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Lilly-Posey v. Colvin

United States District Court, D. South Carolina, Florence Division

January 29, 2016

CAROLYN W. COLVIN, Commissioner of Social Security; Defendant.


THOMAS E. ROGERS, III, Magistrate Judge.

This is an action brought pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. Section 405(g), to obtain judicial review of a "final decision" of the Commissioner of Social Security, denying Plaintiff's claim for disability insurance benefits (DIB) and social security income (SSI). The only issues before the Court are whether the findings of fact are supported by substantial evidence and whether proper legal standards have been applied.


A. Procedural History

Plaintiff filed an application for DIB and SSI on April 26, 2011, and July 12, 2011, respectively, alleging inability to work since September 17, 2008, on both applications. Her claims were denied initially and upon reconsideration. Thereafter, Plaintiff filed a request for a hearing. A hearing was held on July 25, 2013, at which time the Plaintiff and a vocational expert (VE) testified. The Administrative Law Judge (ALJ) issued an unfavorable decision on August 23, 2013, finding that Plaintiff was not disabled within the meaning of the Act. (Tr.17-38). Plaintiff filed a request for review of the ALJ's decision, which the Appeals Council denied on October 20, 2014, making the ALJ's decision the Commissioner's final decision. (Tr. 5-10). Plaintiff filed this action on December 18, 2014.

B. Plaintiff's Background and Medical History

1. Introductory Facts

Plaintiff was born on October 30, 1959, and was 48 years old at the time of the alleged onset. (Tr. 131). Plaintiff completed her education through two years of college and has past relevant work experience as a sales manager, a final operations operator, an assistant manager of Big Lots and owner of a family daycare. (Tr. 254). Plaintiff alleges disability due to multilevel neural foraminal stenosis, facet arthropathy, disc protrusion, neck pain, back pain, carpal tunnel syndrome, right upper extremity pain and weakness, fibromyalgia, headaches, diabetes, obstructive sleep apnea, obesity, depression, anxiety, and somatization disorder. (Tr. 339-42).

2. Medical Records and Opinions

Although the ALJ found that Plaintiff suffers from several severe and non-severe impairments, only the medical records relevant to this recommendation are set forth below.

a. Mental Impairments

On November 19, 2008, Plaintiff began care with Marc Brickman, D.O., F.A.C.P. (Tr. 535). On April 24, 2009, she reported "alot of stress, regarding work."[1] (Tr. 547). On April 8, 2010, she reported that she was sad because her grandson passed away, but she was "staying very active and thinking about going back to school." (Tr. 557). On May 21, 2010, Plaintiff reported confusion from her Cymbalta, but Dr. Brickman stated that Plaintiff drove herself to the appointment and acted appropriately. (Tr. 563). His exam revealed normal cognition, albeit with some slowness, but she was nevertheless answering questions "ok." (Tr. 563).

On July 8, 2010, Plaintiff reported that her Klonopin helped her anxiety, but she was very upset and "thinking about going on disability." (Tr. 569). Dr. Brickman's exam on that date showed that Plaintiff was depressed, but her cognition remained normal. (Tr. 569). On November 8, 2010, and December 14, 2010, Plaintiff reported what she believed to be recent anxiety attacks, but her cognition at the exam was normal. (Tr. 572, 575).

In 2011, Plaintiff began care with John H. DeWitt, M.D. On March 8, 2011, Plaintiff reported that she experienced "spells, " in which she allegedly became non-communicative and less alert. (Tr. 621). Dr. DeWitt's exam revealed that Plaintiff was well-oriented, very talkative, and she gave "exquisite detail about her medical history." (Tr. 622). Dr. DeWitt stated that Plaintiff's insight and judgment were limited, but she did not have paranoid ideations and was not psychotic, confused, demented, or suicidal. (Tr. 623). Dr. DeWitt diagnosed Plaintiff with somatization disorder, rule out depression, rule out generalized anxiety disorder, and mixed personality disorder. Her GAF score was 40. She was told to continue on Klonopin and Cymbalta. (Tr. 621-623).

On March 30, 2011, Plaintiff was not doing very well. She was agitated and short of breath. She was prescribed Seroquel (Tr. 620). On April 18, 2011, Plaintiff still had significant pain and sleep problems (Tr. 619).

