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Holmes v. Commissioner of Social Security Administration

United States District Court, District of South Carolina, Aiken Division

November 6, 2014

Jamieka Renee Holmes, Plaintiff,
Commissioner of Social Security Administration, Defendant

For Jamieka Renee Holmes, Plaintiff: Beatrice E Whitten, LEAD ATTORNEY, Beatrice E Whitten Law Office, Mt Pleasant, SC.

For Commissioner of Social Security Administration, Defendant: Barbara Murcier Bowens, LEAD ATTORNEY, U.S. Attorneys Office, Columbia, SC.


Shiva V. Hodges, United States 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 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 12, 2011, Plaintiff filed an application for SSI in which she alleged her disability began on January 1, 2000. Tr. at 123-29. Her application was denied initially and upon reconsideration. Tr. at 72-73, 76. On August 7, 2012, Plaintiff had a hearing before Administrative Law Judge (" ALJ") Thomas G. Henderson. Tr. at 26-38 (Hr'g Tr.). The ALJ issued an unfavorable decision on August 17, 2012, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 11-25. 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 1-6. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on December 9, 2013. [Entry #1].

B. Plaintiff's Background and Medical History

1. Background

Plaintiff was 30 years old at the time of the hearing. Tr. at 19. She completed high school. Tr. at 19. Her past relevant work (" PRW") was as a graphic designer and a janitorial worker. Tr. at 36. She alleges she has been unable to work since January 1, 2000. Tr. at 123. However, because Plaintiff's claim is for SSI, her established onset date is April 12, 2011.[1]

2. Medical History

Plaintiff was examined by Aljoeson Walker, M.D., at MUSC's Neuro-Opthalmology Clinic on December 10, 2003. Tr. at 241. She reported blurry vision and recent weight gain. Id. Her vision was noted to be 20/100 on the left and 20/50 on the right and she had optic nerve swelling. Id. Dr. Walker stated he suspected pseudotumor cerebri[2] and referred Plaintiff for a spinal tap to confirm the diagnosis. Id.

Plaintiff followed up with Dr. Walker on April 14, 2004. Tr. at 249. Pseudotumor cerebri was confirmed. Id. She reported no change in vision, but recent episodes of decreased hearing. Id.

On November 12, 2004, Plaintiff reported to Dr. Walker that she was not taking medications for pseudotumor cerebri because she was unable to afford them. Tr. at 253. Plaintiff reported she was experiencing daily headaches. Id. Her blood pressure was elevated at 151/92 and she weighed 332.6 pounds. Id. Dr. Walker diagnosed papilledema.[3]

On October 20, 2005, Gregory W. Niemer, M.D., wrote a letter in which he indicated he treated Plaintiff for fibromyalgia and pseudotumor cerebri. Tr. at 227. Dr. Niemer indicated that Plaintiff's fibromyalgia caused severe daily fatigue and myalgias and limited her ability to concentrate. Id. He stated pseudotumor cerebri affected Plaintiff's vision and ability to read and caused frequent headaches. Id. Dr. Niemer indicated Plaintiff was restricted as follows: unable to lift over 15 pounds; unable to stand or walk more than 10 minutes at a time; unable to sit longer than 20 minutes at a time; unable to bend, stoop, crawl, or use arms for overhead work; unable to push or pull greater than 20 pounds; unable to operate heavy machinery, and unable to perform fine manipulation with her hands. Id.

On July 21, 2008, Bruce Frankel, M.D., surgically placed a lumboperitoneal shunt for treatment of Plaintiff's pseudotumor cerebri. Tr. at 254-55.

Plaintiff followed up with Dr. Frankel on November 24, 2009, complaining of a divot in the left midline of her forehead. Tr. at 268. Dr. Frankel referred her for a CT scan and stated that a shunt revision would be necessary if there was evidence of papilledema. Id.

Plaintiff presented to Low Country Rheumatology on February 16, 2010, complaining of crampy, bloated pain in her stomach. Tr. at 492. She stated that she discontinued Lyrica due to weight gain. Id. She was noted to have 15 fibromyalgia tender points. Id. Plaintiff's Lyrica prescription was replaced with a prescription for Savella and she was instructed to follow up with a neurologist regarding pseuodotumor. Id.

A CT of Plaintiff's brain on April 16, 2010, was normal. Tr. at 289.

On May 11, 2010, Plaintiff presented to Sarah Kaufman, N.P., at MUSC's neurosurgery clinic to follow up on headaches and to obtain her CT scan results. Tr. at 312. She complained of continued headaches and pressure, mainly behind her left eye. Id. She stated that Ultram was only somewhat helpful. Id. Ms. Kaufman consulted with Dr. Frankel and recommended Plaintiff undergo placement of a ventriculoperitoneal (" VP") shunt. Tr. at 313. Ms. Kaufman noted that " [d]ue to the nature of these symptoms and her frequency and severity of headaches patient has been unable to work." Id. She further stated, " [i]t will be recommended as well she refrain from working in her post operative recovery at least through her follow up appointment post surgery which will be roughly two weeks following her surgical date." Id.

