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Rogers v. Berryhill

United States District Court, D. South Carolina

March 9, 2018

Jason Rogers, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.


          Shiva V. Hodges, United States Magistrate Judge

         This 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.

         I. Relevant Background

         A. Procedural History

         On 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].

         B. Plaintiff's Background and Medical History

         1. Background

         Plaintiff 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.

         2. Medical History

         Plaintiff 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.

         Magnetic 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.

         The 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. Id.

         Plaintiff 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 neurologist. Id.

         Plaintiff 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.

         Plaintiff 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.

         On 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.

         Plaintiff 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.

         A myocardial perfusion scan was normal on December 16, 2013. Tr. at 372-73.

         Plaintiff 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.

         On 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 improve. Id.

         Plaintiff 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.

         On 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.

         Plaintiff 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.

         On 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.

         On 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.

         Plaintiff 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.

         On 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.

         On 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.

         On 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.

         On May 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.

         On June 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.

         Plaintiff 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 493-94.

         Plaintiff 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. at 463.

         Plaintiff 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 489.

         State 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.

         Plaintiff 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 480.

         Ms. 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 months. Id.

         On 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.

         On June 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.

         Plaintiff 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, ...

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