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Keefer v. Commissioner of Social Security Administration

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

January 5, 2015

Gregory W. Keefer, Plaintiff,
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 Civ. Rule 73.01(B) (D.S.C.), and the order of the Honorable Timothy M. Cain dated November 21, 2014, referring this matter for disposition. [ECF No. 21]. The parties consented to the undersigned United States Magistrate Judge's disposition of this case, with any appeal directly to the Fourth Circuit Court of Appeals ("Fourth Circuit").

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 reverses and remands the Commissioner's decision for further proceedings as set forth herein.

I. Relevant Background

A. Procedural History

On February 22, 2010, Plaintiff filed an application for DIB in which he alleged his disability began on August 10, 2009. Tr. at 117-18. His application was denied initially and upon reconsideration. Tr. at 57-60, 65-66. On March 10, 2011, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Thomas G. Henderson. Tr. at 25-52 (Hr'g Tr.). The ALJ issued an unfavorable decision on March 21, 2011, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 8-20. 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. Plaintiff brought an action seeking judicial review of the Commissioner's decision in a complaint filed on October 4, 2011. Tr. at 435-36. On March 13, 2013, the undersigned issued an order reversing the Commissioner's decision and remanding the matter for further administrative proceedings pursuant to 42 U.S.C. § 405(g). Tr. at 439-65. On April 24, 2013, the Appeals Council issued an order remanding the case to an ALJ. Tr. at 466-69. On September 26, 2013, Plaintiff had a second hearing before ALJ Henderson. Tr. at 406-14 (Hr'g Tr.). The ALJ issued an unfavorable decision on November 7, 2013, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 396-405. The ALJ's decision provided Plaintiff with the option to either file exceptions with the Appeals Council within 30 days or to file an action in this court within 60 days of the date on which the ALJ's decision became final.[1] Tr. at 396-97. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on January 27, 2014. [ECF No. 1].

B. Plaintiff's Background and Medical History

1. Background

Plaintiff was 53 years old on his date last insured ("DLI"), 54 years old at the time of the first hearing, and 57 years old at the time of the second hearing. Tr. at 117. He completed the eighth grade. Tr. at 135. His past relevant work ("PRW") was as a boiler operator and truck driver. Tr. at 191. He alleges he has been unable to work since August 10, 2009. Tr. at 117.

2. Medical History

a. Records Prior to Plaintiff's DLI

On January 16, 2008, Plaintiff complained of fatigue to a physician at Doctors Care, where an assessment included fatigue and joint pain. Tr. at 301. Lab results dated January 21, 2008, indicated hypothyroidism, and Plaintiff was started on Levothyroxine. Tr. at 292. Notes from follow-up appointments on January 21, 2008, and on February 18, 2008, included diagnoses of hypothyroidism, hyperlipidemia, and depression/anxiety. Tr. at 288, 291. In May 2008, Plaintiff's prescriptions included Levothyroxine for hypothyroidism, Celexa for depression, and Pravastatin for elevated cholesterol. Tr. at 286.

On May 3, 2009, Plaintiff presented to the Roper Hospital Emergency Department with complaints of lower abdominal pain and difficulty urinating. Tr. at 194. He reported a history of kidney stones, prostatic stones, anxiety, and hemorrhoids. Id. Discharge diagnoses included chest pain of unknown cause and epididymitis (inflammation of the organ just behind the testicle; often caused by heavy lifting/exercise). Tr. at 206. He was advised to undergo cardiac stress testing and to have an ultrasound. Tr. at 206-07.

Plaintiff followed up with Dr. Francis Tunney at Patient One on May 5, 2009. Tr. at 218. He was noted to have no known medical problems, but admitted to snoring and daytime fatigue and reported a history of depression. Id. On examination, Plaintiff exhibited a normal gait and stance, musculoskeletal posture, balance, mood, and memory. Tr. at 220. Dr. Tunney noted that Plaintiff's scrotal pain was of unclear etiology and advised him to follow up with his primary care physician. Id.

b. Records After Plaintiff's DLI

Plaintiff initiated care with Dr. David Castellone of Palmetto Primary Care on November 13, 2009. Tr. at 368. He reported pain in his hips, legs, and back, and said that his right leg was swollen. Id. Plaintiff stated that hypertension, anxiety, and depression began years before and that back ache and back pain began months earlier. Id. Dr. Castellone diagnosed new anxiety, hypertension, degenerative disc disease, and paresthesias/weakness in the legs. Id. He also ordered an MRI and nerve conduction studies and prescribed Celexa and Lortab. Tr. at 369. An MRI of Plaintiff's lumbar spine dated November 19, 2009, revealed mild degenerative facet arthropathy at L5-S1, but no compromise of the exiting L5 nerve root. Tr. at 222.

