Opinion
Civil Action No.: 4:17-CV-01877-CMC-TER
08-30-2018
ANTHONY WAYNE SHEPPARD, Plaintiff, v. NANCY A. BERRYHILL, Commissioner of Social Security; Defendant.
REPORT AND RECOMMENDATION
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. 2012
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 to react, and follows instruction with difficulties, he [is] easily distracted." (Tr. 1059). On December 23, 2014, Plaintiff was given a return to work excuse for return of December 29. (Tr. 1076). 2015
On January 17, 2015, Plaintiff presented to the emergency room complaining of back pain. (Tr. 1068). Impression was acute exacerbation of lumbar radiculopathy. (Tr. 1072). Imaging showed "degenerative disc disease, no acute finding." (Tr. 1073). Plaintiff was given a return to work excuse for January 19. (Tr. 1077).
On January 21, 2015, Plaintiff presented to Coastal Orthopedics. (Tr. 1061, 1115). Plaintiff complained of intermittent lower back discomfort for twenty years with the pain worsening over the prior week after an injury at work where a wall he was leaning on fell down. Plaintiff reported occasional tingling in lower extremities. Plaintiff denied any bowel problems. Plaintiff reported his pain was significantly worse with walking and lying flat. Plaintiff indicated he did temporary job work. (Tr. 1061). Gait was normal; there was some mild lumbar tenderness with palpation. (Tr. 1062). Conservative treatment was recommended, using prednisone, moist heat, and home exercises. Plaintiff was prescribed Neurontin. Plaintiff had a normal DVT study. (Tr. 1064). Plaintiff was given a return to work excuse for five days. (Tr. 1066).
On February 3, 2015, Plaintiff presented to Coastal Orthopedics. (Tr. 1112). Plaintiff complained of lower back pain and right leg pain/weakness. Plaintiff reported no improvement with medication. Plaintiff had an antalgic gait pattern. (Tr. 1112). Plaintiff had decreased range of motion in lumbar spine. (Tr. 1113). Imaging showed multilevel spondylosis. (Tr. 1114). An MRI was recommended to discuss further treatment options. (Tr. 1114).
On February 6, 2015, Plaintiff was seen in the emergency room for back pain. (Tr. 1080, 1125). Plaintiff ambulated without pain. (Tr. 1081). Plaintiff was given a work excuse of two days. (Tr. 1083).
On February 15, 2015, Plaintiff reported to the emergency room for back pain. (Tr. 1122). Gait was normal. (Tr. 1123). Plaintiff was given a work release for two days. (Tr. 1124).
On March 14, 2015, Dr. Ritz, Ph.D., performed a mental status examination. (Tr. 1084). Records from ten years prior reviewed by Dr. Ritz noted obsessive compulsive disorder and borderline personality disorder. (Tr. 1084). Plaintiff arrived early. Plaintiff physically fought a DSS worker. Plaintiff reported not liking crowds. Plaintiff reported he could not hold a job because he cannot get along with people. Dr. Ritz stated Plaintiff's theme is reported to be being wrongly treated. (Tr. 1084). Plaintiff takes no mental health medication. (Tr. 1085). Plaintiff reported he completed a high school diploma through adult education and completed two firefighter certifications. Plaintiff was arrested for two incidents involving violence. (Tr. 1085). Plaintiff reported his daughter did most of the chores and he napped during the day. Plaintiff reported being able to grocery shop and handle hygiene. (Tr. 1086). Plaintiff's gait and posture were normal. Plaintiff's mood at times was irritable. Plaintiff's thoughts were logical and coherent. Plaintiff scored 23/30 on the Mini-Mental status exam, in the unimpaired range. Cognitive skills were estimated in the low average limits. (Tr. 1086). Dr. Ritz opined Plaintiff was able to function in a temp job with air conditioning helper work and stopped due to his back; Plaintiff had capabilities for performing in that type of job setting. "He clearly has the capacity to remember and carry out simple job instructions and responsibilities." Diagnosis was borderline personality disorder. (Tr. 1087).
