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Price v. Colvin

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

July 28, 2014

Michael Price, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant.

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 his 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 remanded for further proceedings as set forth herein.

I. Relevant Background

A. Procedural History

On April 13, 2009, Plaintiff filed an application for DIB in which he alleged his disability began on March 6, 2006. Tr. at 165. His application was denied initially and upon reconsideration. Tr. at 108-09, 114-15. On June 17, 2011, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Linda Haack. Tr. at 65-96 (Hr'g Tr.). During the hearing, Plaintiff, with the advice and consent of his attorney, amended the alleged onset date to September 10, 2009. Tr. at 66. The ALJ issued an unfavorable decision on July 20, 2011, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 37-55. 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 April 19, 2013. [Entry #1].

B. Plaintiff's Background and Medical History

1. Background

Plaintiff was 49 years old at the time of the hearing. Tr. at 67. He completed high school. Tr. at 68. His past relevant work ("PRW") was as a drywall hanger/framer, a duct mechanic, a dump truck driver, a framer, a nursing attendant/orderly, a roll-off truck driver, and a roofer. Tr. at 203. He alleges he has been unable to work since September 10, 2009. Tr. at 66.

2. Medical History

Plaintiff was enrolled in self-contained, learning disabled classes in public school. Tr. at 315-17. An evaluation performed on October 15, 1976 indicated that Plaintiff had a verbal IQ of 92, a performance IQ of 91, and a full scale IQ of 91. Tr. at 319. A psychological evaluation report dated November 6, 1979, indicated that Plaintiff's verbal IQ was 73; his performance IQ was 95; and his full scale IQ was 82. Tr. at 316. However, the report also suggests that the scores on the verbal tasks were depressed because of Plaintiff's discomfort with the type of task. Id. Plaintiff was noted to recognize words at a tenth grade level and read at a late-seventh grade level. Tr. at 317.

Plaintiff was referred for MRI of the lumbar spine on May 17, 2004, after complaining to William Maguire, M.D. low back pain, right more than left, and occasional right leg tingling. Tr. at 605. MRI revealed mild degenerative disc disease with eccentric mild right-sided disc protrusion at L4-5 that could impinge upon the right L4 nerve root, as well as degenerative disc disease with shallow diffuse non-stenotic disc protrusion at L5-S1. Id.

Dr. Maguire referred Plaintiff for lumbar epidural steroid injections on July 8, 2004, and the two discussed surgery on September 2, 2004. Tr. at 607. Dr. Maguire referred Plaintiff for a second MRI. Id. MRI on September 8, 2004 indicated L5-S1 annular tear with disc dessication, but no evidence of disc herniation, canal stenosis or nerve root impingement; L4-5 disc dessication with minimal posterior and posterolateral disc bulging, without nerve root impingement; incidental hypertrophic changes of the narrowed anterior T12-L1 disc space; and nonspecific heterogeneous marrow signal in the sacrum and the L4 and L5 vertebral bodies. Tr. at 610. Plaintiff's pain decreased with conservative intervention by October 5, 2004. Tr. at 607.

Plaintiff presented to David Jaskwhich, M.D. on March 6, 2006, complaining of left heel pain after falling off of a truck at work. Tr. at 335. He was diagnosed with left calcaneal fracture. Id.

Plaintiff underwent open reduction and internal fixation of the left calcaneus fracture, which was performed by Dr. Jaskwhich on March 9, 2006. Tr. at 354-55.

On April 14, 2006, Plaintiff presented to Dr. Jaskwhich with complaint of right wrist pain. Tr. at 473. X-rays of the right wrist revealed a midway scaphoid fracture, nondisplaced, and possible avascular necrosis of the scaphoid. Id. Plaintiff was referred to Timothy G. Allen, M.D. Id.

On May 15, 2006, Plaintiff underwent right scaphoid fracture open reduction and internal fixation and vascularized pedicle bone graft from the distal radius to the scaphoid nonunion and the proximal pole avascular necrosis area. Tr. at 483-85.

