 368. Dr. Moran-Faile
noted normal gait, no motor weakness, and normal mood and
affect on physical examination. Id. She advised
Plaintiff to continue antiplatelet therapy as recommended by
his neurologist for atrial septal defect/patent foramen
ovale. Tr. at 369. She noted that much of what Plaintiff was
describing, “including emotional lability and anxiety,
are not uncommon following a stroke.” Id. She
recommended that Plaintiff continue to use aspirin and follow
up with his primary care physician for treatment of diabetes
and dyslipidemia. Id. She scheduled him for a stress
perfusion scan and advised him to engage in a daily walking
routine and to attempt to increase his tolerance up to 30
minutes per day. Id.
December 2, 2013, Plaintiff reported a recent tingling pain
in the back of his head. Tr. at 386. He indicated he felt
“swimmy headed, ” had difficulty with speech at
times, felt increasingly anxious, and had developed weakness
in his left arm and leg. Id. Dr. Phillips observed
Plaintiff to have mild difficulty finding words and 4/5
strength in his left lower extremity. Tr. at 387. However,
she noted that Plaintiff had normal strength in his bilateral
upper extremities and right lower extremity; normal tone and
muscle bulk in all extremities; no atrophy or abnormal
movements; and normal, reflexes, gait, and station. Tr. at
387. She described Plaintiff as having normal mood and
appropriate affect. Id. She indicated it was
possible that Plaintiff had another CVA and referred him for
a new MRI of the brain. Dr. Phillips stated that Plaintiff
could not return to his current line of work at the time
because it required he climb to significant heights and push
and pull heavy loads. Tr. at 388.
presented to the ER at St. Francis Downtown on December 4,
2013, with complaints of weakness and fatigue in his left
upper and lower extremities. Tr. at 352. He demonstrated
normal ROM, reflexes, and coordination on physical
examination. Tr. at 354. An MRI of Plaintiff's brain
showed no new hemorrhage or mass effect and diminished
overall size of the diffusion abnormalities, as compared to
the prior study. Tr. at 349-50.
myocardial perfusion scan was normal on December 16, 2013.
Tr. at 372-73.
presented to John F. Pilch, M.D. (“Dr. Pilch”),
for a consultation on December 19, 2013. Tr. at 400. He
reported feeling dizzy, being less steady on his feet, not
thinking as clearly, and having difficulty finding words. Tr.
at 401. Dr. Pilch observed Plaintiff to demonstrate mild word
search difficulty; intact sensation; and normal cranial
nerves, motor tone, bulk, strength, coordination, and gait.
Tr. at 402. He assessed chronic cluster headaches; cerebral
infarction; questionable, but unlikely cranial arteritis;
longstanding tobacco abuse; aphasia with some dizziness; and
hypertension and hyperglycemia partially related to chronic
use of steroids. Tr. at 400. He recommended Plaintiff engage
in speech therapy; continue a daily aspirin regimen; avoid
tobacco products; eat a healthy diet; begin Depakote ER and
Magnesium Oxide; taper down Prednisone; consult with the
headache clinic at Duke University (“Duke
Medicine”); follow up for a nuclear stress test; and
remain out of work until the end of January. Id.
December 20, 2013, Plaintiff presented to Dr. Moran-Faile to
discuss the results of the myocardial perfusion scan. Tr. at
374. He reported that his anxiety had improved, but that he
continued to feel very anxious. Id. Dr. Moran-Faile
informed Plaintiff that increased anxiety was a normal
response to CVA and that it should continue to improve over
time. Tr. at 376. She advised Plaintiff to continue to walk
each day and to seek counseling if his anxiety failed to
complained of fatigue, malaise, muscular weakness, difficulty
concentrating, memory problems, anxiety, and depression on
January 3, 2014. Tr. at 392. Dr. Phillips observed Plaintiff
to have a depressed mood and a flattened affect, normal gait,
and the ability to stand without difficulty. Tr. at 392. She
encouraged Plaintiff to follow a diet and to work on weight
loss. Tr. at 393.
January 31, 2014, Plaintiff reported that he had increased
his Prednisone dosage to 100 mg per day to address increased
headache symptoms. Tr. at 399. He complained of increased
memory problems, left-sided weakness, and left hip and knee
pain. Id. Dr. Pilch observed Plaintiff to be
“alert, appropriate in complex conversation with normal
thought content and affect.” Id. He stated
Plaintiff had normal tone, bulk, and strength with no upper
extremity drift and normal deep tendon reflexes. Id.
