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Junior Gregory v. Saul

United States District Court, D. South Carolina

July 19, 2019

William Brown Junior Gregory, Plaintiff,
v.
Andrew M. Saul, [1] Commissioner of Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION

          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 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 the Commissioner's decision be reversed and remanded for further proceedings as set forth herein.

         I. Relevant Background

         A. Procedural History

         On or about October 17, 2014, Plaintiff filed an application SSI in which he alleged his disability began on January 1, 2013. Tr. at 238-43. His application was denied initially and upon reconsideration. Tr. at 144, 164, 168-71, 175-78. Plaintiff subsequently amended his alleged onset date to September 5, 2014. Tr. at 43, 332. On February 27, 2017, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) John T. Molleur. Tr. at 37- 85 (Hr'g Tr.).[2] The ALJ issued an unfavorable decision on June 13, 2017, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 15-36. 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 1-7. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on July 5, 2018. [ECF No. 1].

         B. Plaintiff's Background and Medical History

         1. Background

         Plaintiff was 46 years old at the time of the hearing, completed the twelfth grade, but did not graduate or obtain a GED. Tr. at 45. His past relevant work (“PRW”) was as a fabricator in New York doing welding and janitorial work. Tr. at 45-47. He alleges he has been unable to work since September 5, 2014. Tr. at 43, 332.

         2. Medical History[3]

         On September 5, 2014, Plaintiff presented to Montefiore Medical Center in New York, with complaints of blurry vision and dizziness for two days and reported noncompliance with his blood pressure and diabetic medication for two years. Tr. at 340-433, 365, 751-94, 803-35. A head computed tomography (“CT”) scan was abnormal, and a brain magnetic resonance image (“MRI”) reflected extensive white matter signal abnormality highly suggestive of demyelinating disease. Tr. at 345-46, 352-56. A chest x-ray reflected no acute cardiopulmonary disease, but an electrocardiogram (“ECG”) was abnormal. Tr. at 354, 386-87. Sofia Turner, M.D. (“Dr. Turner”), noted Plaintiff's symptoms had resolved after medication was administered and had improved his blood pressure. Tr. at 360, 363. Dr. Turner diagnosed malignant hypertension, referred Plaintiff to neurology due to his head CT scan and brain MRI results, and admitted him. Tr. at 363. An ophthalmology consultation was performed that found cotton wool spots on exam, likely secondary to uncontrolled hypertension. Tr. at 372, 531.

         On September 6, 2014, Deepa Kannaditharayil, M.D. (“Dr. Kannaditharayil”), performed a neurology consultation and assessed demyelinating disease, possibly multiple sclerosis, and blurry vision, likely related to his vascular risk factors. Tr. at 373-76. Cervical and thoracic spine MRIs showed no evidence of demyelinating disease within the spine, but there were C4-C5 paracentral disc protrusion indents causing canal and right foraminal stenosis. Tr. at 405-08. A face and neck MRI reflected no optic neuritis. Tr. at 409. Renal and bladder ultrasounds revealed echogenic kidneys, consistent with renal parenchymal disease. Tr. at 410-11. An abdominal venous duplex reflected no evidence of thrombosis; a carotid duplex showed a high resistant left vertebral artery waveform and intermittent cardiac arrythmia; and a renal artery duplex was normal, but resistive in the left mid-renal artery. Tr. at 388-95.

         On September 9, 2014, Pranav Patel, M.D. (“Dr. Patel”), performed an unsuccessful lumbar puncture. Tr. at 370-71. Renee S. Monderer, M.D. (“Dr. Monderer”), reviewed test results, noted Plaintiff had poorly-controlled hypertension, diabetes mellitus, and obstructive sleep apnea, found his blurry vision had improved, and ordered additional tests. Tr. at 377. However, Plaintiff left the hospital to travel home to South Carolina with his mother. Tr. at 519, 523.

