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Bryant v. Colvin

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

July 1, 2014

Catina Bryant, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant.


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 affirmed.

I. Relevant Background

A. Procedural History

On July 12, 2010, Plaintiff filed an application for DIB in which she alleged her disability began on June 16, 2008. Tr. at 168-71. Her application was denied initially and upon reconsideration. Tr. at 74, 76. On March 19, 2012, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Augustus C. Martin. Tr. at 32-73 (Hr'g Tr.). At the hearing, Plaintiff amended her alleged onset date to January 31, 2009. Tr. at 12, 36. The ALJ issued an unfavorable decision on March 30, 2012, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 12-24. 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 1-4. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on July 19, 2013. [Entry #1].

B. Plaintiff's Background and Medical History

1. Background

Plaintiff was 38 years old at the time of the hearing. Tr. at 32, 168. She completed high school. Tr. at 38. Her past relevant work ("PRW) was as a cashier, weight reduction specialist, inventory clerk, collection clerk, hospital cleaner, machine operator, nurse assistant, short order cook, housekeeper, and carpet sewing machine operator. Tr. at 61. She alleges she has been unable to work since January 31, 2009. Tr. at 36.

2. Medical History

On June 18, 2008, Plaintiff presented to the Roper St. Francis emergency room ("ER") after a car accident in which her car was rear-ended by another vehicle while she was at a stop sign. Tr. at 343. The overall examination of her left shoulder and scapula was consistent with a mild to moderate sprain/strain. Tr. at 344. Plaintiff was discharged home and advised to follow up with her primary care provider. Tr. at 345.

The following day, Plaintiff presented to her primary doctor, Rose Delores Gibbs, M.D. Tr. at 412. Plaintiff complained of posterior neck and mid-back pain. Id. X-rays taken on July 3, 2008, showed possible spondylolysis of the lower back and a retrolisthesis of C2 versus C3. Tr. at 340-41. On July 17, 2008, Dr. Gibbs referred Plaintiff to physical therapy. Tr. at 411. She underwent physical therapy from July 29, 2008, through December 17, 2008, completing 45 visits for neck and back pain. Tr. at 311-39.

On September 5, 2008, Plaintiff complained to Dr. Gibbs of cramps in her back and stated that her legs, feet, and hands were tingling. Tr. at 410. On September 18, 2008, Dr. Gibbs noted that Plaintiff was on leave from work for three weeks to complete physical therapy. Tr. at 409. On October 2, 2008, Plaintiff's provider observed that her muscles were weaker than normal, her legs had decreased strength bilaterally, and she was tender to moderate palpation from her left sternocladum to her sternum. Tr. at 408. However, she had full range of motion in her neck, elbows, shoulders, and spine, and her paraspinal muscles were only mildly tender. Id.

An MRI of Plaintiff's lumbar spine from October 7, 2008, revealed mild degenerative changes, including mild broad-based disc bulges at L4-5 and L5-S1. Tr. at 307. On October 16, 2008, Dr. Gibbs referred Plaintiff to a spine doctor for an epidural injection. Tr. at 406. On October 30, 2008, Plaintiff reported shoulder, neck, and back pain with muscle spasms. Tr. at 405. She also reported that certain physical therapy appointments made her pain worse. Id. She was taking Lexapro and Lyrica. Id.

On November 3, 2008, Plaintiff saw Don Stovall Jr., M.D., at Lowcountry Orthopaedics and Sports Medicine and complained of moderate aching pain in her lower lumbar spine, some numbness and tingling in her hands and feet, and moderate aching pain in the cervical spine associated with some headaches. Tr. at 433. On examination, Plaintiff had limited rotation of her cervical spine and mild tenderness and limited flexibility of the lumbosacral junction. Tr. at 432. Examination of Plaintiff's upper and lower extremities revealed full range of motion, normal muscle strength and tone, and no edema, atrophy, or skin changes. Id.

On November 18, 2008, a cervical MRI demonstrated that Plaintiff had mild, multi-level, broad-based disc bulges with no neural contact or impingement. Tr. at 309.

