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Womble v. Colvin

United States District Court, D. South Carolina

April 25, 2016

Myra Michelle Womble, Plaintiff,
Carolyn W. Colvin, Acting 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 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 September 9, 2011, Plaintiff protectively filed an application for DIB in which she alleged her disability began on October 15, 2008. Tr. at 113, 191-99. Her application was denied initially and upon reconsideration. Tr. at 129-33, 139-41. On September 10, 2013, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Peggy McFadden-Elmore. Tr. at 29-68 (Hr'g Tr.). The ALJ issued an unfavorable decision on March 31, 2014, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 8-28. 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 1-5. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on July 31, 2015. [ECF No. 1].

         B. Plaintiff's Background and Medical History

         1. Background

         Plaintiff was 42 years old at the time of the hearing. Tr. at 36. She completed high school and obtained associate's degrees in health care and health care management. Tr. at 37-38. Her past relevant work ("PRW") was as a health care administrator, a ward clerk, an orderly, an insurance claims clerk, an insurance adjuster, and an authorization clerk. Tr. at 56-60. She alleges she has been unable to work since October 15, 2008. Tr. at 193.

         2. Medical History

         Aside from consultative examinations, Plaintiff received all of her medical treatment through the Veterans Administration ("VA") medical facilities during the relevant period. The record does not include medical evidence for the period prior to June 16, 2009. See Tr. at 303-409. However, it includes a rating decision from the VA that explains that Plaintiff's overall disability rating percentage was 100% effective November 6, 2007. Tr. at 522.

         Plaintiff presented to Carl H. Lopez, M.D. ("Dr. Lopez"), for a primary care visit on June 16, 2009. Tr. at 447. Plaintiff complained of increased glucose readings, arthralgia in her legs and feet, insomnia, and depression. Id. She also endorsed fatigue and blurred vision. Tr. at 449. Dr. Lopez observed no abnormalities on physical examination. Tr. at 451. He changed Plaintiff's insulin to Novolin 70/30 and increased her dosage. Id. He prescribed Trazodone for insomnia and depression. Id.

         Plaintiff attended a consultation with optometrist William J. McGill, O.D. ("Dr. McGill"), on July 15, 2009. Tr. at 359. Dr. McGill assessed mild diabetic retinopathy that was more significant on the right than on the left, blurred vision, dry eye syndrome, and ocular allergy. Tr. at 360-61.

         On July 15, 2009, Plaintiff reported to Sharee C. Smith, Pharm. D. ("Dr. Smith"), that she had recently been noncompliant with her insulin because she went out of town and forgot it. Tr. at 439. She indicated she exercised two or three times per week by walking or swimming. Tr. at 440. Dr. Smith indicated Plaintiff's hemoglobin A1c was above its goal at 11.8%. Tr. at 441. She counseled Plaintiff extensively on her diet and advised her to cut back on sugary juices, pasta, and rice. Id. She increased Plaintiff's Novolin dosage to 46 units in the morning and 48 units in the evening. Id.

         On July 29, 2009, Plaintiff reported to Dr. Smith that she was walking more frequently, improving her diet, and was generally compliant with her medications. Tr. at 431. Dr. Smith continued Plaintiff's dosages of Novolin and Atenolol and prescribed Lisinopril/Hydrochlorothiazide ("HCTZ") 20/12.5 milligrams. Tr. at 433.

         On August 19, 2009, Plaintiff reported to Dr. Smith that she had decreased her Novolin dosage to 40 units twice daily over the prior two-week period. Tr. at 427. She endorsed symptoms of hypoglycemia and indicated she felt jittery when she awoke in the morning. Id. She did not bring her glucose log, but indicated her readings were generally less than 120 and that her highest reading had been 178. Tr. at 428. Dr. Smith noted that Plaintiff's A1c had improved, but remained above its goal. Tr. at 429. She instructed Plaintiff to continue taking her insulin at the adjusted dosage. Id.

         On September 21, 2009, Plaintiff reported to Dr. Smith that her highest blood glucose reading was 91 and that she was compliant with diet, exercise, and medications. Tr. at 425. Dr. Smith indicated Plaintiff's hemoglobin A1c remained elevated, but that her blood glucose readings were below goal. Tr. at 426. She recommended Plaintiff continue her current medication regimen. Id. She noted Plaintiff's blood pressure was elevated and increased Lisinopril/HCTZ to 20/25 milligrams daily. Id. She instructed Plaintiff to maintain a blood pressure log. Id.