On March 17, 2015, state agency reviewing consultant, Dr. McCall, M.D., reviewed Plaintiff's medical records and opined Plaintiff could lift/carry 20 pounds occasionally and 10 pounds frequently, sit/stand/walk about 6 hours each in a workday, unlimited push/pull, frequently crawl/kneel/crouch/stoop/climb ramps and stairs, occasionally climb ladders/ropes/scaffolds, and unlimited balance. (Tr.75- 77). On reconsideration, Dr. Doig, M.D., essentially affirmed Dr. McCall's opinion because there had been no additional treatment or worsening alleged. (Tr. 115). Ms. Werden, a reviewing consultant, opined a mental RFC of: no understanding/memory limitations, no sustained concentration/persistence limitations, moderately limited in ability to interact appropriately with public, supervisors, and coworkers, could perform simple and complex tasks for two hour periods of time, and best suited for jobs without continuous interaction with public or coworkers. (Tr. 77-70). On reconsideration, Ms. Hadley, Psy.D., reviewed records, found there was no worsening alleged and no additional treatment, and affirmed Ms. Werden's RFC. (Tr. 112, 116-17). These consultants did find personality disorders and intellectual disability as severe impairments. (Tr. 128).
On April 12, 2015, Plaintiff presented to the emergency room with flu symptoms. (Tr. 1118). Plaintiff reported that several people at his job had the same symptoms. (Tr. 1118). Plaintiff had bronchitis. (Tr. 1120). Plaintiff was given a two-day work release. (Tr. 1120).
On September 23, 2015, Conway Medical Center indicated medications given were fluconazole, florajen, Lasix, and metformin. (Tr. 478).
On October 28, 2015, Plaintiff was evaluated by Elite Orthopaedics. (Tr. 1209). Plaintiff was driving a moped, someone rear-ended him, and he flew through the air twenty five feet with the moped landing on him. Plaintiff did not go to hospital the same day. Plaintiff reported pain and bleeding from his ears, nose, and mouth. (Tr. 1209). It is reported he cannot afford to see a primary physician and goes to the emergency room. Plaintiff reported intermittent numbness in his right hand. Plaintiff's gait favored his right knee. Plaintiff's lumbar spine was tender. Plaintiff had road rash abrasion. (Tr. 1209). 2016
On January 10, 2016, Plaintiff had multiple abrasions and contusions. (Tr. 1129).
On January 12, 2016, Plaintiff filled prescription for Lasix, ibuprofen 800mg, and "oxycod/acetamin 5-325mg." (Tr. 571-76).
On April 15, 2016, Plaintiff was seen by NP Niederwerfer. (Tr. 1153, 1213). Encounter reason was "abdominal pain, abnormal liver function test." History was: Plaintiff referred for evaluation of "elevated LFTs. He was seen in the ER 2/26/16 with abo pain. ruq u/s suggested cirrhosis of the liver and gallstones. ALP 133, AST 74, ALT 61, PLT 107, ALB 3.0. Reviewing records he had a reactive HepC AB 9/2015. He reports he is unsure of when he may have been exposed to Hep C. He did work with the fire department from 1194-1996... [He complained of] intermittent [abdominal] pain." (Tr. 1153). Upon exam, Plaintiff's liver was no tender with no heptomegaly; spleen was nontender with no splenomegaly. (Tr. 1154). Plaintiff had normal gait. Assessment and plan was viral hepatitis c without hepatic coma, cirrhosis of liver for which Lasix was prescribed, increased liver function, and cholelithiasis without obstruction. (Tr. 1154).
On May 25, 2016, Plaintiff filled prescriptions for Clindamycin and ibuprofen 800 mg. (Tr. 625). Plaintiff had been seen for dental pain. (Tr. 1165).
On July 21, 2016, Plaintiff filled prescriptions for Lasix, Clindamycin, and naproxen. (Tr. 639-45). Plaintiff had been seen for dental pain. (Tr. 1167).
