United States District Court, D. South Carolina
V. Hodges United States Magistrate Judge.
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.
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
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].
Plaintiff's Background and Medical History
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.
underwent resection of a pineal tumor in 2001 and subsequent
shunt placement and revisions in 2001, 2006, and 2008. Tr. at
October 21, 2013, a computed tomography (“CT”)
scan showed enlargement of the pineal mass in comparison to
previous studies. Tr. at 1124.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 ...