         On September 13, 2014, Plaintiff presented to Memorial Health University Medical Center (“Memorial Health”) in Georgia, with complaints of headache and hypertension and was admitted for treatment. Tr. at 474-90, 504-08, 525, 840-63. The attending physician noted Plaintiff was “occasionally slow to respond, ” but he was uncertain “whether or not [Plaintiff was] reluctantly ignoring to answer the questions or if it [was] secondary to [central nervous system (“CNS”)] pathology.” Tr. at 532. A head CT scan reflected remote appearing infarcts in the bilateral basal ganglia and right superior frontal lobe and soft tissue density. Tr. at 525-26. A brain MRI and intracranial magnetic resonance angiogram (“MRA”) showed no significant stenoses or occlusions. Tr. at 527.

         On September 16, 2014, Plaintiff was discharged with diagnoses of malignant hypertension secondary to medication noncompliance, possible syncopal episode, diabetes mellitus type 2, chronic kidney disease stage III- IV, mild dyslipidemia, obstructive sleep apnea, and abnormal white matter changes, felt secondary to chronic uncontrolled hypertension and small vessel ischemia, with multiple sclerosis felt less likely. Tr. at 506, 795-802.

         Later on September 16, 2014, Plaintiff presented to Coastal Carolina Medical Center (“Coastal Carolina”) in South Carolina and various tests were performed. Tr. at 448-68. Plaintiff's mother reported Plaintiff had slurred speech, slow mentation, headache, and left facial droop onset for forty minutes and she had been transporting him from a hospital in New York to South Carolina. Tr. at 455. Prior to arriving in South Carolina, she observed weakness episodes in the car and transported Plaintiff to Memorial Health where she said he was diagnosed with cerebrovascular accident (“CVA”) and malignant hypertension. Id. An ECG was abnormal. Tr. at 461. A brain CT scan reflected infarcts. Tr. at 463-64. A chest x-ray reflected no acute cardiopulmonary disease. Tr. at 464. Plaintiff's condition worsened when he arrived in South Carolina and he was transferred back to Memorial Health for treatment. Tr. at 458.

         On September 17, 2014, Plaintiff returned to Memorial Health for further evaluation and underwent numerous tests. Tr. at 491-503, 509-601, 679-81, 836-39. On September 21, 2014, Amy Archer, M.D (“Dr. Archer”), performed a consultation due to Plaintiff's rehabilitation diagnosis of CVA with left hemiparesis. Tr. at 561. Dr. Archer reviewed Plaintiff's recent medical history and noted Plaintiff reported left-sided weakness. Tr. at 562. Dr. Archer found Plaintiff was alert and oriented and had speech, cognition, function for simple questions and answers, and ability to follow simple directions, but his affect was “somewhat flat.” Tr. at 563. Plaintiff exhibited 4/5 strength in his left extremities and excellent alternating movements. Id.

         Dr. Archer concluded,

[Plaintiff] has seen physical and occupational, as well as speech therapy in the acute setting. Patient is at a very high level in terms of mobility, self-care, abilities, and even cognition functioning. Speech Therapy does note mild delays with cognition. [Plaintiff] was able to ambulate 200 feet with contact guard assistance of the physical therapist [and] was actually able to walk around his room with this clinician today with no assistance and demonstrated no loss of balance. His mother is amenable to taking him. He lives with his mother, father, and several adult siblings. If financial resources were available, home health or outpatient [physical therapy]/speech therapy would be best to maximize his mobility and cognitive function. If financial resources are not available, [Plaintiff] should do fine, but recovery will be slower than with [physical therapy]/speech therapy and this was explained to his mom. It is doubtful he would need any durable medical equipment

Tr. at 564-65.