         On December 7, 2009, an x-ray of Plaintiff's lumbar spine showed mild sacroiliac joint degenerative changes, but no acute fracture or dislocation. Tr. at 304-05.

         On January 6, 2010, Plaintiff indicated to Dr. Lopez that she had been skipping doses of Novolin because the needles hurt her thighs. Tr. at 417. She complained of nocturia, arthralgias to her legs and feet, insomnia and sinus pressure and drainage. Id. She indicated Trazodone helped her insomnia, but caused daytime drowsiness. Id. Dr. Lopez ordered 31g equipped syringes and instructed Plaintiff to administer her insulin in her abdomen. Tr. at 421. He increased Plaintiff's dosage of Venalafaxine to address her complaints of arthralgia in her legs and feet, insomnia, and depression. Id. He indicated Plaintiff's hypertension was not at its goal and decreased her HCTZ dosage, but added Amlodipine. Id.

         Plaintiff admitted to poor diet, poor compliance, and multiple missed insulin doses during a pharmacy visit on January 13, 2010. Tr. at 414-15. Dr. Smith noted that Plaintiff had been going through a stressful time recently because she was dealing with family issues and attempting to obtain an advanced degree. Tr. at 415. She indicated Plaintiff had lost focus on controlling her sugars and maintaining compliance. Id.

         Plaintiff presented to Matthew Shlapack, M.D. ("Dr. Shlapack"), on January 20, 2010, for an endocrinology consultation. Tr. at 342. She indicated she had been more complaint with insulin therapy in the past when she administered her insulin through a pen. Id. Her blood glucose log showed values that ranged from 100 to 300. Id. Dr. Shlapack assessed uncontrolled diabetes and prescribed 80 units of Lantus insulin to be administered at bedtime with a Solostar pen and five units of Aspart to be administered three times a day through a Flexpen. Tr. at 344-45. He instructed Plaintiff to resume her statin therapy. Tr. at 345.

         Plaintiff followed up with Dr. Lopez on January 28, 2010. Tr. at 404. She expressed a desire to switch medications because her current medications for hypertension and hyperlipidemia did not react well with grapefruit juice. Id. She complained of dry skin and a tender knot below the right side of her jaw. Id. Plaintiff endorsed no other complaints, and Dr. Lopez observed no abnormalities on examination. Tr. at 405, 407. Dr. Lopez changed Plaintiff's statin medication from Zocor to Pravastatin and her hypertension medication from Amlodipine to Lisinopril so that she could continue to drink grapefruit juice. Tr. at 407. He prescribed Doxycycline for the small knot below her jaw and Synthroid for hypothyroidism. Id.

         Dr. Shlapack contacted Plaintiff on January 29, 2010, after he conferred with Dr. Lopez. Tr. at 403. He instructed Plaintiff to add an additional injection of 40 units of Lantus in the morning and to continue her other medications. Id.

         On February 9, 2010, Plaintiff presented to Claire Moise for nutritional education. Tr. at 338. She stated she had stopped taking insulin prior to her last doctor's visit because the needle caused her legs to become very painful and bruised, but had resumed use of insulin because her doctor prescribed an insulin pen with a smaller needle. Tr. at 339. She stated she engaged in exercise five days per week that included yoga, Wii Fit, and running. Id.

         Plaintiff followed up with Dr. Shlapack on February 24, 2010. Tr. at 400. Dr. Shlapack noted that Plaintiff's blood glucose log showed excellent control with values ranging from 110 to 150. Id. Plaintiff reported persistent fatigue, but denied other symptoms. Id. Dr. Shlapack observed that Plaintiff's hemoglobin A1c remained significantly elevated, but opined that the discrepancy between her hemoglobin A1c and her blood glucose readings reflected control over a period of only three weeks. Tr. at 402. He indicated Plaintiff should continue her current medications for diabetes and hypothyroidism. Id. He also noted Plaintiff had a vitamin D deficiency and should start taking 50, 000 units of Ergocalceferol per week for a period of 12 weeks. Id.

         On May 24, 2010, Plaintiff informed Dr. Shlapack that she had only been administering 40 units of Lantus instead of 80 units, as prescribed. Tr. at 391. She stated that her insulin "ooze[d] out" if she administered 80 units and that she experienced a rash and burning sensation at the injection site. Id. Dr. Shlapack informed Plaintiff of the option to change her insulin from Lantus to Levemir, but Plaintiff resisted the change because Levemir was not available in a pen. Tr. at 393. Dr. Shlapack instructed Plaintiff to change her Lantus dosage to 60 units twice a day and to use seven units of Aspart three times a day. Id.

