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McCornell v. Berryhill

United States District Court, D. South Carolina

May 16, 2018

Richard Lee McCornell, Jr., Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.

          ORDER

          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 March 8, 2018, referring this matter for disposition. [ECF No. 21]. 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. 19 and 20].

         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 affirms the Commissioner's decision.

         I. Relevant Background

         A. Procedural History

         On April 11, 2013, Plaintiff protectively filed an application for DIB in which he alleged his disability began on July 1, 2012. Tr. at 146-47. His application was denied initially and upon reconsideration. Tr. at 90-94 and 96-98. On July 28, 2016, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Clarence Guthrie. Tr. at 37-62 (Hr'g Tr.). The ALJ issued an unfavorable decision on September 20, 2016, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 21-36. 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 2-8. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on October 12, 2017. [ECF No. 1].

         B. Plaintiff's Background and Medical History

         1. Background

         Plaintiff was 34 years old at the time of the hearing. Tr. at 46. He completed high school. Id. His past relevant work (“PRW”) was as a cashier, a janitor, and a delivery driver. Tr. at 57. He alleges he has been unable to work since July 1, 2012. Tr. at 146.

         2. Medical History

         A March 30, 2012 Cooperative Disability Investigations (“CDI”) report indicates that the Social Security Administration (“SSA”) had approved Plaintiff's disability claim in 2002 based on schizophrenia and that his benefits were subsequently suspended because of his work activity.[1] Tr at 217. Plaintiff applied for expedited reinstatement of his benefits and alleged that he had reduced his work to 22 to 25 hours per week. Id. The CDI unit initiated an investigation based on a referral from the state agency. Id. The investigator interviewed an assistant manager at Dollar General, who informed him that Plaintiff had worked for the store for at least five years[2]; had performed job duties that included opening and closing the store, making deposits, and interacting with customers; and was terminated for allegedly stealing items. Tr. at 218. The assistant manager indicated Plaintiff continued to shop in the store once a week, could carry on a conversation, and sometimes drove. Id. An assistant manager at Rite Aid informed the investigator that Plaintiff was employed as an assistant manager, had worked 30 to 40 hours per week, and had recently quit because he claimed he was not being scheduled for enough hours. Tr. at 219. He stated Plaintiff's job duties had included opening and closing the store, unloading trucks, stocking shelves, cleaning the building, assisting customers, operating a cash register and computer, supervising other employees, and making deposits. Id. He indicated Plaintiff had problems with attendance, was considered a poor manager, and performed poor quality work. Id. The investigator subsequently interviewed the Rite Aid store manager, who presented a slightly different account. Id. The store manager specified that Plaintiff was employed from May 16, 2011, to February 18, 2012, and worked 20 to 30 hours per week. Id. He stated Plaintiff got along well with staff and other supervisors. Id. He indicated Plaintiff did well if another manager was in the store, but not as well if no other manager was present. Id. He stated Plaintiff had indicated he wanted to work more hours, but failed to return calls and declined to work when he was called in at times that he was not scheduled to work. Id. The investigator parked in front of Plaintiff's house and observed him sitting on his porch. Tr. at 220. He noted that over the course of 13 minutes, Plaintiff spoke to a female, walked up and down the steps, placed items in a trash can, lifted objects, and talked and joked with a meter reader. Id.

         Plaintiff presented to Trenten A. Prioleau, DPM (“Dr. Prioleau”), for a three-month history of left heel pain on May 17, 2012. Tr. at 225. Dr. Prioleau noted tenderness to palpation of Plaintiff's left heel. Id. He assessed plantar fasciitis and instructed Plaintiff to engage in stretching exercises and to use ice massage. Tr. at 226. On May 31, 2012, Plaintiff reported that he was not in pain, had been walking more, and had lost 15 pounds. Tr. at 227. Dr. Prioleau encouraged Plaintiff to continue to use stretching and icing. Tr. at 228.

         Plaintiff reported that he was doing well on June 27, 2012. Tr. at 243. He indicated his mood and affect were euthymic and denied psychotic symptoms and side effects from medications. Id. Edward M. Kendall, M.D. (“Dr. Kendall”), noted no abnormalities on mental status examination. Id. He assessed paranoid schizophrenia and a global assessment of functioning (“GAF”)[3] score of 60.[4] Tr. at 243-44.

