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Worthy v. Colvin

United States District Court, D. South Carolina

May 6, 2016

Tracy Worthy, 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 August 10, 2011, Plaintiff protectively filed an application for DIB in which she alleged her disability began on March 18, 2010. Tr. at 149-52. Her application was denied initially and upon reconsideration. Tr. at 136-39, 141-42. On September 23, 2013, Plaintiff had a hearing before Administrative Law Judge ("ALJ") John S. Lamb. Tr. at 32-74 (Hr'g Tr.). The ALJ issued an unfavorable decision on March 14, 2014, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 11-31. 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 September 4, 2015. [ECF No. 1].

         B. Plaintiff's Background and Medical History

         1. Background

         Plaintiff was 46 years old on her date last insured ("DLI") for DIB.[1] Tr. at 39. She completed the eleventh grade and obtained a certificate in cosmetology. Id. Her past relevant work ("PRW") was as a cosmetologist, a veterinary assistant, a filter assembler, and a deli worker. Tr. at 62. She alleges she has been unable to work since March 18, 2010.[2] Tr. at 35.

         2. Medical History

         A spirometry report dated December 9, 2009, indicated Plaintiff had severe pulmonary obstruction. Tr. at 244. A chest x-ray revealed no significant abnormality, but noted degenerative spurs in Plaintiff's lumbar spine. Tr. at 245.

         On January 4, 2010, Plaintiff presented to neurologist John Absher, M.D. ("Dr. Absher"), for nerve conduction studies ("NCS"). She complained pain in her bilateral lower extremities that had been ongoing for over a year and that increased after walking and during the night. Tr. at 241. She also endorsed occasional numbness and tingling in her bilateral feet, frequent cramps in her calf muscles, and low back pain with radiating symptoms into her bilateral lower extremities. Id. Dr. Absher reported the NCS were normal. Tr. at 242.

         Plaintiff presented to Michael Zeager, M.D. ("Dr. Zeager"), on January 8, 2010, and reported a marked increase in bilateral lower extremity pain. Tr. at 233. She stated her chronic bronchitis had improved. Id. Dr. Zeager observed Plaintiff to have tender lumbar spinous processes; tenderness to palpation in her hamstrings, quadriceps, and calves; and decreased Achilles reflexes bilaterally. Id. He assessed sciatica and worsening myalgia/myositis. Id. He prescribed 200 milligrams of Lyrica and 50 milligrams of Savella, each to be taken twice a day. Tr. at 233-34.

         On January 11, 2010, Dr. Zeager wrote that he had treated Plaintiff for fibromyalgia and depression and described Plaintiff's treatment history and limitations. Tr. at 232.

         On January 15, 2010, Plaintiff reported to Dr. Zeager that she had started experiencing syncopal episodes one month earlier and had three episodes over the last week. Tr. at 231. She described weakness and feeling "weird" before losing consciousness. Id. She indicated the episodes had occurred while she was standing, walking, and sitting and had lasted for as long as 10 minutes. Id. Dr. Zeager prescribed a Holter monitor and decreased Plaintiff's dosage of Savella from 100 milligrams to 50 milligrams. Id. The Holter monitor showed sinus tachycardia. Tr. at 236.

         Plaintiff presented to Dr. Absher on February 3, 2010, for electromyography ("EMG"). Tr. at 229. She complained of pain in her bilateral legs and indicated she had difficulty sleeping because she could not keep her legs still at night. Id. Dr. Absher indicated the EMG of Plaintiff's right leg was normal and that she may benefit from treatment for restless leg syndrome. Id.

         Plaintiff followed up with Dr. Zeager on February 8, 2010, to discuss recent test results. Tr. at 227. Dr. Zeager indicated that Plaintiff's depression was unchanged and that she experienced anxiety, but noted she was presently off all medications. Id. He stated Plaintiff's recent EMG and NCS were normal. Id. He noted that a neurologist prescribed Mirapex for Plaintiff's complaint of sciatica, but that she discontinued the medication because it caused nausea and vomiting. Id. Dr. Zeager observed Plaintiff to have trapezius tenderness and decreased Achilles reflexes bilaterally, but noted no other abnormalities on examination. Id. He prescribed Alprazolam for her depression and Savella, Lyrica, and Nortriptyline for myalgia/myositis. Tr. at 227-28.