         On September 27, 2010, Plaintiff reported to Dr. Shlapack that her fasting blood glucose ranged from 92 to 115 and that her daytime values ranged from 126 to 287, but averaged 160. Tr. at 381. Dr. Shlapack indicated Plaintiff's reported blood glucose levels were inconsistent with her hemoglobin A1c. Id. He questioned Plaintiff about the inconsistency, and she admitted she had been more compliant with her insulin regimen over the past two weeks. Id. He noted Plaintiff demonstrated decreased sensation to light touch on neurological testing. Tr. at 383. He described Plaintiff's diabetes as "[v]ery uncontrolled." Id. He noted Plaintiff changed her insulin regimen from the prescribed regimen and stated she should be taking 80 units of Lantus at night and 10 units of Novolog three times a day. Id.

         Plaintiff followed up with Dr. Shlapack on January 31, 2011. Tr. at 373. She reported morning blood glucose readings below 115 and daytime readings that ranged from 130 to 142. Id. She stated she was following her diet, but was not injecting the entire dose of insulin because of injection-site swelling. Id. Dr. Shlapack indicated Plaintiff's diabetes was "very uncontrolled" and noted that her self-reported blood glucose readings did not correlate with her hemoglobin A1c level. Tr. at 375. He prescribed 40 units of Lantus twice a day and 10 units of Novolog three times a day. Id.

         On November 4, 2011, Dr. Lopez requested that Plaintiff receive bilateral cock-up wrist splints for carpal tunnel syndrome ("CTS"). Tr. at 479-80.

         Plaintiff presented to Damon Daniels, M.D. ("Dr. Daniels"), for a consultative examination on November 23, 2011. Tr. at 457-60. She complained primarily of low back pain that worsened with changes in the weather and prolonged sitting. Tr. at 457. She described it as sharp and intermittent with associated numbness in both legs. Id. She endorsed a history of bilateral CTS and described tingling in her hands. Id. She reported abilities to walk continuously for 15 minutes, to stand for 15 minutes, to sit for 30 to 45 minutes, and to comfortably lift five to 10 pounds. Id. Dr. Daniels observed Plaintiff to move from the chair to the exam table with a slow gait; to be able to get on the table without assistance; to have no apparent deformities in her upper or lower extremities; to demonstrate increased pain with range of motion ("ROM") testing in her lower extremities and hips; to have equal and symmetric muscle bulk in her upper and lower extremities; to be able to tandem walk; to be unable to perform the heel-toe walk with her left lower extremity; to be able to squat 50%; to have normal ROM in her cervical spine, shoulders, elbows, wrists, knees, hips, and ankles; to flex her spine to 60 degrees, to extend her spine to 15 degrees, to laterally flex her lumbar spine to 15 degrees; to have a negative straight-leg raising test bilaterally; to demonstrate no joint deformity, swelling, or decreased ROM in her hands; to have 4/5 bilateral grip strength; to have intact fine and gross manipulation; to be alert and oriented; to demonstrate 5/5 strength in the proximal and distal muscle groups of her upper extremities; to have 4/5 strength in her hands; to have 4/5 strength in the proximal and distal muscle groups of her right lower extremity and 3/5 strength in the proximal and distal muscle groups of her left lower extremity; to have intact sensation to light touch and pinprick in her bilateral upper and lower extremities; and to have appropriate insight, somewhat flat mood, and grossly intact memory. Tr. at 458-59. He assessed chronic low back pain, CTS, and degenerative disc disease of the lumbar spine. Tr. at 459-60. Dr. Daniels stated the following: "The patient's most significant findings are _____ [sic] her back. She definitely had decreased range of motion on range of motion testing. Speech, language and memory were intact." Tr. at 460. An x-ray of Plaintiff's lumbar spine showed scoliosis convex toward the right; facet arthropathy, left greater than right at L3-4, L4-5, and L5-S1; and disc disease at L4-5 with marked loss of disc height. Tr. at 455.

