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Kerr v. Commissioner of Social Security Administration

United States District Court, D. South Carolina

September 11, 2015

Donald Gene Kerr, 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 Bruce Howe Hendricks, United States District Judge, dated January 8, 2015, referring this matter for disposition. [ECF No. 8]. 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. [ECF No. 7].

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

I. Relevant Background

A. Procedural History

On May 13, 2011, Plaintiff filed applications for DIB and SSI in which he alleged his disability began on October 18, 2008. Tr. at 94, 96, 200-06, 207-12. His applications were denied initially and upon reconsideration. Tr. at 135-40, 143-45, 146-48. On September 12, 2013, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Peggy McFadden-Elmore. Tr. at 39-78 (Hr'g Tr.). The ALJ issued an unfavorable decision on November 22, 2013, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 9-26. 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 1-4. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on January 5, 2015. [ECF No. 1].

B. Plaintiff's Background and Medical History

1. Background

Plaintiff was 47 years old at the time of the hearing. Tr. at 44. He completed the tenth grade. Tr. at 46. He alleges he has been unable to work since October 18, 2008. Tr. at 44.

2. Medical History

Plaintiff underwent anterior cervical diskectomy and fusion on December 3, 2001. Tr. at 356. He was out of work in 2002, but returned to work around February 2003. Tr. at 337-45.

On June 14, 2007, Plaintiff underwent left L4-5 diskectomy and lateral fusion with bone grafting. Tr. at 352. Randall G. Drye, M.D. ("Dr. Drye"), released him to return to work without restrictions on September 5, 2007. Tr. at 364.

On May 25, 2010, Plaintiff presented to Lexington Family Practice for left shoulder pain and anxiety. Tr. at 291. The provider noted that Plaintiff had not followed up in three years because he had lost his job and insurance and was unable to afford medical care. Id. Plaintiff also reported recurrent back pain and was noted to have undergone full disc surgery in 2007. Id. Plaintiff's left shoulder was tender to palpation at the subacromial bursa. He complained of pain with abduction at 60 degrees and tenderness with internal rotation against resistance. Id. The provider diagnosed anxiety, depression and left shoulder subacromial bursitis. Id. He prescribed Meloxicam and Darvocet for pain relief and Citalopram for depression. Id.

On August 23, 2010, Plaintiff presented to Michael Harris, M.D. ("Dr. Harris"), at Lexington Family Practice. Tr. at 302. Dr. Harris noted that Plaintiff was doing okay, but had a little anxiety and occasional paranoia. Id. He wrote that Plaintiff was trying to find a job, but was applying for disability because of his back surgeries. Id. He assessed depression and mild anxiety and instructed Plaintiff to continue his current medications. Id.

At the request of the state agency, Dr. Harris completed a form in which he indicated Plaintiff was diagnosed with depression and prescribed Citalopram. Tr. at 294. He suggested medication had helped Plaintiff's condition and stated psychiatric care had not been recommended. Id. He indicated Plaintiff was oriented to all spheres; had a racing thought process; had paranoid thought content; had a worried/anxious mood/affect; had adequate attention/concentration; and had poor memory. Id. Dr. Harris described Plaintiff's work-related limitation of function due to a mental condition as "slight" and endorsed Plaintiff's ability to manage his own funds. Id.

On October 7, 2010, orthopedist Thomas Motycka, M.D. ("Dr. Motycka"), examined Plaintiff at the request of the state agency. Tr. at 297-99. Plaintiff had normal range of motion ("ROM"), negative straight-leg raising test, and was able to heel-walk, toe-walk, tandem-walk, and squat. Tr. at 299. Plaintiff demonstrated no muscle weakness, abnormal reflexes, gait disturbance, reduced strength, sensory loss, atrophy, or joint abnormalities. Id. Dr. Motycka assessed a history of cervical diskectomy, a history of lumbar diskectomy, a history of depression, and evidence of reactive airway disease secondary to Plaintiff's smoking history. Id.

On December 5, 2010, Plaintiff presented to C. Stewart Darby, Ph. D., PA-C. ("Dr. Darby"), with left shoulder pain and right hand numbness. Tr. at 311. Dr. Darby assessed hypertension, neck pain, and depression. Tr. at 312. He prescribed medications and indicated he would obtain Plaintiff's records from Lexington Family Practice. Id. Plaintiff followed up with Dr. Darby on January 26, 2011, and reported lower back pain. Tr. at 313. He requested that his medications be refilled. Id. Dr. Darby prescribed Lyrica and indicated Plaintiff needed a psychiatric consultation. Tr. at 314. Plaintiff again complained of lower back pain and requested prescription refills on April 4, 2011. Tr. at 315.

