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Phillips v. Commissioner of Social Security Administration

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

October 20, 2014

Darlene Phillips, 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 October 20, 2010, Plaintiff filed applications for DIB and SSI in which she alleged her disability began on August 23, 2010. Tr. at 156-61, 162-63. Her applications were denied initially and upon reconsideration. Tr. at 81-86, 89-91, 92-94. On February 23, 2012, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Peggy McFadden-Elmore. Tr. at 36-76 (Hr'g Tr.). The ALJ issued an unfavorable decision on June 13, 2012, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 17-35. 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 1-12. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on November 27, 2013. [ECF No. 1].

B. Plaintiff's Background and Medical History

1. Background

Plaintiff was 41 years old at the time of the hearing. Tr. at 41. She completed high school. Tr. at 43. Her past relevant work ("PRW") was as a school janitor, a cook, a kitchen helper, a cashier, and a produce clerk. Tr. at 67. She alleges she has been unable to work since August 23, 2010. Tr. at 41.

2. Medical History

On August 23, 2010, Plaintiff presented for urgent care treatment at Lexington Medical Center Swansea. Tr. at 244. She complained of lower left abdominal pain that was exacerbated by lifting, straining, and walking. Id. Her examination was normal except for complaints of pain over her rectus muscles. Id. She was diagnosed with an abdominal wall strain and hypertension and prescribed Flexeril, Lortab, and Hydrochlorothiazide ("HCTZ"). Id.

Plaintiff presented to Clarence E. Coker, III, M.D., for an initial evaluation on September 16, 2010. Tr. at 258. She reported pelvic pain and right low back pain. Id. She indicated her pain was worsened by sitting and lifting, improved slightly by standing, and improved significantly by lying down. Id. Plaintiff stated her pain started on her right side, radiated down her right leg, and traveled into the lateral aspect of her right foot. Id. Dr. Coker noted that Plaintiff was uncomfortable and was standing up and bending at the waist with obvious excessive lordosis. Id. Her sitting straight-leg raise ("SLR") test was positive and she was unable to lie down due to the pain. Id. She had excessively brisk deep tendon reflexes and her lumbar spine showed some angulation of L5 on S1. Id. Dr. Coker prescribed Prednisone, limited Plaintiff to lifting no more than five pounds, and referred her for an MRI. Id.

Plaintiff followed up with Dr. Coker on September 21, 2010. Id. She reported some improvement, but noted that she was still experiencing pain in her right foot. Id. Dr. Coker observed positive SLR on the right and antalgic gait, but noted the SLR was negative on the left and that Plaintiff had normal deep-tendon reflexes. Id. Dr. Coker diagnosed sciatica with some improvement on steroids. Id.

Plaintiff continued to report low back pain to Dr. Coker on September 30, 2010. Tr. at 257. Plaintiff denied experiencing paresthesias or numbness, but indicated Lortab was not working as well and that she had been unable to work because of her pain. Id. Dr. Coker observed a positive SLR on the right and a borderline SLR on the left, antalgic gait, and normal deep-tendon reflexes. Id. Dr. Coker prescribed Prednisone and instructed Plaintiff to follow up after her MRI. Id.

An MRI on October 1, 2010, indicated minimal lumbar degenerative changes, mostly manifested by some very mild facet arthropathy in the lower lumbar levels with no focal disc herniation, central canal stenosis, or significant neural foraminal narrowing. Tr. at 253.

On October 27, 2010, Plaintiff followed up with Dr. Coker regarding her low back pain. Tr. at 257. She reported her pain was worsened by standing and improved with rest and sitting. Id. SLR test was more positive on the right than on the left. Id. Plaintiff had mildly decreased deep-tendon reflexes in her knees. Id. Dr. Coker observed some tenderness over Plaintiff's right sacroiliac ("SI") joint. Id. He noted that Plaintiff's MRI report revealed no significant abnormalities, but that she may have some mild facet arthropathy. Id.

Plaintiff followed up with Dr. Coker on November 18, 2010, and complained of right shoulder pain, low back pain, and neck stiffness and tightness. Tr. at 261. She indicated she experienced pain with ambulation and was unable to walk very much. Id. Dr. Coker observed good range of motion of Plaintiff's neck, but some paraspinous muscular tenderness and some trapezius ridge tenderness. Id. He noted positive Hawkins and Neer impingement signs on her right, but no evidence of a rotator cuff tear. Id. He diagnosed right shoulder bursitis and administered a steroid injection. Id.

On December 14, 2010, Plaintiff followed up with Dr. Coker regarding pain in her right leg, on the right side of her low back, and in her right arm, as well as weakness in the third and fourth digits of her right hand. Id. Plaintiff reported her right shoulder pain had improved with injection. Id.