         On September 21, 2012, Ada Stewart, M.D. (“Dr. Stewart”), indicated Plaintiff had a history of diabetes, obesity, and schizophrenia. Tr. at 223. She noted that Plaintiff had decreased his weight from 328 to 282 pounds and should continue with diet and exercise. Tr. at 224. She stated Plaintiff's diabetes was well-controlled and recommended that he continue his current treatment. Id. She added a prescription for Lisinopril for hypertension. Id.

         On October 17, 2012, Plaintiff reported that he had lost over 60 pounds and indicated that Dr. Stewart would consider taking him off Metformin if he lost an additional 60 pounds. Tr. at 247. He indicated he had experienced no paranoia during the prior month and was doing well overall. Id.

         On January 29, 2013, Plaintiff reported that when did not take his medication he got angry, wanted to fight, had outbursts with family members, heard voices, had difficulty sleeping, and was unable to shut off his thoughts. Tr. at 249. He stated that when he took his medication, he felt calm, heard no voices, and did well. Id. He stated he continued to feel somewhat irritable, easily provoked, moody, and socially withdrawn at times while taking medication. Id. He indicated he could likely work part-time, but would be unable to work on some days on an unpredictable basis. Id. Dr. Kendall indicated Plaintiff's mental status was normal, aside from fair judgment and insight, occasional irritability, and occasional auditory hallucinations. Tr. at 249-50. He assessed paranoid schizophrenia and a GAF score of 55. Tr. at 250. He continued Plaintiff on six milligrams of Risperdal per day. Id.

         On April 23, 2013, Plaintiff indicated that frequent worry was preventing him from sleeping well. Tr. at 254. He denied auditory and visual hallucinations. Id. He informed Linda Smith, R.N. (“Ms. Smith”), that he had worked full-time for a while without realizing that it would affect his disability, but had decompensated and had lost both his job and his disability benefits. Id. Aziz Mohiuddin, M.D. (“Dr. Mohiuddin”), refilled Plaintiff's prescription for Risperdal. Tr. at 256.

         On July 11, 2013, Plaintiff complained of intermittent depression, poor energy, low motivation, and social withdrawal. Tr. at 238. He reported that he had attempted suicide through strangulation a few months prior, but had aborted the attempt. Id. He denied current suicidal ideation. Id. He stated his grandmother had recently passed away and that he was having difficulty processing his grief. Id. Dr. Kendall noted that Plaintiff was “clearly bereaved” and “near tears.” Id. He described Plaintiff as having poor judgment and insight, labile and bereaved mood, and a full range of emotion. Tr. at 239. He also noted that Plaintiff demonstrated cooperative behavior, no psychomotor abnormalities, intact cognition, normal speech, no hallucinations, no delusions, no suicidal or homicidal ideation, and a logical and goal-directed thought process. Id. He assessed paranoid schizophrenia and bereavement and a GAF score of 50.[5] Id. He noted that no changes in Plaintiff's medication were needed. Id. He stated he believed that Plaintiff was disabled and would support his claim for disability benefits. Id.

         Plaintiff presented to Thomas J. Motycka, M.D. (“Dr. Motycka”), for a consultative examination on August 28, 2013. Tr. at 257. He reported that he had been diagnosed with paranoid schizophrenia that caused him to hallucinate, experience rage, and become violent. Id. Dr. Motycka stated Plaintiff did “not appear to have paranoid schizophrenia, or depression.” Id. He noted that Plaintiff put forth “a poor effort” and was “very, very unconvincing.” Id. Plaintiff claimed to have neuropathy, but Dr. Motycka noted that his records showed only plantar faciitis and diabetes that was treated with Metformin. Id. Dr. Motycka observed Plaintiff to walk with a normal gait and to demonstrate “feeble efforts” on range of motion (“ROM”) testing. Id. Plaintiff held his right hand in a claw-like manner and claimed that his wrist was injured, but Dr. Motycka found his claim to be “incredible” and “unbelievable.” Id. Dr. Motycka indicated Plaintiff's blood pressure was 129/83 mm/Hg. Tr. at 259. He noted Plaintiff was 5'8” tall and weighed 321 pounds with a body mass index (“BMI”) of 48. Id. He stated Plaintiff's poor effort was obvious and his presentation was “rife with concerns about his credibility.” Id. He observed Plaintiff to have no clubbing, cyanosis, or edema; to demonstrate normal dorsalis pedis and posterior tibial pulses; to have no crepitus, effusions, redness, warmth, instability, McMurray clicks, or Baker's cyst in the knees; to have normal radial pulses in his hands; to show no swelling or crepitus and normal ROM of his wrists; and to demonstrate normal and non-tender hips and acromioclavicular joints. Tr. at 260. Dr. Motycka stated the orthopedic examination was entirely normal. Id. He assessed features of borderline and antisocial personality disorders. Id. He indicated that Plaintiff's weight was “a big problem” and that Plaintiff needed to lose weight. Tr. at 261. He indicated it seemed as if Plaintiff was engaging in “a rehearsed effort for secondary gain” and opined that he was “able to do any type of work he has done in the past.” Id.