He noted Plaintiff had intact sensation, normal coordination,
and steady gait. Id. He assessed patent foramen
ovale and chronic headache syndrome. Id. He
recommended Plaintiff remain off Depakote, add Cymbalta,
decrease Prednisone, keep his appointment at Duke Medicine,
and remain out of work until March 15. Id.
presented to Duke Medicine on February 18, 2014, for an
initial headache consultation. Tr. at 404. He indicated that
if he did not take Prednisone, he would generally experience
three headaches per day that lasted from 15 minutes to an
hour-and-a-half at a time, but that if he took Prednisone
daily, he only experience one headache. Tr. at 406. He
described the pain as feeling like an ice pick was
continuously being moved in and out of his right parietal
area. Id. Lori Michelle Haskins, N.P. (“Ms.
Haskins”), observed that Plaintiff had non-fluent
speech “with intermittent word blocking consistent with
mild aphasia.” Tr. at 407. Plaintiff demonstrated
symmetric, 5/5 motor strength, normal muscle mass and tone in
all extremities, and no pronator lift. Tr. at 408. He had
normal reflexes, coordination, sensation, and gait.
Id. Ms. Haskins's impression was paroxysmal
hemicrania and chronic steroid use with cushing appearance.
Id. She advised Plaintiff to continue to taper off
Prednisone; to start Amitriptyline 25 mg for headache
prevention; to start Indomethacin 75 mg twice a day; and to
follow up in eight to 12 weeks. Id.
February 24, 2014, Plaintiff complained of chronic pain in
his bilateral shoulders and back that was not improved by use
of nonsteroidal anti-inflammatory drugs
(“NSAIDS”). Tr. at 417. Dr. Phillips observed
Plaintiff to have paraspinal muscle tenderness and left upper
and lower limb weakness. Tr. at 418. She advised Plaintiff to
decrease his caloric intake and to continue to taper down
Prednisone. Tr. at 419.
February 28, 2014, Plaintiff reported that he had tapered
down his Prednisone dose to 65 mg per day and had started
Amitriptyline. Tr. at 411. He indicated he “had a much
better week.” Id. Dr. Pilch noted no
abnormalities on examination. Id. He advised
Plaintiff to continue to taper down his dose of Prednisone,
to continue Amitriptyline and Cymbalta, and to keep his
follow up appointments. Tr. at 411-12.
reported increased pain on March 25, 2014. Tr. at 420. Jo R.
Gordon, APRN (“Ms. Gordon”), observed Plaintiff
to have paraspinal muscle tenderness and upper and lower limb
weakness. Tr. at 421. She described Plaintiff's thought
process as being “a little slow” and indicated he
had reported getting “mixed up.” Id. She
noted that Plaintiff cried easily and seemed frustrated that
he was sick and unable to work. Id. She refilled
Plaintiff's prescription for Hydrocodone, but encouraged
him to reduce his dosage. Tr. at 422. She advised Plaintiff
to continue to taper down his dosage of Prednisone and
referred him to pain management. Id.
April 16, 2014, Plaintiff reported that he had experienced no
headaches since his visit to Duke Medicine. Tr. at 458. He
complained of left-sided weakness, anxiety, and difficulty
with concentration and memory. Id. Dr. Pilch
described Plaintiff as having “[n]ormal thought
content, affect and language function.” Id. He
observed Plaintiff to have normal tone, bulk, and strength;
no pronator drift; 1 deep tendon reflexes; intact sensation;
normal coordination; and steady gait on a mildly increased
base. Tr. at 458. Dr. Pilch referred Plaintiff for an MRI
scan of his brain and an electroencephalogram
(“EEG”) and advised him to continue to taper down
his dose of Prednisone and to attend his follow up visit at
Duke Medicine. Tr. at 459.
April 22, 2014, state agency medical consultant Herbert
Kushner, M.D. (“Dr. Kushner”), reviewed the
evidence and prepared a physical residual functional capacity
(“RFC”) assessment. Tr. at 76-78. He found that
Plaintiff had the following restrictions: occasionally
lifting and/or carrying 20 pounds; frequently lifting and/or
carrying 10 pounds; standing and/or walking for a total of
about six hours in an eight hour workday; sitting for a total
of about six hours in an eight-hour workday; frequently
climbing ramps and stairs, balancing, stooping, kneeling,
crouching, and crawling; occasionally climbing ladders,
ropes, and scaffolds; and should avoid concentrated exposure
to extreme heat and cold, noise, and vibration. Id.
A second medical consultant, Mary Payne, M.D. (“Dr.
Payne”), assessed the same physical RFC assessment on
July 16, 2014. Tr. at 102-04.