In August 2016, Plaintiff filled prescriptions for Lasix and "hydroclorot 25 mg." (Tr. 655-56). Plaintiff had been seen for hypertension and incision/drainage of abscess. Plaintiff was given information about free and reduced clinics and warned treatment was rendered on emergency basis and was not intended to be a substitute for an effort to provide complete medical care. (Tr. 1187, 1196).
On September 3, 2016, Plaintiff had been seen in the emergency room for headache. (Tr. 1199). On September 28, 2016, Plaintiff was seen in the emergency room for degenerative disc disease, spinal stenosis, and acute back pain. (Tr. 1201). 2017
On February 20, 2017, Plaintiff reported to the emergency room for vomiting/sepsis. (Tr. 1226). Plaintiff was discharged on February 23, 2017. School Records
There is an IEP plan for the twelfth grade in the record. (Tr. 621). Strength was the ability to stay on task; weakness was written expression. (Tr. 621). Plaintiff's rank in high school based on seven semesters was 321 of 327. (Tr. 668). It appears Plaintiff repeated the sixth grade. (Tr. 670). Plaintiff had a psychoeducational evaluation in the eleventh grade. (Tr. 725). Plaintiff's current placement was "resource class for the learning disabled." "No serious illnesses or accidents are reported which would be expected to impede current learning." "No significant distractibility was noted during testing." Plaintiff had a tendency to persevere and did not seem discrouaged by failure. (Tr. 725). Testing showed Plaintiff had an intellectual ability in the average range. (Tr. 727).
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
On November 16, 2016, Plaintiff appeared at a hearing before ALJ Marcus Christ. Plaintiff was represented by an attorney. (Tr. 42). Coretta Harrelson testified as an impartial vocational expert (VE). (Tr. 42).
Plaintiff testified he was in remedial classes and graduated high school. (Tr. 47). Plaintiff testified he could read and write. (Tr. 47). Plaintiff testified he did not think he could work due to his anger issues, borderline personality disorder, and diabetes. (Tr. 47). Plaintiff testified he worked some in 2014 and worked every day in pain. (Tr. 48). Plaintiff testified he hurt his back and could not work because his legs go out from underneath him. Plaintiff testified that his liver was failing. Plaintiff worked for about two months doing construction labor. (Tr. 48-49). After, Plaintiff worked several different temp jobs. (Tr. 49). When asked if he ever looked for sedentary jobs, Plaintiff testified that his mental capacity was not up for that according to fifty jobs he applied for and was rejected. (Tr. 50). Plaintiff presented to the hearing with crutches and testified his back was hurting since a car accident in October. (Tr. 50). Plaintiff testified he was hit again in January and needed to get his leg, back, and ankle checked. (Tr. 50). Plaintiff testified his BPD affected him because he could not understand certain things, had memory problems, did not get along with people, and had problems focusing. (Tr. 51). Plaintiff testified he had lots of jobs over the years because he cannot get along with people and his back and legs hurt. (Tr. 52). Plaintiff testified he had incidents with coworkers and bosses. (Tr. 52-53). Plaintiff sleeps 6-7 hours during the day. (Tr. 53). Plaintiff had no insurance. (Tr. 53). Plaintiff testified he had a hole in his mid spine because three vertebras totally deteriorated. (Tr. 55).
VE testimony will not be summarized because it is not pertinent to the issues asserted by Plaintiff.