On May 17, 2011, Dr. DeWitt's exam demonstrated that Plaintiff was distracted with fragmented thoughts, impaired memory, and inadequate comprehension. (Tr. 618). She did very poorly on serial 7 subtractions and could only recall 2 of 5 numbers forwards, and 1 of 5 backwards. She seemed to be very slowed mentally and her comprehension was not adequate. (Tr. 618).

On June 15, 2011, Dr. DeWitt stated that Plaintiff was "talkative today, articulate, and did not appear to be confused." (Tr. 617). Her medications were keeping her "relatively stable, " and although she was anxious, she was not suicidal, hopeless, or negative (Tr. 617). She was not hopeless or negative, but was very anxious and concerned about her physical symptoms. (Tr. 617).

On July 8, 2011, Plaintiff was "anxious, upset, worried, and depressed, " but she was not acutely suicidal. (Tr. 616). She "continue[d] to have tremendous difficulty with multiple physical symptoms to include pain and other disabilities." Dr. DeWitt added a new medication, Vibryd, to her other medications of Cymbalta and Klonopin (Tr. 616).

On August 2, 2011, Dr. DeWitt stated that Plaintiff was "slightly better" than at her previous appointment. (Tr. 744). She was still "very impaired, " but had more energy and her thoughts were better organized. (Tr. 744). Dr. DeWitt indicated that Plaintiff had severe depression. Her thought process was slowed and distractible. Her thought content was obsessive. Her mood/affect was depressed. She had poor attention and concentration and poor memory. She had a very serious work-related limitation in function due to her mental condition. She was confused, forgetful, and not able to think clearly enough to make good decisions due to severe depression. (Tr. 624).

On October 4, 2011, Plaintiff was "somewhat more emotionally stable;" she was not "as labile or upset or anxious." (Tr. 746). On December 19, 2011, Dr. DeWitt stated that Plaintiff was not acutely in distress, hopeless, or suicidal, but she continued to be hyper-focused on her physical concerns and complaints. (Tr. 747). On February 7, 2012, Plaintiff had ongoing struggles with chronic pain and physical limitations, which caused ongoing depression. She had fleeting suicidal thoughts. (Tr. 748). Her medications were reportedly keeping her condition under control, albeit "barely." (Tr. 748). On March 29, 2012, she reported that she was "not doing well at all." (Tr. 749). She had low self-esteem, was depressed, and in pain. She was very somatically occupied. (Tr. 749). On May 8, 2012, she reported that she was "doing better" after a new medication, Deplin, was added. (Tr. 750). She was "less tearful, less depressing, coping better, and overall functioning well." (Tr. 750).

On June 20, 2012, Dr. DeWitt observed that Plaintiff had a problem with jumping from topic to topic and had some thought disorganization, but she seemed stable, was thinking rationally, and was not acutely agitated, upset, or tearful; she demonstrated a "fairly positive attitude." However, she reported that her pain was severe. (Tr. 953). Dr. DeWitt made no changes to her medication. (Tr. 953). On August 22, 2012, Plaintiff presented very upset because her step-brother passed away, but Dr. DeWitt found that Plaintiff was "doing relatively well" on her medications and was not in need of inpatient psychiatric treatment. (Tr. 954).

By April 12, 2013, she was doing better - "less emotional, less overwhelmed, dealing better with the pain." (Tr. 955). Dr. DeWitt's exam revealed that Plaintiff was "moderately depressed, " but her speech was fluent with appropriate syntax and content; thought process was organized with no loosening of associations or psychosis; judgment/insight were better; memory was unimpaired; concentration was good; and fund of knowledge was excellent. (Tr. 955).

On April 25, 2013, Plaintiff reported that her brother was recently killed. (Tr. 956). Dr. DeWitt noted "Speech is slowed. She is overwhelmed. Thought process is disjointed. She is not psychotic. Judgment and insight are impaired." (Tr. 955-56). On May 23, 2013, Plaintiff was still mourning the death of her brother and continued to be very focused on her medical problems. She was upset and tearful. She was constantly anxious and depressed. She walked very slowly and her speech was slowed. Her concentration was slightly decreased and her judgment and insight were mildly impaired. She was not able to function because of severe chronic pain, physical disabilities, as well as significant depressive psychopathology. (Tr. 957).

