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Seay v. Colvin

United States District Court, D. South Carolina

December 2, 2015

Jennifer Seay, Plaintiff,
v.
Carolyn W. Colvin, Acting 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 her 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 August 18, 2012, [1] Plaintiff protectively filed an application for DIB in which she alleged her disability began on June 1, 2010. Tr. at 72, 106-07. Her application was denied initially and upon reconsideration. Tr. at 85-88, 93-94. On March 14, 2014, Plaintiff had a hearing before Administrative Law Judge ("ALJ") John S. Lamb. Tr. at 26-63 (Hr'g Tr.). The ALJ issued an unfavorable decision on April 10, 2014, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 9-25. 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 March 8, 2015. [ECF No. 1].

B. Plaintiff's Background and Medical History

1. Background

Plaintiff was 32 years old at the time of the hearing. Tr. at 33. She obtained a general equivalency diploma ("GED"). Id. Her past relevant work ("PRW") was as a child monitor. Tr. at 60. She alleges she has been unable to work since July 1, 2010. Tr. at 33.

2. Medical History

Plaintiff developed acute pain in her lower back and right leg in May 2010. Tr. at 197. She initially treated with a chiropractor, but eventually presented to Michael Bucci, M.D. ("Dr. Bucci"). Id. Dr. Bucci operated on Plaintiff's back on October 29, 2010. Id. Plaintiff continued to experience constant pain in her back and pain and weakness in her right leg. Id. Magnetic resonance imaging ("MRI") of Plaintiff's lumbar spine on February 18, 2011, showed no evidence of recurrent disc herniation, but indicated extensive post-operative epidural fibrosis and scar tissue surrounding the right S1 nerve root, as well as some disc degeneration. Id.

On March 9, 2011, Plaintiff presented to Eric P. Loudermilk, M.D. ("Dr. Loudermilk"), at Piedmont Comprehensive Pain Management Group ("PCPMG") for a consultation. Tr. at 197-99. Dr. Loudermilk observed Plaintiff to have tenderness in her right gluteal region, but no significant tenderness over her lumbar spinous processes or paraspinous muscles. Tr. at 198. A straight-leg raise test was positive on the right at 30 degrees. Id. Plaintiff had diminished sensation to light touch over her the lateral aspects of her right foot and calf. Id. She had decreased strength in right thigh flexion and absent Achilles reflex on the right. Id. Dr. Loudermilk diagnosed lumbar post-laminectomy syndrome with persistent right lower extremity radiculopathy in the S1 distribution, secondary to epidural fibrosis and scar tissue versus permanent nerve damage. Id. He administered a selective right S1 nerve root injection on March 22, 2011. Tr. at 195. He prescribed Lortab 7.5 milligrams for post-operative pain and instructed Plaintiff to continue taking Topamax and Ultracet and to follow up in three to four weeks. Tr. at 196.

Plaintiff followed up with Dr. Loudermilk on April 11, 2011. Tr. at 249. She reported continued pain in her right leg and foot. Id. Dr. Loudermilk observed that Plaintiff did not have a reflex in her right ankle and stated it was very suspicious for nerve damage. Id. Dr. Loudermilk gave Plaintiff a DVD about spinal cord stimulation and indicated that Plaintiff should consider it because it may allow her to return to school and a status of gainful employment. Id.

On May 9, 2011, Plaintiff followed up with Sherri Cheek, APRN ("Ms. Cheek"), at PCPMG. Tr. at 248. She reported that Topamax and Ultracet helped her pain to some degree. Id. Plaintiff indicated she had reviewed the information Dr. Loudermilk provided about spinal cord stimulation, but that she was unwilling to go forward with the procedure at that time. Id.

Plaintiff presented to Donald R. Johnson, M.D. ("Dr. Johnson"), at Southeastern Spine Institute for a second opinion on September 19, 2011. Tr. at 323-24. Dr. Johnson observed Plaintiff to be somewhat slow in transitioning from a sitting to a standing position. Tr. at 324. He indicated Plaintiff had mild difficulty mounting the examination table, but was able to do so without assistance. Id. He indicated Plaintiff had normal and equal bilateral muscle strength at 5/5, except for her right hip flexion, which was 3. Id. He noted a positive straight-leg raise on the right. Id. Dr. Johnson found Plaintiff to have normal sensation and reflexes. Id. He indicated Plaintiff should not pursue further surgery, but would be an excellent candidate for spinal cord stimulation. Id. He referred Plaintiff back to Dr. Loudermilk for a spinal cord stimulator ("SCS") trial. Id.

On September 26, 2011, Plaintiff reported to Dr. Loudermilk that she had recently visited Dr. Johnson for a second opinion. Tr. at 209. She stated Dr. Johnson had also recommended a SCS and that she desired to proceed with a trial implantation. Id. Dr. Loudermilk refilled Plaintiff's prescriptions for Ultracet and Topamax and scheduled her for a SCS trial. Id.