         On September 22, 2014, Jeffrey G. Taylor, M.D. (“Dr. Taylor”), summarized Plaintiff's treatment, diagnosed CVA, possibly secondary to paroxysmal atrial fibrillation though no atrial fibrillation documented, multiple CVAs, hypertension, hyperlipidemia, diabetes mellitus type 2, obstructive sleep apnea, and tobacco abuse. Tr. at 519. Dr. Taylor noted an echocardiogram reflected ejection fraction of 65-70% with mild biatrial enlargement; a brain MRI showed findings compatible with multiple emboli consistent with embolic infarction without significant mass effect and minimal petechial straining in the right middle cerebral distribution; a carotid ultrasound showed no significant stenoses; a lumbar puncture a few days prior had negative studies; and a urine drug screen was positive for cocaine. Tr. at 519. Dr. Taylor noted,

[Plaintiff] is a 43-year-old . . . who was discharged to a hospital with bilateral internal capsule infarcts and accelerated hypertension. He was discharged on September 16th. He actually insisted on leaving although he was not required to sign out [against medical advice (“AMA”)]. After leaving, he developed some left-sided weakness, decreased verbal output, and some tearfulness. He was taken to Coastal Carolina where the CT showed anterior right internal capsular infarct. [Plaintiff] was transferred to Memorial. MRI here was consistent with multiple embolic infarcts. His urine drug screen was positive for cocaine raising the possibility that these infarcts could have been cocaine-related. He had [a lumbar puncture] done, which was not consistent with multiple sclerosis. A [transesophageal echocardiography report (“TEE”)] was done, which did not show any embolic source. We never documented atrial fibrillation, but it was felt that it was wisest to anticoagulate him despite his cocaine use. He was cautioned about using cocaine. He was also cautioned as to the importance of taking his blood pressure medicines as well as his Coumadin. He was discharged on Coumadin 5 mg a day in addition to his Lovenox.

Tr. at 519, 523. Dr. Taylor prescribed Coreg, Lovenox, Hydralazine, Norvasc, Enteric-coated aspirin, Mevacor, and Coumadin, scheduled a follow up at Curtis V. Cooper Health Clinic (“Cooper Health”) for reevaluation and Beaufort Memorial for outpatient rehabilitation with physical and occupational therapy. Tr. at 523.

         On September 23, 2014, Plaintiff presented to Memorial Health due to nausea and vomiting shortly after discharge the prior day. Tr. at 678, 682- 711. The attending physician conducted additional tests, assessed status-post embolic CVAs, accelerated hypertension, and atrial fibrillation, and modified Plaintiff's prescriptions. Id.

         On September 24, 2014, Plaintiff was discharged from physical therapy at Memorial Health because he was at baseline and “safe for mobility.” Tr. at 602-13. Outpatient treatment was recommended for speech therapy. Tr. at 613.

         On October 17, 2014, Plaintiff presented to Beaufort Memorial. Tr. at 639-45, 649-51. Angela Bandola (“Ms. Bandola”), the treating clinician noted,

[Plaintiff] currently demonstrates normal [active range of motion (“ROM”)] and strength of [bilateral upper extremity]. He and his mother report no limitations in completion of [activities of daily living (“ADLs”)] at this time. [Plaintiff] demo[nstrates] normal cognitive functioning as per mini-mental exam.[4] [Plaintiff] is slow to respond to questions or instructions. [Plaintiff's] mother reports intermittent issues with speech that might be treated. At this time skilled [Occupational Therapy] is not appropriate.

Tr. at 639. Plaintiff was discharged because the “maximal level [was] reached.” Tr. at 640. Also, Plaintiff presented to Susan Mastromauro, D.P.T. (“Therapist Mastromauro”), and “denie[d] significant impairments beyond [his lower left extremity] weakness and feeling as though his lower extremities fatigue quickly.” Tr. at 645. Plaintiff had impaired gait and balance and decreased lower extremity strength, activity tolerance, and functional mobility. Id. Therapist Mastromauro prescribed physical therapy for Plaintiff's lower extremities for eight weeks. Tr. at 646, 651.

         On October 29, 2014, Plaintiff presented to Good Neighbor Clinic with complaints of fatigue, headaches, left-sided weakness, and delayed speech. Tr. at 621. Plaintiff's mother provided his history. Id. The attending nurse noted Plaintiff's gait was normal and he was able to heel, toe, and squat walk and scheduled a follow up visit in two weeks. Id.