         On March 31, 2010, Plaintiff indicated to Dr. Zeager that she did well with her current medication regimen for myalgia/myositis, but that she required an average of six to eight Lortab daily to control her pain. Tr. at 225. Dr. Zeager observed Plaintiff to have tenderness in her trapezius and lumbar muscles. Id. He discontinued Plaintiff's prescription for Lortab and prescribed Hydrocodone-Acetaminophen ("Norco") 10-325 milligrams. Id. He dispensed 180 pills and instructed Plaintiff to take one to two tablets every four to six hours. Id.

         Plaintiff reported stable back pain on May 18, 2010. Tr. at 223. She complained of chronic fatigue, cramping in the soles of her feet, and ongoing numbness, tingling, and cramping in her legs. Id. She indicated her leg and foot pain was unimproved with Nortriptyline. Id. Dr. Zeager observed Plaintiff to demonstrate tenderness in her trapezius muscles, but to have normal range of motion ("ROM"), stability, tone, sensation, and strength. Id. He diagnosed vitamin D deficiency and prescribed 25 milligrams of Nortriptyline for limb pain. Id.

         On June 10, 2010, Plaintiff reported to Dr. Zeager that she had recently fainted after experiencing a coughing spell. Tr. at 219. Dr. Zeager noted that an electrocardiogram ("EKG") was normal. Tr. at 220. He prescribed medication for Plaintiff's cough and nasal congestion. Id.

         On September 30, 2010, Plaintiff presented to Dr. Zeager with a cough and other upper respiratory symptoms that began three days earlier. Tr. at 216. Dr. Zeager diagnosed sinusitis and bronchitis, prescribed medications, and instructed Plaintiff to follow up in two weeks if her symptoms persisted. Tr. at 216-17. Plaintiff followed up with Dr. Zeager for medication refills on October 15, 2010. Tr. at 214. Dr. Zeager diagnosed sinusitis and bronchitis and administered a flu vaccine. Id.

         On January 14, 2011, Plaintiff reported to Dr. Zeager that she had recently experienced an episode of syncope, after returning from a grocery shopping trip and attempting to walk around her car. Tr. at 211. She indicated she had also experienced a brief period of syncope after coughing for an extended period. Id. She reported being disoriented for a few minutes after each episode. Id. Plaintiff complained of gradually worsening diffuse myalgia-related pain. Id. Dr. Zeager observed her to have some trapezius tenderness, but noted no other abnormalities. Id. He prescribed 50 milligrams of Savella and refilled Plaintiff's prescriptions for Hydrocodone-Acetaminophen 10-325 milligrams and Lyrica 200 milligrams. Id. He noted Plaintiff's EKG was normal and indicated that he suspected Plaintiff's syncope was related to vasodepressor and postmicturition etiologies. Tr. at 212.

         Plaintiff presented to Dr. Zeager for medication refills on February 1, 2011. Tr. at 209. She reported numbness and tingling in her hands and feet and stated she had been dropping items since her last visit. Id. She complained of left lateral thigh pain and a sensation that her left lower extremity was "giving way." Id. Plaintiff endorsed anhedonia, anxiety, increased pain, and sleep disturbance. Id. Dr. Zeager observed trochanteric bursa tenderness in Plaintiff's left lower extremity, but noted no other abnormalities on examination. Id. He injected Plaintiff's left trochanteric bursa with a combination of Marcaine and Kenalog. Id. He reported Tinel's and Phalen's tests were negative in Plaintiff's bilateral wrists. Id. He described Plaintiff as having a mildly depressed affect and noted that her depression and myalgia/myositis had worsened. Id. He prescribed Savella for myalgia/myositis. Tr. at 210.

