United States District Court, D. South Carolina
REPORT AND RECOMMENDATION OF MAGISTRATE
KAYMANI D. WEST, Magistrate Judge.
appeal from a denial of social security benefits is before
the court for a Report and Recommendation
("Report") pursuant to Local Civil Rule
73.02(B)(2)(a) (D.S.C.). Plaintiff, appearing through
counsel, brought this action pursuant to 42 U.S.C. Â§ 405(g)
to obtain judicial review of the final decision of the
Commissioner of Social Security ("Commissioner")
denying her claim for Disability Insurance Benefits
("DIB") pursuant to the Social Security Act
("the Act"). For the reasons that follow, the
undersigned recommends that the Commissioner's decision
be reversed and remanded for further administrative
24, 2011,  Plaintiff filed an application for DIB
alleging a disability onset date of July 29, 2008. Tr. 275.
After being denied both initially and on reconsideration, Tr.
100, 133, Plaintiff requested a hearing before an
Administrative Law Judge ("ALJ"), Tr. 179-80. On
July 23, 2013, the ALJ conducted a hearing in Fresno,
California,  taking testimony from Plaintiff and
from a vocational expert ("VE"). Tr. 48-86. The ALJ
issued a decision on August 15, 2013, denying Plaintiff's
claims. Tr. 36-47. The Appeals Council subsequently denied
Plaintiff's request for review, thereby making the
ALJ's decision the Commissioner's final
administrative decision for purposes of judicial review. Tr.
1-4. Plaintiff brought this action seeking judicial review of
the Commissioner's decision in a Complaint filed on
November 18, 2014. ECF No. 1.
born on November 11, 1958, was 49 years old as of her alleged
onset date of July 29, 2008. Tr. 309. She completed high
school and four or more years of college. Tr. 288. In 2002
Plaintiff also completed training to become a Certified
Breastfeeding Consultant. Id. Plaintiff's prior
work history includes work as a Clinical Coordinator, Labor &
Delivery Registered Nurse for a hospital, and as a Labor &
Delivery staff RN travel nurse for a nursing agency. Tr. 289.
In her July 2011 Disability Report Plaintiff indicated the
following conditions limit her ability to work:
(1) Spondilosis/spondilothesis (sic), upper extremety (sic)
damage; (2) spondylolsis (sic)/spondylolisthesis L5-S1; (3)
multilevel degenerative disease of lumbosacral spine; (4)
multilevel degenerative disc disease; (5) severe bilateral
facet/ligamentous arthropathy; (6) posterior fracture of the
right inferior facet of L5; (7) difuse (sic) disc bulge L5
over S1; (8) acute stress fractures bilat. L5 & right S1
pedicles; (9) ADHD; (10) bilateral cubital tunnel syndrome;
[and] (11) bilateral carpal tunnel syndrome.
287. In this same report Plaintiff further explained why she
stopped working as follows:
The injuries incurred to my upper extremities bilaterally and
subsequent surgeries left me with significant physical
limitations and weakness. The required further surgeries for
Carpal Tunnel Syndrome and Cubital Tunnel Syndrome require
significant time for healing and rehabilitation. My Neck [is]
currently being assessed for further nerve damage involved in
this [workers compensation] case. My MDs state that I cannot
return to the work I did. Additionally, MRIs, CT Scan, &
Xrays of my Lumbar spine from 2007 to 2011 shows significant
deterioration and explains the intensity of the pain I live
with. I cannot walk, stand, bend, kneel, squat or even sit
for short periods of time without experiencing debilitating
pain. I have been advised that I will not heal from the
fractures in my spine and that surgical intervention will not
make things better and could make my back worse. As a result
I require significant doses of narcotic medications to get
thru the day. I am not able to return to work.
288. In a December 26, 2011 letter to the Social Security
Administration seeking reconsideration of her claim,
Plaintiff provided the following information regarding her
On July 29, 2008 I suffered an injury at work that left me
torn muscles and nerve damage to both my arms, elbows, wrists
and hands. The injury was in fact a result of cumulative
trauma to my upper extremities sustained over time while
working in the Labor & Delivery unit of Hanford community
hospital. This particular hospital did not enforce safety
regulations with respect to the use of stirrups during the
pushing phase of vaginal deliveries. Instead, most of the
doctors and midwives insisted that the nurse assisting the
patient hold and support the patient's legs by holding
the leg up, putting the patient's foot against the
nurse's shoulder while she pushed with each contraction.
and her counsel appeared at her administrative hearing held
in Fresno, California on July 23, 2013. See Tr.