2. The ALJ's Decision
In the decision of March 3, 2017, the ALJ made the following findings of fact and conclusions of law (Tr. 20-31): 1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2018. 2. The claimant has not engaged in substantial gainful activity since November 5, 2011, the earliest possible alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.). 3. The claimant has the following severe combination of impairments: borderline personality disorder (BPD), hepatitis C, knee disorder, and back disorder (20 CFR 404.1520(c) and 416.920(c)). 4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). 5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform sedentary work6 as defined in 20 CFR 404.1567(a) and 416.967(a) except that he can never climb ladders, ropes, or scaffolds. He can occasionally climb ramps and stairs, as well as occasionally stoop, crouch, kneel, and crawl. He can have occasional interaction with the public. The work, which he can do, is limited to occupations, which involve the performance of simple, routine, repetitive tasks.
fn6: Sedentary work involves lifting/carrying light items; and occasionally lifting/carrying up to 10 pounds, as well as standing or walking for 2 hours in an 8-hour workday, and sitting for 6 hours each in an 8-hour workday.6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965). 7. The claimant was born on December 18, 1971 and was 44 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date. The claimant subsequently changed age category to a younger individual age 45-49 (20 CFR 404.1563 and 416.963). 8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964). 9. Transferability of job skills is not materia1 to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2). 10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)). 11. The claimant has not been under a disability, as defined in the Social Security Act, from November 5, 2011, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
II. DISCUSSION
Plaintiff is proceeding pro se and has made numerous filings with the court.
It is not the court's job to sift through filings which are not in compliance with briefing requirements of prior orders (ECF No. 22, 36) and Local Civil Rule 83.VII.04 (D.S.C.) . Nonetheless, the court has been through the filings made by Plaintiff and has liberally construed the arguments and information presented. See Estelle v. Gamble, 429 U.S.97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978); Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the plaintiff's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
In Plaintiff's Complaint, Plaintiff alleges the SSA did not read all of his medical records. (ECF No. 1). Plaintiff alleges Dr. John King(deceased) told him he needed surgery on 4 discs in his lower back and most of his discs were herniated. Plaintiff also had major liver problems and gallstones where surgery was not an option. (ECF No. 1). Plaintiff alleges the SSA overlooked the following facts that: he had advanced arthritis, polycythemia, numbness in his hands and lower extremities, IBS which keeps him from being able to be away from home for extended periods, mild heart attack, and severe muscle cramps due to inability to maintain potassium due to polycthemia. (ECF No. 1-1). Plaintiff submitted multiple documents to the Appeals Council which were decided to be unrelated to the time period before the ALJ. (ECF No. 1-2).
In a letter filed on August 3, 2017, Plaintiff states that he has to have several operations on his neck and back and that the SSA knows he is disabled. (ECF No. 19).
In a letter filed December 18, 2017, Plaintiff requests back payment to November 1997 of social security. (ECF No. 35). In a letter filed December 27, 2017, Plaintiff states his back and neck needs to be operated on and DSS stated they had a letter from two doctors that stated Plaintiff is disabled. (ECF No. 38).
In a letter filed December 27, 2017, Plaintiff's mother states the following and labels the letter "5th Brief." (ECF No. 39). She states Plaintiff has been quite ill since 2010. Plaintiff developed abscesses on his lower limbs and needed surgery to remove them with a pump for drainage. Plaintiff also passed out several times while working. (ECF No. 39). Plaintiff had been in the hospital several times for abscesses, rare blood disorder, fractured vertebras, surgery to correct fractures, liver damage, hepatitis, heart attack, gallstones, and uncontrolled diabetes. Plaintiff's mother asserts that Dr. Brian Roller of South Strand Internists wrote a letter in 2011 that Plaintiff was unable to perform tasks required by a demanding job because of the severe damage to his back and deemed him disabled. Plaintiff's mother alleges the letter was "swept under the rug." (ECF No. 39). Plaintiff's mother then mentions Plaintiff's illnesses at birth; this is irrelevant to the time period before the ALJ. Plaintiff's mother states Plaintiff has a severe learning disability from brain damage and high temperature sustained as a child. Plaintiff's mother alleges Plaintiff's skills are fourth grade level. (ECF No. 39). Plaintiff becomes angry, frustrated, and violent and has issues with being part of a group due to his BPD. Plaintiff's mother asserts Plaintiff's mental and physical health is declining rapidly. (ECF No. 39). A letter filed from Plaintiff on January 11, 2018, asserts that the SSA's denial of benefits is a criminal act. (ECF No. 41).