         On March 15, 2011, Plaintiff reported that her left hip pain had resolved after she received the injection at her last visit. Tr. at 207. She continued to report pain in her legs and numbness and occasional throbbing in her hands. Id. She indicated that over the past three weeks, she had experienced cycles in which she was unable to sleep for two to three days and then crashed for a day-and-a-half. Id. Dr. Zeager observed Plaintiff to have increased tone and tenderness in her bilateral trapezius muscles. Id. He prescribed Savella for myalgia/myositis, Nortriptyline and Citalopram for limb pain, and Zolpidem Tartrate for insomnia. Tr. at 208.

         On March 30, 2011, Plaintiff complained of increased hip pain that was related to cool and wet weather over the past two months. Tr. at 205. She reported that her insomnia had improved with the addition of Nortriptyline, but that she continued to experience numbness and tingling in her extremities. Id. Dr. Zeager observed Plaintiff to have trochanteric bursa tenderness, but to have full ROM and normal stability in her hip. Id. He injected Plaintiff's hip with a combination of Marcaine and Kenalog. Id. He indicated Plaintiff's myalgia/myositis was improved and discontinued her prescription for Citalopram. Tr. at 205-06. He prescribed Pennsaid Transdermal Solution for bursitis and increased Plaintiff's dosage of Nortriptyline from 25 milligrams to 50 milligrams for insomnia. Tr. at 205-06.

         Plaintiff reported numbness in her hands and feet, headaches, and swelling on April 26, 2011. Tr. at 203. She described a sudden onset of headache and dizziness after dinner on April 24. Id. She indicated that she had improved with Savella, but continued to experience severe disabling pain diffusely over her back and in all four extremities. Id. Dr. Zeager noted that Plaintiff's current symptoms were likely the result of serotonergic syndrome that was related to Nortriptyline and worsening depression. Id. He assessed depressive disorder and referred Plaintiff for psychiatric treatment. Id. He discontinued Nortriptyline and prescribed Savella for paresthesias. Tr. at 203-04.

         Plaintiff presented to psychiatrist Jeffrey Smith, M.D. ("Dr. Smith"), on May 4, 2011. Tr. at 258. She indicated that she had a history of depression and had been hospitalized at age 14, after being molested by her father and brother. Id. She reported symptoms that included depressed mood; decreased energy, motivation, and interest; difficulty concentrating; feelings of sadness and hopelessness; frequent crying spells; sleep loss/hypersomnolence; loss of libido; appetite changes with weight gain; social withdrawal; and inactivity. Id. Plaintiff indicated she was anxious, jittery, constantly worried, on edge, unable to relax, and overwhelmed. Id. She endorsed a history of panic attacks, but denied any recent attacks. Id. She stated she was easily angered, irritable, impulsive, and had racing thoughts. Id. Dr. Smith observed that Plaintiff's affect was "a bit flat" and that her mood was "a bit depressed and anhedonic." Tr. at 259. He described Plaintiff as pleasant during the interview and noted that she was not agitated; did not exhibit mania or psychosis; did not endorse suicidal or homicidal ideations; had no gross cognitive deficits; had normal concentration and focus; had average insight and judgment; demonstrated normal gait, dress, hygiene, and speech; had local thought processes; and was goal-oriented toward treatment. Id. He assessed type II bipolar disorder and fibromyalgia. Id. He discontinued Celexa and Nortriptyline and prescribed Seroquel for mood and sleep. Id.

         On May 26, 2011, Plaintiff presented to Joseph Friddle, P.A. ("Mr. Friddle"), who was supervised by Dr. Smith. Tr. at 261. She reported that her sleep had improved and that she had noticed mild improvement in her mood and irritability. Id. She continued to endorse chronic pain and stated she was concerned about her lack of energy and weight gain. Id. Mr. Friddle noted that Plaintiff's affect was brighter and that her mood was more euthymic, but that she still appeared "a bit fatigued." Id. He increased Seroquel to 200 milligrams, prescribed Phentermine for energy and weight loss, and instructed Plaintiff to continue her other medications. Id.

