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Sheppard v. Berryhill

United States District Court, D. South Carolina, Florence Division

August 30, 2018

ANTHONY WAYNE SHEPPARD, Plaintiff,
v.
NANCY A. BERRYHILL, Commissioner of Social Security; Defendant.

          REPORT AND RECOMMENDATION

          THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE

         This is an action brought pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. Section 405(g), to obtain judicial review of a “final decision” of the Commissioner of Social Security, denying Plaintiff's claim for disability insurance benefits (DIB) and supplemental security income(SSI). The only issues before the Court are whether the findings of fact are supported by substantial evidence and whether proper legal standards have been applied.

         I. RELEVANT BACKGROUND

         A. Procedural History

         Plaintiff filed an application for DIB and SSI on August 14, 2014, alleging inability to work since November 1, 1999. (Tr. 20). Under Albright v. SSA, 174 F.3d 473 (4th Cir. 1999), the earliest onset date was November 5, 2011. Plaintiff had amended his onset date to August 14, 2014, and then revoked the amendment. (Tr. 20). His claims were denied initially and upon reconsideration. Thereafter, Plaintiff filed a request for a hearing. A hearing was held on November 16, 2016, at which time Plaintiff and a vocational expert (VE) testified. (Tr. 20). Plaintiff was represented by an attorney at that time. The Administrative Law Judge (ALJ) issued an unfavorable decision on March 3, 2017, finding that Plaintiff was not disabled within the meaning of the Act. (Tr. 20-32). Plaintiff filed a request for review of the ALJ's decision, which the Appeals Council denied on June 27, 2017, making the ALJ's decision the Commissioner's final decision. (Tr. 1-3). Plaintiff, proceeding pro se, filed this action on July 14, 2017. (ECF No. 1).

         B. Plaintiff's Background and Medical History

         Plaintiff was born on December 18, 1971 and was forty-four years old at the time of the alleged onset. (Tr. 30). Plaintiff completed his education at least through high school and had past relevant work experience as a tire technician, construction worker, landscape laborer, kitchen helper, warehouse laborer, and auto detailer. (Tr. 30). Plaintiff alleges disability initially due to back problems, borderline personality disorder, diabetes, neuropathy, learning disability, and MRSA. (Tr. 64).

         There are documents in the record for the same address as Plaintiff that may be records of his mother or some other relative. (Tr. 635, 646-47; 1142; 1174). There are multiple bills and explanation of benefits in the record, which will not be summarized individually as they are not pertinent to the issues raised by Plaintiff. It is noted Plaintiff's medical indemnity plan did not cover many services and several bills were for thousands of dollars each. (Tr. 648-54, 657, 661-62, 681-84). There is a letter in the record from Change Healthcare that offered help for patients with little or no medical insurance. (Tr. 671). In October 2016, Grand Strand Medical Center denied Plaintiff's charity, write-off request because he had not sent the financial assistance application. (Tr. 680). Also, Plaintiff was in the Welvista Medication Assistance program. (Tr. 685).

         There are records in 2010, outside of the applicable time period, that mention Dr. King: “In March, while at South Strand emergency room, his AST was 36, ALT 39, bilirubin 1.4, and alkaline phosphatase 81. These are again all essentially normal with the exception of the bilirubin. He states that Dr. King, who now is apparently dead and with whose office we have been unable to get records, apparently he was doing some evaluation for ‘high enzymes' as well. He has never had a liver biopsy. He has not had an ultrasound until just during his last hospitalization. He has never placed on any medications. There was no diagnosis made in the past, but he reports that his elevated enzymes prevented him from working with a local fire department.” (Tr. 805-06). In 2010, Plaintiff had a normal CT scan with no hepatic mass seen. (Tr. 830). A 2010 MRI showed mild splenomegaly, a small simple cyst in the right lobe of the liver, mild diffuse fatty infiltration throughout the liver, no focal hepatic lesions or biliary obstruction, and no adenopathy. (Tr. 832-33). In 2010, Plaintiff was seen for elevated LFTs, with history stating: “He had previously been followed by Dr. John King locally and apparently has not been seen by him in some time as his physician has died and he was not even aware of that.” (Tr. 834).

         November 2011

         There are no relevant records for 2011 from November 5, 2011, the onset date, forward.

         Records show Plaintiff worked in 2012 for at least ten different employers. (Tr. 268).