Also, on April 4, 2011, Dr. Darby wrote a letter to Plaintiff's attorney indicating that he was treating Plaintiff for hypertension, neuropathy, chronic pain, depression, and hyperlipidemia. Tr. at 333. He wrote "Mr. Kerr is on multiple medications and not able to work any occupation at this time." Id. He explained that Plaintiff underwent surgery to his cervical spine in 2001 and to his lumbar spine in 2007. Id. He stated Plaintiff was in constant pain and experienced depression and anxiety most of the time. Id. He indicated Plaintiff would be an occupational risk for any formal job and needed to see a neurologist and psychiatrist. Id.

On April 20, 2011, Plaintiff complained to Dr. Harris of pain in his left calf, foot, and great toe. Tr. at 301. Dr. Harris observed Plaintiff to have some swelling in his foot and some redness and warmth in his toes. Id. He assessed probable gout and prescribed Indocin and Medrol Dosepak. Id.

On May 2, 2011, Kenneth Martin, M.A., L.P.C. ("Mr. Martin"), of Richland Community Health Care Mental Health Services, wrote a letter indicating Plaintiff appeared to suffer from bipolar disorder, major depressive disorder, and a learning disability. Tr. at 307. He recommended Plaintiff receive a more extensive evaluation. Id.

On August 31, 2011, Darla Mullaney, M.D., a state agency physician, reviewed the medical evidence and found Plaintiff to be limited as follows: occasionally lift and/or carry 50 pounds; frequently lift and/or carry 25 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 and stairs, balance, stoop, kneel, crouch, and crawl; and occasionally climb ladders/ropes/scaffolds. Tr. at 87-88. Robert Kukla, M.D., assessed the same limitations on January 26, 2012. Tr. at 105-06.

On October 24, 2011, Plaintiff presented to Robert D. Phillips, Ph. D., for a mental status examination at the request of the agency. Tr. at 326-28. Plaintiff reported a history of learning disabilities and emotional problems. Tr. at 326. He reported daily activities that consisted of drinking coffee, sleeping, visiting his mother, cutting grass, watching television, and eating. Tr. at 327. He denied driving, but admitted doing household chores, preparing meals, shopping, managing his finances, and managing his personal care. Id. He reported a fair ability to work and was upset that no one would hire him, but also said that his slow learning and anger prevented him from working. Id. Dr. Philips considered Plaintiff open and friendly, but reduced in his intellectual functioning. Id. He was fairly well-oriented with limited communication skills, a very tense affect, reduced and limited thought processes, fairly good short term memory, good long term memory, good concentration, and cooperative behavior. Id. Dr. Philips considered Plaintiff's intellectual functioning reduced and estimated that he was functioning in the borderline range of intelligence. Tr. at 327-28. Dr. Philips conducted the Folstein Mini-Mental State Exam and Plaintiff received a total score of 22, which is in the normal range. Tr. at 327. Plaintiff was unable to complete serial sevens or spell "world" backwards. Tr. at 327. He was able to follow a simple direction, read and complete a simple written task, and write a simple sentence. Tr. at 328. He could not copy a simple geometric shape on paper. Id. Dr. Philips indicated Plaintiff did not appear to be malingering or embellishing his symptoms. Id. He noted Plaintiff's reported symptoms and abilities were consistent with his observations during the evaluation. Id. He diagnosed borderline intellectual functioning (estimated), impulse control disorder, anxiety disorder, and depressive disorder with poor social skills and reduced coping skills. Id. However, he subsequently indicated Plaintiff's intellectual functioning was borderline "or lower." Id.

On November 23, 2011, Kevin King, Ph. D., a state agency psychologist, considered Listings 12.04 for affective disorders, 12.06 for anxiety-related disorders, and 12.08 for personality disorders. Tr. at 85. He concluded Plaintiff had mild restriction of activities of daily living, moderate difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, or pace. Tr. at 86. Jeanne Wright, Ph. D., assessed the same level of restriction on January 26, 2012. Tr. at 102-04.

On February 2, 2012, Dr. Darby wrote a note indicating "Patient is Disabled." Tr. at 330.

