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Jones v. Colvin

United States District Court, D. South Carolina

December 17, 2015

Cathy Yvonne Jones, 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 October 16, 2012, Plaintiff protectively filed an application for DIB in which she alleged her disability began on June 1, 2009. Tr. at 109, 221-22. Her application was denied initially and upon reconsideration. Tr. at 176-79, 181-82. On December 11, 2013, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Gregory M. Wilson. Tr. at 31-66 (Hr'g Tr.). The ALJ issued an unfavorable decision on January 13, 2014, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 147-69. On February 18, 2014, the Appeals Council issued an order remanding the case to the ALJ. Tr. at 170-74. A second hearing was held on October 14, 2014. Tr. at 67-97 (Hr'g Tr.). The ALJ issued an unfavorable decision on February 2, 2015, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 8-30. 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. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on April 16, 2015. [ECF No. 1].

B. Plaintiff's Background and Medical History

1. Background

Plaintiff was 55 years old at the time of the second hearing. Tr. at 71. The ALJ found that Plaintiff had no past relevant work ("PRW"). Tr. at 24. Plaintiff alleges she has been unable to work since April 29, 2014.[1] Tr. at 71.

2. Medical History

Plaintiff presented to Greenville Free Medical Clinic on December 14, 2010, complaining of pain in her right foot that radiated to her knee. Tr. at 331. The provider assessed plantar fasciitis, a right heel spur, depression, and anxiety and referred Plaintiff to a podiatrist. Id.

Plaintiff was admitted to Greenville Memorial Medical Center for involuntary emergency hospitalization for mental illness on October 31, 2011, after she attempted suicide by cutting her wrists. Tr. at 332. She indicated she was upset because her son informed her that she could no longer see her grandchildren. Tr. at 340. Plaintiff stated she felt worthless and useless and had been crying a lot over the prior three-month period. Tr. at 353. She reported a history of depression, but stated she had not been on medications for depression since 2006. Id. Plaintiff was transferred to Marshall I. Pickens Hospital on November 3, 2011, and remained hospitalized until November 17, 2011. Tr. at 370-71. Psychiatrist Millard C. Trott, M.D. ("Dr. Trott"), assessed principal diagnoses of bipolar I disorder, depressed, without psychotic features; benzodiazepine dependence (in partial remission for 11 years); alcohol abuse; family relational problem; and posttraumatic stress disorder ("PTSD"). Tr. at 374. He instructed Plaintiff to follow up with the Greenville Mental Health Center and to obtain prescription refills from either the Greenville Free Clinic or New Horizons. Id. Dr. Trott discharged Plaintiff with prescriptions for Remeron, Lithium, Toprol XL, Norvasc, Amiloride, Trazodone, Ativan, Phenergan, and Ultram. Tr. at 382.

Plaintiff presented to Greer Mental Health Center for an initial clinical evaluation on December 17, 2011. Tr. at 398-402. She indicated she needed help with depression, anxiety, and bipolar disorder and stated she was experiencing shortness of breath. Tr. at 398. She indicated she did not want to leave her house and often vomited and cried when she had to leave. Id. She stated her weight gain had contributed to her depression. Id. Plaintiff denied suicidal and homicidal ideation, self-mutilation, and other risk-taking behavior. Id. Judith A. Goodwin, M.A. ("Ms. Goodwin"), assessed bipolar affective disorder. Tr. at 402. Plaintiff followed up with Paul P. Lowe, M.D. ("Dr. Lowe"), on January 17, 2012. Tr. at 408-10. She reported she had been unable to fill all of the prescriptions and was sleeping for three to four hours per night. Tr. at 408. A mental status examination was normal, except that Dr. Lowe indicated Plaintiff's mood was irritable and that she had poor insight as to the impact of substance abuse. Tr. at 409. Plaintiff failed to report for mental health visits on April 4, 2012, and June 4, 2012. Tr. at 405-06. Ms. Goodwin noted that Plaintiff had only been prescribed enough medication to last until February 2012. Tr. at 406. On September 9, 2012, Ms. Goodwin indicated no services were provided during the treatment period and that she would close Plaintiff's case. Tr. at 407. Plaintiff was discharged from services at Greer Mental Health Center on December 9, 2012. Tr. at 411.

