United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Bristow Marchant United States Magistrate Judge.
Plaintiff filed the complaint in this action pursuant to 42
U.S.C. § 405(g), seeking judicial review of the final
decision of the Commissioner wherein he was denied a period
of disability benefits. This case was referred to the
undersigned for a report and recommendation pursuant to Local
Civil Rule 73.02(B)(2)(a)(D.S.C.).
applied for Disability Insurance Benefits (DIB) and
Supplemental Security Income (SSI) on April 11, 2012
(protective filing date), alleging disability beginning
November 15, 2007 due to shoulder problems, lower back
problems, high blood pressure, pancreatitis, hypertension,
and a stroke. (R.pp. 327, 329, 429, see also R.p.
155). Plaintiff's claims were denied both initially and
upon reconsideration. Plaintiff then requested a hearing
before an Administrative Law Judge (ALJ), which was held on
July 24, 2014. (R.pp. 63-78). The ALJ thereafter issued a
partially favorable decision on March 26, 2015, finding that
Plaintiff became disabled on July 24, 2014 but was not
disabled or entitled to disability benefits before that time.
(R.pp. 154-166). Plaintiff requested review of the decision
(R.pp. 152, 253-254), and the Appeals Council granted review,
vacated the prior decision,  and remanded the case back to the
ALJ to consider whether Plaintiff met the special earning
requirements (i.e., whether he had insured status)
at the time he was found to be disabled, to obtain
additional evidence concerning Plaintiff's impairments,
to reconsider Plaintiff residual functional capacity (RFC),
and to obtain vocational expert (VE) evidence to clarify the
effects of the assessed limitations on Plaintiff's
occupational base (R.pp. 177-179).
then held another administrative hearing on June 16, 2016.
(R.pp. 43-62). Thereafter, the ALJ again issued a partially
favorable decision, this time finding that Plaintiff did not
become disabled until January 4, 2017, and that he was not
disabled before that date. (R.pp. 17-32). The Appeals Council
denied Plaintiff's request for a review this decision,
thereby making the June 16, 2016 determination of the ALJ the
final decision of the Commissioner. (R.pp. 1-5). Plaintiff
then filed this action in United States District Court.
Plaintiff asserts that the ALJ's decision is not
supported by substantial evidence, and that this case should
be remanded for further proceedings. The Commissioner
contends that the decision to deny benefits prior to January
4, 2017 is supported by substantial evidence, and that
Plaintiff was properly found not to be disabled prior to that
42 U.S.C. § 405(g), the Court's scope of review is
limited to (1) whether the Commissioner's decision is
supported by substantial evidence, and (2) whether the
ultimate conclusions reached by the Commissioner are legally
correct under controlling law. Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990); Richardson v.
Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers
v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If
the record contains substantial evidence to support the
Commissioner's decision, it is the court's duty to
affirm the decision. Substantial evidence has been defined
evidence which a reasoning mind would accept as sufficient to
support a particular conclusion. It consists of more than a
mere scintilla of evidence but may be somewhat less than a
preponderance. If there is evidence to justify
refusal to direct a verdict were the case before a jury, then
there is “substantial evidence.”
Hays, 907 F.2d at 1456 (citing Laws v.
Celebrezze, 368 F.2d 640');">368 F.2d 640 (4th Cir. 1966)); see also
Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir.
2008)[Nothing that the substantial evidence standard is even
“less demanding than the preponderance of the evidence
Court lacks the authority to substitute its own judgment for
that of the Commissioner. Laws, 368 F.2d at 642.
“[T]he language of [405(g)] precludes a de
novo judicial proceeding and requires that the court
uphold the [Commissioner's] decision even should the
court disagree with such decision as long as it is supported
by ‘substantial evidence.'” Blalock v.
Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
October 25, 2007, Dr. William Estes, an orthopedist at
Charleston Bone and Joint, evaluated Plaintiff as part of a
Workers' Compensation claim based on complaints of
constant, sharp, and non-radiating pain that had lasted one
month. An MRI revealed a partial rotator cuff tear, and it
was noted that Plaintiff had had four sessions of physical
therapy that he reported had helped minimally. Dr. Estes
diagnosed a SLAP (superior labrum anterior and posterior)
tear and injected Plaintiff's shoulder. (R.pp.
1064-1065). Plaintiff subsequently underwent SLAP repair
surgery on December 19, 2007, but continued to complain of
shoulder pain thereafter. (R.pp. 1067-1073).
April 24, 2008, Plaintiff was treated at East Cooper Medical
Center (ECMC) for slurred speech that had started four days
prior and was intermittent, but had returned that morning.
Plaintiff's blood pressure was 201/111, he had right
facial weakness, and an ECG showed possible ischemia, but he
had no weakness in his lower extremity. A CT scan of the
brain revealed a 1.8 centimeter parenchymal hemorrhage within
the region of the left subinsular white matter with slight
surrounding edema and slight mass effect in the sylvian
cortex that looked like a hypertensive hemorrhage. The
assessment was hypertensive hemorrhage and hypertensive
emergency. (R.pp. 641-647, 706-709, 763).
returned to see Dr. Estes on May 22, 2008 with complaints of
continued right shoulder pain. Plaintiff stated that his
employer would not let him return to work with light or
limited duty. (R.p. 1073). A June 2008 MRI of Plaintiff's
right shoulder showed postoperative change consistent with a
prior labral repair; mild fraying of the glenoid labrum which
might be related to prior postoperative change or
nondisplaced tearing; partial tearing of the supraspinatus,
infraspinatus, and subcapularis tendon; and prominent
sentinel cyst associated with the supraspinatus tendon.