Plaintiff received regular chiropractic manipulation between September 2011 and July 2013. Tr. at 255-303. Her chiropractor routinely observed edema, tenderness to palpation, and decreased range of motion in Plaintiff's spine. Id.

On October 11, 2011, Dr. Loudermilk implanted dual-lead SCS electrodes for a one-week trial period. Tr. at 200. He indicated that he would refer Plaintiff to a neurosurgeon for permanent SCS implantation if she received greater than 50 percent pain relief during the trial period. Tr. at 201. Plaintiff followed up with Dr. Loudermilk on October 17, 2011, and reported that her right leg pain had improved. Tr. at 208. She expressed a desire to proceed with permanent implantation of a SCS. Id. Dr. Loudermilk removed Plaintiff's temporary electrodes and noted no evidence of infection. Id. He referred Plaintiff to Dr. Bucci for permanent SCS implantation, recommended Plaintiff continue her prescriptions for Ultracet and Topamax, and prescribed Viibryd for depression. Id.

Plaintiff presented to Dr. Bucci on October 24, 2011, to discuss permanent implantation of a SCS. Tr. at 214. Dr. Bucci observed no abnormalities on physical examination. Tr. at 215. He prescribed Wellbutrin SR 150 milligrams for smoking cessation and indicated Plaintiff would need to be smoke-free for four-to-six weeks before he would proceed with SCS placement. Tr. at 216.

Plaintiff followed up with Dr. Bucci on December 6, 2011, and reported she had stopped smoking. Tr. at 217. Dr. Bucci noted no abnormalities on examination. Tr. at 218. He informed Plaintiff and her family members of the possible complications associated with implantation of a SCS. Tr. at 219. Plaintiff indicated she understood the risks and desired to proceed with surgery. Id.

On January 16, 2012, Dr. Bucci performed thoracic laminectomy for implantation of a neurospinal stimulator and electrode paddle and inserted a neurospinal stimulator pulse generator. Tr. at 220-21. Plaintiff was discharged with instructions to avoid heavy lifting, bending, and driving and to follow up in 10 days for a wound check. Tr. at 221. Plaintiff returned to Dr. Bucci's office for suture removal on January 26, 2012. Tr. at 223. She indicated she was unable to differentiate her postoperative pain from her baseline pain. Id. Plaintiff had some drainage from her incision site, and Dr. Bucci ordered a prescription for Minocycline. Id.

Plaintiff presented to Bon Secours Health System on May 6, 2012, for increased back pain and a discharge from her nerve stimulator site. Tr. at 309. Plaintiff demonstrated normal range of motion, no edema, and no tenderness. Tr. at 311. Plaintiff's white blood cell count was normal. Tr. at 312. She was instructed to continue her medications. Tr. at 314-15.

Plaintiff followed up with Dr. Bucci on May 8, 2012, for a wound check. Tr. at 224. Dr. Bucci noted one small area in the stimulator's battery site that had a slight hole, but he observed no significant drainage. Id. He stated he cultured a small area, but was unsure whether he obtained enough fluid for a successful culture. Id. Dr. Bucci instructed Plaintiff to take her temperature two to three times per day and to contact his office if she observed an elevated temperature. Id.

On July 17, 2012, Dr. Bucci noted that Plaintiff had stopped smoking and had lost quite a bit of weight. Tr. at 225. He indicated Plaintiff's improved physical condition had resulted in her not using her SCS very often and that Plaintiff desired to have the stimulator removed because it was causing her some pain. Id. He stated that Plaintiff's stimulator wound showed some signs of infection in the past, but that the infection had resolved. Id. Dr. Bucci indicated he explained to Plaintiff the possible complications of surgery and that she consented to proceed with removal of the SCS. Tr. at 227.

Plaintiff underwent surgical removal of her SCS and wound revision on July 20, 2012. Tr. at 228-29. Dr. Bucci indicated there were several areas of skin thinning around the battery site, but that Plaintiff had no signs of infection. Tr. at 229. He discharged Plaintiff with prescriptions for Percocet 10/325 milligrams for pain and Minocycline 100 milligrams for wound prophylaxis. Id.

Plaintiff presented to Dr. Bucci's office for suture removal on July 30, 2012. Tr. at 231. Her incision sites showed no sign of infection. Id. Plaintiff indicated she began to experience neck pain immediately after waking from surgery. Id. She described the pain as traveling from the back of her right ear to the top of her head and radiating through her head with side-to-side rotation. Id.

Plaintiff followed up with Dr. Loudermilk on August 31, 2012, for pain in her lower back and right leg. Tr. at 247. Dr. Loudermilk prescribed a Medrol Dosepak to reduce the inflammation in Plaintiff's back and leg. Id. He prescribed 50 milligrams of Ultram for pain and instructed Plaintiff to take one to two tablets every six hours, as needed. Id. He also wrote prescriptions for Topamax and Viibryd and instructed Plaintiff to follow up in four weeks. Id.