Dr. Ruth Hoover conducted a nerve conduction study on November 24, 2009. Tr. at 365. She noted that the results were difficult to interpret due to a lot of cramping during the test. Id. She noted signs of acute (rather than chronic) nerve root irritation at S1 bilaterally. Id. Dr. Hoover opined that Plaintiff's description of his pain was a bit confusing in that it seemed variable. Id. She stated that the MRI was not impressive, but that she was "impressed by the clinical picture and the appearance of S1 irritation despite the MRI." Id. She ultimately noted that the nerve conduction studies were within normal limits, but that some of Plaintiff's muscles showed moderately increased spontaneous activity. Id.

Plaintiff returned to Dr. Castellone on December 1, 2009, with constipation, back pain, depression, and anxiety. Tr. at 359. Plaintiff described his back pain, depression, and anxiety as severe. Id. He indicated that his back pain began months before. Id. Dr. Castellone diagnosed Plaintiff with worsening degenerative disc disease and worsening radiculopathy, as well as stable anxiety and hypertension. Tr. at 361. He referred Plaintiff to a pain clinic and gastroenterologist. Id.

Plaintiff presented to Summar C. Phillips, M.D., of Pain Care Physicians of Charleston ("Pain Care") on December 3, 2009, with lower back pain. Tr. at 225. He reported pain in his lower back that had begun years earlier. Id. He stated that pain radiated into his hips, buttocks, legs, and feet bilaterally and was sustained at five to six on a 10-point scale most days, but was worse in the evening and was sometimes associated with weakness, tingling, and numbness. Id. He stated that Lortab worked best to alleviate his pain, but that it only "takes the edge off." Id. Plaintiff stated that his daily activities included working as a truck driver and general house maintenance, but said that he was unable to perform those tasks without pain. Id. Dr. Phillips administered an epidural steroid injection at L5-S1. Tr. at 226. Following the injection, Plaintiff reported that his pain was reduced from a six or seven to a four. Id.

Plaintiff underwent nuclear stress testing on December 8, 2009. Tr. at 305. He was found to have fair exercise tolerance. Id. The treating physician noted a mild defect, but otherwise normal results. Id.

Plaintiff returned to Dr. Phillips at Pain Care on December 23, 2009. Tr. at 229. He reported that his response to the prior injection was "real good" for two weeks, but that he still had weakness and that his pain gradually returned to a five. Id. Dr. Phillips administered another epidural steroid injection at L5-S1, which had an immediate effect of reducing the pain to a two. Tr. at 230, 231.

Plaintiff underwent an MRI on December 31, 2009. Tr. at 307. It revealed mostly mild diffuse spondylosis and the presence of a disc osteophyte complex at C6-7 that extended intraforaminally on both sides and could contact the exiting C7 (nerve roots). Id. The MRI also demonstrated a focal central superior and inferior extrusion, causing moderate central stenosis and mild anterior cord flattening. Id.

On January 6, 2010, Plaintiff reported to Dr. Phillips that the last lumbar epidural injection performed two weeks earlier had not provided any relief, and he had since been taking Lortab and Flexeril daily. Tr. at 233. The doctor noted that upon further questioning, it seemed that Plaintiff's leg pain had improved significantly, but that he had persistent pain in his lower back and buttocks. Id. Plaintiff reported that medications helped as long as he sat still and stated that he had been limiting his daily activity to just resting and taking it easy due to the pain. Id. On examination, Plaintiff exhibited tenderness in the area of SI joint on the right, tenderness over the sacrum midline and pain upon flexion and extension of the lumbar spine, but demonstrated a full range of motion of the lumbar spine. Id. Dr. Phillips diagnosed low back pain, radicular symptoms of the lower limbs, neck pain, cervical radiculopathy, sacroiliitis, and facet arthropathy syndrome. Id. The doctor opined that Plaintiff's pain could be caused by either the facet arthropathy shown on the MRI or by SI joint arthropathy. Tr. at 234. Dr. Phillips noted that Plaintiff's leg pain (which had previously prevented him from walking) improved greatly with the two lumbar injections, but he still experienced leg pain in a bilateral S1 pattern while lying flat. Id. She further noted that given Plaintiff's good response to lumbar epidural injections, Plaintiff most likely had simple lumbar radiculopathy. Id. Dr. Phillips recommended that Plaintiff start Celebrex and undergo another injection in one week. Id.

