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Krueger v. Commissioner of Social Security Administration

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

August 29, 2014

Parrie L. Krueger, Plaintiff,
v.
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 Civ. 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") and Supplemental Security Income ("SSI"). 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 April 13, 2010, Plaintiff filed applications for DIB and SSI in which she alleged her disability began on January 1, 2007. Tr. at 106-08. Her applications were denied initially and upon reconsideration. Tr. at 54-58, 61-62, 63-64. On January 27, 2012, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Edward T. Morriss. Tr. at 26-45 (Hr'g Tr.). The ALJ issued an unfavorable decision on February 24, 2012, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 6-18. 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 June 19, 2013. [Entry #1].

B. Plaintiff's Background and Medical History

1. Background

Plaintiff was 48 years old at the time of the hearing. Tr. at 27. She completed more than two years of college. Tr. at 28. Her past relevant work ("PRW") was as a waitress. Tr. at 42-43. She alleges she has been unable to work since January 1, 2007. Tr. at 106.

2. Medical History

X-ray of Plaintiff's lumbar spine on May 6, 2007, indicated mild lumbar spondylosis. Tr. at 234. X-ray of Plaintiff's thoracic spine indicated mild degenerative changes. Tr. at 235.

Plaintiff presented to Doctors Care on June 3, 2007, complaining of neck and upper back pain following a motor vehicle accident. Tr. at 438. Plaintiff was prescribed medication and instructed to follow up with her doctor. Id.

On January 15, 2008, Plaintiff presented to Doctors Care with complaint of upper back pain after lifting a bag of horse feed. Tr. at 434. X-ray indicated mild thoracic spondylosis, but no fracture or misalignment. Id.

Plaintiff presented to Doctors Care on January 22, 2008, to follow up on her thoracic muscle strain. Tr. at 432. Plaintiff reported increased pain and was prescribed pain medication. Id.

Plaintiff presented to the emergency room at Summerville Medical Center on March 31, 2008, with complaint of back pain after lifting and holding a heavy dog. Tr. at 279. She had no back tenderness and painless range of motion. Tr. at 280. X-ray of Plaintiff's lumbar spine indicated mild disc space narrowing. Tr. at 226.

On August 9, 2008, Plaintiff presented to the emergency room at Summerville Medical Center with complaint of flank pain with hematuria. Tr. at 272. Plaintiff was diagnosed with acute pyelonephritis, dehydration, hypokalemia, moderate leukocytosis, migraine headache, and acute bilateral nephrolithiasis. Tr. at 275.

On November 24, 2008, Plaintiff presented to the emergency room at Summerville Medical Center complaining of a boil. Tr. at 262. She was noted to be in moderate distress due to pain and anxiety. Tr. at 263.

Plaintiff presented to the emergency room at Summerville Medical Center on January 11, 2009, complaining of anxiety. Tr. at 257. She was observed to be in mild distress. Tr. at 258. She was also noted to be having a panic attack and to be out of medication. Tr. at 259.

On January 26, 2009, Plaintiff presented to University Family Medicine Flowertown for follow up regarding her anxiety disorder. Tr. at 322. She was noted to be well appearing, well nourished, in no distress, oriented × 3, and to have normal mood and affect. Id.

On February 18, 2009, Plaintiff presented to Doctors Care with complaint of back, kidney, and pelvic pain and pressure, frequent urination, and blood in her urine. Tr. at 422. Plaintiff was diagnosed with nephrolithiasis, trichomoniasis, and urinary tract infection. Id.

A letter in the record from Dorchester Counseling Services dated March 23, 2009, indicated that Plaintiff was assessed on December 1, 2008, and given a diagnosis of cocaine dependence, early full remission and anxiety disorder, NOS. Tr. at 216.

Plaintiff presented to Summerville Medical Center on March 25, 2009, complaining of back pain. Tr. at 252. She was noted to have mildly limited range of motion in the lumbar spine and decreased rotation to the right and left, but no tenderness was observed. Tr. at 253. She was diagnosed with acute lumbar strain and sprained left hip. Tr. at 254.

Plaintiff again presented to University Family Medicine Flowertown on March 26, 2009, regarding hypertension and left hip pain. Tr. at 324. "Anxiousness" was noted. Id.

On April 8, 2009, Plaintiff presented to David H. Jaskwhich, M.D., regarding left leg radicular pain. Tr. at 346. Dr. Jaskwhich observed "[t]he pt is an anxious female who has difficulty seating comfortably. She is moving around in the room. She walks with a noticeable limp." Id. Dr. Jaskwhich noted that Plaintiff had positive straight leg raise, limited range of motion of the back due to pain, and tenderness to palpation throughout the back. Id. He referred Plaintiff to orthopedist Shailesh M. Patel, M.D. Id.

