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Dutton v. Commissioner of Social Security Administration

United States District Court, D. South Carolina

March 23, 2015

William James Dutton, 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 his 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 November 14, 2011, Plaintiff filed applications for DIB and SSI in which he alleged his disability began on December 16, 2008. Tr. at 177-78, 179-84. His applications were denied initially and upon reconsideration. Tr. at 124-28, 133-34, 135-36. On November 6, 2012, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Thomas Henderson. Tr. at 27-47 (Hr'g Tr.). The ALJ issued an unfavorable decision on December 14, 2012, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 8-26. 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 May 1, 2014. [ECF No. 1].

B. Plaintiff's Background and Medical History

1. Background

Plaintiff was 53 years old at the time of the hearing. Tr. at 19. He completed high school. Tr. at 40. His past relevant work ("PRW") was as an electrician and an electrician's helper. Tr. at 42. He alleges he has been unable to work since December 16, 2008. Tr. at 177.

2. Medical History

On October 14, 2002, Brian G. Cuddy, M.D. ("Dr. Cuddy"), operated on Plaintiff after Plaintiff developed severe, radiating neck pain and an MRI demonstrated a C3-4 canal stenosis with mild spinal cord deformity, broad-based disc bulge, and spondylosis, as well as foraminal narrowing at C5-6. Tr. at 413, 424. The surgical procedure included anterior cervical discectomy and fusion at C3-4, anterior instrumentation, and allograft. Tr. at 415. On November 25, 2002, Plaintiff indicated to Dr. Cuddy that his neck and shoulders had improved, but he had pain in his back and left leg. Tr. at 427. An MRI of Plaintiff's lumbar spine demonstrated degeneration of the intervertebral disc at L5-S1 with bulging of the annulus, spondylosis, and left annular tear, as well as prominent right foraminal bulging of the annulus at L4-5, contacting the exiting right L4 nerve root. Tr. at 421-22. Because Plaintiff had no significant disc herniation, Dr. Cuddy discouraged lumbar spinal surgery. Tr. at 427.

Plaintiff returned to Dr. Cuddy on April 3, 2008, complaining of low back pain that radiated to his bilateral lower extremities and was worse on the left than the right. Tr. at 285. Dr. Cuddy observed Plaintiff to have full range of motion ("ROM") of his spine, but tenderness in his lumbar region with radiation to his bilateral hips. Id. Plaintiff had slight motor weakness on his left. Tr. at 285-86. Dr. Cuddy prescribed Lortab and Flexeril, referred Plaintiff for an MRI, and instructed him to avoid lifting over 15 pounds, bending, and crawling. Tr. at 285.

Plaintiff followed up with Dr. Cuddy on April 14, 2008, to discuss his MRI report. Tr. at 287. The MRI demonstrated a right-sided disc herniation with neural foraminal compromise. Id. Plaintiff elected to proceed with a lumbar laminectomy/discectomy and nerve root decompression. Id. He underwent surgery on April 23, 2008. Tr. at 289-90.

On May 12, 2008, Plaintiff reported good progress and decreased leg pain. Tr. at 288. He desired to return to work within two weeks, but Dr. Cuddy cautioned him not to be too active. Id. He instructed Plaintiff to follow up in one month. Id.

Plaintiff was examined by R. Blake Dennis, M.D. ("Dr. Dennis"), on January 27, 2009. Tr. at 274-75. Dr. Dennis observed Plaintiff to walk with "a fairly steady gait with no limp." Tr. at 274. Plaintiff had limited ROM and complained of pain to light touch and rotation of the hips and lower extremities. Id. Straight-leg raise test was negative. Id. He had normal strength and reflexes in his lower extremities. Id. Dr. Dennis reviewed x-rays and an MRI of Plaintiff's lumbar spine and saw no evidence of any abnormality that might explain his left sciatica. Id. He diagnosed postlaminectomy syndrome and recommended Plaintiff return to Dr. Cuddy and follow up with Dr. Smith for pain management. Tr. at 275.

Plaintiff followed up with Dr. Cuddy on March 30, 2009. Tr. at 281. Dr. Cuddy observed Plaintiff to have guarding and paraspinal tenderness. Id. He indicated Plaintiff's MRI scan showed degenerative disc disease, but no significant neural compression. Id. He referred Plaintiff to Robert Alexander, M.D. ("Dr. Alexander"), for evaluation and treatment. Id.