On November 20, 2008, Dr. Stovall recommended a continuation of physical therapy for Plaintiff's neck and lower back, but noted that there were no indications for operative intervention. Tr. at 430. The doctor also noted that Plaintiff would be available for modified work duty. Tr. at 431.

On December 22, 2008, Plaintiff had finished physical therapy and continued to have some neck, shoulder, and lower back pain, but no upper extremity symptoms. Tr. at 430. She reported numbness and tingling in her arms, hands, and feet. Id. Dr. Stovall recommended continued conservative care and referred Plaintiff to Shailesh M. Patel, M.D., for a possible cervical epidural steroid injection. Id.

At appointments in January 2009, February 2010, June 2010, and July 2010, Dr. Patel found that Plaintiff had a slight cervical tilt to the left; some tenderness to palpation in her cervical and lumbar paraspinals; tenderness over her trapezius, rhomboids, and levator scapulae; and a positive straight leg raising test at 45 degrees bilaterally. Tr. at 422, 424, 426, 428. The doctor also observed at these appointments that Plaintiff was in no acute distress, she was alert and oriented to four spheres, her mood and affect were appropriate, she had normal range of motion in her cervical and lumbar spines, her sensation was intact in her upper and lower extremities, and her strength was rated as 5/5 in her upper and lower extremities bilaterally. Tr. at 422, 424, 426, 428. Dr. Patel diagnosed Plaintiff with lumbar and cervical disc bulges, cervical dystonia, and bilateral lumbar and cervical radiculitis. Tr. at 422, 424-25, 428.

On January 8, 2009, Plaintiff reported that she was still weak and experiencing tingling in her hands and upper legs. Tr. at 404. She said she had more frequent headaches and that the headaches had started one month after her accident, but had gradually worsened. Id. She reported nausea, vomiting, and being off balance at different times. Id. On January 12, 2009, Plaintiff reported falling as she was getting off the commode. Tr. at 403.

Plaintiff received an epidural steroid injection at C7-T1 on January 29, 2010. Tr. at 434. On February 10, 2010, Plaintiff reported 75% improvement after the injection for one week, and then 50% improvement. Tr. at 426. She reported continued moderate aching pain in her lower back with radiation into both lower extremities. Id. Dr. Patel noted that Plaintiff's EMG/NCS test revealed that there was no evidence of peripheral neuropathy, chronic cervical radiculopathy, or focal nerve entrapment in either of her upper extremities. Tr. at 425, 445-48. He advised Plaintiff that because it had been so long since her date of injury, some of her symptoms might be chronic, particularly the myofascial symptoms in her neck and upper shoulder blades. Tr. at 425. Before proceeding with another injection, Dr. Patel wanted Plaintiff to try some noninterventional methods of pain management including a TENS unit and a traction unit. Id.

On July 20, 2010, Plaintiff reported continued moderate neck and lower back pain. Tr. at 423. Dr. Patel noted that Plaintiff's pain medicines, TENS unit, and traction unit were providing good relief. Id. He further noted that an EMG/NCS study performed that day demonstrated no evidence of chronic radiculopathy in either lower extremity. Tr. at 422. He scheduled Plaintiff for an epidural steroid injection in her lower back, but recommended continued conservative treatment for her neck and upper extremity symptoms. Id. Dr. Patel concluded that Plaintiff could return to work, but she could only occasionally climb, bend, or stoop, and she could only lift up to 15 pounds. Tr. at 449. He found that Plaintiff had not reached maximum medical improvement. Id.

In August 2010, state-agency physician Angela Saito opined that Plaintiff could occasionally lift and/or carry 20 pounds, frequently lift and/or carry 10 pounds, and stand and/or walk and sit for about six hours each in an eight-hour day. Tr. at 451-57. The doctor further opined that Plaintiff could occasionally use hand and foot controls with her upper and lower extremities bilaterally; never climb ladders, ropes, or scaffolds; occasionally engage in other postural activities; and occasionally reach overhead bilaterally. Tr. at 451-53. He found that she should avoid concentrated exposure to extreme cold, extreme heat, humidity, fumes, odors, dusts, gases, and poor ventilation; and should avoid even moderate exposure to hazards. Tr. at 454. On April 18, 2011, state-agency physician Matthew Fox concurred with Dr. Saito's opinions. Tr. at 485-92.