On January 8, 2013, Plaintiff presented to Lary R. Korn, D.O. ("Dr. Korn"), for a consultative medical examination. Tr. at 418-21. She complained of chronic pain in her hip and knee joints, shortness of breath, and mental health issues. Tr. at 418. Dr. Korn indicated the examination of Plaintiff's hips and ankles was benign. Tr. at 420. He indicated Plaintiff had substantial patellofemoral crepitus bilaterally, but that McMurray's maneuver was otherwise negative. Id. He noted that Plaintiff could only crouch to 30 to 40 degrees before her patellofemoral joints prevented her from crouching any further. Id. Plaintiff demonstrated normal range of motion ("ROM") in her ankles and hips. Id. She also had normal strength in her extremities and normal ROM in her spine. Id. Dr. Korn noted that Plaintiff had difficulty tandem walking, which appeared to result from the thickness of her lower extremities. Id. He observed no notable areas of muscle weakness or sensory loss. Id. He diagnosed moderate chondromalacia of the bilateral knees; dyspnea, status post partial laryngectomy for carcinoma; morbid obesity; and significant mental health issues and history. Id. Dr. Korn indicated pulmonary function testing and x-rays of Plaintiff's knees would be helpful. Tr. at 421. He stated it did not appear that Plaintiff would be able to crouch or squat, use proper technique when lifting from floor level, or walk for a significant duration or distance. Id. He indicated Plaintiff would have markedly limited ability to walk inclines or climb stairs due to the combined limitations caused by her dyspnea and patellofemoral joints. Id.

Plaintiff presented to psychologist Bruce A. Kofoed, Ph. D. ("Dr. Kofoed"), for a psychological evaluation on January 16, 2013. Tr. at 422-27. She reported a history of depression, bipolar disorder, and PTSD. Tr. at 423. Plaintiff indicated her PTSD diagnosis resulted from learning that her father molested her daughter from the ages of two to twelve. Id. She stated she had not attended any mental health treatment visits in several months and had discontinued use of prescribed medications because she did not like their side effects. Tr. at 424. Plaintiff indicated she had consumed no alcohol since October 2011. Id. She admitted to occasional use of marijuana and stated she last used it approximately three months earlier. Id. Plaintiff indicated she occasionally attended church or dined in restaurants with a friend, but stated she generally felt uncomfortable around people. Tr. at 425. Dr. Kofoed noted that Plaintiff cried frequently during the interview and that her mood was depressed. Id. He indicated Plaintiff was generally pleasant, but sad during the interview. Id. Plaintiff reported fair appetite and a gain of approximately 60 pounds over the last couple of years. Id. She complained of poor sleep and stated she typically slept for three to four hours per night and sometimes went three or four days in a row without sleeping. Id. Dr. Kofoed indicated Plaintiff had intact arithmetic skills and fair to good recall for verbal and nonverbal information. Id. His diagnostic impressions were bipolar disorder, depressed without psychotic features; consider panic disorder, not otherwise specified; consider possible PTSD versus generalized anxiety disorder; and a history of alcohol and prescription medication misuse. Tr. at 426. He indicated Plaintiff appeared to be capable of making financial decisions in her own best interest. Tr. at 427.

On February 15, 2013, an x-ray of Plaintiff's left knee showed no acute or chronic bone or joint abnormalities. Tr. at 428. An x-ray of Plaintiff's chest was normal, as well. Tr. at 429.

On February 25, 2013, state agency medical consultant Carl Anderson, M.D., reviewed the medical evidence and completed a physical residual functional capacity ("RFC") assessment. Tr. at 118-20. He found that Plaintiff was limited as follows: occasionally lifting and/or carrying 50 pounds; frequently lifting and/or carrying 25 pounds; standing and/or walking for a total of about six hours in an eight-hour workday; sitting for a total of about six hours in an eight-hour workday; frequently climbing ramps and stairs, balancing, and stooping; occasionally kneeling, crouching, and crawling; never climbing ladders, ropes, or scaffolds; and must avoid concentrated exposure to hazards (machinery, heights, etc.), fumes, odors, dusts, gases, poor ventilation, etc. Id. State agency medical consultant Dale Van Slooten, M.D., assessed the same restrictions in an RFC assessment dated April 29, 2013. Tr. at 138-40.