On September 14, 2012, Plaintiff indicated to Dr. Loudermilk that the Medrol Dosepak he prescribed at her last visit had helped for several days, but that her pain had returned to its baseline. Tr. at 246. Plaintiff indicated she was doing better on her medications and that she did not desire to proceed with reimplantation of her SCS at that time. Id.

State agency medical consultant Hugh Clarke, M.D., reviewed the record and completed a physical residual functional capacity ("RFC") assessment on November 2, 2012. Tr. at 67-69 He 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 eighthour workday; frequently climb ramps and stairs; never climb ladders, ropes, or scaffolds; frequently balance; occasionally stoop, kneel, crouch, and crawl; and avoid concentrated exposure to hazards. Id.

Plaintiff followed up with Dr. Loudermilk on November 9, 2012. Tr. at 245. She indicated Viibryd had worked extremely well for depression, but that her insurance company would not authorize it. Id. Dr. Loudermilk indicated he would give her samples of the medication. Id. Plaintiff complained of an increase in headaches. Id. Dr. Loudermilk indicated he was unable to discern from Plaintiff's description whether her headaches were migraine headaches or tension headaches and would prescribe both Flexeril and Maxalt to treat them. Id. Plaintiff reported continued pain in her lower back and right leg, as well as some pain at the former site of her SCS in her thoracic region. Id. Dr. Loudermilk indicated the pain in Plaintiff's thoracic spine likely resulted from scar tissue. Id. Plaintiff indicated she did not desire further surgery or reimplantation of her SCS. Id.

On November 21, 2012, an MRI of Plaintiff's cervical spine showed a moderatesized disc bulge and an annular tear at C6-7. Tr. at 240. An MRI of her thoracic spine indicated signal changes between the T9 and T10 spinous processes and within the overlying dermal fat site of the previous electrode leads. Tr. at 241. Plaintiff had a mild disc bulge at T10-11, mild T8-9 disc degeneration and right paracentral disc protrusion, and small right paracentral disc protrusions at T5-6 and T6-7. Id.

On December 13, 2012, state agency medical consultant Ted Roper, M.D., reviewed the record and imposed the same restrictions as Dr. Clarke imposed in November 2012. Tr. at 78-80.

Plaintiff presented to Meredith Purgason, APRN ("Ms. Purgason"), at PCPMG on January 7, 2013. Tr. at 244. She reported continued pain in her neck, mid-back, and arms. Id. She also complained of frequent migraine headaches. Id. Ms. Purgason discussed with Plaintiff the results of her recent cervical and thoracic MRIs and options for treatment, including injections and physical therapy. Id. Plaintiff indicated she desired to continue taking her medications and would consider the other options. Id. Ms. Purgason refilled Plaintiff's medications and recommended she follow up in two months. Id.

Plaintiff followed up with Ms. Purgason on March 4, 2013, and reported that Ultram was not adequately controlling her pain. Tr. at 254. Ms. Purgason suggested Plaintiff undergo injections or participate in physical therapy, but Plaintiff indicated she was unable to afford either treatment. Id. Ms. Purgason refilled Plaintiff's medications and prescribed Butrans patches to help with overall pain control. Id.

On April 1, 2013, Plaintiff reported increased pain. Tr. at 253. Dr. Loudermilk indicated he would increase the dosages of the Butrans patch and Viibryd. Id. Dr. Loudermilk again informed Plaintiff that they could attempt reimplantation of a SCS, but Plaintiff was reluctant to pursue further surgery because of her prior infection. Id.

Plaintiff followed up with Dr. Loudermilk on April 29, 2013, and reported significant pain in her back and right leg, despite the recent adjustment to her Butrans patches. Tr. at 308. She reported her migraine headaches were sometimes accompanied by nausea and requested anti-nausea medication. Id. Dr. Loudermilk increased Plaintiff's Butrans patch to the highest dosage, prescribed Phenergan for nausea, and refilled Plaintiff's other medications. Id. He again discussed reimplantation of a SCS, but Plaintiff remained reluctant to pursue that option. Id.

Plaintiff again presented to Dr. Loudermilk on May 20, 2013. Tr. at 320. She reported significant pain in her neck and upper back. Id. Plaintiff indicated the Butrans patches were not helping her pain, and Dr. Loudermilk discontinued the prescription. Id. Plaintiff expressed a desire to continue with conservative treatment and to avoid reimplantation of a SCS. Id. Dr. Loudermilk prescribed Gralise for pain. Id.

On June 17, 2013, Plaintiff reported to Ms. Purgason that she had completely weaned off the Butrans patch because she did not feel that it was helping. Tr. at 306. She indicated Gralise reduced her leg pain at night, but resulted in significant sedation the next day. Id. Ms. Purgason recommended ...


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