Plaintiff presented to Dr. Alexander for an initial consultation on April 28, 2009. Tr. at 315. Plaintiff described lumbar and left lower extremity pain in an S1 distribution as a nine out of 10. Id. He complained of intermittent weakness, numbness, and balance difficulties and indicated his symptoms were exacerbated by prolonged standing. Id. Dr. Alexander observed Plaintiff to have left-sided tenderness at L4 through S1 and over his sciatic notch. Tr. at 316. Plaintiff complained of increased pain with lumbar flexion and extension. Id. On motor examination, Plaintiff had diffuse breakaway weakness in his left lower extremity. Id. His sensory perception in his left lower extremity was slightly decreased to light touch. Id. He had a mildly positive straight-leg raise on the left, but negative straight-leg raise on the right. Id. Dr. Alexander administered a left lumbar spinal injection with Lidocaine and Depo-Medrol, referred Plaintiff to physical therapy, and scheduled him for a left transforaminal epidural at the L5-S1 level on May 7, 2009. Id. He indicated Plaintiff could work four hours per day and perform sedentary duties. Tr. at 318.

On May 20, 2009, Plaintiff reported no significant improvement after having started physical therapy and received initial transforaminal epidural. Tr. at 313. Plaintiff was scheduled for a second transforaminal epidural on May 28. Id.

On June 8, 2009, Plaintiff reported 25 percent improvement following his second transforaminal epidural. Tr. at 311. Dr. Alexander referred him for electrodiagnostic examination. Id.

Plaintiff followed up with Dr. Alexander on June 16, 2009. Tr. at 307. Dr. Alexander indicated an electrodiagnostic examination of Plaintiff's lower extremities and lumbar paraspinals indicated mild chronic left lumbar radiculopathy, but no acute denervation potentials. Id. He instructed Plaintiff to follow up for transforaminal epidural on June 18 and to continue physical therapy and sedentary work status. Id.

On June 29, 2009, Plaintiff reported improvement following his third injection. Tr. at 305. He indicated discomfort mainly with prolonged standing. Id. Dr. Alexander assessed chronic lumbar and left lower extremity pain associated with left paracentral protrusion at L5-S1 and chronic radiculopathy on EMG. Id. On June 30, 2009, Dr. Alexander indicated Plaintiff to be at maximum medical improvement. Tr. at 304. He assessed an eight percent impairment rating to Plaintiff's whole person. Id.

Plaintiff followed up with Dr. Alexander on August 12, 2009, and complained of a recent increase in lumbar and left lower extremity pain. Tr. at 302. He indicated his pain to be an eight to nine out of 10. Id. Dr. Alexander administered a left lumbar paraspinal injection with lidocaine and prescribed Lyrica. Id. He scheduled Plaintiff for a left transforaminal epidural injection at the L5-S1 level on August 27, 2009. Id.

On August 20, 2009, Plaintiff complained to Dr. Cuddy of excruciating lower extremity discomfort and back pain. Tr. at 282. Dr. Cuddy indicated "patient continues to be disabled at this time" due to "persistent lower extremity discomfort and back pain." Id. He referred Plaintiff for an updated MRI. Id.

Plaintiff followed up with Dr. Cuddy on November 16, 2009, to review his MRI results. Tr. at 284. The MRI indicated prior surgery on the right at L4-5 and scar tissue, but no recurrent disc herniation at the surgical site or herniation or stenosis at adjacent levels and no spondylolisthesis or significant neural compression. Id. Dr. Cuddy referred Plaintiff back to Dr. Alexander for evaluation and treatment of chronic left leg radiculopathy. Id. He instructed Plaintiff to follow up as needed and indicated "he remains disabled at this time." Id.

Plaintiff followed up with Dr. Alexander on December 14, 2009, and reported that his symptoms had increased since his last visit and his pain was a nine out of 10. Tr. at 300. Dr. Alexander noted Plaintiff had not received the epidural on August 27, 2009, and scheduled him for another epidural on January 7, 2010. Id.

