United States District Court, D. South Carolina, Aiken Division
Hommer T. Mills, 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 final order pursuant to 28 U.S.C. § 636(c), Local Civil Rule 73.01(B) (D.S.C.), and the Honorable Timothy M. Cain's October 10, 2013, order referring this matter to United States Magistrate Judge Bruce Howe Hendricks for disposition. [Entry #15]. This matter was subsequently reassigned to the undersigned on June 4, 2014. [Entry #23]. The parties consented to a United States Magistrate Judge's disposition of this case, with any appeal directly to the Fourth Circuit Court of Appeals. [Entry #12].
Plaintiff files this appeal pursuant to 42 U.S.C. § 405(g) of the Social Security Act ("the Act") to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying the 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 court remands the Commissioner's decision for further proceedings as set forth herein.
I. Relevant Background
A. Procedural History
On December 8, 2005, Plaintiff filed an application for DIB in which he alleged his disability began on June 5, 2004. Tr. at 70, 181-83. His application was denied initially and upon reconsideration. Tr. at 89-90, 100-01. On September 3, 2008, Plaintiff amended his alleged onset date to December 31, 2007, to coincide with his 50th birthday. Tr. at 286. On September 12, 2008, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Richard L. Vogel. Tr. at 35-49 (Hr'g Tr.). The ALJ issued an unfavorable decision on October 8, 2008. Tr. at 72-84. On August 8, 2010, the Appeals Council issued an order remanding the case to the ALJ. Tr. at 85. On June 30, 2011, Plaintiff had a second hearing before ALJ Vogel. Tr. at 52-67 (Hr'g Tr.). The ALJ issued an unfavorable decision on July 13, 2011, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 14-32. 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 March 25, 2013. [Entry #1].
B. Plaintiff's Background and Medical History
Plaintiff was 53 years old at the time of the hearing. Tr. at 52. He completed the ninth grade and obtained a high school equivalency certificate. Tr. at 36. His past relevant work ("PRW") was as a skating rink manager and a beer distribution laborer. Tr. at 62. He alleges he has been unable to work since December 31, 2007. Tr. at 286.
2. Medical History
Plaintiff presented to George F. Warren, M.D., on July 29, 2004, with complaint of right-sided low back pain. Tr. at 318. Plaintiff reported that he had injured his back while pulling a pallet jack at work on June 5, 2004. Id. Dr. Warren diagnosed right lumbar facet syndrome and recommended that Plaintiff remain on light duty status. Tr. at 317.
Plaintiff presented to Timothy M. Zgleszewski, M.D., on September 20, 2004, regarding low back pain. Tr. at 545-46. Dr. Zgleszewski indicated that, based on his examination and Plaintiff's lack of improvement, he suspected a greater problem than a lumbosacral strain. Tr. at 546.
Plaintiff followed up with Dr. Zgleszewski on October 1, 2004. Tr. at 547-48. He ruled out Plaintiff's lumbar Z-joints as the source of the problem, and indicated that he would next need to rule out the right SI joint. Tr. at 548. Dr. Zgleszewski scheduled Plaintiff for diagnostic SI joint injection and MRI of the lumbar spine. Id.
MRI of the lumbar spine on October 14, 2004, indicated spondylosis of the lumbar spine, greatest at L4-5, where there was a mild diffuse disc osteophyte complex and a superimposed central and left parasagittal disc herniation with moderate to severe facet hypertrophy. Tr. at 549. The MRI also indicated moderate spinal canal stenosis with moderate to severe bilateral lateral recess stenosis. Tr. at 549-50. Compression of the transiting L5 nerve root could not be excluded, but there was no definite compression of the exiting L4 nerve root. Tr. at 550.
On October 26, 2004, Plaintiff followed up with Dr. Zgleszewski to review his MRI report. Tr. at 551. Dr. Zgleszewski indicated that it was most likely that Plaintiff's pain was emanating from the disc itself. Id. Plaintiff agreed to proceed with provocative lumbar discography. Id.
Plaintiff followed up with Dr. Zgleszewski on December 6, 2004. Tr. at 325. Dr. Zgleszewski discussed with Plaintiff the findings of the post-discography CT scan and recommended that Plaintiff undergo intradiscal electrothermal annuloplasty ("IDEA") at L3-4 and L4-5. Id.
