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Costello v. Berryhill

United States District Court, D. South Carolina

April 30, 2018

Charles David Costello, 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 final order pursuant to 28 U.S.C. § 636(c), Local Civ. Rule 73.01(B) (D.S.C.), and the order of the Honorable Donald C. Coggins, Jr., United States District Judge, dated February 12, 2018. [ECF No. 11]. The parties consented to the undersigned United States Magistrate Judge's disposition of this case, with any appeal directly to the Fourth Circuit Court of Appeals. [ECF No. 10].

         Plaintiff files this appeal pursuant to 42 U.S.C. § 405(g) of the Social Security Act (“the Act”) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying the claim for disability insurance benefits (“DIB”). 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 court remands the Commissioner's decision for further proceedings as set forth herein.

         I. Relevant Background

         A. Procedural History

         On July 14, 2014, Plaintiff protectively filed an application for DIB in which he alleged his disability began on October 21, 2013. Tr. at 75 and 168- 69. His application was denied initially and upon reconsideration. Tr. at 98- 101 and 106-11. On April 19, 2017, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) John T. Molleur. Tr. at 38-59 (Hr'g Tr.). The ALJ issued an unfavorable decision on May 24, 2017, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 17-37. 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 1-5. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on September 12, 2017. [ECF No. 1].

         B. Plaintiff's Background and Medical History

         1. Background

         Plaintiff was 50 years old at the time of the hearing. Tr. at 42. He obtained a bachelor's degree. Tr. at 44. His past relevant work (“PRW”) was as a merchandise driver. Tr. at 55. He alleges he has been unable to work since October 21, 2013. Tr. At 42.

         2. Medical History

         Plaintiff underwent resection of a pineal tumor in 2001 and subsequent shunt placement and revisions in 2001, 2006, and 2008. Tr. at 275.

         On October 21, 2013, a computed tomography (“CT”) scan showed enlargement of the pineal mass in comparison to previous studies. Tr. at 1124.

         On October 23, 2013, Plaintiff presented to Michael Cho, M.D. (“Dr. Cho”), with complaints of eye strain and posterior neck pain. Tr. at 1122. Dr. Cho referred Plaintiff for magnetic resonance imaging (“MRI”) of the brain. Tr. at 1123.

         Plaintiff continued to report binocular vision dysfunction on October 31, 2013. Tr. at 1116. Dr. Cho indicated the MRI showed slight enlargement of the mass and an area of enhancement, as well as slightly increased edema in the cerebellar vermian region. Id. He assessed obstructive hydrocephalus, prescribed Dexamethasone and Pepcid, and referred Plaintiff to an ophthalmologist. Id. He indicated Plaintiff might require decompression if his symptoms failed to respond to medication. Id.

         On December 10, 2013, Plaintiff reported improved vision, but continued to complain of drainage from his left ear, intermittent headaches, and visual problems. Tr. at 1113. Dr. Cho stated Plaintiff's symptoms were likely caused by tumor enlargement. Id. He indicated Plaintiff's symptoms were “not terrible, ” but likely prevented him from working. Tr. at 1114. He referred Plaintiff to Manoj Abraham, M.D. (“Dr. Abraham”), for evaluation of left ear discharge. Id.

         In January 2014, Plaintiff developed worsening memory, a cough while eating, and mild unsteadiness. Tr. at 297. He presented to Donato Pacione, M.D. (“Dr. Pacione”), on February 7, 2014, for further evaluation of the pineal tumor. Tr. at 1282. Dr. Pacione noted upward gaze palsy and limited bilateral nasal gaze, but indicated Plaintiff was able to recall three of three items after five minutes and follow complex commands. Id. He recommended surgery and explained its risks. Tr. at 1283. Plaintiff opted to proceed with surgery. Id.

         Plaintiff presented to Chris Morrison, Ph.D. (“Dr. Morrison”), for a neuropsychological consultation as part of a preoperative workup on February 20, 2014. Tr. at 275. Dr. Morrison observed Plaintiff to have specific deficits in verbal production, accurate perception and reproduction of spatial relationships, and consistent attentional engagement. Tr. at 278. He indicated Plaintiff's processing speed was “particularly slowed under higher cognitive demands.” Id. He noted Plaintiff's verbal and visual memory were on the low end of the average range. Id. He stated Plaintiff had normal capacity for abstract reasoning and knowledge of facts and word meanings. Id. He indicated Plaintiff had “somewhat limited” awareness of his deficits. Id. He stated it was possible that Plaintiff's cognitive deficits might improve following lesion resection. Id.