On January 17, 2007, Dr. Allen indicated that Plaintiff was pleased with the result of his right wrist surgery and was at maximum medical improvement. Tr. at 457-58. He indicated that Plaintiff experienced occasional pain and weakness, which was not severe or consistent, and that Plaintiff had no redness, warmth, or swelling. Tr. at 457. Dr. Allen assessed a 22 percent impairment rating to Plaintiff's right arm based on strength loss, mild discomfort, and mild paresthesias in the sensory nerve distribution of the right wrist. Tr. at 456. Dr. Allen indicated that Plaintiff "can carry out normal job tasks at this point without limitation." Id. He released Plaintiff to return to regular duty. Tr. at 564.

Plaintiff treated with Milton S. Costa, M.D. for situational stress reaction, mild anger disorder, situational anxiety with mild depressive component, headaches, and chronic pain in his left foot and right wrist from January 2007 to May 2007. Tr. at 373-76.

On July 12, 2007, Plaintiff underwent neuropsychological consultation with Randolph Waid, Ph.D. Tr. at 377-82. Plaintiff's spelling skills were assessed in the seventh to eighth grade range. Tr. at 380. Plaintiff was functioning in the low average range of intellectual abilities. Tr. at 382. Plaintiff demonstrated relative strength with respect to perceptual organizational skills. Id. He demonstrated weakness with processing speed, working memory, and educationally-oriented verbal comprehension skills. Id. Plaintiff demonstrated difficulties effectively sustaining concentration with impaired anterograde memory. Id. Plaintiff demonstrated no receptive or expressive language dysfunction or sensory perceptual impairment. Id. Motor functioning was compromised by residual pain in the left heel and weakness in the right wrist. Id. Plaintiff also demonstrated difficulties with depression, irritability, impatience, and low frustration tolerance. Id.

Plaintiff complained to Dr. Jaskwhich of continued pain in his left lower extremity during multiple office visits. Tr. at 509, 512, 516, 519, 523-24. Plaintiff participated in physical therapy for his left ankle at James Island Physical Therapy from April 18, 2006, to July 13, 2006, and from August 27, 2007, to October 11, 2007. Tr. at 429-42, 724-45. On September 21, 2007, Dr. Jaskwhich indicated that CT scan showed that most of the fracture sites had healed, except for one major site. Tr. at 524. He recommended removal of the hardware and then bone grafting the remaining fracture line with placement of separate hardware at that site. Id. Dr. Jaskwhich also indicated that Plaintiff's back pain had been worsened by a fall and significant limp on the left foot. Id.

On October 25, 2007, Plaintiff was admitted to Summerville Medical Center because of painful hardware in his left ankle and nonunion of the left calcaneus. Tr. at 393. Plaintiff underwent surgery to remove hardware and repair the nonunion of the left calcaneus with bone grafting. Tr. at 400-01.

Plaintiff participated in physical therapy for his left ankle at James Island Physical Therapy from February 25, 2008, to April 9, 2008. Tr. at 416-28.

On April 14, 2008, Dr. Jaskwhich rated and released Plaintiff. Tr. at 446. He indicated that Plaintiff may require further surgery and would occasionally need anti-inflammatory or narcotic pain medication. Id. Dr. Jaskwhich indicated that Plaintiff would be on limited duty, to include restricted climbing, no jumping or heavy pounding on the left leg, an ability to rest and sit comfortably, and avoidance of using a clutch. Id. Dr. Jaskwhich also indicated that Plaintiff had a 50-pound lifting restriction. Tr. at 501.

On June 24, 2008, Dr. Jaskwhich assigned Plaintiff impairment ratings of 28 percent to the foot, 20 percent to the lower extremity, and eight percent to the whole person. Tr. at 445. Dr. Jaskwhich reiterated the restrictions indicated on April 14, but added restrictions to work only on level ground and to avoid running and walking for extended periods of time. Id.

Dr. Maguire referred Plaintiff for MRI of the lumbar spine on July 28, 2008, which revealed no change from the MRI results of September 8, 2004. Tr. at 611.

On July 30, 2008, Plaintiff underwent an employability evaluation by certified rehabilitation counselor Jean R. Hutchinson, M.Ed. Tr. at 177-85. Ms. Hutchinson concluded that Plaintiff was unable to return to any past employment and lacked transferable skills to other work within his residual functional capacity. Tr. at 185. She also concluded that Plaintiff's impairments coupled with his learning disabilities prevented him from making an adjustment to any work that existed in significant numbers in the national economy. Id.