Plaintiff filed a letter and order from DSS dated January 2, 2018 (ECF No. 40-1). Plaintiff had appealed the amount of his SNAP benefits and as part of the summary of evidence it is stated "Respondent had a doctor's note confirming he is unable to work." (ECF No. 40-1). Plaintiff testified that he suffered from diabetes and mobility issues. (ECF No. 40-1). The holding was that the SNAP allotment was properly calculated.
In a letter Plaintiff filed On January 10, 2018, he stated the letter was proof that two doctors stated he was physically unable to work since May 2010. (ECF No. 40). Plaintiff requests award back with an onset date back to November 1997. Plaintiff alleges DSS refuses to give him records that prove he cannot work.
Plaintiff's brief was due by January 15, 2018, which includes three days for mailing.
After the due date of Plaintiff's brief, in a letter from Plaintiff filed on February 22, 2018, Plaintiff alleges the SSA mixed up his medical records with someone else. (ECF No. 42). This letter is nearly illegible. Plaintiff alleges he has sent six or more briefs and demands a favorable decision. Plaintiff sent a letter dated 4/20/18 from Dr. Guzman that states "Mr. Anthony Shepard is a patient under my care at Little River Medical Center. This patient is unable to work due to his medical diagnosis." (ECF No. 47).
Viewing Plaintiff's letters as his brief, under a liberal construction, Plaintiff is only specifically contesting that the ALJ overlooked: Dr. King's commentary regarding discs, liver problems(polycythemia), gallstones, advanced arthritis, numbness in hands and lower extremities, IBS, mild heart attack, severe muscle cramps due to low potassium, multiple operations on his neck and back, letters from doctors with conclusions of disability, learning disability, assertion that the record contains medical records of someone else and that was what was reviewed by ALJ, and change in onset date from 1997 to 2011, due to Albright. Plaintiff also submits additional evidence to the court not to the Appeals Council from Dr. Guzman. Otherwise, Plaintiff generally takes issue with the finding that Plaintiff was not disabled.
The Commissioner argues that the ALJ's decision is supported by substantial evidence.
A. LEGAL FRAMEWORK
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as: the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for at least 12 consecutive months. 42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting the "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity ("SGA"); (2) whether he has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents him from doing SGA. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments ("the Listings" or "Listed impairments") the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or be "at least equal in severity and duration to [those] criteria." 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h). --------
A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner [ ] made after a hearing to which he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id.; Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to "try these cases de novo or resolve mere conflicts in the evidence." Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir.1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
a. Pro Se Standard of Review
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S.97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. A court may not construct the plaintiff's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
B. ANALYSIS
Records of Others
Plaintiff asserts the record contains medical records of someone else and that was what was reviewed by ALJ. While the record does seem to contain some records of Plaintiff's relatives from the same address as Plaintiff, reviewing the ALJ's opinion and the ALJ's citation to the record, it does not appear the ALJ relied on any of these erroneously included records. This issue is without merit. Change in Alleged Onset Date
Liberally construed, Plaintiff alleges his onset date should be in November 1997. Plaintiff's application alleged an onset date of November 1, 1999. (Tr. 249). In November 2016, Plaintiff amended his alleged onset date to August 14, 2014, and thereafter, Plaintiff revoked the request to amend his onset date and threatened his attorney. (Tr. 341-42, 699).