(R.pp. 1074-1075). On October 14, 2008, Plaintiff was
evaluated at the CARES Clinic (CARES) for a history of high
blood pressure and a stroke six months prior. He reported he
could no longer afford Norvasc since losing his job,
complained of sleep loss due to shoulder pain, and reported
he needed to have his blood pressure better controlled before
shoulder surgery could be performed. Norvasc and HCTZ were
prescribed. (R.pp. 549-550).
underwent right arthroscopic rotator cuff repair, right
biceps open tenodesis, and right shoulder labral debridement
at ECMC on November 3, 2008. (R.pp. 652-653). He returned to
the hospital on November 19, 2008, with complaints that his
right foot and leg were not moving correctly. His blood
pressure was 181/106 and a CT scan of his head showed
extensive bilateral white matter changes in the subcortical
white matter of his cerebral hemispheres, indicating
progressive white matter ischemic changes, greater on the
left. There was no evidence of an acute hemorrhage or mass
defect. (R.pp. 769-770, 791).
January 3, 2009, Dr. Estes continued Plaintiff s work
restrictions of “no lifting >10 lbs. No.
work.” (Rpp. 1081-1082). Dr. Estes administered a right
shoulder injection on February 13, 2009, and the assessment
was “activity as tolerated.” (R.pp. 1083-1085).
On May 14, 2009, Plaintiff reported that his right shoulder
was painful and had “crunching” with movement.
His strength was 4/5. (R.pp. 1088-1089). A May 2009 MRI of
Plaintiff s right shoulder showed contrast dissected along
the undersurface of the infraspinatus to the musculotendinous
junction consistent with an unhealed or recurrent partial
tear. There was a torn and retracted long head of the biceps,
and widening of the acromioclavicular joint which was felt to
be post-operative or due to an old sprain. (R.p. 1093). Dr.
Estes assessed Plaintiff on May 29, 2009 with complete
rupture of his rotator cuff, planned to see Plaintiff as
needed, and stated he would offer an impairment rating.
was prescribed Metroprolol in addition to HCTZ and Amlodipine
at CARES to treat his high blood pressure on July 30, 2009.
He admitted to drinking 6-7 beers a day. (R.p. 547). He
returned to CARES in December 2009 with elevated blood
pressure (he said he had run out of medication). Examination
revealed that Plaintiff had mild right shoulder pain with an
empty can test. Right rotator cuff inflammation and
hypertension were assessed and Plaintiff was directed to take
his anti-hypertensive medications and to use NSAIDs for his
right shoulder. (R.p. 546). Examination at CARES on January
14, 2010 revealed a positive empty can test, that his biceps
tendon was tender to palpation, and he had loss of range of
motion. Plaintiff's blood pressure medication was
increased, and a referral was made for physical therapy.
second session of physical therapy on February 9, 2010,
Plaintiff inquired about vocational rehabilitation. It was
observed that he had a greater range of motion than when
asked to perform motion in functional use. The physical
therapist assessed chronic shoulder pain with limited
rehabilitation potential. (R.p. 551).
14, 2010, Plaintiff was treated at ECMC for complaints of
head, neck, and back pain, as well as tingling and pain in
both hands after he fell off a ladder. Oxycodone was
prescribed for cervical strain. A CT of Plaintiff's head
showed diffuse cortical atrophy, chronic small vessel
ischemic change in the white matter, and several old lacunar
infarcts with findings more advanced than average for his
age. CT of his cervical spine showed degenerative disc
disease throughout Plaintiffs cervical spine with moderate
diffuse disc bulge at ¶ 6-7. The impression was cervical
strain. (R.pp. 590-591, 593-594, 730-733).
returned to CARES on December 14, 2010. with complaints of
right and left shoulder pain (which had been present for six
months), and intermittent sharp chest pain every 30 to 45
minutes that did not cause any issues. On examination,
Plaintiff was not able to actively abduct or extend or flex
his arms past 90 degrees due to pain, but his range of motion
was slightly increased with passive movement. His blood
pressure was 196/110. Blood pressure medication and physical
therapy were prescribed. (R.pp. 921-922). On January 18,
2011, a physical therapist assessed Plaintiff with severe
left shoulder pain and extremely limited function, noted that
strength and range of motion could not be tested secondary to
pain, and thought Plaintiff would benefit from orthopedic
referral and imaging. (R.p. 629).
complained of abdominal pain and lip swelling at ECMC on
January 22, 2011. Examination revealed moderate abdominal
tenderness in all quadrants with voluntary guarding. A CT of
Plaintiff s abdomen and pelvis indicated that the head of
Plaintiff s pancreas was enlarged, there was
streakiness/fluid/ascites around the head and body of the
pancreas, the common bile duct was dilated, and his stomach
was distended. The impression was angioedema (due to the ACE
inhibitor he was taking) and ...