Plaintiff returned to Dr. Phillips on January 13, 2010, complaining of severe pain in his neck for several days. Tr. at 235. The doctor decided to administer a cervical epidural injection, rather than a lumbar epidural injection, but did not complete the injection because Plaintiff began feeling light-headed and dizzy. Id. Plaintiff returned the following day, and Dr. Phillips performed a successful cervical epidural injection at C5-6. Tr. at 241.

On January 28, 2010, Plaintiff reported that the cervical epidural injection had helped with the pain and stiffness in his neck and with some with the radiating pain down his arms. Tr. at 243. Plaintiff complained of pain located in the thoracic area between the shoulder blades and in the low back, and of weakness in his legs. Id. On examination, Dr. Phillips found thoracic and lumbar paraspinal tenderness and assessed Plaintiff's progress as "moderate at best." Tr. at 243-44. She noted that Plaintiff would be a great candidate for a spinal cord stimulator. Tr. at 244. She suspected that Plaintiff's upper back pain was muscular in nature and she prescribed the conservative measures of a TENS unit, ice therapy, and lidoderm patches. Tr. at 244.

Plaintiff received another lumbar epidural injection on February 16, 2010. Tr. at 245. On March 9, 2010, Plaintiff reported relief from that injection, but stated that all the injections wore off after a while. Tr. at 249. He complained of shooting pain and muscle spasms in his hip, legs, and back. Id. He stated that bending or twisting aggravated his pain, but that taking hot baths and taking medication improved it. Id. Although still in pain, he agreed that his quality of life had improved with the injections and that he was able to perform his normal activities in less pain. Id.

On April 8, 2010, Plaintiff sought an opinion regarding leg weakness, discomfort, and refractory pain from John Plyler, M.D., a neurologist with Charleston Neurology Associates. Tr. at 317. He reported leg weakness and discomfort in his hips and legs, episodic arm jerking, dizziness, and numbness of his feet. Id. He stated that he had multiple epidural injections with only a marginal response over time. Id. On examination, Plaintiff had decreased but symmetric reflexes, patchy sensory spots distally, and some spasm in his neck and lumbar muscles. Id. Dr. Plyler's impression was chronic neck/back pain, paresthesias and dysthesia, possible myofascial fibromyalgia pain syndrome, tinnitus, anxiety, and depression. Tr. at 317-18. The doctor recommended an electrophysiology evaluation, brain imaging, and baseline labs. Tr. at 318. The nerve study was normal. Tr. at 319-21. An MRI of the thoracic spine showed left central disk protrusion at T9-T10 that effaced the left ventral aspect of the thoracic cord; however, the thoracic cord demonstrated normal signal. Tr. at 316. An MRI of Plaintiff's brain was unremarkable. Tr. at 313, 315.

In a follow-up visit with Dr. Plyler on April 27, 2010, Plaintiff reported discomfort throughout his spine, discomfort and weakness in his legs, and his legs giving out with any physical exercise. Tr. at 313. He stated that he still noticed some tremor and shakes and was continuing to have syncopal and blackout events, which had been going on for about five years. Id. Dr. Plyler recommended an additional thyroid panel, a vitamin D supplement, consideration of rheumatological evaluation, sleep evaluation, neurosurgical evaluation for the thoracic disc, and cardiology opinion for etiology of syncope. Tr. at 313-14.

State-agency consultant Olin Hamrick, Jr., Ph.D., completed a Psychiatric Review Technique ("PRT") on June 2, 2010. Tr. at 251-64. He found that there was insufficient evidence upon which to make a medical disposition or assess Plaintiff's functional limitations. Id.

On July 29, 2010, Plaintiff reported to Dr. Castellone's office that he had almost passed out, that the left side of his face was swollen, and that he was experiencing memory loss. Tr. at 357. On examination, Plaintiff exhibited a decreased range of motion and pain in his extremities. Tr. at 358. He was referred for a carotid Doppler flow study.