On August 2, 2011, Dr. DeWitt completed a one-page questionnaire, indicating that Plaintiff had a slow and distractible thought process, obsessive thought content, depressed mood, poor concentration, and poor memory. (Tr. 624). He opined that Plaintiff would not be able to make good decisions and had very serious work-related functional limitations. (Tr. 624).

On December 14, 2011, Stephanie B. Boyd, Ph.D, of Harbison Psychological Services, LLC, conducted a mental status evaluation at the state disability agency's request. Plaintiff reported eight-out-of-ten depression, but denied suicidal thoughts and reported that she has never been admitted to a psychiatric hospital. (Tr. 697). Dr. Boyd observed that Plaintiff was "somewhat distractible and tangential, " but she was "responsive to redirection." (Tr. 698). The exam revealed that Plaintiff was fully oriented with "some difficulty with maintaining attention and concentration." Her GAF score was 50. (Tr. 698). Dr. Boyd concluded that Plaintiff "demonstrated cognitive interference with her attention and concentration span" and "has the ability to manage at least simple, repetitive tasks related to her concentration, attention, and intellectual level, but is likely to experience medical and psychiatric symptoms that may compromise her abilities." (Tr. 697-98).

On January 5, 2012, upon review of Plaintiff's records, Michael Neboschick, Ph.D., completed a Psychiatric Review Technique assessment. Dr. Neboschick concluded that Plaintiff had mild daily living activity restrictions; moderate social functioning difficulties; and moderate concentration, persistence, or pace difficulties. (Tr. 126). Dr. Neboschick found that Plaintiff would work best performing routine, repetitive tasks in uncrowded settings with limited interaction. (Tr. 126). Dr. Neboschick also conducted a RFC assessment and concluded that Plaintiff was moderately limited in the categories of concentration and persistence, social interaction, and adaptation. (Tr. 127-28).

On February 20, 2012, Lynn Rutland-Addy, LPC, of Southern Counseling Associates, wrote a one-page letter, indicating that she has treated Plaintiff since May 2011. She noted that Plaintiff has suffered from numerous medical conditions during the last three to four years that have decreased her ability to function appropriately which in turn have resulted in depressed mood, irritability, and lack of interest in socializations.... Symptoms of anxiety presented have been excessive worry over occupational and social environments, restlessness, and reported sleep disturbances." (Tr. 736). Rutland-Addy opined that Plaintiff "is mentally unable to perform tasks to her former abilities." (Tr. 736). On December 17, 2012, and July 9, 2013, Ms. Rutland-Addy submitted similar letters, stating that Plaintiff had depressed mood, loss of energy, flat affect, insomnia, feelings of worthlessness, and decreased ability to participate in pleasurable activities. She exhibited irritability and poor concentration. The psychological effects that had presented due to her medical condition greatly reduced her ability to function at an adequate level and exacerbated her distress levels remarkably. (Tr. 846, 924).

On July 3, 2012, Samuel Goots, M.D., completed Psychiatric Review Technique and RFC assessments. Like Dr. Neboschick, Dr. Goots concluded that Plaintiff had mild daily living activity restrictions; moderate social functioning difficulties; and moderate concentration, persistence, or pace difficulties. (Tr. 143-44). Dr. Goots concluded in his RFC assessment that Plaintiff was moderately limited in the categories of concentration and persistence, social interaction, and adaptation. (Tr. 147-48).

b. Back Impairments

On November 17, 2008, two months after her alleged disability onset date, Plaintiff reported to Women's Health Associates that she engaged in an "active lifestyle." (Tr. 489). For the next two and a half years, the records do not reflect treatment or complaints of back pain. On May 11, 2011, Plaintiff reported to Reddiah Babu Mummaneni, M.D., of Aiken Neurosciences, PC, that she was experiencing difficulty moving her right side, hand and leg tingling, and neck and lower back pain. (Tr. 517, 518, 519). Dr. Mummaneni's motor exam demonstrated 5/5 strength throughout, except very slightly reduced strength in her right flexor finger and her "[r]ight lower extremity demonstrates some give away weakness occasionally but in general[] she has normal strength in both lower extremities." (Tr. 517). Further, Dr. Mummaneni found that Plaintiff "was able to walk normally." (Tr. 517). Dr. Mummaneni ordered lumbar and cervical spine MRIs. (Tr. 517). Dr. Mummaneni strongly felt that she had somatoform disorder. (Tr. 517).

