United States District Court, D. South Carolina
Gary M. Sederbaum, Plaintiff,
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"). 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 20, 2011, Plaintiff filed an application for DIB in which he alleged his disability began on May 16, 2005. Tr. at 89, 223-24. His application was denied initially and upon reconsideration. Tr. at 121-24, 127-28, 129-30. On October 11, 2012, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Roseanne P. Gudzan. Tr. at 53-78 (Hr'g Tr.). The ALJ issued an unfavorable decision on October 26, 2012, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 35-52. 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
Plaintiff was 34 years old at the time of the hearing. Tr. at 56. He completed high school and a year-and-a-half of college. Id. His past relevant work ("PRW") was as a construction supervisor, a home builder, and a bush hogger. Tr. at 70-71. He alleges he has been unable to work since February 23, 2011. Tr. at 58.
2. Medical History
a. Medical Records Considered by ALJ
On February 12, 2008, Rudolph B. Rustin, M.D. ("Dr. Rustin"), wrote a letter indicating Plaintiff was fully disabled. Tr. at 350. He described the progression of Plaintiff's impairment, which began in 1996. Id. He noted that another physician in his practice had diagnosed active pan-colitis, removed Plaintiff's large intestine, and created a J-Pouch. Id. He indicated Plaintiff developed a rectal stricture in 2001. Id. He explained that Plaintiff presented to his office with an anal stricture in 2004 and that his pouch demonstrated features consistent with Crohn's disease at that time. Id. Dr. Rustin wrote that Plaintiff began having problems with abscesses and fistula formation. Id. He explained that in May 2005, Plaintiff's J-Pouch was removed and a permanent ileostomy was created. Id. He indicated Plaintiff developed fistulas in April 2006 and December 2007. Tr. at 350-51.
Plaintiff received Remicade infusions from Palmetto Infusion Services ("PIS") on February 8, 2010, April 5, 2010, and June 1, 2010, and was noted to be receiving infusions every eight weeks. Tr. at 398-400.
Plaintiff presented to Michael D. Wilcox, M.D. ("Dr. Wilcox"), on May 13, 2010. Tr. at 416. He acknowledged doing well on his medication regimen and discussed coping skills and anger control. Id. Dr. Wilcox assessed as GAF score of 65. Tr. at 418.
On June 15, 2010, Plaintiff presented to Hilton Head Gastroenterology for a six-month follow up. Tr. at 369. He reported being under a lot of stress and experiencing some discomfort and drainage in his rectal area, but feeling good overall. Id. He reported no adverse effects from Remicade infusions. Id. On July 21, 2010, Plaintiff was noted to be undergoing Remicade infusions every six weeks. Tr. at 396.
On August 3, 2010, Plaintiff described his pain as aching, tender, throbbing, miserable, sharp, shooting, and nagging. Tr. at 542. He indicated his pain to be an eight of ten. Tr. at 542. He stated his pain affected his physical activity, mood, and energy and noted he was drowsy/tired. Id. However, during an infusion visit on December 1, 2010, Plaintiff denied problems. Tr. at 537.
Plaintiff followed up with Dr. Wilcox on December 3, 2010. Tr. at 417. He reported doing fair and having good control of his mood despite stress from his job and financial problems. Id. However, he complained of difficulty with sleep and stated Xanax had become less effective. Id. Dr. Wilcox prescribed Ambien and Valium and continued Plaintiff's prescription for Adderall XR. Id.
Plaintiff followed up at Hilton Head Gastroenterology on December 6, 2010. Tr. at 371. He reported he was going on tractor duty and needed a prescription for Vicodin. Id. He complained of increased drainage when engaging in physical activity and when nearing the time for another Remicade infusion. Id. Plaintiff was instructed to continue Remicade infusions every eight weeks. Id.
On January 6, 2011, Plaintiff presented to Hilton Head Gastroenterology with increased pressure and severe cramps in his lower abdomen and rectum. Tr. at 373. He was referred for lab tests and x-rays. Id. An x-ray of his abdomen indicated a nine millimeter metallic foreign body in the lower sacrum, a surgical clip over the medial aspect of the left iliac wing, and a right lower quadrant ileostomy. Tr. at 381. Plaintiff followed up on January 17, 2011, and reported feeling better and having no drainage. Tr. at 375. He reported no problems during an infusion visit on January 26, 2011. Tr. at 539.