         On November 11, 2014, Plaintiff presented to Good Neighbor Clinic for a check up and provided his recent treatment records from September 2014. Tr. at 619. The attending nurse assessed uncontrolled hypertension, untreated diabetes mellitus, and renal insufficiency, ordered laboratory tests, prescribed Metoprolol, and scheduled a follow-up appointment in one week. Id.

         On November 18, 2014, Plaintiff presented to Good Neighbor Clinic for a follow-up visit and reported weakness in his left arm and leg, slurred speech, short-term memory difficulty, and cognitive impairment. Tr. at 618. The attending physician noted Plaintiff received physical and speech therapy, prescribed medications, and recommended follow up in three to four weeks. Id.

         On November 24, 2014, Plaintiff presented to Beaufort Memorial and reported he was sore from “working out” at home. Tr. at 647-48. Plaintiff ambulated without an assistive device, was able to “high level balance” without upper extremity support, and could dribble a basketball while weaving in and out of cones. Tr. at 647. Therapist Mastromauro discharged Plaintiff from physical therapy. Tr. at 648.

         On November 25, 2014, Plaintiff presented to Cooper Health. Tr. at 669-674. On exam, Plaintiff had left-sided weakness and walked with a dragging gait. Tr. at 674. The attending physician assessed CVA with left hemiparesis, hypertension, and anticoagulation, updated Plaintiff's medications, and scheduled a follow up in one week. Id.

         On December 2, 2014, Plaintiff presented to Good Neighbor Clinic for follow up. Tr. at 617, 660. The attending physician assessed left hemiparesis and continued physical therapy for three weeks. Id.

         On December 2, 2014, Plaintiff presented to Beaufort Memorial with difficulties in speech production. Tr. at 626-29, 634-37. Plaintiff had “mild receptive and expressive language skills significant for decreased speech during conversation, moderate apraxia of speech during volitional speech tasks, decreased repetition skills, and reduced object naming abilities.” Tr. at 628. Id. Angela Hammond, the treating clinician, recommended skilled speech and language services to increase receptive and expressive language and speech production and ordered therapy twice a week for six weeks. Tr. at 628-29.

         On December 10, 2014, Plaintiff presented to Beaufort Memorial due to weakness in his left hand. Tr. at 630-33. Plaintiff and his mother reported he was “able to perform all of his basic ADLs.” Tr. at 630. Plaintiff also reported he walked for an hour a day, but he had trouble sleeping at night due to sleep apnea. Id. Ms. Bandola noted Plaintiff demonstrated full strength and active ROM in his bilateral upper extremities, with his left hand gripping stronger than his right. Id. Ms. Bandola also noted, “[h]e is reportedly independent with all ADL's except that he has not returned to some form of work.” Id. She recommended therapy was not warranted and provided a hand strengthening home program “only because he state[d] he [was] not doing anything with his hands at home.” Id. No further treatment was rendered, but cardiac rehabilitation was suggested due to Plaintiff's mother's report that he could not participate in vocational rehabilitation due to a heart condition. Tr. at 631, 633.

         On January 6, 2015, Plaintiff presented to Good Neighbor Clinic to follow up on bloodwork. Tr. at 637-38, 659, 731. Plaintiff reported no changes, he was “doing well, ” and attended physical therapy twice a week at Memorial Health. Id. The attending physician assessed left hemiparesis, atrial fibrillation, and increased lipids and weight. Tr. at 650. He continued Plaintiff's prescriptions and physical therapy. Tr. at 659.[5]

         On February 19, 2015, Plaintiff presented to Cooper Health for follow up of his blood pressure. Tr. at 675-77, 717-19. Plaintiff reported compliance with his medication, except Hydralazine that he had not taken for weeks, his blood pressure was elevated, and he experienced blurry vision. Id. The attending physician assessed hypertension and diabetes and scheduled a follow up in three months. Tr. at 677.

         On April 14, 2015, Plaintiff presented to Good Neighbor Clinic and reported frustration with memory loss. Tr. at 729-30. Plaintiff also reported he reviewed his medication dosages with his mother and slept a lot during the day. Id. The attending physician assessed status-post CVA, high blood pressure, atrial fibrillation, increased lipids, and obesity. Id. He modified Plaintiff's medication and instructed him to walk and diet. Id.