Plaintiff presented to Kathleen M. Moser, APRN ("Ms. Moser"), on August 9, 2012, complaining of ringing in his left ear, neck pain, numbness in his fingers, disc pain, and gout in his left foot. Tr. at 398. Ms. Moser observed Plaintiff to have tenderness on palpation and muscle spasm. Tr. at 399. She also noted abnormalities on sensory exam. Tr. at 400. She described Plaintiff's mood as dysthymic, depressed, and frustrated. Id. She referred Plaintiff for an x-ray of his spine and indicated she would treat him for depression, pain, and muscle spasms. Id.

Plaintiff presented to Ms. Moser on September 12, 2012, for gout and fasting blood work. Tr. at 395. Plaintiff indicated his mood had improved and he was feeling less numbness, but he continued to complain of generalized osteoarthritis pain and shortness of breath. Id. Ms. Moser noted abnormalities in Plaintiff's lumbosacral spine. Tr. at 396. She assessed exercise-induced bronchospasm, hyperlipidemia, obesity, arthrolithiasis, and chronic pain. Tr. at 397.

On November 8, 2012, Plaintiff indicated to Ms. Moser that he was unable to afford an x-ray of his spine. Tr. at 393. He also complained of psychiatric problems, including a long history of agoraphobia, anxiety, and isolation. Id. Ms. Moser noted Plaintiff had no job prospects and was very temperamental and easily angered if confronted or accused of not working as he should. Id. She indicated Plaintiff agreed to see a counselor, if needed. Id. Ms. Moser assessed obesity and chronic pain and instructed Plaintiff to consult with Augustus Rodgers, Ph. D. ("Dr. Rodgers"). Tr. at 394.

On November 12, 2012, Plaintiff presented to Robert Brabham, Ph. D. ("Dr. Brabham"), for a psychological and vocational evaluation. Tr. at 410-17. Plaintiff reported driving weekly, but with considerable pain and stress when in unfamiliar areas. Tr. at 410. His daily activities included basic personal grooming, with modifications to address his complaints of back pain; performing chores, including yard work, while taking frequent breaks; heating up meals cooked by his mother; shopping with family members to avoid crowds; reclining on the sofa for up to 6 hours a day while constantly changing positions; and napping one or two days per week. Tr. at 411. He reported depressive symptoms that included loss of interest or pleasure, social withdrawal, decreased sexual interest or desire, decreased energy, tiredness, fatigue out of proportion to activity, impaired concentration, distraction, and impaired memory. Tr. at 414. Dr. Brabham indicated Plaintiff appeared to cooperate and to give optimal effort during the evaluation and that the results of testing were considered valid. Tr. at 415. Plaintiff obtained a Full Scale IQ score of 67 on the Wechsler Adult Intelligence Scale-Fourth Edition ("WAIS-IV"). Id. Dr. Brabham noted the following:

The consistency of his scores and his report of years of intellectual and academic difficulties in school many years earlier and in his unsuccessful efforts to return to adult education are quite consistent with the finding that he indeed is functioning at a level defined as being Mild Mental Retardation.

Id. On the Wide Range Achievement Test-Revision 4 ("WRAT-R4"), Plaintiff scored on a high first grade level in reading and on a high third grade level in arithmetic. Id. Dr. Brabham diagnosed mild mental retardation, pain disorder, depressive disorder, not otherwise specified ("NOS"), and generalized anxiety disorder. Id. He opined that Plaintiff could not sustain gainful employment due to a combination of physical and mental limitations. Tr. at 416-17.

Plaintiff visited Ms. Moser for medication refills on January 22, 2013, and March 19, 2013. Tr. at 390, 392.

Plaintiff presented to Dr. Rodgers on March 8, 2013, and reported having poor health, chronic back and neck pain, being unable to work, and being totally dependent on others. Tr. at 391. Dr. Rodgers described Plaintiff as casually-attired, neat, and well-groomed with appropriate affect, good attitude, and pleasant mood, disposition, and demeanor. Id. He indicated Plaintiff would participate in client-centered, ego supportive, and self-emotive therapy geared toward helping him control his depression and anxiety. Tr. at 392. On April 5, 2013, Plaintiff reported to Dr. Rodgers that he was nervous, but that nothing had changed. Tr. at 389. Dr. Rodgers indicated Plaintiff demonstrated appropriate affect, good attitude, and a pleasant mood, demeanor, and disposition. Id.