Plaintiff followed up at Hilton Head Gastroenterology on April 5, 2011. Tr. at 377. He reported increased drainage from a painful area near his rectum. Id. Plaintiff's physician noted a quarter-sized bulge near Plaintiff's tailbone. Id. The physician drained pus from the area, and Plaintiff reported that he felt better. Id. The provider ordered a pelvic x-ray, which indicated a small radiopaque foreign body projected over the sacrum on the frontal view, but not on the lateral view. Tr. at 379. The x-ray was otherwise normal. Id.
On June 3, 2011, Plaintiff complained to Angela Saito, M.D. ("Dr. Saito") at PIS that he experienced nausea, bloody stools, and abdominal pain. Tr. at 532. Plaintiff also indicated metal clips from prior surgeries caused him to experience inflammation and pain. Id.
State agency medical consultant Cleve Hutson, M.D., completed a physical residual functional capacity ("RFC") assessment on July 11, 2011. Tr. at 84-86. He found Plaintiff to have the following limitations: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk about six hours in an eight-hour workday; sit about six hours in an eight-hour workday; frequently climb ramps/stairs, kneel, and crouch; occasionally crawl; never climb ladders/ropes/scaffolds; and should avoid even moderate exposure to hazards (machinery, heights, etc.). Tr. at 85-86.
On July 12, 2011, Dr. Wilcox wrote a letter stating he treated Plaintiff from June 24, 2005, through December 3, 2010. Tr. at 415. He indicated Plaintiff's diagnoses included major depressive disorder (recurrent, in remission), attention deficit hyperactivity disorder (inattentive type), and anxiety disorder, not otherwise specified ("NOS"). Id. Although he indicated Plaintiff's symptoms were stabilized on his current medications, he also noted that Plaintiff's depression and anxiety were worsened by exacerbations of Crohn's disease. Id.
During an infusion visit on July 25, 2011, Plaintiff complained to Dr. Saito of nausea, vomiting, abdominal cramping, bloody stools, headache, weakness, fatigue, numbness/tingling, and joint swelling. Tr. at 525.
Plaintiff followed up with Dr. Wilcox on August 3, 2011, and reported increased stress because of finances, health issues, and his wife's recent motor vehicle accident that resulted in the loss of her job. Tr. at 420. He complained of easy anger, frustration, anxiety, depression, and hopelessness. Id. He also reported destroying property because of his anger and frustration. Id. Dr. Wilcox indicated Plaintiff had fair energy, appetite, and interest, but poor concentration and isolative sociability. Id. Dr. Wilcox assessed Plaintiff as having increased problems with social and health stressors and mood instability and restarted Plaintiff on Effexor XR. Id.
Dr. Wilcox wrote a follow up letter on August 15, 2011, in which he indicated he had last treated Plaintiff on August 3, 2011. Tr. at 419. He wrote that at his last visit, Plaintiff had symptoms of depression and anxiety leading to easy frustration and anger. Id. He noted "[i]n my opinion, Mr. Sederbaum's depression and anxiety symptoms are worsened with exacerbations of his Crohn's disease." Id.
On August 19, 2011, state agency consultant Michael Neboschick, Ph. D., completed a psychiatric review technique form ("PRTF"). Tr. at 82-83. He considered Listings for organic mental disorders, affective disorders, and anxiety-related disorders. Tr. at 82. He found that Plaintiff had mild restriction of activities of daily living, mild difficulties in maintaining social functioning, and mild difficulties in maintaining concentration, persistence, or pace. Tr. at 83.
During an infusion visit on September 20, 2011, Plaintiff reported to Dr. Saito that his symptoms included nausea, vomiting, diarrhea three times per day, bloody stools, headache, weakness, swelling on the left side of his back, fatigue, numbness/tingling, joint swelling, and body aches. Tr. at 519.
Plaintiff presented to Doctors Care on October 9, 2011, complaining of pain in his lower back. Tr. at 425. The provider noted tenderness to palpation in Plaintiff's right lumbar paraspinals, but full range of motion and intact strength and sensation. Id. Plaintiff was diagnosed with a lumbar strain and lower back pain. Id.
On November 21, 2011, state agency medical consultant Jean Smolka, M.D., completed a physical RFC assessment and found Plaintiff to be limited as follows: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for a total of about six hours in an eight-hour workday; sit for a total of about six hours in an eight-hour workday; frequently climb ramps/stairs, stoop, and crouch; occasionally crawl; never climb ladders/ropes/scaffolds; and avoid even moderate exposure to hazards (machinery, heights, etc.). Tr. at 98-100.