         On May 30, 2015, Jessica Hannah, M.D. (“Dr. Hannah”), performed a consultative examination. Tr. at 713-15. Plaintiff reported vision, speech, and memory issues with left-sided weakness. Id. Plaintiff also reported his mother had to remind him of things and he no longer drove. Id. Dr. Hannah found Plaintiff had 4/5 left-sided weakness, but normal gait and ability to rise from a seated position without assistance, bend, and squat. Tr. at 714. She also found adequate fine motor movements, dexterity, ability to grasp objects bilaterally, and mild weakness in his left-hand grip. Id. Dr. Hannah noted Plaintiff was alert, oriented, and cooperative and was not depressed or anxious, but communicated with expressive aphasia and “did poorly on [the Mini-Mental State Exam (“MMSE”)], only scoring 21/30.” Id. Plaintiff's visual acuity was 20/50 in his left eye and 20/30 in his right eye without correction. Id. Dr. Hannah assessed cardioembolic CVAs with residual left-sided weakness and numbness, but noted Plaintiff's most problematic deficit was his cognition. Tr. at 715. Dr. Hannah concluded Plaintiff “should be able to sit and walk, ” but he was “not reliable to remember and carry out more than one step instructions” and was “not safe to drive” given his cognitive deficits. Id.

         On June 9, 2015, Isabella McCall, M.D. (“Dr. McCall”), a state agency physician, reviewed the record and provided a residual functional capacity (“RFC”) assessment. Tr. at 136-39. Dr. McCall opined Plaintiff could lift, carry, push, or pull twenty pounds occasionally and ten pounds frequently; stand, walk, or sit about six hours in an eight-hour workday; frequently push or pull with the left upper extremity; frequently handle and finger on the left; occasionally climb ramps or stairs; frequently balance, stoop, kneel, crouch, or crawl; never climb ladders, ropes, or scaffolds; and must avoid concentrated exposure to hazards. Id.

         On June 23, 2015, Plaintiff presented to Cooper Health with complaints of headache, left-sided weakness, and increased blood pressure, despite compliance with medications. Tr. at 720-24, 896-99, 910. The attending physician assessed anticoagulation and hypertension and prescribed Hydralazine. Id.

         On June 25, 2015, Cashton B. Spivey, Ph.D. (“Dr. Spivey”), performed a psychological evaluation. Tr. at 735-38. Plaintiff reported left-sided weakness and memory deficits, such as he misplaced objects, forgot to take medications, forgot conversations, and left the stove on. Id. Plaintiff also reported he had lost the ability to read and perform simple arithmetic since his CVA, but his mother managed his finances. Id. Dr. Spivey reviewed Plaintiff's education, employment, medical, psychiatric, arrest, substance abuse, marital, developmental, and family histories. Tr. at 735-39. Plaintiff reported he believed he was capable of operating an automobile, but did not have a license. Tr. at 736. He also reported he lived with his mother and was responsible for light cooking, the dishes, and cleaning his room. Id. Dr. Spivey noted Plaintiff was cooperative and compliant, such that the evaluation appeared to represent an accurate assessment of his intellectual, cognitive, and academic functioning. Tr. at 737. Plaintiff's mood was mildly sad; his affect was slightly blunted; his thought processes were logical and coherent with no evidence of overt psychosis; his attention and concentration functioning were fair; his speech was normal; he engaged in appropriate eye contact; and his psychomotor functioning was within normal limits, but he appeared to display a mild reduction in energy level. Tr. at 737. Dr. Spivey administered the Wechsler Adult Intelligence Scale, Fourth Edition (“WAIS-IV”) and Wide Range Achievement Test, Fourth Revision (“WRAT-4”). Id. Plaintiff had a full-scale IQ of 61, a processing speed of 59, and reading and math skills at a third-grade level. Id. Dr. Spivey found Plaintiff had an “extremely low general intelligence with academic ...


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