From October 5, 2008, through November, 7, 2008, Plaintiff participated in a five-week comprehensive vocational evaluation for brain injured clients through South Carolina Vocational Evaluation. Tr. at 720. Plaintiff tolerated a full day of activity for the five-week period at the sedentary to light work level. Id. The evaluation report, which was signed by Tammy R. Johnson, M.S., and Debra Rzepkowski, noted that Plaintiff would need accommodations for no kneeling, crouching, stooping, climbing, and crawling. Id. The report also noted that Plaintiff could benefit from changing positions frequently between sitting, standing, and walking. Id. Plaintiff's upper extremities were rated as frequent in reaching and handling and constant in fingering and feeling. Id. Plaintiff identified job objectives of truck driver and recreation aide, which were considered realistic with the stipulation that the truck driver position would require that Plaintiff operate an automatic truck and not perform at higher than light work levels. Id.

While enrolled in the five-week program, Plaintiff underwent neuropsychological consultation by John M. Taylor, Ph.D., on October 15, 2008, and October 24, 2008. Tr. at 721-23. Dr. Taylor found that "Mr. Price's neuropsychological testing should not significantly interfere with his ability to participate in vocational rehabilitation and should not significantly interfere with vocational efforts." Tr. at 722. Dr. Taylor indicated that while Plaintiff learned better through visual presentations, he was able to learn well through verbal information as well. Id.

On November 7, 2008, physical therapist Julie Jackman noted that Plaintiff "was very hardworking in all of the physical areas" and that he "has a strong work ethic and wants to give good effort in all areas." Tr. at 756. Ms. Jackman also noted that Plaintiff frequently did too much exercise, increasing his pain level to a point that he would suffer from pain after exercise, but not during it. Id.

On November 8, 2008, Plaintiff underwent occupational therapy evaluation by Lee-Ann Danko, OTR/L. Tr. at 753. Ms. Danko noted that Plaintiff was independent in self-care and instrumental activities of daily living; that he could successfully follow and give written instructions; that his memory, attention, and problem solving appeared in the normal range, but that cueing was needed to recall some items; that he had "anticipatory" awareness of his disability, meaning that he could prepare ahead of time to compensate for attentional and memory issues related to his head injury; that his bilateral upper extremities were in the normal range for strength, range of joint motion, and coordination; and that his socialization was appropriate with peers and staff. Id.

On February 2, 2009, and March 3, 2009, Plaintiff presented to Milton Costa, M.D. with complaint of intermittent low back pain. Tr. at 762-64. Dr. Costa referred Plaintiff for orthopedic consultation. Tr. at 762.

On March 17, 2009, June 1, 2009, and June 29, 2009, Plaintiff presented to Dr. Maguire with complaints of back pain. Tr. at 840. Plaintiff indicated to Dr. Maguire that he could not afford to receive injections. Id. Dr. Maguire prescribed Lortab and Dilaudid. Id. Plaintiff also complained of depression on June 29, 2009, and Dr. Maguire prescribed Celexa. Id.

On June 22, 2009, Plaintiff underwent orthopedic examination with consultative examiner Kerri A. Kolehma, M.S., M.D. Tr. at 807-10. Dr. Kolehma noted that Plaintiff demonstrated antalgic gait with and without a cane, but that his gait was more antalgic without the cane. Tr. at 807. Plaintiff had normal range of motion of all joints except the left ankle. Tr. at 808. Left ankle dorsiflexion was reduced at 10 degrees. Tr. at 810. Plaintiff had decreased sensation over the scar and dorsum of his left foot. Tr. at 808. He was unable to tandem walk. Id. He had moderate crepitus, but normal range of motion in the right knee. Id. Dr. Kolehma indicated that Plaintiff should continue the restrictions given by his surgeon. Id. She further indicated that Plaintiff had normal function in his upper extremity and that he could communicate without restrictions. Id.

X-ray of the lumbar spine on June 22, 2009, indicated grade I retrolisthesis of L5 on S1; superior endplate deformities of L1 through L4; wedging of T11 and T12; and diffuse osteopenia. Tr. at 812.

X-ray of the left ankle on June 22, 2009 indicated evidence of post-traumatic change; soft tissue swelling; and diffuse osteopenia. Tr. at 813.