48-86. In response to questions from the ALJ Plaintiff
testified that she was divorced with three adult children
ages 30, 25, and 21. Tr. 52-53. Plaintiff stated that she
lived in a house with a roommate and she possessed a
driver's license but only drove once or twice a month
because she did not own a vehicle. Tr. 53. Plaintiff
testified that she borrowed a car and drove herself to the
hearing. Tr. 54. Plaintiff confirmed that she had a high
school education plus four years of college. She stated that
she received a degree in nursing and her license was in good
standing. Id. Plaintiff testified that she has not
done any type of work since her alleged onset date of July
29, 2008. Tr. 55. Plaintiff testified that she worked
previously for Geneva General Hospital as a labor and
delivery nurse. In 2000 she also worked part-time for
Professional Choice as a nurse in a nursing home.
Id. Plaintiff testified that she later worked for
Millennium Medical Services as a travel nurse and went to
California. Tr. 56. Plaintiff stated that in 2006, 2007, and
2008 she worked as an independent contractor travel nurse.
Id. When asked by the ALJ what prevented her from
working, Plaintiff testified that in 2008 she tore muscles in
both her arms and shoulders and was still having difficulty
with her hands. Tr. 57. Plaintiff stated that she drops items
inadvertently and "[does not] have the strength to open
like a bottle or whatever." Id. Plaintiff
testified that her job as a labor and delivery nurse put a
lot of stress on her body and her back and the problems with
her back "became significantly worse to the point where
[she is] in constant pain and just trying to deal with
that." Id. Plaintiff stated that she has
fractures in her back but has been told that surgery to
repair the fractures will leave her more disabled.
Id. Plaintiff testified that she had a worker's
compensation claim that determined she was 35 percent
disabled and she received payments for two-and-a-half years,
however she kept open the medical portion of the claim. Tr.
58. Plaintiff testified that she takes her prescribed
medications on a regular basis and the pain medicine makes
her pain "somewhat tolerable if [she is] not over
stressing or putting stress on, specifically [her] lower back
and the neck." Tr. 58-59. Plaintiff testified that the
Cymbalta somewhat controlled her depression symptoms but
doctors were still adjusting the dosage. Tr. 59. Plaintiff
stated that she has side effects from the medication,
including "nausea and inability to sleep."
Id. Plaintiff testified that she has had surgery on
both shoulders but surgery has not been recommended for her
back because doctors felt "that the outcome of the
surgery would be more debilitating and more pain that what
[she is] experiencing currently." Tr. 60. Plaintiff
stated that she had three epidural steroid injections in the
past three years but they did not help. Tr. 60-61. Plaintiff
testified that she was continuing to do physical therapy and
she also wore a back brace that was given to her by a doctor.
Tr. 61. Plaintiff stated that the brace "just seems to
help for maybe a couple of hours, but then it seems that
position of [her] back, whatever, starts hurting even
more." Id. Plaintiff testified that she had
also used a TENS unit but was not getting any results with
it and used it only periodically. Id. Plaintiff
stated that she did not use a cane or other assistive device.
Tr. 61-62, Plaintiff testified that she sees a psychiatrist
"who is mainly involved with [her] ADHD" but she
also talks to her about "depression, memory loss, [and]
difficulty organizing things." Tr. 62. Plaintiff
testified that she is in pain "[e]very day, 24 hours a
day, seven days a week." Id. She stated the
pain is located in her lower back and shoulders; she has
residual pain from the surgeries and pain in her wrists, her
hands, and her elbows. Id. She stated that she also
has pain in her joints, her knees, and her ankles and if she
walks for more than 10 or 15 minutes her "feet start
really hurting significantly." Tr. 62-63. Plaintiff
stated she has had issues with swelling and taking
medication. Tr. 63. To help with the pain Plaintiff testified
that besides taking pain medication and doing stretching
exercises she tries to get off her feet and limit what she
does on a daily basis. Id. Plaintiff stated that any
kind of activity-such as lifting, carrying, walking,
twisting, sitting, and bending-made her pain worse.
Id. Plaintiff described the pain in her lower back
as a "tightening knot" that was a constant, achy,
throbbing pain. Tr. 64. Plaintiff testified that the pain
radiated down her arms to her hand and down her legs to her
feet-particularly down her right leg. Id. Plaintiff
stated that if she sat in one spot for an hour the pain would
start affecting her back and she would "have to get up,
walk around, [and] maybe lay down." Tr. 65. Plaintiff
stated she could stand for 30 minutes before needing to sit
down, and could walk for "maybe a block" before
needing to stop. Id. Plaintiff stated that she did
not know whether she could continue walking because the pain
in her foot and her legs and hips did not stop at that point.
Id. Plaintiff testified that she could lift a gallon
of milk with two hands but could not lift a case of soda with
two hands. Tr. 66. Plaintiff stated that she could bend over
and pick an item up that was dropped, but not without pain.