On April 20, 2009, Plaintiff presented to Dr. Patel for an initial visit. Tr. at 345. Plaintiff complained of low back pain and left leg pain. Id. Dr. Patel observed Plaintiff to have normal range of motion in all planes of the lumbar spine; some tenderness to palpation of the lumbar paraspinals bilaterally; intact sensation to light touch in the lower extremities, normal motor examination in the lower extremities; symmetrical reflexes, normal muscle tone with no clonus or muscle atrophy; and positive straight leg raise at 45 degrees. Tr. at 344. Dr. Patel recommended a new MRI of Plaintiff's lumbar spine. Id. Dr. Patel also administered a left greater trochanteric bursa injection. Tr. at 342.

MRI of Plaintiff's lumbar spine on April 24, 2009, indicated mild disc degeneration at L3-4 without stenosis; moderate disc degeneration and mild facet arthrosis at L4-5 with minimal central protrusion; and mild disc degeneration and facet arthrosis at L5-S1 with mild left L5 foraminal stenosis and minimal right subarticular disc protrusion. Tr. at 351.

On May 15, 2009, Dr. Patel administered left L4-5 and L5-S1 transforaminal epidural steroid injections. Tr. at 349.

Plaintiff followed up with Dr. Patel on June 1, 2009, for low back pain and left leg pain. Tr. at 341. Dr. Patel noted that Plaintiff had positive straight leg raise and some tenderness in the lumbar spine. Tr. at 341. However, she had normal range of motion in all planes, normal sensory exam, and normal reflexes. Id. Dr. Patel recommended that she receive another injection, which he administered on June 12, 2009. Tr. at 347.

On June 29, 2009, Plaintiff followed up with Dr. Patel for low back pain. Tr. at 340. She indicated that her leg pain had improved after she received an epidural steroid injection. Id. Dr. Patel noted that Plaintiff had positive straight leg raise and some tenderness in the lumbar spine. Tr. at 340. However, she had normal range of motion in all planes, normal sensory exam, and normal reflexes. Id. Dr. Patel recommended that Plaintiff participate in physical therapy. Tr. at 339.

Plaintiff followed up at University Family Medicine Flowertown on July 23, 2009, for anxiety disorder and cellulitus. Tr. at 326. She was noted to be oriented × 3; to have intact recent and remote memory; to have intact judgment and insight; and to have normal mood and affect. Id. However, the record also notes "some pressured." Id.

Plaintiff presented to Doctors Care on August 30, 2009, with complaint of blood in her urine and severe pain. Tr. at 399. She was diagnosed with a urinary tract infection and uncomplicated pyelonephritis. Id.

On October 1, 2009, Plaintiff followed up with Dr. Patel regarding low back and right hip pain. Tr. at 339. Dr. Patel noted that Plaintiff had positive straight leg raise and some tenderness in the lumbar spine and over the left greater trochanteric bursa. Tr. at 338-39. However, she had normal range of motion in all planes, normal sensory exam, and normal reflexes. Id. Dr. Patel diagnosed lumbar facet arthropathy, left lumbar radiculopathy, and left greater trochanteric bursitis and recommended that Plaintiff participate in physical therapy and consider spinal injections. Tr. at 338. A greater trochanteric bursa injection was administered on the left side. Tr. at 337.

On November 16, 2009, Plaintiff followed up at University Family Medicine Flowertown regarding anxiety. Tr. at 329. She indicated that she was crying all the time; unable to sleep; having significant stress with finances; and unable to find work. Id.

Plaintiff presented to Doctors Care on February 4, 2010, with a panic attack. Tr. at 388. She was noted to be agitated and tearful. Id. Her speech was pressured and she exhibited flight of ideas. Id. She indicated that her medications were not working, and she was prescribed new medications. Id.

Plaintiff contacted Doctors Care on February 17, 2010, to complain of depression and anxiety and to seek a referral for psychiatric treatment. Tr. at 386. She was referred to a mental health provider, but she failed to attend the appointment. Tr. at 384.

Plaintiff presented to Doctors Care on March 5, 2010, with complaints of possible urinary tract infection, kidney stone, and tumor on her right wrist. Tr. at 378. She was prescribed medication for a urinary tract infection and referred to an orthopedist for a cyst on her right wrist. Id.

On March 11, 2010, Plaintiff presented to the emergency room at Summerville Medical Center after sustaining a fall and having shelves topple on her. Tr. at 247-51. X-rays of the left hip, left wrist, and cervical spine were unremarkable. Tr. at 219-21.

The record contains an assessment completed after March 2010, by a medical provider at University Family Medicine Flowertown (signature illegible), which indicated that Plaintiff's diagnoses included panic, anxiety, and depression. Tr. at 445. The provider indicated that medications had helped Plaintiff's condition and that psychiatric care had been recommended. Id. The provider indicated that Plaintiff was oriented to all spheres; that her thought process was intact; that her thought content was appropriate; that her mood/affect was worried/anxious; that her attention/concentration was adequate; and that her memory was adequate. Id. The provider also indicated that Plaintiff had slight work-related limitation in function due to her mental conditions. Id.