Plaintiff followed up with Dr. Coker on January 13, 2011, and reported ongoing low back pain radiating down her right leg. Tr. at 273. Dr. Coker noted that Plaintiff "typically stands more than she sits" and that she complained that her pain was worsened by sitting. Id. SLR was positive on the right in both the sitting and supine positions and positive on the left only in the supine position. Id. Dr. Coker observed tenderness on palpation of the SI joints bilaterally, but worse on the right. Id. He assessed sciatica and sacroiliitis and administered a right SI joint injection. Id.

State agency consultant Warren F. Holland, M.D., completed a physical residual functional capacity assessment on January 18, 2011, in which he indicated that Plaintiff was limited 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 climb ramps/stairs, stoop, and crouch; frequently balance, kneel, and crawl; and never climb ladders/ropes/scaffolds. Tr. at 262-69.

Plaintiff followed up with Dr. Coker on January 28, 2011, and complained of low back pain with severe lordosis and angulation of the lumbar spine. Tr. at 273. She indicated she was experiencing pain with standing and with sitting, and that her pain was improved by lying on her side with her knees pulled up. Id. She indicated her pain was only improved with Hydrocodone[1] 10 mg that caused drowsiness. Id. Dr. Coker observed that Plaintiff was quite uncomfortable in the sitting position. Id. He also observed positive SLR test on the left more than the right, but normal deep-tendon reflexes. Id.

On February 15, 2011, Plaintiff complained to Dr. Coker of severe low back and hip pain. Tr. at 272. Dr. Coker noted tenderness over her SI joints. Id. He indicated that Plaintiff was in a significant amount of pain, but was in no acute distress. Id. SLR test was negative and Plaintiff had normal deep-tendon reflexes and normal sensation. Id. Dr. Coker noted "very marked lordosis of the lumbar spine, but no evidence of rotoscoliosis." Id. He indicated that Plaintiff may have functional spinal stenosis with severe pain with ambulation. Id. He referred her to pain management and neurosurgery and prescribed a rolling walker, Vicodin, and Tramadol. Id.

Plaintiff followed up with Dr. Coker on March 29, 2011, regarding low back pain. Tr. at 276. She complained of a little swelling in her right leg, but Dr. Coker noted that it was not significantly different from the left. Id. Plaintiff reported pain with sitting, standing, and walking, but Dr. Coker noted that she seemed to be most comfortable with standing. Id. She informed Dr. Coker that she had been unable to obtain a rolling walker because of an insurance issue. Id. Dr. Coker observed Plaintiff had "pretty bad lordosis of the lumbar spine, " was unable to sit for any length of time, and she was flexed between 30 and 45 degrees at the hip. Id. However, she was able to ambulate "without significant antalgia." Id. Plaintiff reported she inadvertently dropped her pain medication in the toilet. Id. Dr. Coker agreed to authorize refill of her medications, but indicated "I will not provide any further refills for any other accidents like this." Id. He prescribed Vicodin, Neurontin, and Mobic. Id. He also noted Plaintiff had seen the neurosurgeon, but the neurosurgeon had referred her for legal counseling regarding insurance coverage. Id. He administered a steroid injection. Id.

On April 19, 2011, Plaintiff complained to Dr. Coker's associate, James Kerby, P.A., that she was getting no relief from Neurontin and was experiencing acute pain in her right shoulder blade. Tr. at 298. Mr. Kerby observed Plaintiff to be bent over in antalgic posture in her lumbar region and holding her arm in an antalgic posture. Id. He noted Plaintiff had subjective tenderness to palpation diffusely along the scapula, and range-of-motion pain with scapular abduction. Id. He administered a Toradol injection and prescribed Toradol for home use. Id.

Plaintiff presented to Lexington Medical Center Swansea on May 29, 2011, with complaints of back and hip pain. Tr. at 286. She was ambulating with a cane and was somewhat bent over. Tr. at 287. Wesley Shuler, M.D., observed some tenderness on palpation to Plaintiff's right sacroiliac area and painful SLR on the right. Id. She was given Demerol and Phenergan intravenously and prescribed Lortab and Prednisone. Id.

Plaintiff again followed up with Mr. Kerby on July 11, 2011, and requested Vicodin for back pain. Id. Mr. Kerby noted he had advised Plaintiff to follow up with Dr. Coker when he saw her in April and prescribed 12 Vicodin. Id.