         On October 2, 2013, state agency psychological consultant Samuel Goots, Ph.D. (“Dr. Goots”), reviewed the evidence and completed a psychiatric review technique (“PRT”). Tr. at 68-69. He considered Listing 12.03 for schizophrenic, paranoid, and other psychotic disorders and assessed no repeated episodes of decompensation, mild restriction of activities of daily living (“ADLs”), moderate difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, or pace. Id. He found that Plaintiff had moderate limitations in his mental residual functional capacity (“RFC”) with respect to abilities to understand and remember detailed instructions; to carry out detailed instructions; to maintain attention and concentration for extended periods; to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; to work in coordination with or in proximity to others without being distracted by them; to complete a normal workday and workweek without interruption from psychologically-based symptoms; to perform at a consistent pace without an unreasonable number and length of rest periods; to interact appropriately with the general public; to accept instructions and respond appropriately to criticism from supervisors; and to get along with coworkers or peers without distracting them or exhibiting behavioral extremes. Tr. at 69-71. He found Plaintiff to have “partially credible symptoms” that were consistent with schizophrenia. Tr. at 68. However, he noted that Plaintiff's “reasonable adaptive functioning, ” “good work history, ” the CDI report, and Dr. Motycka's report suggested malingering and did not indicate severe limitations as a result of a mental condition. Id. He stated the totality of the evidence indicated Plaintiff was “capable of simple work in a setting with limited contact with the general public.” Id. He indicated Plaintiff could understand, retain, and follow simple instructions; could concentrate well enough to complete simple tasks with ordinary supervision; would have moderate difficulty with more detailed instructions and complex tasks; could complete a normal workweek with an occasional interruption due to his mental condition; would function best in a work setting with limited contact with the general public and minimal interaction with coworkers and supervisors; and could avoid common work-related dangers. Tr. at 71.

         On January 31, 2014, a second state agency psychological consultant, Leslie Burke, Ph.D. (“Dr. Burke”), completed a PRT and assessed the same degree of limitation and the same mental RFC as Dr. Goots. Compare Tr. at 81-82 and Tr. at 83-85, with Tr. at 68-69 and Tr. 69-71.

         Plaintiff presented to Columbia Area Mental Health Center (“CAMHC”) for an initial psychiatric assessment on September 11, 2015. Tr. at 329. He reported anger and thoughts of harming others. Id. He endorsed paranoid thoughts and indicated he was only sleeping for an hour or two at night. Id. Kathy M. Lundvall, M.D. (“Dr. Lundvall”), noted that Plaintiff's weight had decreased to 220 pounds. Tr. at 330. She observed him to demonstrate mild hand tremors. Id. She indicated the following abnormalities on mental status examination: hyperactive behavior; poor, anxious, restless, and avoidant eye contact; circumstantial thought process; perseveration; persecutory delusions; paranoid thoughts; homicidal ideation without plan; auditory hallucinations; anxious, angry, and irritable mood; inappropriate, anxious, irritable, and restless affect; and fair insight and judgment. Tr. at 330. She assessed paranoid schizophrenia, bereavement, and a GAF score of 50. Id. She prescribed three milligrams of Risperdal twice a day and provided samples to Plaintiff. Id.

