United States District Court, D. South Carolina, Aiken Division
REPORT AND RECOMMENDATION
SHIVA V. HODGES, Magistrate Judge.
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civil 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 her claim for Disability Insurance Benefits ("DIB"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she applied the proper legal standards. For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further proceedings as set forth herein.
I. Relevant Background
A. Procedural History
On July 6, 2009, Plaintiff filed an application for DIB in which she alleged her disability began on August 2, 2004. Tr. at 104-107. Her application was denied initially and upon reconsideration. Tr. at 42-43. On June 10, 2011, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Richard L. Vogel. Tr. at 28-41 (Hr'g Tr.). At the hearing, Plaintiff sought a closed period of disability from August 2, 2004, through January 21, 2010. Tr. at 12. She also requested reopening her prior application for benefits filed on July 28, 2005, which alleged the same onset date and was denied on July 21, 2005. Id. The ALJ issued an unfavorable decision on June 23, 2011, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 12-23. The ALJ denied Plaintiff's request to reopen her prior application and, in light of the prior denial of benefits, found that the relevant time period was July 22, 2005, to January 21, 2010. Tr. at 13. 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 1-3. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on January 5, 2013. [Entry #1].
B. Plaintiff's Background and Medical History
Plaintiff was 44 years old at the time of the hearing. Tr. at 30. She completed a Bachelor of Science degree in education at the College of Charleston. Tr. at 32, 479. Plaintiff has past relevant work as a preschool teacher, guest service representative, manufacturing technician, discipline records clerk, manufacturing technician, retail team leader, and account manager. Tr. at 168. During the time period at issue, Plaintiff continued to work, but her work did not rise to the level of substantial gainful employment. Tr. at 14-15. From September 2005 through October 2005, Plaintiff worked full time as an administrative assistant for Gregory West Ashley and stopped working when she found out she could return to her previous job at Carolina National Logistics. Tr. at 142. From November 2005 through February 2006, Plaintiff worked eight hours a day for Carolina National Logistics as an account manager, but ultimately stopped working because of her medical condition. Tr. at 136. In March 2006, Plaintiff worked as a tutor for Educate Operating Company, but only worked for one week because of her medical condition. Tr. at 137. Beginning in 2006 and through the end of the relevant time period, Plaintiff worked 10 hours a week as an administrative assistant for Holy Light Miracle Temple. Tr. at 130.
2. Medical History
Plaintiff was admitted to the Medical University of South Carolina ("MUSC") from August 2, 2004, to August 12, 2004, following a motor vehicle accident in which she was an unrestrained driver who was ejected from the vehicle. Tr. at 286. She was found lying next to the vehicle unresponsive. Id. She was intubated and admitted to the ICU. Id. After being weaned from the ventilator, she was transferred to a regular floor. Id. Tr. at 290. At discharge, Plaintiff was able to consistently follow commands, tolerate a modified dysphagia diet, and work with physical therapy. Tr. at 286. Discharge diagnoses included closed head injury, nondisplaced right zygomatic fracture, greater wing of sphenoid fracture, and right temporal bone fracture. Tr. at 286-87. She was transferred to Health South Rehabilitation ("Health South"). Tr. at 287.
Plaintiff was discharged from Health South on August 27, 2004. Tr. at 285, 297-99. Records note that she had cleared significantly from a mental status/cognitive standpoint. Tr. at 297. She was subsequently seen for three sessions for memory and word retrieval. Tr. at 254. At the discretion of the therapist, she was discharged from therapy on September 7, 2004. Id. The discharge assessment indicates that her specific naming was 80%, short term memory was 78%, and working memory was 64%. Id. She was later discharged from physical therapy with increased shoulder range of motion, decreasing pain, and overall improved strength and endurance. Tr. at 250.
In follow up with neurosurgery on October 6, 2004, Plaintiff had no complaints. Tr. at 284. She weighed 266 pounds; had normal gait, reflexes, sensation, and strength; and had a normal range of motion in the neck. Id. She was judged to have recovered well from the skull fracture and was released to return to work. Id.