On December 16, 2004, Plaintiff presented to R. Blake Dennis, M.D., for a second opinion regarding his lumbar spine. Tr. at 319. Dr. Dennis indicated that Plaintiff had a 40 to 50 % chance of obtaining relief with IDEA, but that he expected that Plaintiff would be more likely to experience continued pain and to require spinal fusion. Id. Dr. Dennis recommended that Plaintiff participate in a vigorous active rehab program; use anti-inflammatory medications; engage in aerobic conditioning; and return to work at a light duty level. Id. Plaintiff agreed to pursue Dr. Dennis's recommendations, and Dr. Dennis gave him a note to return to work at light duty for six hours per day and to progress to eight hours of light duty work four weeks later. Id.
On December 21, 2004, Dr. Zgleszewski wrote a note to Plaintiff's file in which he acknowledged that Plaintiff had opted not to proceed with IDEA. Tr. at 324. Dr. Zgleszewski noted his disagreement with Dr. Dennis's opinion. Id. Dr. Zgleszewski wrote that Plaintiff was not a candidate for two-level fusion and noted that Plaintiff was at maximum medical improvement. Id. He indicated that Plaintiff was limited to lifting no greater than 20 pounds on an occasional basis and that he should avoid repetitive bending, lifting, or twisting. Id. He wrote that Plaintiff could sit for 30 to 60 minutes at a time, but must be able to change positions. Id. Dr. Zgleszewski noted that Plaintiff had no limitations with respect to walking, standing, or engaging in repetitive movements with his upper extremities. Id. He indicated that Plaintiff could not use his feet for repetitive motions. Id. Dr. Zgleszewski noted that the restrictions were permanent. Id. Dr. Zgeleszewski assessed a 12% impairment rating to Plaintiff's lumbar spine. Id.
On January 27, 2005, Plaintiff reported worsened significant right leg pain and worsened back pain to Dr. Dennis. Tr. at 398. Plaintiff complained that physical therapy had provided no improvement and had worsened his back pain. Id.
On January 28, 2005, and February 25, 2005, Thomas D. Wooten, Jr., M.D., administered epidural steroid injections to the L4-5 level of Plaintiff's spine. Tr. at 332, 336.
On February 15, 2005, Plaintiff complained to his primary care physician, David Apple, M.D., about experiencing depression. Tr. at 493. Dr. Apple prescribed Cymbalta and noted that Plaintiff may benefit from therapy with a psychologist. Tr. at 494.
MRI of Plaintiff's lumbar spine on April 11, 2005, indicated severe central canal stenosis at L4-5 on the basis of a left central protrusion with underlying disc bulge as well as facet arthropathy and ligamentum flavum thickening; mild spondylosis at L3-4 with facet arthropathy, but no significant stenosis; and moderate bilateral facet arthropathy at L5-S1 without significant disc bulge or protrusion. Tr. at 416.
Plaintiff followed up with Dr. Dennis on April 14, 2005, to review MRI results. Tr. at 392. He reported buttock and thigh pain, worsened with prolonged walking. Id. Dr. Dennis recommended that Plaintiff proceed with nerve root canal and foraminal decompression and discectomy, but informed Plaintiff that his condition would likely require a lumbar fusion in the future. Id.
On April 29, 2005, Plaintiff underwent bilateral L4-5 laminectomy and nerve-root canal foraminal decompression with discectomy. Tr. at 370.
On October 4, 2005, Plaintiff reported to Dr. Dennis that his leg pain was resolved. Tr. at 386. Plaintiff complained of back pain, but Dr. Dennis indicated that he told Plaintiff that he would still have back pain after the surgery. Id. Dr. Dennis recommended that Plaintiff lift no more than 40 pounds. Id.
Plaintiff underwent functional capacity evaluation by Jesse McGrady, P.T., on November 16, 2005. Tr. at 554-59. Plaintiff participated in work activities in the light and medium work categories, but he consistently complained of high pain levels of 7/10 to 8/10. Tr. at 558. He was unable to squat lift. Id. Mr. McGrady concluded that Plaintiff would not be able to "return to job types which require lifting and prolonged standing and walking." Id.
Plaintiff followed up with Dr. Dennis on November 22, 2005. Tr. at 385. Plaintiff complained of 7/10 pain, which Dr. Dennis indicated to be inconsistent with his clinical picture. Id. Dr. Dennis prescribed a chair-back brace, recommended that Plaintiff walk two miles per day, and instructed Plaintiff to follow up in three to four weeks. Id.
Plaintiff fractured his left distal radius on December 10, 2005, after he lost his balance and fell down approximately three stairs. Tr. at 362-66.