Plaintiff presented to David Price, Ph. D. ("Dr. Price"), for a mental status examination on May 21, 2013. Tr. at 435-39. Dr. Price observed Plaintiff to be tearful during the interview. Tr. at 435. He indicated Plaintiff was anxious and mildly depressed; had a negative and restricted range of affect; demonstrated variable attention and concentration; was a little agitated at times; and endorsed, but did not demonstrate flight of ideas and pressured speech. Id. He stated Plaintiff was cooperative and compliant; had satisfactory eye contact; had linear thought processes; was oriented to person, place, date, and situation; recalled four out of five words immediately and three words after a fiveminute delay; completed serial sevens with two errors; could spell "world" correctly forwards and in reverse; recalled five digits forward and three digits backwards; and was able to abstract and interpret proverbs. Tr. at 435-36. He described Plaintiff's social judgment as impulsive. Tr. at 436. He indicated she could follow directions and relate to others, but could not handle her own funds. Id. Dr. Price's diagnostic impressions included moderate bipolar I disorder and rule out PTSD. Tr. at 439. He indicated Plaintiff would have difficulty interacting with the general public, but may be able to perform some type of substantial gainful activity. Id. He noted Plaintiff appeared to have mood swings and could have significant problems during manic phases. Id. He stated Plaintiff may not be able to manage her own funds during manic episodes. Id.

Plaintiff returned to Greer Mental Health Center for an initial clinical assessment on July 8, 2013. Tr. at 439-44. Adrienne T. McGregor, MSW ("Ms. McGregor"), observed that Plaintiff cried immediately and stated she felt anxious. Tr. at 439. Plaintiff indicated that the medications Dr. Lowe prescribed had made her feel like a zombie and unable to function. Id. She stated she was experiencing "bad thoughts" again. Id. She endorsed symptoms that included depressed mood, crying and tearfulness, feelings of worthlessness, low energy, difficulty sleeping, ongoing anxiety, and daily panic attacks. Id. Plaintiff demonstrated a neat appearance, appropriate motor activity, a cooperative attitude, and normal thought process. Tr. at 442-43. Her affect was tearful and her mood was depressed. Tr. at 443. She reported phobias, ideas of hopelessness and worthlessness, and visual hallucinations. Id. She had poor recent memory, but was able to concentrate and perform simple math and had an average fund of knowledge. Tr. at 444. Ms. McGregor noted that Plaintiff was actively using cannabis daily and benzodiazepines at least a couple of times per week and was resistant to acknowledge any connection between substance use and mood symptoms. Id. She recommended that Plaintiff resume mental health services and be referred for drug and alcohol treatment and indicated substance abuse was "most likely contributing to" Plaintiff's "current presentation symptoms." Id.

Plaintiff presented to psychiatrist Laura Lowenbergh, M.D. ("Dr. Lowenbergh"), on November 13, 2013. Tr. at 448-50. She reported headaches, poor sleep, difficulty focusing or concentrating, depressive thoughts and feelings of worthlessness. Tr. at 448. Dr. Lowenbergh assessed Plaintiff's judgment as fair and her insight as poor. Tr. at 449. She indicated Plaintiff had intrusive and suicidal thoughts. Id. Dr. Lowenbergh suggested Plaintiff see her counselor more often, but Plaintiff was unwilling to commit to more frequent counseling sessions. Tr. at 449-50.

Plaintiff followed up with Dr. Lowenbergh on January 21, 2014, and reported improved mood on her current medication regimen. Tr. at 454. Dr. Lowenbergh noted that Plaintiff complained of mood swings and was presently hypomanic. Tr. at 456.

On May 15, 2014, Plaintiff reported worsened depression and fear of leaving her home. Tr. at 458. Dr. Lowenbergh indicated Plaintiff had been without medications for two weeks in April and had decreased her dosage of Saphris because she complained that it made her shaky. Id. Plaintiff admitted to being irritable, and Dr. Lowenbergh also observed that she was depressed and fearful. Id. Dr. Lowenbergh indicated Plaintiff was having suicidal thoughts, but had no intent or plan to commit suicide. Tr. at 459. She prescribed a three-week course of Viibryd to treat Plaintiff's depression. Tr. at 460.