         On November 30, 2011, Plaintiff's hemoglobin A1c was significantly elevated at 12.9%. Tr. at 486. She denied symptoms of depression. Tr. at 487. She reported her ability to exercise was limited by pain. Tr. at 488. She reported tingling in her feet, and uncontrolled hypertension and hyperlipidemia. Tr. at 491. Dr. Lopez indicated Plaintiff was not compliant with her prescribed dose of insulin. Id. He prescribed Gabapentin for diabetic neuropathy, increased Plaintiff's dosages of Lisinopril and Pravastatin, and instructed her to follow up with endocrinology. Tr. at 494.

         On December 2, 2011, state agency consultant Kimberly Brown, Ph. D. ("Dr. Brown"), reviewed the evidence and completed a psychiatric review technique form ("PRTF"). Tr. at 106-07. She considered Listing 12.04 for affective disorders and assessed Plaintiff to have no restriction of activities of daily living; no difficulties in maintaining social functioning; mild difficulties in maintaining concentration, persistence, or pace; and no episodes of decompensation. Id.

         State agency medical consultant S. Farkas, M.D. ("Dr. Farkas"), reviewed the record and completed a physical residual functional capacity ("RFC") assessment on December 8, 2011. Tr. at 108-10. He indicated Plaintiff was 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 eight-hour workday; occasionally stoop, kneel, crouch, and crawl; never climb ladders/ropes/scaffolds; and frequently handle and use hand controls to push/pull with the bilateral upper extremities. Id.

         Plaintiff contacted the VA Medical Center by telephone on December 13, 2011, to report that she was having problems with anxiety and was not sleeping. Tr. at 482. Dr. Lopez indicated he could not prescribe Plaintiff medications for sleep and anxiety without examining her. Tr. at 483. Plaintiff indicated her sleep and anxiety issues were an ongoing problem and that she did not understand why she needed to be seen when she was last seen two weeks earlier. Tr. at 484. Dr. Lopez ordered 50 milligrams of Trazodone and instructed Plaintiff to take one-half to one tablet at night for sleep. Id.

         Plaintiff presented to A. Nicholas DePace, Ph. D. ("Dr. DePace"), for an adult mental status examination on March 28, 2012. Tr. at 504-07. She indicated she had filed for disability benefits because of "severe struggles with depression as well as diabetes, back pain, irritable bowel syndrome ("IBS"), CTS, and migraines for several years." Tr. at 504. She indicated her symptoms of depression worsened in late 2011, after her father, mother-in-law, and sister-in-law died within a couple of months of each other. Id. She indicated that she had earned two associate's degrees, but could only recall that one was in the field of healthcare management. Id. She stated she only interacted with her husband, her son, and a few other people. Tr. at 505. She indicated she was unmotivated to drive or to perform household chores. Id. She endorsed problems with her memory and stated her husband had to remind her to engage in personal hygiene and to eat. Id. She reported constant crying episodes and poor appetite and sleep. Id. Dr. DePace observed Plaintiff's hair to be "somewhat disheveled" and noted that she was wearing pajama pants and bedroom slippers. Tr. at 506. Plaintiff was unable to provide her social security number, address, zip code, the season, or the correct day of the week. Id. Dr. DePace indicated Plaintiff's affect was constricted. Id. He noted that Plaintiff's thought processes were goal-directed and coherent and that her responses indicated she understood the questions that were being asked of her. Id. Plaintiff was unable to maintain eye contact. Id. She denied auditory and visual hallucinations. Id. She reported limited tolerance for frustration and was tearful during the evaluation. Id. Dr. DePace indicated that Plaintiff reported symptoms consistent with major depressive disorder, but that it was necessary to "[c]onsider exaggeration and/or malingering of emotional problems." Id. He stated personality disorder, not otherwise specified ("NOS"), should be considered, as well. Id. He noted that Plaintiff reported symptoms that included "lack of interest in previously enjoyable activities, sad mood, crying episodes, sleep and appetite problems, and problems with concentration." Id. However, he stated that "numerous behavioral observations" raised questions regarding the validity of the information Plaintiff reported. Tr. at 507. He specified that Plaintiff did not put forth appropriate effort based on her dramatic presentation and her inability to recall basic overlearned information that even those with severe depression are able to recall. Id. He suggested Plaintiff's symptoms would likely improve with medication and medical management. Id. He stated Plaintiff had the cognitive ability to perform all activities of daily living and indicated "[h]er assertion that she has no motivation or memory to perform higher-order activities of daily living should be viewed with some skepticism until additional data is available." Id. He indicated he believed Plaintiff was capable of performing three-step commands. Id.