         Plaintiff reported to Rhett McCraw, M.D. ("Dr. McCraw"), on May 31, 2011, for possible sleep apnea. Tr. at 256. She indicated that she felt drowsy while watching television and often struggled to stay awake. Id. She indicated she had fallen asleep in church. Id. She stated she awoke frequently during the night and had difficulty falling asleep and going back to sleep after being awakened. Id. Dr. McCraw assessed obstructive sleep apnea and insomnia. Tr. at 257.

         On June 22, 2011, Dr. McCraw indicated that the sleep study revealed mild sleep apnea. Tr. at 254. He ordered an auto-titrating CPAP machine and recommended Plaintiff follow up in a few weeks to discuss her use of the CPAP machine. Id.

         On June 23, 2011, Plaintiff reported to Mr. Friddle that she had difficulty initiating sleep; was irritable and agitated; and experienced low energy and fatigue during the day. Tr. at 262. Mr. Friddle observed that Plaintiff appeared frustrated and fatigued and was more anhedonic. Id. He discontinued Phentermine and Savella, added Pristiq for depression, and continued Plaintiff's other medications. Id.

         On June 28, 2011, Plaintiff complained to Dr. Zeager that the pain in her lateral hips and legs had returned. Tr. at 201. She also reported some paresthesias in her hands, after switching from Savella to Pristiq. Id. Dr. Zeager noted that Plaintiff was moderately obese and had gained three pounds since her last visit. Id. He observed Plaintiff to have tenderness and increased tone in her trapezius muscles. Id. He also noted trochanteric bursa tenderness. Id. Plaintiff's examination was otherwise normal. Id. Dr. Zeager assessed hip bursitis and myalgia/myositis. Id. He discontinued Pennsaid Transdermal Solution, prescribed Meloxicam, and refilled Lyrica and Hydrocodone. Tr. at 201-02.

         On July 14, 2011, Plaintiff reported that her sleep had improved, after she started CPAP for sleep apnea and that her mood and energy had improved on Pristiq. Tr. at 263. Mr. Friddle noted that Plaintiff still appeared "a bit fatigued, " but had a brighter affect and a euthymic mood. Id. He continued Plaintiff's medications. Id.

         On August 4, 2011, Plaintiff reported to Dr. McCraw that she was sleeping better and feeling more energetic during the day. Tr. at 251. She indicated she was pleased with the improvement in her sleep and desired to continue using the CPAP machine. Id.

         Plaintiff reported being under more stress and experiencing interrupted sleep on August 25, 2011. Tr. at 264. She stated she was caring for her daughter and granddaughter because her daughter had experienced pregnancy-related complications. Id. Plaintiff endorsed increased joint and fibromyalgia-related pain since stopping Savella and requested that she be allowed to resume the medication. Id. Mr. Friddle noted that Plaintiff had a bright affect, a euthymic mood, was in good spirits, and was coping with stress well, but still appeared a bit fatigued. Id. He prescribed Savella and continued Plaintiff's other medications. Id.

         On August 25, 2011, Plaintiff indicated to Dr. Zeager that her chronic fatigue had not improved on her current medication regimen. Tr. at 300. She informed him that her blood pressure was 90/50 in the pulmonologist's office. Id. Dr. Zeager noted Plaintiff's insomnia and chronic bronchitis were improved and her myalgia/myositis was stable on her current regimen. Id. He indicated Plaintiff had gained eight pounds since her last visit. Id. He observed Plaintiff to have 2 tenderness over the trapezius and paraspinous muscles without appreciable spasm, but noted no other abnormalities on examination. Id.

         On September 8, 2011, state agency consultant Seham El-Ibiary ("Dr. El-Ibiary"), reviewed the record and assessed Plaintiff's physical impairments as nonsevere. Tr. at 122-23. Dale Van Slooten, M.D. ("Dr. Van Slooten"), similarly assessed Plaintiff's physical impairments as nonsevere on October 31, 2011. Tr. at 131.