         Plaintiff was admitted to New York University Hospital for surgical resection of a pineal mass on February 24, 2014. Tr. at 297. On February 25, 2014, he underwent left-sided occipital craniotomy for an occipital transtentorial approach to resection of the tumor. Tr. at 311. He participated in postoperative occupational and physical therapy. Tr. at 298. A final pathology report revealed that the tumor was a pilocystic astrocytoma. Tr. at 411. On February 28, 2014, Dr. Pacione indicated that Plaintiff would be unable to return to work for at least three months. Tr. at 1106. Plaintiff was discharged to a rehabilitation facility on March 3, 2014. Tr. at 297.

         Plaintiff underwent inpatient rehabilitation from March 3 through March 14, 2014. Tr. at 411. He participated in three hours of occupational and physical therapy each day. Tr. at 422-23. Jaime Levine, D.O. (“Dr. Levine”), noted that Plaintiff made significant gains in the areas of functional mobility, endurance, balance, cognition, memory, vision, safety awareness, and activities of daily living (“ADLs”)/self-care independence. Id. At the time of discharge, Plaintiff was able to recall two of three objects after one- and five-minute delays and had right homonymous hemianopsia, but no other neurological deficits. Tr. at 412. Dr. Levine discharged Plaintiff to his home with family supervision and home services. Tr. at 413.

         On March 19, 2014, physical therapist John Gillinder, MSPT (“Mr. Gillinder”), noted that Plaintiff was experiencing short-term memory loss that necessitated use of written exercises and repetitive demonstration. Tr. at 1172. Occupational therapist Laura McCabe, OTR (“Ms. McCabe”), indicated Plaintiff's short-term memory limitations and visual field cuts would present barriers to learning. Tr. at 1195.

         That same day, Plaintiff presented to Christopher T. Whipple, MS (“Mr. Whipple”), for a cognitive-communicative examination. Tr. at 1211. Mr. Whipple noted mild-to-moderate cognitive-linguistic deficits characterized by impaired word retrieval and immediate, short-term, and prospective memory deficits. Id. He indicated Plaintiff was motivated to improve his cognitive functioning and was using strategies for memory recall with repetition and cueing. Id. He recommended that Plaintiff continue to use memory techniques and cognitive-based applications on a computer tablet. Id. Mr. Whipple assessed Plaintiff as having a mild reduction in speaking efficiency, requiring extra time with cueing, and demonstrating 60 percent accuracy. Id. He stated Plaintiff's goal was to improve to 90 percent accuracy and only mild reduction in efficiency and extra time required without cueing within one month. Id. He indicated Plaintiff required moderate cueing with new learning and additional effort without cueing and had 75 percent memory accuracy. Tr. at 1212. He noted that Plaintiff was unable to reliably process multi-step instructions without repetition or writing down key words and had trouble recalling errands and tasks without a to-do list and occasional reminders. Id.

         On March 24, 2014, Mohammad Fouladvand, M.D. (“Dr. Fouladvand”), observed right hemi-field defect and dense right homonymous hemianopsia with sparing in the central macular area. Tr. at 1074. He recommended occupational and vision therapy to improve depth perception and field defect. Tr. at 1163.

         That same day, Plaintiff followed up with Dr. Pacione. Tr. at 1168. He reported that he had been doing well and that his vision was improving. Id. Dr. Pacione described Plaintiff as being awake, oriented times three, and able to follow complex commands. Id.

         On April 8, 2014, Plaintiff followed up with his primary care physician, Michael Gaesser, M.D. (“Dr. Gaesser”), regarding hypertension and hyperlipidemia. Tr. at 1249. He reported transient weakness, visual disturbance, muscular weakness, incoordination, and memory difficulties. Tr. at 1250. Dr. Gaesser instructed Plaintiff to continue to take his medications, to reduce his caloric intake, and to maintain a low-salt diet. Tr. at 1251.

