United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
V. HODGES, Magistrate Judge.
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. Â§ 405(g) and Â§ 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.
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].
Plaintiff's Background and Medical History
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
November 4, 2011, Dr. Lopez requested that Plaintiff receive
bilateral cock-up wrist splints for carpal tunnel syndrome
("CTS"). Tr. at 479-80.
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.
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.
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.
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.
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.
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
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.
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.
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
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.
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") 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.
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 ...