Plaintiff followed up at University Family Medicine Flowertown on March 22, 2010, following her visit to the emergency room. Tr. at 330. She complained of continued pain and edema in the left hip, but indicated that her left wrist was essentially normal. Id. She also indicated that she was having problems with her neck and lumbar spine. Id. She complained of tingling in her left fourth and fifth digits. Id. Plaintiff reported that her anxiety had improved. Id. Kimberly N. Mallin, M.D., the attending physician, indicated that Plaintiff was walking with a cane, but had no misalignment, asymmetry, crepitation, defects, or decreased range of motion. Id.

On March 29, 2010, Plaintiff visited Dr. Patel and reported that she had fallen at a store and that shelves had fallen on her. Tr. at 505. She reported pain in her neck and on the left side of her head; numbness and tingling in her left arm and fingers; worsening lower back pain and bilateral hip pain; and worsening paresthesias extending into her left leg. Id. Dr. Patel noted moderate tenderness to palpation of Plaintiff's cervical and lumbar paraspinals; limited lumbar extension; sensory decreased to light touch in the left thumb, left index finger, and left thigh; normal motor examination in all extremities; and symmetric reflexes. Id. Dr. Patel administered bilateral greater trochanteric bursa injections. Tr. at 335-36. Dr. Patel also prescribed a lumbosacral brace. Tr. at 504.

On May 2 and 5, 2010, Plaintiff presented to Doctors Care with complaint of kidney stone and bladder pain. Tr. at 356, 370. She was referred to an urologist. Tr. at 356.

Plaintiff followed up with Dr. Patel on June 16, 2010, regarding low back pain and neck pain. Tr. at 502. Dr. Patel noted moderate tenderness to palpation of the cervical and lumbar paraspinals; limited lumbar extension; decreased sensory to light touch in the left thumb, left index finger, and left thigh; motor exam 5/5 in both upper and lower extremities; and symmetric reflexes. Id.

On July 30, 2010, Plaintiff presented to Doctors Care with complaint of dysuria, urinary urgency, and urinary frequency. Tr. at 612. She was diagnosed with urinary tract infection and kidney stone. Id.

On August 1, 2010, Plaintiff presented to the emergency room at Summerville Medical Center with flank pain and difficulty and pain with urination. Tr. at 457. She was diagnosed with acute abdominal pain, right nephrolithiasis, and acute urinary tract infection. Tr. at 460.

Lisa Varner, Ph.D., completed a psychiatric review technique on August 9, 2010, in which she indicated that she considered Listings 12.04 for affective disorders, 12.06 for anxiety-related disorders, and 12.09 for substance addiction disorders and concluded that Plaintiff's impairments were not severe. Tr. at 479. She indicated that Plaintiff had mild restriction of activities of daily living; mild difficulties in maintaining social functioning; mild difficulties in maintaining concentration, persistence, or pace; and no episodes of decompensation. Tr. at 489.

Plaintiff presented to state agency consultative examiner David W. Robinson, M.D., on September 13, 2010, for a comprehensive orthopedic examination. Tr. at 470-77. Dr. Robinson noted that Plaintiff ambulated with a cane. Tr. at 472. Dr. Robinson observed negative straight leg raise; hand strength 4+5/5 with splinting; intact reflexes in the upper extremities; and soft tissue swelling over both greater trochanters. Tr. at 473. He also observed decreased range of motion of Plaintiff's cervical spine, lumbar spine, bilateral shoulders, and bilateral hips. Tr. at 476. Dr. Robinson indicated that he suspected Plaintiff had some mental health issues based on the fact that the broad spectrum of symptoms she was experiencing were not explainable by a single rheumatologic diagnosis. Tr. at 474. Dr. Robinson suggested that Plaintiff had legitimate pain in her hips that was limiting her, but that she had "some degree of exaggeration of demonstrated pain on her exam today." Id. Dr. Robinson indicated the following work-related limitations:

[P]ersistent or prolonged sitting now will cause discomfort. I think she can generally stand and walk without significant limitations, although long duration walking may be difficult for her.... I think she should be able to perform right lifting and carrying.... I do generally think that she is able to perform reasonable gross manipulation or fine manipulation of both hands. She should be able to perform light overhead reaching. She is probably not a good candidate for climbing, either many stairs or onto ropes or ladders. She may be able to drive and travel short distances, but doing this for occupational reasons probably is not advisable at this time.... She generally has the ability to understand, remember, and carry out instructions. Her ability to respond to supervision, coworkers, and work pressures is somewhat in doubt....

Tr. at 475. Dr. Robinson also indicated that a psychological evaluation should be considered. Id.

State agency consultant Jim Liao, M.D., completed a physical residual functional capacity assessment on September 24, 2010, in which he indicated that Plaintiff was restricted as follows: 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 a total of about six hours in an eighthour workday; push and/or pull unlimited; occasionally climbing ramp/stairs, balancing, ...


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