On June 24, 2011, Michelle Lyon, M.D., of Carolina Musculoskeletal Institute, PA, examined Plaintiff. Plaintiff demonstrated 5/5 strength throughout, normal tone, and an unremarkable gait. (Tr. 629). Dr. Lyon ordered no testing. (Tr. 628). Dr. Lyon suggested that Plaintiff discuss her psychogenic spells of right-sided weakness further with her psychologist. (Tr. 627-28).

On August 4, 2011, Edwin V. Martinez de Andino, M.D., a rheumatologist with Carolina Musculoskeletal, examined Plaintiff. Plaintiff complained of "generalized pain on the low back, intermittently radiating to the right lower extremity, " but Dr. Andino's exam showed no joint or muscle asymmetry, no atrophy, and 5/5 motor strength in all extremities. (Tr. 634-35). Plaintiff exhibited "significant guarding, " but demonstrated "full passive range of motion of all joints." (Tr. 635). The straight leg-raising test was normal; Plaintiff had normal range of motion of her hips, shoulders, and elbows; and her hands and feet were "completely normal." (Tr. 635). Dr. Martinez de Andino believed that her symptoms were mostly psychogenic, although she had obvious deconditioning. He did not feel she had fibromyalgia. (Tr. 634-636).

A lumbar-spine MRI conducted on August 10, 2011, was unremarkable with the exception of annular tears at L3-L4, mild disc desiccation from L2-3 to L3-4, and degenerative facet arthropathy at L5-S1. (Tr. 630-31). A cervical spine MRI on the same date was also unremarkable with the exception of neural foraminal stenosis and encroachment on the left lateral recess and neural foramen at C2-3. (Tr. 632-33).

On November 8, 2011, Thomas McCullough, M.D., of Aiken Internal Medicine Associates, P.A., conducted a musculoskeletal exam and found that Plaintiff demonstrated normal bulk and tone, as well as 5/5 strength in her upper and lower extremities. (Tr. 758). He diagnosed Plaintiff with six different conditions; a back impairment was not on the list, nor did he recommend any type of treatment for her alleged back condition. (Tr. 759). He wrote that he had genuine concerns for Plaintiff's mental state. He was not sure that she had a good grasp of what was actually going on with her health (Tr. 759).

On February 21, 2012, Plaintiff returned to see Dr. Lyon. Plaintiff stated that she had "no use of her right arm, " but Dr. Lyon observed that Plaintiff moves "the RUE [right upper extremity] naturally in conversation, and puts all her weight on her RUE to shift positions on the exam table." (Tr. 295). Dr. Lyon determined that Plaintiff had moderate right carpal tunnel syndrome, but no evidence of cervical radiculopathy or brachial plexopathy. (Tr. 295).

On May 9, 2012, Plaintiff complained to Dr. McCullough about her back pain. (Tr. 752). She was teary-eyed, clammy, nauseated, and had abdominal pain. She was walking with a cane. (Tr. 752). Dr. McCullough described the back pain as "nonspecific" and referred Plaintiff to other physicians for treatment (Tr. 752).

On May 15, 2012, Plaintiff saw Ty W. Carter, M.D., of Carolina Musculoskeletal, regarding her back pain, which she stated has "recently gotten worse." (Tr. 774). Dr. Carter found that Plaintiff had "a little bit of difficulty rising from a sitting to standing position, " decreased leg reflexes, and decreased right-leg strength, but good right-leg sensation. (Tr. 774). Dr. Carter scheduled Plaintiff for an epidural injection and nerve conduction test. (Tr. 774).

On May 29, 2012, Plaintiff saw Russell K. Daniel, M.D., of Carolina Musculoskeletal. Dr. Daniel stated that, despite Plaintiff's thorough work-up and complaints that her back issue has "inhibit[ed] her in almost every aspect of life, " "no one has found the exact cause for her weakness and pain." (Tr. 776). Dr. Daniel gave Plaintiff an injection at L3-4 (Tr. 775), but deferred further examination ...

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