On January 15, 2010, Plaintiff reported no improvement from the left transforaminal epidural. Tr. at 298. Although he was taking Oxycontin three times daily, he continued to indicate his pain to be a nine out of 10. Id. Dr. Alexander observed tenderness in Plaintiff's paraspinals and sciatic notch. Id. He scheduled Plaintiff for a repeat epidural at L5-S1 on January 21, 2010. Id. He indicated that if the epidural was unsuccessful, Plaintiff would likely need to pursue the possibility of a stimulator trial. Id.

On January 29, 2010, Plaintiff reported no improvement. Tr. at 297. Dr. Alexander observed tenderness in Plaintiff's lumbosacral paraspinals and sciatic notch. Id. He suggested a possible stimulator trial and indicated Plaintiff could return to work on light duty with no lifting over 20 pounds without assistance. Tr. at 296, 297.

Plaintiff presented to Laser Spine Institute for initial evaluation on May 11, 2010. Tr. at 329. Sensory testing was abnormal on the left at L4-5. Tr. at 330. Plaintiff demonstrated left-sided tenderness to palpation at L4-5 and L5-S1. Id. He had painful flexion, hyperextension, lateral flexion, and rotation. Id. He had positive straight-leg raise and femoral stretch test on the left. Id. His bilateral hip abduction, hip adduction, knee flexion, and knee extension were 4/5, but considered normal. Tr. at 331. An x-ray indicated post-operative changes at L4-5. Tr. at 334. An MRI showed a bulging disc and foraminal stenosis at L2-3; facet degeneration and hypertrophy at L3-4; a bulging disc, post-operative changes, facet degeneration/hypertrophy, and foraminal stenosis at L4-5; and a bulging disc, facet degeneration/hypertrophy, and foraminal stenosis at L5-S1. Id.

On May 13, 2010, Plaintiff underwent percutaneous discectomy at L2-3 and L4-5, re-exploration lumbar laminotomy with foraminotomy including facetectomy and decompression of the left nerve roots at L4-5, and percutaneous lysis of adhesions/caudal epidural steroid injection. Tr. at 325-28.

Plaintiff presented to David P. Smith, M.D. ("Dr. Smith"), on October 25, 2011. Tr. at 429. He reported that he was unable to renew his prescriptions at the beginning of the month because he had lost his trailer, his prescription, and his money. Id. Dr. Smith indicated Plaintiff was "[v]ery depressed." Id. He refilled Plaintiff's prescriptions. Id.

On January 16, 2012, Plaintiff attended a mental status examination with John V. Custer, M.D. ("Dr. Custer"). Tr. at 366-68. Plaintiff indicated he had crying spells, lacked motivation, and had little appetite. Tr. at 366. He endorsed problems with concentration. Id. Plaintiff's mood varied between angry and tearful. Tr. at 367. He demonstrated no evidence of psychosis and denied suicidal or homicidal ideation. Id. He was alert and fully oriented. Id. He followed a three-step command. Tr. at 368. He remembered three out of three objects immediately and two of the three after a few minutes. He scored 29 out of 30 on the Folstein Mini-Mental Status Exam. Id. Dr. Custer indicated Plaintiff's insight was poor. Id. He diagnosed pain disorder associated with psychological factors and a medical condition and adjustment disorder with depressed mood. Id. Dr. Custer indicated Plaintiff may benefit from vocational rehabilitation or other employment services and from some short-term counseling. Id. He indicated Plaintiff's overall prognosis was favorable and that he could manage his own funds. Id.

Plaintiff followed up with Dr. Smith on January 20, 2012, for a medication refill. Tr. at 429. Dr. Smith indicated Plaintiff was "[d]oing well in spite of social situation" and living with a friend. Id. He indicated Plaintiff's affective changes were not improved with Sertraline and that Plaintiff had hypercholesterolemia, stress, and hypertension. Id.

Plaintiff presented to Temisan L. Etikerentse, M.D. ("Dr. Etikerentse") for a consultative examination on February 27, 2012. Tr. at 372-77. Dr. Etikerentse indicated Plaintiff was crying and depressed. Tr. at 373. He observed Plaintiff to have pain and decreased ROM of his neck. Tr. at 374. Plaintiff had normal grip strength and ROM in his upper extremities. Id. He had tenderness and a scar in his lower lumbar spine. Id. Straight-leg raise test was positive at 70 degrees bilaterally. Id. Plaintiff had reduced flexion of his lumbar spine. Id. He was able to walk on his heels ...


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