         On September 9, 2011, state agency medical consultant Xanthia Harkness, Ph. D. ("Dr. Harkness"), reviewed the record and completed a psychiatric review technique form ("PRTF"). Tr. at 123. Dr. Harkness considering Listing 12.04 for affective disorders, but found that there was insufficient evidence "to substantiate the presence of a disorder" or to rate Plaintiff's restrictions in activities of daily living ("ADLs"), social functioning, or concentration, persistence, or pace. Id. She stated "[t]he allegation of manic depression appears to be somewhat credible, " but noted she could not make a medical decision because "there is no function information at the DLI." Id. Martha Durham, Ph. D. ("Dr. Durham"), reached the same conclusion on October 31, 2011. Tr. at 132.

         Plaintiff reported increased frequency of lightheadedness with changes of position, brief palpitations, shortness of breath, fatigue, and poor exercise tolerance on September 15, 2011. Tr. at 297. Dr. Zeager referred Plaintiff for lab work. Id.

         On November 14, 2011, Plaintiff complained of being frustrated by her inability to do things she used to do. Tr. at 278. She reported increased stress and interrupted sleep. Id. Mr. Friddle described Plaintiff as having a bright affect and euthymic mood. Id. However, he increased Pristiq to 100 milligrams for depression. Id.

         On November 21, 2011, Plaintiff complained of acute lumbar pain. Tr. at 294. She indicated the pain was worse with deep breaths and trunk ROM. Id. Plaintiff's gait was slow, cautious, and stiff. Id. Michael S. Atkinson, M.D. ("Dr. Atkinson"), observed Plaintiff to be tender to palpation over the left upper to midlumbar lumbosacral paraspinous muscles. Tr. at 293. He indicated Plaintiff experienced discomfort on general trunk ROM testing, but had normal strength and tone. Id. Dr. Atkinson diagnosed a sprain/strain and prescribed Tizanidine HCl. Id.

         Plaintiff reported being under more stress on December 12, 2011. Tr. at 277. She endorsed interrupted sleep and stated she was caring for her daughter and granddaughter. Id. Mr. Friddle described Plaintiff's mood as "fairly stable and euthymic." Id. Plaintiff reported being less emotional and having slightly more energy since her dosage of Pristiq was increased. Id.

         Dr. Zeager described Plaintiff's bipolar affective disorder, myalgia/myositis, and palpitations as well-controlled on May 7, 2012. Tr. at 292. However, he noted Plaintiff continued to have some hand tremors that were not completely controlled on the medication. Id. He described Plaintiff's gait as slow, cautious, and stiff. Id. Dr. Zeager observed no abnormalities on examination and described Plaintiff's mood and affect as normal. Id.

         On June 16, 2012, Plaintiff reported worsened mood as a result of family stressors. Tr. at 276. She indicated she was taking 200 milligrams of Seroquel XR instead of 300 milligrams and was unable to take Xanax because of its sedative effect. Id. She stated she was more irritable, agitated, and obsessive. Id. Mr. Friddle discontinued Xanax and prescribed Ativan. Id.

         Plaintiff complained to Dr. Zeager of blood pressure problems on July 2, 2012. Tr. at 291. She indicated she was experiencing dizzy spells and numbness in her hands and feet. Id. She stated she had difficulty breathing outdoors and had noticed lightheadedness when changing positions. Id. Dr. Zeager observed that Plaintiff ambulated with a slow, cautious, and stiff gait. Id. He described her mood and affect as normal. Id.

         Plaintiff complained of sweats, swelling, chest pain, low blood pressure, and fainting spells on July 16, 2012. Tr. at 290. Dr. Zeager described Plaintiff's gait as slow, cautious, and stiff. Id. He assessed orthostatic hypotension and referred Plaintiff to a cardiologist. Id.

         On July 20, 2012, an echocardiograph ("echo") showed moderate aortic regurgitation, but no other abnormalities. Tr. at 268. On July 24, 2012, stress myocardial perfusion imaging was normal. Tr. at 269. Plaintiff underwent a carotid ultrasound on July 26, 2012, after reporting dizziness. Tr. at 266. The ultrasound revealed normal antegrade flow in the bilateral vertebral arteries, luminal plaque with no significant disease in the bilateral ...


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