         On April 3, 2012, state agency consultant Kevin King, Ph. D. ("Dr. King"), completed a PRTF. Tr. at 120-21. He considered Listing 12.04 for affective disorders and assessed mild restriction of activities of daily living; mild difficulties in maintaining social functioning; mild difficulties in maintaining concentration, persistence, or pace; and no episodes of decompensation that were of extended duration. Tr. at 120.

         Plaintiff presented to Ijeoma A. Kene-Ewulu, M.D. ("Dr. Kene-Ewulu"), for a primary care visit on April 10, 2012. Tr. at 713. She complained of pain throughout her trunk and back that interfered with her ability to perform her usual activities. Tr. at 714. She endorsed symptoms of grief and depression and stated she was unable to sleep, relax, or interact. Id. Dr. Kene-Ewulu observed Plaintiff to demonstrate a slow, stiff gait and to be tearful. Id. He noted general tenderness across Plaintiff's back, rib cage, flank, and upper arms. Id. He indicated Plaintiff's hemoglobin A1c was consistently over 12% and that she had proteinuria. Id. Plaintiff stated she was in so much pain that she had stopped administering insulin injections over the past two months. Id. Dr. Kene-Ewulu prescribed a selective serotonin reuptake inhibitor ("SSRI") for depression, a muscle relaxant for pain, and a diuretic for hypertension. Tr. at 714-15. He discontinued Pravastatin and prescribed Simvastatin for hyperlipidemia. Tr. at 715.

         State agency medical consultant Rebecca Meriwether, M.D. ("Dr. Meriwether"), completed a physical RFC assessment on April 11, 2012. Tr. at 122-24. She indicated Plaintiff was 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 eight-hour workday; occasionally climb ramps/stairs, balance, stoop, kneel, crouch, and crawl; never climb ladders/ropes/scaffolds; and frequently handle and finger with the bilateral upper extremities. Id.

         Dr. Kene-Ewulu contacted Plaintiff to follow up on her diabetes on April 16, 2012. Tr. at 711. Plaintiff stated she had only been able to administer insulin twice since her visit on April 10. Id. She indicated Metformin had exacerbated her IBS in the past. Id. Dr. Kene-Ewulu replaced Plaintiff's mealtime insulin with Glipizide and instructed her to avoid using Novolog and Glipizide at the same meal. Id.

         Plaintiff presented to Erin Johnson, Ph. D. ("Dr. Johnson"), for an initial mental health visit on April 23, 2012. Tr. at 705. She stated she was grieving the loss of several family members over the last year. Tr. at 706. She reported symptoms that included depressed mood, irritability, and a lack of energy and motivation. Id. Plaintiff indicated Trazodone was helpful for sleep, but denied significant mood change since starting Sertraline. Id. She stated she no longer exercised because of her pain. Tr. at 708. Dr. Johnson observed Plaintiff to be alert and oriented in all spheres; to maintain good eye contact; to speak at a normal rate and tone; to show a depressed mood and affect; to engage in appropriate behavior; to demonstrate logical, sequential, and goal-directed thought processes and content; to demonstrate no evidence of mania, paranoia, psychosis, or suicidal or homicidal thoughts; and to be neatly dressed and well groomed. Tr. at 709. She indicated Plaintiff "would very much benefit from depression treatment currently." Id. Dr. Johnson assessed a global assessment of functioning ("GAF")[1] score of 52. Tr. at 710. Plaintiff denied suicidal thoughts and endorsed no history of suicide attempts. Tr. at 703. She endorsed feelings of hopelessness as a result of migraine headaches, IBS, and fibromyalgia. Id. Dr. Johnson determined Plaintiff be at low risk for suicide. Tr. at 704.

         On April 30, 2012, Plaintiff presented to a behavioral health group therapy session led by Dr. Johnson and psychology intern Judith Legault ("Ms. Legault"). Dr. Johnson and Ms. Legault indicated Plaintiff's mood was depressed, but that she was somewhat receptive to the group discussion. Tr. at 702. Plaintiff returned to the behavioral health group on May 7, 2012. Tr. at 699. Dr. Johnson noted that Plaintiff became upset and tearful during the group session and that they spoke outside the group setting. Tr. at 700. Plaintiff informed Dr. Johnson that she had recently felt overwhelmed and indicated her medications made her feel drowsy and "out of it." Id. Dr. Johnson encouraged Plaintiff to ...

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