April 23, 2014, Plaintiff complained of problems with his
“memory and function” and requested a note
indicating he was unable to work. Tr. at 429. He reported
depression and pain in his muscles and joints. Id.
Ms. Gordon observed Plaintiff to have bilateral upper and
lower limb weakness and a slowed thought process. Tr. at 430.
She provided the following statement: “The above-named
patient has been unable to work since Nov 1, 2013 secondary
to acute medical problems. I am unsure when he will be able
to return to work.” Tr. at 428.
22, 2014, Plaintiff reported that he had to reschedule his
follow up visit at Duke Medicine because he had been ill. Tr.
at 431. He indicated that he was taking Hydrocodone four to
five times a day for left shoulder pain, but it was not
strong enough. Id. He indicated “his buddy at
work gave him some of his pain medication and it helped like
a ‘champ.'” Id. He complained that
he had developed a rash on his face and right leg after
tapering off Prednisone. Id. Tamara D. Griffis, PA-C
(“Ms. Griffis”), observed Plaintiff to be tender
to palpation over the biceps tendon and to have painful and
decreased ROM of the right shoulder joint. Tr. at 433. She
noted Plaintiff had normal ROM and joint stability in his
left upper extremity. Id. She stated Plaintiff's
communication was slightly aphasic. Id. She observed
weakness and 2/5 grip strength in Plaintiff's left upper
extremity and 3/5 strength in his left lower extremity.
Id. She described Plaintiff's gait as ataxic.
Id. She referred Plaintiff for an MRI of his left
shoulder, discontinued Hydrocodone, and prescribed Oxycodone.
Tr. at 435.
18, 2014, Plaintiff reported that his headaches had worsened
after he discontinued Prednisone and started Indomethacin.
Tr. at 452. He complained of some left elbow pain, but
indicated he was otherwise stable. Id. Dr. Pilch
observed Plaintiff to have normal thought content, affect,
and language function. Id. He indicated Plaintiff
had normal tone, bulk, and strength; 1 deep tendon reflexes;
normal coordination; normal sensation; and normal gait.
Id. He stated a recent electroencephalogram
(“EEG”) was normal and a recent MRI showed only
the old, minor cortical infarct changes with no evidence of
any progressive change. Id. He increased
Plaintiff's dosage of Amitriptyline and refilled his
prescription for Indomethacin. Tr. at 453.
reported mildly depressed mood, fatigue, and extreme feelings
of guilt and worthlessness on June 20, 2014. Tr. at 490. He
requested that Ms. Griffis prescribe Hydrocodone again
because Oxycodone was causing him to feel too sleepy.
Id. Ms. Griffis recommended Plaintiff engage in
physical therapy for his left shoulder, but Plaintiff
declined to do so because he could not afford the gas to get
to the appointments. Id. Ms. Griffis observed
Plaintiff to have limited ROM to 75 degrees of flexion in his
right upper extremity. Tr. at 493. She noted that Plaintiff
was tender to palpation over the acromioclavicular and
anterolateral aspects of his left shoulder, but had normal
joint stability and ROM of his left upper extremity.
Id. She indicated Plaintiff demonstrated expressive
aphasia and slightly ataxic gait. Id. She
discontinued Oxycodone and prescribed Hydrocodone. Tr. at
presented to Joseph K. Hammond, Ph. D. (“Dr.
Hammond”), for a mental status consultative examination
on July 22, 2014. Tr. at 460. Dr. Hammond described
Plaintiff's thinking as relevant and coherent. Tr. at
461. Plaintiff was able to repeat a four-item word list and
recall three of four words without assistance after a delay.
Tr. at 462. He was able to perform multiplication, to count,
to alternate between numbers and letters, to write a
sentence, and to reason. Id. He indicated he was
struggling with self-image because of his inability to
provide for his family. Id. Dr. Hammond diagnosed
major depressive disorder versus adjustment disorder with
depressed, anxious, and potentially angry mood. Id.
He stated Plaintiff was able to understand, remember, and
execute simple tasks for a brief period. Id. He
indicated “[i]nterpersonally, [Plaintiff] appeared
distressed and was briefly tearful.” Id. He
stated Plaintiff “likely could not serve the general
public, but his social skills seemed adequate for responding
appropriately to a co-worker and supervisor in a supportive
setting.” Id. He noted that Plaintiff appeared
to have moderate-to-severe limitations in his abilities to
relate to others and make adjustments. Tr. at 462-63. He
stated Plaintiff appeared to be capable of managing funds,
but seemed to need more extensive mental health services. Tr.
presented to Ms. Griffis for treatment of skin lesions on
July 24, 2014. Tr. at 486. Ms. Griffis observed ring worm on
Plaintiff's chest and erythematous nodules on his
bilateral legs, but no other abnormalities on physical
examination. Tr. at 488-89. She prescribed Bactrim DS. Tr. at
agency psychological consultant Douglas Robbins, Ph. D.