In October 2010, Plaintiff was referred for a psychological consultative examination with E.G. Schleimer, Ph.D. Tr. at 458-59. The doctor noted that Plaintiff's mood seemed to be chronically depressed and that Plaintiff had partial insights and thoughts of suicide. Tr. at 458. Dr. Schleimer observed that Plaintiff's affect was appropriate, she was oriented to four spheres, there was no notable anxiety at the interview, and her social judgment was intact. Id. Dr. Schleimer further observed that Plaintiff's attention and concentration skills were in the normal range, she performed calculations quickly, she was able to abstract proverbs, her intellect appeared normal clinically, and her WRAT scores were at high school level. Id. The doctor found that Plaintiff had dysthymic disorder and panic disorder and that her Global Assessment of Functioning ("GAF")[1] score was 65. Tr. at 459. He recommended behavior therapy for the panic disorder with a qualified professional. Id.

Also in October 2010, state-agency physician Dr. Michael Neboschick opined that due to her depression, dysthymic disorder, and panic disorder, Plaintiff had mild restriction of activities of daily living ("ADLs"); mild difficulties in maintaining concentration, persistence, or pace; moderate difficulties in maintaining social functioning; and had experienced no episodes of decompensation of an extended duration. Tr. at 463-70. He further opined that she could perform simple tasks for at least two-hour periods; would occasionally miss a day of work secondary to her symptoms; would have difficulty working in close proximity or coordination with coworkers; was best suited for a job that did not require continuous interaction with the general public; could perform single, repetitive tasks without special supervision; and could attend work regularly and accept supervisory feedback. Tr. at 476.

On February 4, 2011, Plaintiff received a right C7-T1 translaminar epidural steroid injection. Tr. at 483. On February 17, 2011, Plaintiff reported improvement in her neck pain, but she still had moderate tenderness to palpation in the cervical paraspinals. Tr. at 482. Her right shoulder continued to bother her and her range of motion was limited in abduction and flexion. Id. Upper extremity testing was positive for impingement sign on the right shoulder. Id. She was diagnosed with right rotator cuff tendinitis and continued on Neurontin and Flexeril. Id. Dr. Patel indicated that Plaintiff could continue working in modified duty with occasional climbing, bending, and stooping, and no lifting over 15 pounds. Tr. at 481-82.

On July 5, 2011, Timothy M. Zgleszewski, M.D., of Palmetto Spine and Sports Medicine conducted an independent medical examination. Tr. at 493-97. On examination, the doctor found that Plaintiff was in a moderate to severe amount of pain, she had painful range of motion in her cervical and lumbar spines and tenderness and spasms in her lumbar and cervical paraspinals bilaterally; she was tender over her lumbar facets, posterior superior iliac spine (PSIS), and cervical facet joints bilaterally; and her Patrick's test was positive. Tr. at 494. Dr. Zgleszewski also observed, however, that Plaintiff was alert and oriented to three spheres, her gait was non-antalgic, her hip range of motion was normal, she had no generalized tenderness over her greater trochanters, her straight leg raising was negative bilaterally, her upper and lower extremity motor and sensory examinations were normal, she had no trigger points in her cervical spine, and the neural tension signs in her arms and legs were negative. Id. The doctor diagnosed Plaintiff with cervical spondylosis, probable cervical facet joint dysfunction, lumbar spondylosis, and lumbar facet joint pain and/or bilateral SI joint dysfunction. Tr. at 495. He found that she was not at maximum medical improvement, was a candidate for PENS treatment, and would require oral pain medication to control her neck and low back pain. Tr. at 495-96. Dr. Zgleszewski concluded that Plaintiff could return to sedentary work, lifting up to 10 pounds occasionally. Tr. at 496. He found that she could not do the following: perform continuous standing and walking that exceeded 50% of her work time; crawl, kneel, or be in a cramped position; reach above shoulder height; engage in repeated/repetitive stooping, bending, or squatting; sit continuously; work on ladders or at exposed heights; or engage in frequent or repeated stair climbing. Id.

C. The Administrative Proceedings

1. The Administrative Hearing

a. Plaintiff's ...

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