         On January 22, 2012, Plaintiff was seen in the emergency room. (Tr. 749). Plaintiff reported sharp chest pain. Plaintiff was lifting dishes at work. EKG was unremarkable. History was: “Noteworthy for elevated liver function tests, which had been worked up in the past with an MRCP; hepatitis studies, ultrasound, all which were negative and just basically showed fatty liver.” (Tr. 749). Medications were Lantus, metformin (brand name Glucophage), and ibuprofen. Diagnosis were atypical chest pain, diabetes, and elevated liver function tests with “total bili 2.6, AST of 54, ALT of 536.” (Tr. 750). The emergency room doctor further stated: “As far as the diabetes, he states that his sugars normally run in the low 100s, both in the morning and in the evening, and I suggested that given his sugars are running so well, just to stay on Lantus and stop his Glucophage, since this works through the liver, and hopefully this will help his elevated liver function test. I also advised him to try to seek out a physician, locally. During his last admission in 2010, his hepatitis studies were negative, as well as hemochromatosis study. He never did follow up with Dr. Ballou. He was advised to stop his Glucophage, continue his Lantus, and follow up with a local physician.” (Tr. 750). Plaintiff stated a family history of two sisters dying from polycythemia. “He does not know if he has this diagnosis himself, although, he has been admitted in the past with quite elevated LFTs.” (Tr. 752). A work excuse from Waccamaw Community Hospital dated January 22, 2012, states Plaintiff could return to work on January 24, 2012. (Tr. 527).

         On March 24, 2012, Plaintiff was seen in the emergency room with complaints of a wound infection. (Tr. 970). Plaintiff was given a work excuse for the same day. (Tr. 972).

         On May 10, 2012, Plaintiff was seen in the emergency room for a wasp sting with early infection. (Tr. 966-69).

         A hospital work excuse directed to Olive Garden dated June 13, 2012, states Plaintiff must elevate his right hand due to burns. (Tr. 528).

         On June 23, 2012, Plaintiff was seen in the emergency room for cold symptoms. (Tr. 742). Past history reported by Plaintiff was polycythemia. Plaintiff was given a work note. (Tr. 744). Chest x-ray was normal. (Tr. 748).

         On July 11, 2012, Plaintiff was seen in the emergency room for fever. (Tr. 958). Strength upon exam was 5/5. (Tr. 959). Plaintiff was given a two day work release. (Tr. 963).

         A hospital work excuse dated August 4, 2012, stated Plaintiff could work with the accommodations of no lifting more than ten pounds, ground level work, and no repetitive bending, stooping, squatting, pushing, jerking, twisting, or bouncing. (Tr. 528).

         On September 12, 2012, Plaintiff received a work excuse for one day due to dental pain. (Tr. 1056).

         On October 3, 2012, Plaintiff was seen in the emergency room for foot pain; he dropped a cement block on his foot. (Tr. 954). Plaintiff was out of metformin. (Tr. 954). Plaintiff was diagnosed with a foot bruise. (Tr. 955).

         On December 8, 2012, Plaintiff presented to the emergency room for a right chin abscess; it was incised and drained. (Tr. 736).

         On December 11, 2012, Plaintiff presented to the emergency room for a wound recheck for a right chin abscess. (Tr. 733). Plaintiff stated he was taking Lantus, vibramycin, and Vicodin. Plaintiff had no complaints. (Tr. 733). Plaintiff was given a refill of Glucophage and increased Levemir prescription; Plaintiff had a blood sugar result of 420. (Tr. 734). Plaintiff had asymptomatic, insulin-dependent hyperglycemia. (Tr. 734).

         2013

         On February 18, 2013, Plaintiff was seen by Dr. Adler, reporting he needed a physical and mental evaluation for vocational rehabilitation. (Tr. 853). Plaintiff reported arm pain, back pain, headache, and leg pain. (Tr. 854). Upon exam, Plaintiff ambulated normally and was healthy appearing. Plaintiff had normal mood, affect, and memory. (Tr. 854). Upon palpation, Plaintiff's liver was nontender. (Tr. 855). Motor strength and tone was normal. Plaintiff had limited range of motion in joints and back and lower extremities were tender. (Tr. 854). Plaintiff reported as problems: “hepatitis delta without mention of active hepatitis b disease with hepatic coma, ” diabetes, arthritis, polycythemia, secondary, disorders of autonomic nervous system, and chronic pain syndrome. (Tr. 853). Plan was aggressive treatment for diabetes. Plan was pain management and limit physical activity. (Tr. 855).

         On March 3, 2013, Plaintiff was seen in the emergency room for high blood sugar after being arrested. (Tr. 950). His back was nontender with full range of motion.

         On September 15, 2013, Plaintiff was seen in the emergency room for an abscess. (Tr. 945).

         In records from a detention center, under assessment for liver and hepatitis, it states “no;” it states “yes” for diabetes. (Tr. 881).