Plaintiff presented to Jerrold M. Buckaloo, M.D., on January 11, 2006, for consultation regarding his left wrist fracture. Tr. at 528-29. Dr. Buckaloo noted that xrays dated January 4, 2006, demonstrated a distal radius ulnar styloid fracture with impaction and further displacement of the volar ulnar aspect of the distal radius involving the volar 50% of the lunate facet. Tr. at 529. On January 17, 2006, Dr. Buckaloo performed open reduction internal fixation with limited osteotomy of the left distal radius. Tr. at 530.
Plaintiff presented to Dr. Dennis on March 14, 2006, to report that his right leg was giving way. Tr. at 432. Dr. Dennis indicated that the problem did not seem to be consistent with a lumbar spine problem and he referred Plaintiff for EMG and nerve conduction studies. Id.
Plaintiff underwent EMG/nerve conduction studies of the bilateral lumbar paraspinals and lower extremities on April 6, 2006. Tr. at 587-88. The studies indicated slightly decreased recruitment pattern of the right lower extremity musculature. Tr. at 588. Chronic denervation potentials were noted, but no acute denervation potentials were identified. Id.
On May 3, 2006, state agency consultant Jean Smolka, M.D., completed a physical residual functional capacity assessment. Tr. at 418-25. Dr. Smolka 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 a total of about six hours in an eight-hour workday; sit (with normal breaks) for about six hours in an eight-hour workday; occasional heavy pushing and/or pulling with the left upper extremity; frequently climbing ramp/stairs, balancing, kneeling, and crouching; occasionally climbing ladder/rope/scaffolds, stooping, and crawling; and handling (gross manipulation) limited to frequent with the left upper extremity. Tr. at 419-21.
Plaintiff followed up with Dr. Dennis on May 9, 2006, and continued to complain that his right leg was weak and giving way. Tr. at 430. Dr. Dennis indicated that recent EMG and nerve conduction studies were negative. Id. He offered to refer Plaintiff to a neurologist to rule out any occult neurological problem. Id. Dr. Dennis indicated that Plaintiff had reached maximum medical improvement and he assigned Plaintiff a 20% impairment rating to the lumbar spine. Id.
On June 10, 2006, Plaintiff was examined by Charles J. Gudas, DPM, at the request of his workers' compensation attorney. Tr. at 599-600. Plaintiff complained of significant pain, irritation, and instability of his right lower extremity. Tr. at 599. He indicated that his leg gave out one to three times per week. Id. Dr. Gudas noted the following findings: moderate pain along the lateral aspect of the right foot, leg, and ankle; very significant plantar fasciitis; inferior heel pain on the right side; and antalgic gait with significant functional disturbance. Id. Dr. Gudas noted negative Babinski and clonus, but observed decreased sensation in the lateral aspect of Plaintiff's right leg, consistent with lumbar spine derangement. Id. Dr. Gudas documented 4/5 muscle strength of the right lower extremity. Id. Plaintiff's right calf measured 36.5 centimeters in girth and his left calf measured 38 centimeters in girth. Id. Dr. Gudas measured a 2.4 centimeter difference in the lengths of Plaintiff's lower extremities. Tr. at 600. Dr. Gudas recommended that Plaintiff use an ankle stabilization device and a cane. Id.
Plaintiff complained to Dr. Apple on July 18, 2006, that his right leg was going out and that he was very depressed. Tr. at 491. Dr. Apple noted tenderness in Plaintiff's lumbosacral and low thoracic spine. Tr. at 492. He prescribed Cymbalta for depression and Ultram for pain. Id.
State agency consultant Judith Von, Ph.D., completed a psychiatric review technique on September 8, 2006. Tr. at 507-20. She considered Listing 12.04 for affective disorders in light of Plaintiff's treatment for depression. Id. She assessed Plaintiff's degree of limitation as mild with respect to restriction of activities of daily living, difficulties in maintaining social functioning, and difficulties in maintaining concentration, persistence, or pace. Tr. at 517. She determined that Plaintiff had no episodes of decompensation and that the evidence did not support the presence of the "C" criteria under the Listing. Tr. at 517-18.
On September 11, 2006, Plaintiff followed up with Dr. Buckaloo to receive an impairment rating for his left wrist. Tr. at 522. Dr. Buckaloo observed that Plaintiff's digit mobility was full and unrestricted. Id. Plaintiff's wrist flexion was 30 degrees; extension was 45 degrees; radial deviation was 15 degrees; and ulnar deviation was 25 degrees. Id. Dr. Buckaloo assessed an 11% impairment rating of the upper extremity. Id.
Dr. Stout administered EMG and nerve conduction studies on September 22, 2006. Tr. at 593-95. The studies showed no evidence of peripheral neuropathy or radiculopathy. Tr. at 594.