         Plaintiff presented to CAMHC for a clinical reassessment on September 24, 2015. Tr. at 287. He reported that he was hearing voices “all the time” and experiencing “deep depression.” Id. He stated he felt like being alone, had no motivation, and had lost everything. Id. He denied suicide attempts, but endorsed suicidal thoughts. Id. Loyda C. Stevens, M. Ed., R.N. (“Ms. Stevens”), described Plaintiff as appearing neat and clean; showing appropriate motor activity; having a cooperative attitude; demonstrating an appropriate affect; having a happy mood; speaking at a normal rate and tone; demonstrating a normal thought process; endorsing paranoid thought content, auditory hallucinations, and persecutory delusions; being oriented to person, place, time, and situation; showing poor decision making and judgment; having poor remote memory; being easily distracted; and demonstrating an average fund of knowledge. Tr. at 289-90. She indicated Plaintiff's weight to be 215 pounds. Tr. at 290. Plaintiff reported adequate sleep, appetite, energy level, and libido. Id. Ms. Stevens noted that Plaintiff presented as “very happy, friendly and appropriately engaging.” Id. She indicated Plaintiff did not talk of “wanting to hurt people.” Id. She noted that Plaintiff had resumed use of Risperdal following his appointment with Dr. Lundvall and considered the medication to be helping with his mood and thoughts. Id. Plaintiff reported that he had lost his job as a janitor because he was experiencing paranoia, but he indicated he was not taking his medication at the time and acknowledged that he “fe[lt] better and [did] not get angry easily” when taking his medication. Tr. at 291. Ms. Stevens provided more samples of Risperdal and referred Plaintiff to a case manager. Id.

         On September 30, 2015, Plaintiff endorsed depression and anxiety and reported he was doing “fair” and taking his medication daily. Tr. at 326-27. He was proud of his weight loss and indicated he was taking daily walks for exercise. Tr. at 327. He stated he became violent and experienced “terrible” auditory hallucinations when he was not taking his medication. Id. He denied suicidal and homicidal ideation. Id. Elizabeth S. Nixon, R.N. (“Ms. Nixon”), observed Plaintiff to be dressed nicely and on time for his appointment. Id.

         Plaintiff presented to Laurinda Saxon, M.H.P., L.P.C. (“Ms. Saxon”), on the same day for individual therapy. Tr. at 343. Ms. Saxon described Plaintiff as pleasant, cooperative, and appropriately dressed and groomed. Id. She noted Plaintiff had a bright affect, maintained good and direct eye contact, and was able to articulate his feelings and thoughts and process information without difficulty. Id. Plaintiff indicated he had difficulty maintaining employment because of his symptoms. Id. He stated he spent a lot of time alone or with family and did not have an active social life. Id. He indicated his sleep, diet, depression, and auditory hallucinations had improved since he restarted his medications. Id. He reported his mood was “good” and expressed a desire to comply with medication and treatment. Id.

         On October 29, 2015, Plaintiff reported that he was “doing a little bit better.” Tr. at 323. He indicated he was living with his father, but tended to self-isolate and felt like he did not fit in. Id. He complained of hearing voices “from time to time, ” but indicated he heard them less frequently while taking the medication. Id. He denied visual hallucinations. Id. Dr. Mohiuddin indicated that Plaintiff was experiencing persecutory delusions and auditory hallucinations and had fair judgment and insight, but otherwise noted normal findings on mental status examination. Id. He continued Plaintiff on three milligrams of Risperdal twice a day. Id.

         On the same day, Plaintiff presented to Ms. Saxon for individual therapy. Tr. at 342. He reported that his medication helped him to better control his anger. Id. He continued to endorse occasional paranoia and auditory hallucinations. Id. He indicated he did not have a lot of friends, but talked with some friends on the phone. Id. Ms. Saxon noted that Plaintiff had limited insight into his illness. Id.

         On November 18, 2015, Plaintiff reported that he was compliant with his medications, but did not feel like he needed them. Tr. at 340. He admitted that he had difficulty controlling his impulses when he was off his medication. Id. Ms. Saxon described Plaintiff as appropriately dressed and groomed. Id. She encouraged him to develop a daily routine. Id.

         On January 20, 2016, Plaintiff presented to Lan Bonno-Lebozec, Ed.S., M.H.P. (“Ms. Bonno-Lebozec”), for individual therapy. Tr. at 338. He indicated his life was “very stable” and “good” and expressed a desire to return to work and reengage in the community. Id.

         Plaintiff reported that he was doing well and taking his medication daily on February 23, 2016. Tr. at 303. He indicated he was living with his father and had a girlfriend. Id. He endorsed some irritability and paranoid ...


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