Plaintiff followed up with nurse Dawn Eppes ("Ms. Eppes") at Greer Mental Health on May 2, 2014. Tr. at 461-62. She reported anxiety, depression, and sleep disturbance. Tr. at 461. She demonstrated no unusual psychiatric symptoms during the examination. Tr. at 462. Ms. Eppes noted that Plaintiff's blood pressure and pulse were elevated, and she directed Plaintiff to report to the emergency room. Id.

On July 24, 2014, Plaintiff requested that Dr. Lowenbergh prescribe something to help her to be able to get up and out of her house. Tr. at 465. She reported poor sleep and appetite. Id. Dr. Lowenbergh observed Plaintiff to demonstrate aggressive thoughts, obsessions, and auditory hallucinations. Tr. at 466. She noted Plaintiff's mood was angry, irritable, and anxious. Id. Plaintiff had mildly impaired recent and remote memory, attention, and concentration. Id.

On August 12, 2014, Plaintiff reported to Dr. Lowenbergh that she felt better after taking an increased dose of Gabapentin. Tr. at 463. She continued to report depression and stated she had trouble breathing adequately. Id. She complained of poor sleep and appetite and little energy. Id. She was tearful and cried easily. Id. Her recent and remote memories were mildly impaired. Tr. at 463-64.

Plaintiff participated in literacy testing on October 22, 2014. Tr. at 468-69. Program manager Leah Clark ("Ms. Clark") indicated that she administered the Test of Adult Basic Education in reading to Plaintiff. Tr. at 468. She assessed Plaintiff's scores as being consistent with the expected reading level of students in the eighth month of sixth grade. Id. She indicated Plaintiff could interpret graphics and recall information from passages, but that her comprehension skills were somewhat lacking in words in context and understanding overall meaning. Id. Ms. Clark provided that Plaintiff was not functionally illiterate, because Plaintiff read above a fifth grade level and the classification was based upon reading below a fifth grade level. Id.

C. The Administrative Proceedings

1. The Administrative Hearing

a. Plaintiff's Testimony

i. December 11, 2013

At the hearing on December 11, 2013, Plaintiff testified she was 54 years old. Tr. at 36. She indicated she last worked on December 3, 2010. Id. She denied having received unemployment or workers' compensation benefits. Tr. at 37. She indicated she had stopped working because of an upper respiratory infection and heel spurs that prevented her from standing to work. Id.

Plaintiff testified she was unable to work because her knee pain prevented her from standing and walking. Tr. at 39. She indicated she wrapped her knees in ice for 20 minutes at a time and applied Biofreeze. Id. She stated she also propped her knees and avoided standing. Tr. at 41. She indicated she did not take any medications or receive medical care for her any orthopedic problems because she was unable to afford treatment. Tr. at 39.

Plaintiff testified she was 5'3" tall and weighed between 200 and 210 pounds. Tr. at 40. She indicated the medications she took for bipolar disorder caused her to gain weight. Id. She stated that being overweight resulted in increased strain on her knees and hips. Tr. at 40-41.

Plaintiff testified she could stand to wash dishes for approximately 15 minutes at a time. Tr. at 41. She indicated she would need to sit for 10 to 15 minutes after standing for 15 minutes. Id. She denied she would be able to complete an eight-hour shift that required she sit for half the time and stand for half the time. Id. She later indicated she could stand for three-and-a-half to four hours on a good day, but would be unable to stand for that length of time on successive days. Tr. at 42. She stated she could lift "maybe five pounds if that." Tr. at 44.

Plaintiff testified she continued to experience shortness of breath as a result of her history of cancer of the larynx. Tr. at 42. She indicated she had smoked in the past, but had stopped smoking in 2006. Tr. at 43. She stated she had a nebulizer, but only used it once every three months. Tr. at 60.

Plaintiff testified she was diagnosed with bipolar disorder and PTSD when she was admitted to Marshall Pickens in November 2011. Tr. at 45. She indicated she continued to experience mood cycling. Id. She stated she cried often, had difficulty concentrating and focusing, and saw and heard things that were not there. Id. She endorsed symptoms of anxiety and indicated her anxiety was exacerbated by leaving her house. Tr. at 47. Plaintiff stated she only left her home to visit her doctors. Tr. at 48. She indicated she would have difficulty interacting with the public, arriving for work on time, and ...


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