On October 25, 2004, Plaintiff complained to Dr. Donald Hanna of Carolina Family Medicine of headaches and neck pain that began "weeks ago." Tr. at 366-67. Dr. Hanna's examination was notable for a tender left shoulder, limited range of motion of the left shoulder, and neck pain. Tr. at 367. The doctor noted that Plaintiff worked 35 hours a week at a job that was high stress and moderately physical. Tr. at 366. A cervical spine MRI conducted on November 4, 2004, showed C4-5 mild spinal stenosis and flattening of the cord more so on the left due to broad-based posterior disc osteophyte complex and focal left-sided disc herniation. Tr. at 347-48. At C5-6 there was a broadbased disc osteophyte complex resulting in mild spinal stenosis and mild generalized flattening of the cord. Id. An MRI of the left shoulder showed degenerative change in the AC joint, but no evidence of a tear. Tr. at 349.
An x-ray of Plaintiff's left knee on January 31, 2005, showed mild degenerative changes, but no evidence of fracture. Tr. at 340. On March 15, 2005, a lumbar spine xray showed mild degenerative changes in the lower thoracic and lumbar spine. Tr. at 333. Plaintiff had periarticular sclerosis at the sacroiliac joints that was greater on the left. Id.
On October 31, 2005, Dr. Hanna noted that Plaintiff's post-concussion syndrome was improving and relieved by medication. Tr. at 376-77. He noted that symptoms of the condition were memory loss and paresthesias. Tr. at 376. At a November 2005 appointment, Plaintiff complained of aching and throbbing left knee pain likely due to arthritis that was improving and was relieved with ibuprofen. Tr. at 378. In January 2006, Plaintiff complained of worsening exhaustion, continued post-concussion syndrome, and improving left knee pain. Tr. at 380. On examination, she had tenderness to the right anterior lateral foot, no ankle deformity, and tenderness to right first toe joint. Tr. at 381. Plaintiff exhibited no obvious motor or sensory deficits and had a normal affect. Id.
In February 2006, Dr. Hanna noted Plaintiff suffered from stable hypothyroidism, post-concussion syndrome, and improved hypertension. Tr. at 382. On May 2, 2006, Plaintiff complained to Dr. Hanna of dizziness; however, she refused an MRI and wanted to "wait and see what happens." Tr. at 385-86. Approximately a week later, Plaintiff reported worsening dizziness. Tr. at 387. On May 23, 2006, and June 13, 2006, Plaintiff's diabetes flared up, so Dr. Hanna changed her prescriptions. Tr. at 389-92. At a July 11, 2006 appointment, Dr. Hanna noted that Plaintiff's diabetes was improving. Tr. at 394.
On August 10, 2006, Plaintiff reported right shoulder pain that began one week prior and numbness in the left hand that begin months prior. Tr. at 395-97. On examination, she had a tender right shoulder, positive Tinel's sign in her left arm, and positive Phalen's test in her left arm. Tr. at 396. Assessment included carpal tunnel syndrome and pain in the joint involving the shoulder region. Id.
On December 18, 2006, Plaintiff complained of difficulty walking and bilateral leg and ankle pain that began two months prior. Tr. at 400. On examination, she exhibited no spinal tenderness, no joint swelling or deformity, tenderness to palpation of her right knee laterally, and painful extension of the right knee. Tr. at 401. She exhibited no obvious motor or sensory deficits. Id. She was prescribed Ultram and Voltaren. Id.
On December 21, 2006, Plaintiff was evaluated by Seth Kupferman, M.D., at South Carolina Sports Medicine and Orthopaedic Center for bilateral knee pain radiating proximally and distally. Tr. at 303-04. She reported mild persisting balance issues since her accident in 2004. Tr. at 303. She weighed 270 pounds. Id. She had a mild effusion in her knees that was greater on the right as well as pain with patellofemoral compression, pain with hyperflexion, and some lateral joint line tenderness on the right. Id. Dr. Kupferman noted there was no evidence of any ligamentous instabilities; a negative Lachman; negative pivot; negative anterior and posterior drawer; negative varus or valgus laxity; normal step-off about both knees as well as negative patellar apprehension about both knees; no evidence of erythema, edema, or ecchymosis; and a negative straight leg raise bilaterally. Id. X-rays of both knees revealed moderate tricompartmental changes and osteophyte formations tri-compartmentally. Tr. at 304. Plaintiff was assessed with bilateral knee osteoarthritis, advised to lose weight, and referred to physical therapy. Id.