On August 3, 2010, Plaintiff consulted with Dr. Jason Highsmith, a neurosurgeon. Tr. at 331. On examination, Dr. Highsmith noted that Plaintiff was in significant pain with motion and that he was "clearly uncomfortable." Id. Plaintiff exhibited paraspinous tenderness throughout the craniocervical junction as well as in the neck, mid-back, and lower back. Id. He also had significant pain with palpation of his right hip and "actually winced[d] significantly." Id. Noting the findings of the thoracic MRI, Dr. Highsmith concluded that there was no focal lesion offering a surgical solution or other pathology of the thoracic spine and recommended the services of a rheumatologist. Tr. at 332.

Plaintiff returned to Dr. Castellone on August 12, 2010, and characterized his back pain as gnawing and severe. Tr. at 355. Plaintiff's memory and dizziness were noted to be better with medication. Id. Dr. Castellone noted that Plaintiff had "new" fibromyalgia and that his anxiety and hypertension were improving. Tr. at 356. The doctor referred Plaintiff to a rheumatologist. Id.

State-agency consultant Lisa Varner completed a PRT on August 25, 2010. Tr. at 266-79. She found that there was insufficient evidence upon which to make a medical disposition or assess Plaintiff's functional limitations. Id. She noted that a record from May 2009 showed a diagnosis of depression; however, examination showed normal orientation, affect, mood, memory, and insight and judgment. Tr. at 278.

On November 1, 2010, Plaintiff was seen by Dr. Gregory Niemer at Low Country Rheumatology. Tr. at 341. Plaintiff reported daily neck and back pain, which the epidurals and TENS unit had not helped. Id. Diagnoses included fibromyalgia with multiple trigger points and degenerative disc disease of the lumbar and cervical spine. Tr. at 345, 347. Dr. Niemer recommended Plaintiff follow up with pain management for injections. Tr. at 345. Plaintiff was seen again on January 26, 2011. Tr. at 340. He had reported having trouble getting to sleep and that his pain impacted his activities of daily living ("ADLs"). Id. Examination demonstrated 16 out of 18 tender points. Id. Dr. Niemer diagnosed fibromyalgia, degenerative disc disease, and insomnia. Id.

Plaintiff saw Dr. Castellone for an annual examination on February 4, 2011. Tr. at 352. Dr. Castellone noted that his degenerative disc disease and fibromyalgia were worsening and that his anxiety was stable. Tr. at 354. The doctor recommended diet, exercise, and stress management. Id.

On February 10, 2011, Plaintiff saw Dr. Barton Sachs of the MUSC Orthopaedic Spine Surgery Center, on referral from Dr. Castellone. Tr. at 386. Plaintiff described total body pain and discomfort and numbness throughout his body in all four extremities. Id. He also reported dizzy spells and passing out and stated that they were the reason he stopped driving a truck over a year earlier. Id. On examination, Plaintiff was in no apparent distress and appeared to have a full range of motion in all four extremities. Tr. at 386-87. Dr. Sachs noted that Plaintiff's x-rays showed some advanced degenerative disc disease at C6-7 with some spurs. Tr. at 387. The x-rays did not indicate any gross encroachment of the spinal canal and Plaintiff did not have any significant areas of tenderness at C7 or gross instability on flexion or extension. Id. The radiologist interpreted the x-rays to show no alignment abnormalities and mild degenerative disc disease. Tr. at 392. Dr. Sachs noted that Plaintiff moved well. Tr. at 387. The doctor's impression was that Plaintiff's primary condition was one of diffuse pain associated with dizziness and blackout spells, that the condition was primarily neurologic and not spinal, and that Plaintiff did not require surgical intervention. Id. He recommended that Plaintiff follow up with a neurologist. Id.

c. Lay Witness Statements

Plaintiff submitted lay witness statements from his wife, his cousin, a friend, and his former boss.

Plaintiff's wife, Jane Keefer, reported that she struggled with balancing her work as a licensed practical nurse with taking care of her husband. Tr. at 184. She stated that he has kept her up several times during the night because of his inability to get relief from pain. Id. She reported that Plaintiff could not assist with household chores, maintain the cars, or perform household repairs. Id. She stated that his medication resulted in memory loss, that he was depressed ...

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