A letter in the file dated July 22, 2011, indicates that Plaintiff presented to Charleston Pain Relief Center for an initial visit on July 9, 2010, complaining of bilateral neck pain, headaches, lower back pain, and left piriformis syndrome. Tr. at 295. Plaintiff rated her cervical pain as a 10 on a scale of 0 to 10. Id. Plaintiff complained that her neck pain radiated bilaterally into her upper extremities and caused numbness, tingling, paresthesias, and muscle weakness in her hands. Id. Plaintiff indicated that her neck pain was exacerbated by heat, but that she could sit without limitation. Id. Plaintiff also complained of lower back pain, which she described as a 10 out of 10. Id. She stated that it was exacerbated by standing, washing dishes, and walking. Id. The results of objective testing were mixed, with positive foraminal compression bilaterally, positive Soto Hall test for mid-thoracic constricture, positive straight-leg raise, positive Milgram's test, positive iliac compression, and positive Yeoman's bilaterally, but negative cervical distraction, shoulder depression, Bechterew's, Patrick's test, Adson's test, Hallstead's test, and Roos test. Tr. at 296. Multiple tests were also positive for malingering. Id. Mild muscle spasms were observed. Id. Plaintiff was noted to be five feet, nine inches tall and to weigh 342 pounds. Id. Plaintiff had no restriction to mild restriction of ranges of motion in her cervical spine. Tr. at 296-97. She had no restriction to moderate restriction to ranges of motion in her lumbar spine. Tr. at 297. An x-ray of her cervical spine indicated hyperlordosis with mild anterior gravitation of the head, mild osteophytosis on the anterior inferior vertebral bodies at C5-6, and transverse process hypertrophy at C7. Id. Plaintiff's thoracic spine was mildly hypokyphotic, but thoracic disc spaces, bone densities, and soft tissues were unremarkable. Id. An x-ray of her lumbar spine showed moderate pelvic unleveling, but lumbar discs and lumbar curvature were well-maintained. Id. Chiropractor Matthew Jenkins, D.C., opined that no physical disability was noted and that Plaintiff had no limitations on daily activities or work-related activities. Tr. at 298. He further indicated " [t]hough many malingering tests are positive, it is my professional opinion that there are some underlying causes of her symptomatology that can be corrected with conservative chiropractic care." Id.

On July 12, 2010, Plaintiff visited Charleston Pain Relief Center and reported pain as a 10 out of 10 and a recent onset of bilateral knee pain. Tr. at 294. She was observed to have muscle spasms in her cervical, thoracic, and lumbar spine, mild tenderness, and hypomobility. Id.

Plaintiff followed up at Charleston Pain Relief Center on July 23, 2010. Id. She again reported 10 out of 10 pain. Id. She stated that she had applied for disability and would attend appointments on an as-needed basis until she was approved. Id. Mild spasms and hypomobility were indicated. Id.

On August 16, 2010, Dr. Frankel placed a VP shunt to drain Plaintiff's excess cerebrospinal fluid into her abdomen. Tr. at 323-24.

Plaintiff followed up with Dr. Frankel On August 24, 2010. Tr. at 334. She reported occasional headaches, but noted that they were less intense than before the VP shunt placement. Id. She complained that Oxycodone was not particularly effective at managing her headaches and she requested other medication. Id. She was prescribed Neurontin 300 mg, twice daily and Fioricet, as needed for headaches. Id. Dr. Frankel authorized for Plaintiff to receive a permanent disabled license plate, noting that she was " unable to ambulate long distances (100 feet)." Tr. at 336.

Plaintiff presented to Pamela Chavis, M.D., at Storm Eye Institute, on October 12, 2010, regarding papilledema. Tr. at 338. She complained of frontal-cervical band headaches, but noted that they were not as frequent as they were prior to the placement of the VP shunt. Id. However, she stated that they were frequent the previous week and were accompanied by local tenderness. Id. She also complained of visual floaters. Id. Plaintiff's vision was stable. Tr. at 340. Dr. Chavis noted headache muscle contractions and referred Plaintiff to a dentist for evaluation for possible temporomandibular joint disorders (" TMJ"). Id.

Plaintiff also followed up at MUSC's Neurosurgery Clinic on October 12, 2010, where she was examined by Sarah L. Denham, ANP-BC. Tr. at 342-43. Plaintiff complained of continued headaches that were less frequent than before the VP shunt placement, but just as intense. Tr. at 342. Her weight was noted to be 371.2 pounds. Id. Plaintiff's blood pressure was elevated at 183/96, and she was referred to her primary care physician to discuss blood pressure control. Id.