On June 24, 2009, state agency evaluator Jim Liao, M.D. completed a physical residual functional capacity assessment. Tr. at 814-22. Dr. Liao indicated the following limitations: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk (with normal breaks) for at least two hours in an eight-hour workday; sit (with normal breaks) for about six hours in an eight-hour workday; occasionally push and/or pull with the left foot; occasionally climb ramp/stairs, balance, stoop, knee, crouch, and crawl; and never climb ladder/rope/scaffolds. Tr. at 815-16.

Also on June 24, 2009, state agency evaluator Judith Von, Ph.D. completed a psychiatric review technique. Tr. at 822-35. Dr. Von determined that Plaintiff's impairments included history of learning disability, situational anxiety, and alcohol abuse in remission, but that his impairments were not severe. Tr. at 822-23, 827, 830. Dr. Von found that Plaintiff had no restriction of activities of daily living; no difficulties in maintaining social functioning; mild difficulties in maintaining concentration, persistence, or pace; and no episodes of decompensation. Tr. at 832.

On July 1, 2009, Plaintiff presented to Dr. Maguire with complaint of chest pain. Tr. at 839. His blood pressure was 120/80. Id. Dr. Maguire suggested that Plaintiff may be experiencing reflux. Id.

Plaintiff was admitted to Roper Hospital from September 10, 2009, to September 22, 2009, with diagnoses of cardiogenic shock, myocardial infarction, chronic obstructive pulmonary disease, respiratory failure, acute renal failure, probable gastrointestinal bleed, and enterococcal urinary tract infection. Tr. at 845-47. Cardiac catheterization revealed a 100 percent blockage of the mid left anterior descending ("LAD") artery. Tr. at 846. An angioplasty was performed, and a stent was placed. Id. On September 21, 2009, Plaintiff underwent PermCath placement because he was requiring dialysis due to acute renal failure. Tr. at 848-49.

Plaintiff was admitted to Roper Hospital from September 28-29, 2009, due to complaint of chest pain. Tr. at 850-52. Echocardiography revealed anterior wall akinesis, apical dyskinesis, and ejection fraction of 35 percent. Tr. at 883.

On October 2, 2009, Plaintiff presented to cardiologist Scott L. Woodfield, M.D., following a near-syncopal episode. Tr. at 881. Dr. Woodfield indicated that he suspected orthostatis and low blood pressure to be the sources of the problem, and he decreased Plaintiff's Coreg dosage from 12.5 mg twice a day to 6.25 mg twice a day. Id.

Plaintiff underwent surgical removal of PermCath on October 12, 2009, because his kidneys had completely recovered, and he had not used the PermCath for at least three weeks. Tr. at 842.

On October 16, 2009, Plaintiff complained of lightheadedness and bilateral leg pain to Dr. Woodfield. Tr. at 880. Dr. Woodfield recommended that Coreg be decreased to 3.125 mg. Id. He indicated that Simvastatin might have caused the leg pain, and that it should be eliminated for five days for Plaintiff to determine if it was causing the leg pain. Id.

Plaintiff participated in cardiac rehabilitation at Roper Hospital between October 19, 2009, and December 30, 2009. Tr. at 1127. Plaintiff's attendance was noted to be good and his exercise tolerance was noted to be good, but limited by chronic back pain and previous heel fracture. Id. The site coordinator Amy R. Levine noted that "[p]atient does not work and is limited from activities due to back pain." Id.

Plaintiff presented to Dr. Maguire on October 29, 2009, with complaint of low back pain. Tr. at 968. Dr. Maguire prescribed Percocet to Plaintiff. Id.

Plaintiff followed up with Dr. Woodfield on November 13, 2009, and reported improvement. Tr. at 1133. Echocardiogram revealed ejection fraction improved to 40 percent or slightly more, with an extensive area of apical severe hypokinesis. Tr. at 925.

Plaintiff presented to Brett Baker, M.D. on November 19, 2009. Tr. at 919. His ejection fraction was noted to be improved with medical therapy. Id.

On December 3, 2009, Plaintiff complained of low back pain to Dr. Maguire. Tr. at 967. Dr. Maguire referred Plaintiff for MRI of the lumbar spine. Id.

On December 8, 2009, Plaintiff underwent MRI of the lumbar spine, which indicated no changes in the spine as compared to the MRI ...


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