Plaintiff presented to Aaron B. Domm, M.D. ("Dr. Domm"), on December 5, 2011, to establish care for Crohn's disease. Tr. at 485. Dr. Domm indicated Plaintiff's Crohn's disease was "maintained under relatively good control with Remicade." Id. Plaintiff denied nausea and vomiting and reported approximately four bowel movements per day through his ileostomy. Id. Plaintiff complained of rectal pressure, and Dr. Domm noted that an x-ray showed metal consistent with clips from previous surgery. Id. He recommended Plaintiff establish care with Summar Phillips, M.D., for chronic pain and establish primary care with University Family Medicine. Tr. at 486. He also discussed with Plaintiff seeing Jorge A. Lagares Garcia, M.D. ("Dr. Lagares Garcia") for possible ileostomy takedown. Id.
State agency consultant Olin Hamrick, Jr., Ph. D., completed a PRTF on December 15, 2011, and considered Listings for organic mental disorders, affective disorders, and anxiety-related disorders. Tr. at 96-97. He determined Plaintiff had mild restriction of activities of daily living, mild difficulties in maintaining social functioning, and mild difficulties in maintaining concentration, persistence, or pace. Tr. at 97.
Dr. Domm wrote a letter to Plaintiff's other physicians on December 18, 2011, indicating a recent DEXA scan revealed that Plaintiff had osteopenia. Tr. at 483.
During a December 28, 2011, visit to Pain Care Physicians of Charleston (PCPC), Plaintiff described his pain as an eight of ten in his thoracic area, buttocks, and pelvis. Tr. at 553. He indicated his pain was associated with weakness. Id.
State agency medical consultant Katrina B. Doig, M.D., completed a physical RFC assessment on January 5, 2012. Tr. at 113-15. 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 for a total of about six hours in an eight-hour workday; sit for a total of about six hours in an eight-hour workday; frequently climb ramps/stairs, kneel, and crouch; occasionally crawl; never climb ladders/ropes/scaffolds; and avoid even moderate exposure to hazards (machinery, heights, etc.). Id.
On January 23, 2012, Dr. Domm reported "everything good" and instructed Plaintiff to continue Remicade infusions every six weeks and to follow up in one year. Tr. at 484.
Plaintiff followed up with Shaughnessy V. Mullen, M.D. ("Dr. Mullen"), at PCPC on January 23, 2012. Tr. at 557. Dr. Mullen noted Plaintiff was started on Methadone at his prior visit and complained of nausea and sweating. Id. Dr. Mullen encouraged Plaintiff to continue taking the Methadone. Id. Plaintiff indicated the Methadone was greatly relieving his abdominal pain for 12 hours at a time. Id. Plaintiff described his pain as a two of ten. Id.
Plaintiff reported poor energy and motivation and increased anxiety and isolation to Dr. Wilcox on January 26, 2012. Tr. at 570. Dr. Wilcox increased Plaintiff's dosage of Effexor. Id.
Plaintiff presented to Cashton Spivey, Ph. D. ("Dr. Spivey"), for a psychological evaluation on January 27, 2012. Tr. at 447-50. Plaintiff scored 30 of a possible 30 points on the Mini-Mental State Examination ("MMSE"). Tr. at 449. He demonstrated no difficulty in performing serial 7s or recalling three objects after five minutes. Id. His language skills were intact. Id. He was oriented to time, place, and person. Id. He followed a three-step command, accurately reproduced a drawing, and demonstrated a satisfactory general fund of information and fair abstract reasoning abilities. Id. His insight and judgment were fair to good, and his intelligence score was in the average range. Id. Plaintiff's mood was mildly sad, but his affect was appropriate. Id. His attention and concentration were satisfactory. Id. Dr. Spivey diagnosed attention deficit hyperactivity disorder, depressive disorder, NOS, and anxiety disorder, NOS. Id. He assessed a GAF score of 55 with a highest GAF of 60 within the previous 12-month period. Id. Dr. Spivey indicated Plaintiff was capable of understanding complex and simple instructions and performing complex and simple tasks. Id.
During an infusion visit on February 6, 2012, Plaintiff complained of nausea, vomiting, and fatigue. Tr. at 512. Dr. Saito indicated Plaintiff was recently diagnosed with Paget's disease. Id.