Plaintiff presented to Jennifer Fiorini, M.D., on November 18, 2010, for possible incisional hernia. Tr. at 366-68. She reported a three-month history of sharp pain and enlargement under her VP shunt incision site. Tr. at 366. Plaintiff complained of chest pain, abdominal pain, abdominal bloating, nausea, vomiting, diarrhea, constipation, vision problems, and anemia. Tr. at 367. Dr. Fiorini observed a palpable soft tissue mass beneath Plaintiff's incision, which was not entirely reducible. Id. Dr. Fiorini discussed with Plaintiff the possible complications of surgery, including infection of the VP shunt, and Plaintiff decided that she would forego surgery at that time because her symptoms were not severe enough to assume the risk of complications. Id.

Plaintiff followed up with Dr. Chavis on February 15, 2011, complaining of light sensitivity, pressure sensation, and occasional tearing. Tr. at 386. Plaintiff noted that her headaches were not as frequent, but occurred approximately five times per month. Id. She noted they were bi-frontal and radiated down the back of her neck. Id. Plaintiff also indicated that she had seen a dentist, who indicated that her jaw pain was caused by dental problems that needed to be corrected. Id. Plaintiff's vision was within normal limits. Tr. at 389. Dr. Chavis indicated that Plaintiff had muscle contracture headaches secondary to TMJ and that she was getting braces to correct the problem. Id.

On March 1, 2011, Plaintiff followed up with Dr. Fiorini, complaining of nausea and discomfort at her incisional hernia site. Tr. at 363. Her examination was normal, except for tenderness at the hernia site. Tr. at 365. Dr. Fiorini recommended laparoscopic incisional hernia repair with mesh. Id. However, Plaintiff later cancelled the surgery. Tr. at 364.

Plaintiff was examined by Robert Black, O.D., at Storm Eye Institute, on April 15, 2011. Tr. at 382-85. She complained of a dull ache with eye movement, intermittent burning, light sensitivity, and blurred distance vision. Tr. at 382. Dr. Black diagnosed eye strain and prescribed new glasses. Tr. at 384.

Plaintiff followed up with Ms. Denham in the Neurosurgery Spine Clinic on May 10, 2011, regarding abdominal pain and possible incisional hernia. Tr. at 427. Plaintiff described her headaches as " very mild, " and noted a sensation of " water sloshing in her head" when changing positions quickly. Id. She weighed 365.2 pounds. Id. Plaintiff and her mother complained to Ms. Denham that Plaintiff had been denied twice for disability and Ms. Denham suggested that they be persistent with filing and possibly contact a lawyer. Id. Ms. Denham referred Plaintiff for a CT scan to be sure that she had an incisional hernia as opposed to a fluid collection. Id.

On May 11, 2011, state agency medical consultant Jim Liao, M.D., completed a physical residual functional capacity assessment in which he indicated 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; and sit (with normal breaks) for a total of about six hours in an eight-hour workday. Tr. at 43-44.

On June 13, 2011, Dr. Frankel performed surgery to revise Plaintiff's distal shunt, remove a pseudomeningocele, and replace the shunt catheter in the peritoneal space. Tr. at 452.

Plaintiff followed up with Ms. Denham on June 28, 2011, following shunt revision and removal of the pseudomeningocele. Tr. at 435-36. She stated she was feeling better and was not taking any pain medications. Tr. at 435. She weighed 269 pounds.[4] Id. Plaintiff complained of nausea and Ms. Denham prescribed a short-term prescription for Zofran, but encouraged Plaintiff to follow up with her primary care physician about nausea and hypertension. Tr. at 436.

An x-ray of Plaintiff's lumbar spine on August 10, 2011, indicated no acute or significant abnormality, except for congenital short pedicles of L5, which predisposed Plaintiff to stenosis, and mild, multilevel loss of vertebral body height in her lower thoracic spine. Tr. at 487.

On August 12, 2011, state agency medical consultant Mary Lang, M.D., completed a physical residual functional capacity assessment in which she indicated 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 eight-hour workday; frequently climb ramps/stairs; never climb ladders/ropes/scaffolds; occasionally stoop, kneel, crouch, and crawl; and avoid concentrated exposure to noise and hazards (machinery, heights, etc.).

On March 21, 2012, Plaintiff followed up with Low Country Rheumatology. Tr. at 493. She weighed 363 pounds. Id. She was again noted to have 15 of 18 fibromyalgia tender points. Id. Her fibromyalgia was indicated to be aggravated by poor sleep. Id. Dr. Niemer discussed with Plaintiff diet and exercise and prescribed Savella. Id.

Plaintiff followed up with Dr. Chavis on April 24, 2012, complaining of dizziness and sharp eye pain over the last year. Tr. at 497. She indicated she was experiencing headaches " at least twice a week." Id. Dr. Chavis referred Plaintiff for an MRI and an MR venogram. Tr. at 499.

An MRI on May 1, 2012, indicated no changes in Plaintiff's VP shunt and no acute abnormalities. Tr. at 500. An MR ...

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