The ALJ accurately noted that November 5, 2011, was Plaintiff's earliest possible onset date because a prior decision was dated November 4, 2011. (Tr. 144-57). "Administrative res judicata is well recognized in Social Security law and is controlled by 20 C.F.R. § 404.957(c)(1), which permits the application of the doctrine to all prior administrative determinations based upon 'the same facts and on the same issue or issues.'" Edwards v. Colvin, No. 3:12-cv-693-RMG, 2013 WL 4018557, at *8 (D.S.C. Aug. 5, 2013). This issue is without merit. Evidence submitted to the court
Plaintiff also submits additional evidence to the court and not to the Appeals Council from Dr. Guzman. This court may not consider new evidence that Plaintiff did not submit to the ALJ or the Appeals Council. See Smith v. Chater, 99 F.3d 635, 638 n.5 (4th Cir. 1996). Instead, the Court can remand the case under sentence six of 42 U.S.C. § 405(g) for the Commissioner to consider the new evidence, but only if Plaintiff can demonstrate that the evidence qualifies as both new and material, and that good cause exists for the failure to submit the evidence to the ALJ or the Appeals Council. Wilkins v. Secretary, Dep't of Health & Human Servs., 953 F.2d 93, 96 n.3 (4th Cir. 1991). "Evidence is material if there is a reasonable probability that the new evidence would have changed the outcome." Id. at 96. Dr. Guzman stated: "This patient is unable to work due to his medical diagnosis." (ECF No. 47). Such a conclusory opinion is not controlling since the issue of disability is the ultimate issue in a Social Security case and the issue is reserved for the Commissioner. 20 C.F.R. § 404.1527(d)(1). Here, Plaintiff's proposed new evidence fails to qualify as "material." Plaintiff has failed to demonstrate good cause for failure to submit the evidence to the ALJ or Appeals Council and there is no indication the evidence applies to the relevant time period at issue before the ALJ. This issue is without merit. Plaintiff's Remaining Allegations
Plaintiff argues the ALJ overlooked numbness in Plaintiff's hands and lower extremities. The ALJ addressed the consultative examiner's note of "neuropathy by history." (Tr. 29). The ALJ noted Plaintiff's sensation and reflexes were intact upon exam. (Tr. 29). Moreover, the ALJ noted at the consultative examination Plaintiff had full strength, full range of motion, and normal gait. (Tr. 29). Substantial evidence supports the ALJ's findings. This issue is without merit.
Plaintiff argues the ALJ overlooked his gallstones. The ALJ does not cite to the one assessment of gallstones. In April 2016, Plaintiff was assessed with cholelithiasis without obstruction. (Tr. 1154). However, there are no treatment records of any resulting functional limitations. Substantial evidence supports the ALJ's findings. This issue is without merit.
Plaintiff argues the ALJ overlooked the multiple surgeries on Plaintiff's neck and back and advanced arthritis. The ALJ found a severe combination of impairments which included a back disorder. (Tr. 23). The ALJ then accounted for any functional limitations from this combination of impairments by designating a residual functional capacity (RFC) of sedentary. (Tr. 26). The ALJ noted several unremarkable physical examinations. (Tr. 28). The ALJ noted the multitude of return to work excuses throughout the relevant period; the record is supportive that several emergency room visits were a result of things happening at Plaintiff's jobs. (Tr. 28). Moreover, the ALJ noted at the consultative examination, Plaintiff had full strength, full range of motion, and normal gait. (Tr. 29). Substantial evidence supports the ALJ's findings. This issue is without merit.
Plaintiff argues the ALJ overlooked problems with his liver. The ALJ found a severe combination of impairments, which included hepatitis C. (Tr. 23). The ALJ then accounted for any functional limitations from this combination of impairments by designating a residual functional capacity (RFC) of sedentary. (Tr. 26). The ALJ noted several unremarkable physical examinations. (Tr. 28). The ALJ noted records of no symptoms of active hepatitis. (Tr. 28). The ALJ noted elevated liver enzymes in June 2016. (Tr. 28). The record does not reflect any opinions regarding any functional limitations from liver problems; some examinations noted the liver or abdomen was nontender upon examination. (Tr. 1154, 855, 939, 1059). The ALJ noted the multitude of return to work excuses throughout the relevant period; the record is supportive that several emergency room visits were a result of things happening at Plaintiff's jobs. (Tr. 28). Moreover, the ALJ noted at the consultative examination, Plaintiff had full strength, full range of motion, and normal gait. (Tr. 29). Substantial evidence supports the ALJ's findings. This issue is without merit.