Plaintiff followed up with Dr. Coker on July 15, 2011, and complained she was continuing to experience low back and right leg pain and that her right leg pain had been so intense that she recently wet herself. Id. She stated she had pain when sitting, standing, and lying down, and that standing was the most comfortable position for her. Id. Dr. Coker indicated that SLR was markedly positive on the right and that Plaintiff was mildly hyperreflexic in the right knee and ankle. Id. He again referred Plaintiff for pain management and neurosurgery consultations and administered an epidural injection. Id.

State agency medical consultant Lindsey Crumlin completed a physical residual functional capacity assessment on May 4, 2011, in which she 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) for at least two hours in an eight-hour workday; sit (with normal breaks) for about six hours in an eight-hour workday; push and/or pull unlimited; occasionally climb ramps/stairs, balance, stoop, kneel, crouch, and crawl; never climb ladders/ropes/scaffolds; and avoid all exposure to hazards. Tr. at 278-85.

Plaintiff presented to Lexington Medical Center Swansea on September 2, 2011, complaining of severe back pain after she tried to lift a watermelon. Tr. at 293. Pamela Levi, N.P., observed tenderness over Plaintiff's lumbar spine and paraspinal muscles. Id. However, her strength and sensation were intact, her reflexes were normal, and her SLR test was negative. Id. Dr. Levi prescribed Flexeril for spasms, but indicated that Plaintiff should take pain medication from her home supply. Id.

Plaintiff followed up with Dr. Coker on September 9, 2011, and complained her low back pain was only moderately controlled with Percocet 10/650, four times daily. Tr. at 297. Dr. Coker indicated Plaintiff had not been seen by a neurosurgeon or by a pain management physician. Id. He observed Plaintiff had severe lordosis of the lumbar spine with tenderness over the SI joints bilaterally and ambulated with a walker, but had normal dorsiflexion and plantar flexion. Id.

Plaintiff followed up with Dr. Coker on November 2, 2011, who noted Plaintiff had been working with a Workers' Compensation attorney, but had not been seen by a neurosurgeon or pain management specialist. Tr. at 305. Dr. Coker noted Plaintiff was no longer taking Percocet and was getting adequate control of pain with Mobic and Lyrica. Id.

On February 8, 2012, Plaintiff informed Dr. Coker that her pain continued to worsen and was not controlled by her medications. Tr. at 304. She indicated she did not have insurance and was unable to see a pain management physician or a spinal surgeon. Id. She reported that Percocet caused constipation and made her feel "a little bit goofy and sleepy." Id. Dr. Coker noted Plaintiff appeared to be in pain consistent with the level documented. Id. He observed bilateral SI paraspinous muscular tenderness, bilateral SI tenderness, positive SLR, and hyperreflexia of the deep tendon reflexes of the knee bilaterally. Id. Dr. Coker refilled Plaintiff's medications and prescribed Amlodipine for uncontrolled hypertension. Id.

On April 11, 2012, Plaintiff indicated to Dr. Coker that her pain was a little better, but she was experiencing some numbness in her right hand. Tr. at 306. Dr. Coker noted Plaintiff's blood pressure was elevated and she had a resting tremor in her right leg. Id. He also observed some paresthesias of Plaintiff's thumb, forefinger, and long finger on her right hand. Id. He indicated Plaintiff had adequate dorsiflexion and plantar flexion of her feet while standing. Id. Dr. Coker refilled Plaintiff's Percocet prescription and prescribed a carpal tunnel splint. Id.

Plaintiff saw Ezra B. Riber, M.D., on August 24, 2012, for low back and right leg pain. Tr. at 314. He noted Plaintiff was previously seen on February 17, 2012. Id. He indicated that since her last visit, Plaintiff had been evaluated by an orthopedist who did not recommend surgery. Id. Dr. Riber observed Plaintiff to have kyphotic posture; limited forward flexion of the lumbar spine; positive SLR; inability to stand on heels and toes; and grossly antalgic gait, requiring a walker to ambulate. Id. He diagnosed lumbar facet syndrome, lumbar radicular syndrome (right worse than left), chronic low back and leg pain (right worse than left), status post work-related lifting injury, and failure to respond to non-invasive treatment. Id.

On October 17, 2012, Plaintiff complained to Dr. Riber of low back pain, right upper extremity pain, and right lower extremity pain. Tr. at 310. Dr. Riber observed limited range of motion of Plaintiff's lumbar spine and right limp, but no other abnormalities. Tr. at 311. He noted that Plaintiff had an appointment for a surgical evaluation on October 22, 2012. Id.

C. The Administrative Proceedings

1. The Administrative Hearing

a. Plaintiff's Testimony

At the hearing on February 23, 2012, Plaintiff testified she lived in a mobile home with her husband. Tr. at 42. She stated she had a driver's ...


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