         Mr. Whipple discharged Plaintiff from speech and language therapy on May 2, 2014, after he demonstrated good ability to use reminders and organization-based applications, functional memory skills for rehearsal and retrieval of functional information, and the ability to carry out techniques to increase his memory and attention skills on his own. Tr. at 1218-19. Mr. Whipple noted that Plaintiff continued to have mild cognitive-linguistic deficits characterized by impaired immediate and prospective memory and occasional difficulty with word retrieval. Tr. at 1221. He indicated Plaintiff spoke with 90 percent accuracy and had only a mild reduction in efficiency or extra time required without cueing. Id. He stated Plaintiff's memory was 75 percent accurate; that he required additional effort with cueing for new learning; and that he was independent with strategies for lengthy and complex information in routine situations. Id. He indicated Plaintiff “[d]emonstrate[d] adequate memory/reasoning/judgment to perform most activities in a supervised environment.” Id.

         On June 23, 2014, Dr. Pacione noted that Plaintiff had completed his outpatient rehabilitation program. Tr. at 1169. He stated Plaintiff's field cut had improved, his eye movement had normalized, and his vision had improved, but remained blurry. Id. He described Plaintiff as being awake, alert, oriented times three, and able to follow complex commands. Id. He indicated an MRI showed no evidence of residual or recurrent tumor. Id.

         Plaintiff returned to Mr. Whipple for additional therapy. Tr. at 1222. On August 19, 2014, Mr. Whipple noted that Plaintiff's memory was at least one percent, but less than 20 percent impaired. Id. He stated Plaintiff was able to recall or use external aids and strategies for complex information and planning complex future events. Id. He noted that Plaintiff occasionally required minimal cues when he experienced breakdowns in the use of memory strategies and that the breakdowns might occasionally interfere with his functioning in vocational and other activities. Id.

         On September 8, 2014, Dr. Pacione observed Plaintiff to be awake, alert, oriented times three, and able to follow complex commands. Tr. at 1276. He indicated an MRI of Plaintiff's brain showed stable postsurgical changes and no new areas of enhancement to suggest recurrence. Id. He reprogrammed Plaintiff's shunt and instructed him to follow up for a new MRI in six months. Id.

         Later that day, Plaintiff reported improved vision and eye movement and denied headaches and diplopia. Tr. at 1269. Dr. Fouladvand observed Plaintiff to have intact speech, language, memory, and general knowledge. Tr. at 1271. He stated Plaintiff had no papilledema, improved eye movement, nearly normal vertical and horizontal gaze, and no diplopia in primary or lateral gaze. Id. He indicated Plaintiff continued to have right homonymous hemianopia. Id.

         Plaintiff followed up with Dr. Morrison for a postoperative neuropsychological consultation on September 11, 2014. Tr. at 280. He reported short-term memory problems, poor judgment, poor problem solving/reasoning, and visual impairment. Id. He stated he had noticed a “shorter temper, ” had felt less patient and more disinhibited, and had been saying inappropriate things. Id. Dr. Morrison noted that Plaintiff laughed often and inappropriately; had an affect that was inappropriate or incongruent to the situation at times; was very talkative and perseverative; appeared anxious; and acted disinhibited and impulsive at times. Tr. at 281.

         In attention and processing speed testing, Dr. Morrison observed Plaintiff to have borderline impaired digit span, low average visual search and attention, normal visual scanning, average five-digit working memory, and superior eight-digit sequencing ability. Tr. at 282. Plaintiff's ability to perform executive functions of set shifting, problem solving, and planning were intact, but he remained very slow on select verbal initiation tasks. Id. His ability to retrieve words was weak and unchanged from preoperative testing. Id. His visuoperception and visuoconstructive abilities remained poor. Id. His visual memory was in the low-average range, but he did better when verbal information was presented with structure. Id. Plaintiff denied significant symptoms of affective distress, but Dr. Morrison observed mild dysphoria to be present. Tr. at 283. Dr. Morrison stated the following:

Mr. Costello's intact performance on most higher-order cognitive measures in our well-controlled testing environment suggests the potential for job success in the future, as well as the possibility of additional cognitive gains. However, his job success in the future will ...

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