Plaintiff followed up with Dr. Kupferman in February 2007 and noted that "she [was] feeling much better overall" and that she had no difficulty with any of the exercise programs at physical therapy. Tr. at 304. A physical examination revealed no effusion, pain free range of motion bilaterally, no pain with McMurray's testing or with hyperflexion, and no mechanical signs, but she did show some discomfort with compression. Id. Plaintiff had stopped taking pain medications, but continued to use Voltaren. Id.
On September 3, 2007, Plaintiff went to Bon Secours St. Francis Healthcare complaining of dizziness and an off-balance moment. Tr. at 309-20. Plaintiff noted that her pain level was a two out of ten and her psychological evaluation was normal. Tr. at 312. Plaintiff had a CT scan of her head which revealed hypodensity within the inferior right temporal lobe suggesting cerebral softening. Tr. at 318.
At Carolina Family Medicine on June 5, 2008, Plaintiff complained of worsening, intermittent leg and ankle pain that began two months prior to the visit. Tr. at 413. The associated symptoms were trouble walking, low back pain, swelling, and falling. Id. Dr. Hanna noted that Plaintiff's hypothyroidism and hypertension were stable and that she had borderline controlled diabetes. Id. He also noted that Plaintiff had worsening memory loss or lack. Tr. at 414. Paintiff weighed 278 pounds and exhibited a tender left ankle and tender left wrist. Tr. at 414. On June 26, 2008, Plaintiff had a nerve conduction and limited EMG study of her left arm, which yielded normal results. Tr. at 450-51.
On July 3, 2008, examination revealed a tender left ankle and left wrist, but no edema and no obvious motor or sensory deficits. Tr. at 416-417. Assessment included worsening memory loss or lack, and Dr. Hanna noted that Plaintiff's left hand numbness was continuing and was relieved by nothing. Id. Plaintiff's left hand numbness continued to be constant on July 22, 2008, and Dr. Hanna prescribed Lyrica, Aricept, and Namenda. Tr. at 418-19.
On May 14, 2009, Plaintiff sought follow-up for aching all over. Tr. at 429. She stated that it began two months prior to the appointment and characterized it as burning, excruciating pain that was worsening. Id. She said it was aggravated by walking, going up and down stairs, and prolonged sitting and standing, and was very slightly relieved with Motrin 800 mg. Id. She reported falling three times because her legs would not support her. Id. On examination, she was in no distress, had no edema or obvious motor or sensory deficits, and exhibited a normal affect. Tr. at 430. Dr. Hanna prescribed Pamelor and Zanaflex. Id.
Plaintiff returned to Dr. Hanna on June 11, 2009, for follow-up and reported aching all over that began three months prior. Tr. at 352. She described it as burning, excruciating pain that worsened with walking or prolonged standing or sitting and associated it with low back pain and three falls. Id. Dr. Hanna noted that Plaintiff's myalgia was improving and continued treatment with two prescriptions. Tr. at 353.
On August 20, 2009, Dr. Cashton B. Spivey, Ph.D., performed a psychological consultative examination of Plaintiff. Tr. at 479-82. Plaintiff reported significant spinal and leg pain, problems with her left hand, hypothyroidism, headaches, and memory deficits. Tr. at 479. She said she was capable of bathing and dressing independently, cooking simple meals, driving, reading a newspaper, and performing simple arithmetic calculations. Tr. at 480. Plaintiff obtained a score of 27 out of a possible 30 points on the mini-mental status examination; was oriented to time, place, and person; was unable to perform serial 7s; was able to spell the word "world" backwards; recalled one of three objects at five minutes, which suggested possible mild impairment in her short-term auditory memory; demonstrated intact language skills; was able to follow a three-step command, but was unable to accurately reproduce a drawing; and demonstrated a satisfactory general fund of information and intact abstract reasoning abilities. Tr. at 480-81. Plaintiff had fair to good insight and judgment, and ...