         2014

         Records show Plaintiff earned over $8, 000 working in 2014 for at least nine different employers. (Tr. 259, 267).

         On May 2, 2014, Plaintiff was seen in the emergency room for an abscess. (Tr. 939). Plaintiff reported being out of insulin for two months. Upon exam, his abdomen was nontender. (Tr. 939). A work excuse from Conway Medical Center dated May 2, 2014, stated Plaintiff could return to work on May 4, 2014. (Tr. 530, 942).

         On July 19, 2014, Plaintiff was seen in the emergency room. (Tr. 932). Plaintiff complained of acute leg pain beginning the prior week. Strength was 5/5. (Tr. 933). Plaintiff had normal range of motion in back. (Tr. 933). Discharge diagnosis were: abscess, hyperglycemia, incision, drainage, and lumbosacral radiculopathy. (Tr. 935). Work release was to be that same day. (Tr. 935). Imaging showed diffuse spondylosis with disc space narrowing and osteophyte formation with facet hypertrophy greatest at L4-S1. Impression was diffuse degenerative change. (Tr. 938).

         On August 16, 2014, Plaintiff presented to the emergency room. (Tr. 927). Plaintiff reported he had back pain and could not get Medicaid. (Tr. 927, 1022). Upon exam, Plaintiff had painful range of motion of back without tenderness or spasm. (Tr. 927). Discharge stated lumbosacral strain and chronic back pain. (Tr. 929). A work excuse from Conway Medical Center dated August 16, 2014, stated Plaintiff could return to work on August 16, 2014. (Tr. 529).

         On October 25, 2014, Plaintiff's mother completed a function report for Plaintiff. (Tr. 390). Plaintiff reported he had uncontrolled diabetes and was unable to buy medication. (Tr. 381, 383). Plaintiff reported he was diagnosed by Dr. John King(deceased) with polycythemia and has been unable to get records proving. (Tr. 381). Plaintiff alleges his liver is very compromised and his lower spine is deteriorated. Plaintiff reported his knees collapse and his eyesight has worsened. (Tr. 381). Plaintiff alleged he could make his bed, take out the trash, wash clothes, bathe, and shop. (Tr. 382). Plaintiff reported dizziness. (Tr. 382). Plaintiff does not cook due to back, leg, and foot pain. Plaintiff cannot stand for long. (Tr. 383). Plaintiff does light cleaning thirty minutes per week. Plaintiff can drive but not at night or when dizzy. (Tr. 384). Plaintiff cannot manage an account due to his learning disability. (Tr. 384). Plaintiff rarely fishes due to walking and standing. (Tr. 385). Plaintiff reported he talks on the phone, texts, and has short visits with others. (Tr. 385). Plaintiff can walk two blocks. (Tr. 386). Plaintiff cannot pay attention long. (Tr. 386). Plaintiff has difficulty getting along with others. (Tr. 387). Plaintiff reported management being afraid he would hurt a coworker. (Tr. 389). Plaintiff stated he needed a knee brace and glasses but could not afford. (Tr. 389). Plaintiff reported he had been turned down several times because his records from Dr. John King have been destroyed and Dr. John King was going to send him to MUSC for a blood draining procedure. Plaintiff reported his sister died from polycythemia at age 42. (Tr. 390).

         On November 11, 2014, Plaintiff filled three prescriptions: mupirocin, metformin, and Clindamycin. (Tr. 531). On November 11, 2014, Plaintiff was seen in the emergency room for leg swelling. (Tr. 1018). Diagnosis were cellulitis, abscess, and hyperglycemia. Plaintiff was given a two day work release form. (Tr. 1020).

         On December 15, 2014, Plaintiff presented to the emergency room with complaints of lumbar pain with onset of one week. (Tr. 1029). Plaintiff reported that he did a lot of bending and lifting for his job. (Tr. 1041). There is a two day return to work excuse dated December 18, 2014. (Tr. 1079, 1041).

         On December 22, 2014, Plaintiff was examined by state agency examiner, Dr. Akoury. (Tr. 1057-60). Plaintiff reported he suffered from chronic pain in his lower back and neuropathy with numbness. Plaintiff reported last working in 2014. (Tr. 1057). Plaintiff exhibited slow mental functioning and that Plaintiff was “unable to give best effort during examination.” (Tr. 1058). Plaintiff had no tenderness upon exam of abdomen. Examination of Plaintiff's musculoskeletal and extremities was normal with full range of motion and normal gait. (Tr. 1059). Impression was “neuropathy by history, chronic lower back pain, diabetes, and slow mental functioning.” (Tr. 1059). “Patient is capable to take care of self, he is however slow ...


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