On February 8, 2012, state agency consultant Camilla Tezza, Ph. D., completed a PRTF and considered Listings for organic mental disorders, affective disorders, and anxiety-related disorders. Tr. at 111-12. She assessed Plaintiff's impairment as imposing mild restriction of activities of daily living; mild difficulties in maintaining social functioning; and mild difficulties in maintaining concentration, persistence or pace. Tr. at 112.
On February 15, 2012, Plaintiff reported to Dr. Mullen that he had been in bed since doing yard work the previous weekend. Tr. at 559. He indicated the Methadone was no longer controlling his pain as well as it had been at the last visit. Id. Plaintiff stated his pain was a five of ten. Id. Dr. Mullen indicated Plaintiff's interval pain control to be good, except when he engaged in physical exertion, which seemed to incapacitate him. Id.
Plaintiff followed up with Dr. Weathers on March 5, 2012, for osteopenia. Tr. at 476. He reported improvement on medication and no side effects. Id. Plaintiff indicated he experienced chronic abdominal pain, decreased libido, and low back pain. Id. Dr. Weathers ordered multiple lab tests and an x-ray of Plaintiff's lumbosacral spine. Tr. at 477.
On March 12, 2012, Plaintiff complained to Dr. Mullen of pain in his pelvic area and throughout his body with physical exertion. Tr. at 561. He described his pain as a five of ten. Id. Dr. Mullen noted Plaintiff's pain was fairly well controlled, but flared when he was "active, as when riding a tractor or work, ' getting ready for hunting season." Id.
Plaintiff presented to Dr. Weathers on March 16, 2012, for osteopenia, vitamin D deficiency, and low libido. Tr. at 474. Dr. Weathers noted that testing revealed Plaintiff's testosterone to be in the borderline range. Tr. at 475. She indicated she would recheck Plaintiff's testosterone and vitamin D levels at a two-month follow up visit. Id.
During his March 27, 2012, visit to PIS for Remicade infusion, Plaintiff complained of nausea, vomiting, diarrhea five times per day, numbness and tingling in his arms, joint swelling, and muscle spasms. Tr. at 502.
An x-ray of Plaintiff's lumbar spine on March 31, 2012, indicated straightening, but no acute process. Tr. at 471.
On May 2, 2012, Plaintiff presented to Dr. Lagares Garcia for a new patient visit. Tr. at 461. Plaintiff endorsed symptoms that included dark, tarry stools, rectal bleeding, vomiting, painful joints, depressed mood, and difficulty sleeping, but denied all other abnormal symptoms. Tr. at 462. Dr. Lagares Garcia noted no abnormalities on examination. Id. He assessed regional enteritis of the small intestine and large intestine and Crohn's disease. Id. He recommended Prometheus testing and consultation with a rheumatologist, but further invasive procedures were contraindicated. Id. Prometheus testing yielded normal results. Tr. at 470.
On May 8, 2012, Plaintiff followed up with Dr. Weathers regarding osteopenia, vitamin D deficiency, and low back pain. Tr. at 472. He reported decreased pain with use of medication. Id. Dr. Weathers ordered several tests and referred Plaintiff to a rheumatologist. Tr. at 473.
Plaintiff followed up with Dr. Mullen on May 9, 2012, for medication management. Tr. at 563. He reported his abdominal pain as a five of ten, but indicated his medication allowed him to perform his normal activities. Id. Dr. Mullen noted Plaintiff was taking Effexor for anger management and enjoying activity, including fishing. Tr. at 563.
During his May 14, 2012, visit to PIS for Remicade infusion, Plaintiff reported low back pain. Tr. at 495. He also complained to Dr. Saito of diarrhea, abdominal cramping, and pain. Tr. at 500.
Plaintiff followed up with Dr. Weathers on May 25, 2012, for moderate low back pain. Tr. at 467-69. Dr. Weathers noted no abnormalities on examination. Tr. at 467-68. She assessed uncontrolled Crohn's disease and uncontrolled back pain. Tr. at 468. Dr. Weathers indicated paperwork was filled out, but stated she could not explain Plaintiff's complaint that his "whole body hurts." Id. She again referred Plaintiff to a rheumatologist. Id.
On June 11, 2012, Plaintiff reported to Dr. Domm that he was doing well other than experiencing some joint pain and fatigue. Tr. at 481. Dr. Domm noted no abnormalities and ...