State agency consultant William Cain, M.D., completed a physical residual functional capacity assessment on September 25, 2006. Tr. at 533-40. He indicated that Plaintiff had the following limitations: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk (with normal breaks) about six hours in an eight-hour workday; sit (with normal breaks) about six hours in an eight-hour workday; occasional heavy pushing and/or pulling with the left upper extremity; frequently climbing ramp/stairs, balancing, kneeling, and crouching; occasionally climbing ladder/rope/scaffolds, stooping, and crawling; and frequent handling (gross manipulation) with the left upper extremity. Tr. at 534-36.
Plaintiff followed up with Dr. Apple on December 1, 2006. Tr. at 616. He reported that his low back pain was continuing to limit his activities. Id. Dr. Apple observed palpable tenderness in Plaintiff's lumbosacral spine. Id. He also noted that Plaintiff had difficulty sitting for any length of time without shifting positions repeatedly and difficulty rising from a seated or supine position. Id. Straight-leg raise was negative. Id.
On December 4, 2006, Plaintiff was seen by Curtis Worthington, M.D., for a workers' compensation evaluation. Tr. at 575. Plaintiff reported that he was no longer experiencing extremity pain. Id. Plaintiff indicated that he continued to experience low back pain, which bothered him 100% of the time. Id. Dr. Worthington observed some tenderness to palpation along the lower lumbar spinous process and limited mobility of Plaintiff's back. Id. Plaintiff's gait was normal and his lower extremity strength, sensation, and reflexes were intact. Id. Dr. Worthington recommended that Plaintiff resume use of anti-inflammatories and muscle relaxants, participate in physical therapy, and obtain epidural blocks. Id. Dr. Worthington also suggested that Plaintiff obtain a new MRI scan. Id.
Plaintiff visited J. Robert Alexander, Jr., M.D., for initial consultation on February 8, 2007. Tr. at 585-90. Plaintiff complained of lumbar pain and chronic right lower extremity weakness. Tr. at 585. Dr. Alexander observed tenderness to palpation segmentally at L3 through S1 bilaterally, right greater than left. Id. Plaintiff complained of increased lumbar pain with lumbar flexion, but not with extension. Id. Plaintiff had negative straight-leg raise bilaterally, but straight-leg raise did produce axial symptoms on the right. Id. Dr. Alexander administered bilateral lumbar paraspinal injections. Tr. at 586.
On February 16, 2007, Plaintiff reported to Dr. Alexander that he experienced some benefit after the last lumbar injection, but that his symptoms had returned. Tr. at 584. Dr. Alexander scheduled Plaintiff for repeat bilateral transforaminal epidural injection at L4. Id.
Plaintiff followed up with Dr. Alexander on March 13, 2007, and reported at least two weeks of benefit from bilateral transforaminal epidural steroid injection. Tr. at 582. However, Plaintiff indicated that his symptoms were slowly returning. Id. Dr. Alexander recommended repeat MRI. Id.
MRI on March 23, 2007, indicated prior laminectomy at L4-5 on the right, with central disc protrusion, deformity of the ventral thecal sac with minimal extension below the superior endplate of L5 in the midline, and canal narrowing. Tr. at 579-80. The MRI also indicated mild degeneration at L5-S1 and L3-4, but no disc herniation, canal stenosis, or significant foraminal compromise. Tr.at 580.
Plaintiff followed up with Dr. Alexander on April 26, 2007, and reported a recent increase in lower extremity discomfort. Tr. at 578. Dr. Alexander noted tenderness in Plaintiff's lumbosacral paraspinal region. Id. Dr. Alexander scheduled Plaintiff for repeat bilateral transforaminal epidural steroid injection at L4. Id.
On June 1, 2007, Plaintiff followed up with Dr. Alexander after a bilateral transforaminal epidural steroid injection. Tr. at 576. Plaintiff reported decreased pain from 8/10 to 4/10 and indicated that he had recently discontinued use of Neurontin and Feldene. Id. Dr. Alexander noted that Plaintiff had decreased tenderness in his lumbosacral paraspinal region. Id. Dr. Alexander recommended that Plaintiff resume use of Neurontin and Feldene. Id.
Plaintiff followed presented to neurologist Thomas F. Stout, M.D., on July 11, 2007, and complained of continued low back pain. Tr. at 591-92. Dr. Stout noted low lumbosacral tenderness to palpation. Tr. at 591. Dr. Stout observed normal motor tone, motor strength, reflexes, and sensation. Id. Dr. Stout diagnosed chronic pain syndrome, also termed failed spine syndrome. Id. Dr. Stout recommended a ...