Plaintiff alleges the ALJ overlooked Dr. King's commentary regarding discs. There are documents in the record outside of the relevant time period before the ALJ referring to Dr. King. In 2010, records indicate Plaintiff had not been seen by Dr. John King "in some time as [Dr. King' has died and [Plaintiff] was not even aware of that." (Tr. 834). Further, Plaintiff's assertion that Dr. King's commentary from before 2010 supports his current application for the relevant time period before the ALJ is without merit.
Plaintiff's assertions that the ALJ overlooked letters from doctors with conclusions of disability are without merit. There were no such letters relevant to the time period before the ALJ in the record; moreover, even if such letters were in the record, an opinion expressing a conclusion of disability is an issue reserved for the Commissioner. 20 C.F.R. § 404.1527(d)(1).
Plaintiff's assertion that the ALJ overlooked his mild heart attack is unsupported by the record because the record does not show Plaintiff suffered a heart attack during the relevant time period. Moreover, on January 22, 2012, when Plaintiff reported chest pain from lifting dishes at work, his EKG was unremarkable. (Tr. 749). On June 23, 2012, Plaintiff's chest x-ray was normal. (Tr. 748).
Plaintiff's allegations that the ALJ overlooked Plaintiff's severe muscle cramps due to low potassium are not supported by the record because the record for the relevant time period does not include substantial evidence of such. This issue is without merit.
Plaintiff's allegations that the ALJ overlooked Plaintiff's IBS is unsupported by the record because the record does not show IBS diagnosis or treatment for the relevant time period. This issue is without merit.
Plaintiff alleges the ALJ overlooked his learning disability. The ALJ found Plaintiff had a learning disorder along with other nonsevere impairments, stating "but these have been controlled with medication and/or other conservative measures and/or have not resulted in any limitation of his ability for basic work-rleated activities." (Tr. 23). In further considering the nonsevere impairment of learning disorder, the ALJ considered Listing 12.08, finding Plaintiff had mild limitations in understanding, remembering, applying information, and in regard to concentration, persistence, and pace. (Tr. 25-26). Plaintiff could drive, shop, talk on the phone, write letters, and send texts. (Tr. 26). Plaintiff had moderate limitations in interacting with others. Plaintiff had mild limitations in adapting/managing oneself; Plaintiff could do light cleaning, wash laundry, seek medical care, and manage hygiene. (Tr. 26). Further, the ALJ in the RFC limited Plaintiff to only occasional interaction with the public and work limited to occupations involving the performance of simple, routine repetitive tasks. (Tr. 26). The ALJ noted a mental examination dated March 14, 2015, with Dr. Ritz's opinion that Plaintiff could remember and carry out simple job instructions and responsibilities. (Tr. 29). The ALJ noted there were no ongoing mental health records. (Tr. 30). Substantial evidence supports the ALJ's findings as to Plaintiff's learning disorder. This issue is without merit.
III. CONCLUSION
This Court is charged with reviewing the case only to determine whether the findings of the Commissioner were based on substantial evidence. Richardson, 402 U.S. at 390. Even where the Plaintiff can produce conflicting evidence which might have resulted in a contrary decision, the Commissioner's findings must be affirmed if substantial evidence supported the decision. Blalock, 483 F.2d at 775. The Commissioner is charged with resolving conflicts in the evidence, and this Court cannot reverse that decision merely because the evidence would permit a different conclusion. Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984). As previously discussed, despite the Plaintiff's claims, she has failed to show that the Commissioner's decision was not based on substantial evidence. Based upon the foregoing, and pursuant to the power of the Court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in social security actions under sentence four of Sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. Sections 405(g) and 1338(c)(3), it is, recommended that the Commissioner's decision be AFFIRMED.
s/ Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge August 30, 2018
Florence, South Carolina