(“Dr. Robbins”), completed a psychiatric review
technique on July 29, 2014. Tr. at 99-101. He considered
Listing 12.04 for affective disorders and assessed mild
restriction of activities of daily living
(“ADLs”), mild difficulties in maintaining social
functioning, and mild difficulties in maintaining
concentration, persistence, or pace. Id.
reported that he had stopped taking Amitriptyline and Celexa
on September 18, 2014. Tr. at 476. He indicated he was doing
“okay” without Celexa. Id. He complained
of pain and reduced ROM in his hands when he awoke in the
morning. Id. He endorsed mildly depressed mood.
Id. Ms. Griffis noted that Plaintiff's right
upper extremity flexion was limited to 75 degrees with pain.
Tr. at 479. She observed Plaintiff to be tender to palpation
over the left acromioclavicular and anterolateral aspects,
but to have normal joint stability and ROM. Id. She
stated Plaintiff had “expressive aphasia present”
and noted that his gait was slightly ataxic. Id. She
discontinued Amitriptyline and Celexa and recommended
physical therapy for Plaintiff's left shoulder. Tr. at
Griffis completed a medical source statement that pertained
to Plaintiff's physical ability to perform work-related
activities on November 5, 2014. Tr. at 466-68. She indicated
Plaintiff could occasionally lift up to 20 pounds; sit for
four hours in an eight-hour workday; and stand/walk for four
hours in an eight-hour workday. Tr. at 466. She acknowledged
that Plaintiff would need a job that would permit him to
shift positions at will from sitting, standing, or walking.
Id. She denied that Plaintiff would require use of a
cane to ambulate or would need to elevate his legs while
seated. Tr. at 467. She stated Plaintiff was capable of
occasional bilateral reaching (overhead and in all other
directions), handling, fingering, feeling, and
pushing/pulling. Id. She indicated Plaintiff could
never climb ladders or scaffolds, but could occasionally
climb ramps and stairs, balance, stoop, kneel, crouch, and
crawl. Tr. at 468. She anticipated that Plaintiff would be
absent from work more than three times a month because of his
impairments or treatment. Id. She indicated
Plaintiff's experience of pain or other symptoms was
constantly severe enough to interfere with attention and
concentration needed to perform even simple work tasks.
Id. She stated that Plaintiff's limitations had
lasted or were expected to last for a period of 12 or more
December 15, 2014, Plaintiff complained that the cold weather
was exacerbating his knee pain and that his left shoulder
continued to bother him. Tr. at 469. He indicated that he was
taking Hydrocodone for pain. Id. He reported fatigue
and feelings of worthlessness and helplessness. Id.
Ms. Griffis observed Plaintiff to have restricted ROM in his
right upper extremity; tenderness to palpation over his left
acromioclavicular and anterolateral joints; expressive
aphasia; and slightly ataxic gait. Tr. at 472. She refilled
Plaintiff's prescription for Hydrocodone and recommended
that he increase his physical activity and reduce his sugar
and carbohydrate intake. Tr. at 473.
18, 2015, Plaintiff reported pain in his left knee and
shoulder, but indicated Hydrocodone was helpful. Tr. at 498.
He requested that his dose of Hydrocodone be increased, but
Ms. Griffis indicated he was already taking the maximum dose
and declined his request. Id. Ms. Griffis again
recommended physical therapy, and Plaintiff again refused the
referral because he could not afford gas to travel to the
appointments. Id. Plaintiff endorsed mildly
depressed mood, fatigue, and feelings of worthlessness and
helplessness. Tr. at 499. Ms. Griffis observed Plaintiff to
exhibit decreased ROM in his left shoulder, but to have
normal ROM, no swelling, and no tenderness in his left knee.
Tr. at 501.
presented to Kristi Lynn Cabiao, D.O. (“Dr.
Cabiao”), for dizziness and nausea on August 6, 2015.
Tr. at 503. Dr. Cabaio observed Plaintiff to have 5/5 muscle
strength in his right upper and lower extremities and 4/5
strength in his left upper and lower extremities. Tr. at 505.
She noted that Plaintiff was alert and properly-oriented and
had normal reflexes, ...