Id. Plaintiff testified that she has problems
reaching overhead with both arms and avoids reaching. She
stated that she also has issues with her hands that cause her
to inadvertently drop items and if she writes continuously
for more than 10-or-15 minutes her wrists ache and her hand
starts to become numb. Tr. 66-67. Plaintiff testified that if
she tried to type for more than 15 minutes her hands would
start to cramp and she would have a lot of pain and numbness.
Tr. 67. She stated that she is able to use fasteners such as
buttons or zippers to put on her clothes. Id.
Plaintiff testified that her "short-term memory is very,
very poor." Id. She stated she remembers to
take her medications because she takes most of them "at
the same time in the morning and then the pain medication is
what [she] take[s] throughout the day." Tr. 67-68. She
stated that if she forgets to take the medication on time she
starts feeling withdrawals, so either the pain or the
withdrawals will remind her to take the medication. Tr. 68.
Plaintiff stated she has concentration problems, but mentally
could follow simple instructions. Tr. 68-69. Plaintiff stated
she also had problems making decisions but generally did not
have problems relating to or getting along with people. Tr.
stated that on a typical day she gets up in the morning and
has a cup of coffee sitting or stretching out on the couch.
She testified that when she wakes up she usually has a
"hard time even walking to the bathroom and starting the
day" so she takes her medications right away although it
"takes about an hour for them to kick in so that [she]
can start to move a bit." Tr. 70. She then will so some
personal hygiene, take another break, and try to do some of
her physical therapy exercises. Id. She stated that
around noon she will shower and get dressed, and then if she
is feeling better she will try to do a little laundry or the
dishes. After that she will have to stretch her back out and
sit. In the evening she will make something to eat, watch
television, read a book, and then go to bed. Id.
Plaintiff stated she has problems sleeping because she is
unable to get comfortable due to pain in her shoulder and
lower back. Tr. 71. Plaintiff stated that on average she gets
four hours of sleep at night and she does not take naps
during the day. Id. Plaintiff testified that she
does not need assistance bathing or dressing. Id.
Plaintiff stated that in addition to washing dishes or doing
laundry she is also able to do light dusting, prepare
microwavable meals, mop the bathroom, pay her bills through
her online checking account, and could occasionally
"pick up a few things" shopping. Tr. 72-73.
Plaintiff testified that she was unable to take out the
trash, do yard work or gardening, and that her roommate did
those tasks in addition to doing most of the shopping.
Id. Plaintiff stated that she did not go to church
or belong to any clubs or organizations, she did not visit
with friends or family, did not go to movies or restaurants,
did not do any outside activities, did not go to sporting
events or concerts, and did not go for walks. Tr. 73.
Plaintiff stated she used a computer to pay bills and
although she had a Facebook account she did not use it. Tr.
73-74. Plaintiff stated her two oldest children lived in New
York and her youngest child lived in South Carolina. Tr. 74.
Plaintiff stated she used to ride horses but could no longer
do that, and she does not have any pets or animals.
response to questions from her attorney Plaintiff testified
that in April 2012 she had a radiofrequency ablation on her
back but that the procedure did not help reduce her symptoms.
Tr. 74. Plaintiff stated that she also went through a full
treatment of acupuncture but it did not help. Tr. 75.
Plaintiff stated that the progression of the problems with
her back "became significantly worse than what it was.
Now it's basically intolerable... without the massive
amount of pain medication" that she takes. Id.
Plaintiff testified that her entire nursing career was in
labor and delivery along with periodic work in nursing homes.
noted that the records mentioned a voucher for education and
asked Plaintiff if she ever tried to return to school. Tr.
76. Plaintiff testified that she had not because she could
not write or type for any prolonged period of time and her
memory was "terrible." Id. She felt that
trying to go to school "would be a waste of money,
really." Tr. 77.
Cheryl R. Chandler also testified at the hearing. Tr. 78,
261-62. She characterized Plaintiff's past work in
nursing under the Dictionary of Occupational Titles
("DOT") number 075.364-010 with an SVP of 7,
skilled work, and medium exertional level but medium-to-heavy
as performed. Tr. 78. VE Chandler stated the DOT did not have
a specific designation for the specialty of labor and
delivery nurse, nor was there a specific designation for
travel nurse. Id. The ALJ posed the following
Assume a hypothetical individual with the claimant's age
and education with the past job you identified. Further
assume this individual is limited to occasional lifting and
carrying up to 20 pounds and frequently up to 10; stand
and/or walk up to six hours and sit for six to eight hours in
an eight hour workday with normal breaks; frequently
balancing; occasional stooping, kneeling, crouching,
crawling, and climbing; occasional overhead reaching; and