On April 29, 2013, Kathrene C. Berger, DNP, APRN ("Ms. Berger"), evaluated Plaintiff for depression and anxiety at the request of Ms. Moser. Tr. at 404. Plaintiff indicated he experienced anxiety and did not like being around crowds. Id. He endorsed symptoms of depression related to his inability to work. Id. He indicated he had panic attacks, difficulty dealing with anger, and isolative tendencies. Id. He reported variable appetite, sporadic sleep, low energy, and feelings of worthlessness. Id. Ms. Berger assessed Plaintiff to have adjustment disorder with mixed emotional features; probable social phobia versus panic attack with agoraphobia; and mild mental retardation versus learning disability. Tr. at 406. She stated the following:

Although Mr. Kerr endorses a longstanding history of depression and anxiety when he describes these in detail his symptoms are rather vague. His depression sounds more like boredom now that he doesn't have anything to occupy his time. He clearly has not adjusted to not being able to work. I discussed with him at length the possibility of going through voc rehab to learn a new vocation. He tells me he has met with him and that they have told him that they can't help him because he has such a limited education. He made it through the 11th grade but tells me he can barely read, can't spell or do math. He endorses being in special education classes all the way through school. It does sound like he may possibly have panic attacks, although he is unable to articulate this experience well. He endorses what sounds like more of a social phobia, particularly as it relates to new situations or crowds....


C. The Administrative Proceedings

1. The Administrative Hearing

a. Plaintiff's Testimony

At the hearing on September 12, 2013, Plaintiff testified he lived alone in a mobile home. Tr. at 45. He stated he was roughly six feet tall and weighed 298 pounds, which was an increase from 235 pounds five years earlier. Id. He testified he was right handed. Id. He confirmed that he had a driver's license and stated he drove once or twice per week. Tr. at 46. He indicated he took the driver's test on a computer on five or six occasions before he passed it. Id. He endorsed smoking one-and-a-half packs of cigarettes per day. Tr. at 47.

Plaintiff testified he was enrolled in special education classes when he was in school. Tr. at 54. He indicated he was unable to read or write a grocery list. Id. He stated he spent four years in shelters and foster homes from the ages of 13 to 18. Id. He stated he attended schools in Phoenix, Chicago, and Columbia. Tr. at 55. He denied having completed the forms in the record and stated his stepfather filled them out. Id. Plaintiff stated that he had difficulty in his last job because of reading, technology, and an inability to keep up with the material. Tr. at 56.

Plaintiff testified that he had worked for Owen Electric Steel as a crane operator and material handler. Tr. at 47. He stated he left the job because of a back injury. Id. He indicated he worked as a temporary employee for Carolina Personnel Services for approximately a year. Id. He indicated he worked for Bunzl Extrusion and Filtrona Extrusion as a material handler. Id. He stated he collected unemployment after he stopped working. Tr. at 49.

Plaintiff testified he had a history of surgical procedures on his neck and lower back. Tr. at 51. He indicated he continued to experience back pain that he rated as an eight or nine of 10. Id. He stated his medication reduced his pain to a four or five of 10, but moving around, lifting, and twisting exacerbated it. Tr. at 52, 56. He testified he experienced pain, heat, and numbness that radiated from his back to the front of his thigh, knee, and calf. Tr. at 56. Plaintiff indicated his neck pain was exacerbated by picking up and carrying things. Tr. at 52. He testified that he experienced a burning sensation that ran from the left side of his neck into his shoulders. Id. He stated that he could lift five pounds without pain. Id. He indicated he had pain on his left side if he stood for long periods, which he clarified as no more than 30 minutes. Id. He stated he could sit for 10 to 15 minutes at a time. Tr. at 53.

Plaintiff testified he had been taking pain medication since his neck surgery in 2001. Tr. at 57. He indicated his physicians had recommended he see a doctor for pain management, but he was unable to afford pain management treatment. Id.

Plaintiff testified he experienced anxiety and depression and took two medications to treat his symptoms. Tr. at 57. He stated he was depressed because of his need to rely on others. Tr. at 57-58.

Plaintiff testified that the time he awoke varied from day-to-day. Tr. at 49. He indicated he lived four to five miles away from his parents, but next door to his sister. Tr. at 49, 58. He stated he occasionally used the microwave, cleaned, and mowed his yard with a riding mower. Tr. at 50. He indicated his mother did his laundry at her house and that his mother, stepfather, or sister shopped ...

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