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.
November 9, 2011, Plaintiff filed an application for DIB in
which she alleged her disability began on August 1,
2009. Tr. at 114-20. Her application was
denied initially and upon reconsideration. Tr. at 102-05. On
November 19, 2013, Plaintiff had a hearing before
Administrative Law Judge ("ALJ") Alice Jordan. Tr.
at 28-43, 44-70 (Hr'g Tr.). The ALJ issued an unfavorable
decision on February 28, 2014, finding that Plaintiff was not
disabled within the meaning of the Act. Tr. at 9-27.
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 1-7. Thereafter, Plaintiff brought this action seeking
judicial review of the Commissioner's decision in a
complaint filed on September 4, 2015. [ECF No. 1].
Plaintiff's Background and Medical History
was 48 years old at the time of the hearing. Tr. at 31. She
completed high school. Tr. at 34. Her past relevant work
("PRW") was as a security guard, a receptionist,
and a cashier. Tr. at 61. She alleges she has been unable to
work since July 1, 2009. Tr. at 121.
presented to Michael T. Grier, M.D. ("Dr. Grier"),
on December 29, 2006, for a consultation regarding neck and
back pain. Tr. at 260-61. Dr. Grier indicated magnetic
resonance imaging ("MRI") performed on October 20,
2006, showed a paracentral disc bulge at C5-6 that was mildly
narrowing the right neural foramen, but not directly
impinging on the nerve root. Tr. at 261. It showed small
bulges at C4-5 that caused no neuroforaminal compromise and a
reversal of the normal lordosis and mild degenerative disc
space narrowing at C4-5 and C5-6. Id. Dr. Grier
stated Plaintiff had cervical and lumbar spondylosis without
radicular symptoms. Id. He prescribed Baclofen and a
Lidocaine patch and discussed a possible trial for a spinal
cord stimulator. Id. Dr. Grier subsequently
administered right cervical median branch nerve blocks,
trigger point injections to the right iliac posterior crest,
and cervical epidural steroid injections. Tr. at 308-09, 313,
November 13, 2007, Plaintiff reported headaches that woke her
from sleep every two to three nights. Tr. at 323. Dr. Grier
recommended changes to Plaintiff's medications.
Id. On December 11, 2007, Plaintiff reported
increased numbness in her bilateral upper extremities. Tr. at
325. After reviewing an updated MRI that showed no
significant changes from the October 2006 findings, Dr. Grier
indicated a neurosurgical reevaluation was unnecessary. Tr.
continued to report increased pain and numbness in her
bilateral upper extremities on March 7, 2008. Tr. at 328. Dr.
Grier indicated she was tearful at times and appeared
depressed. Id. He recommended a nerve conduction
study ("NCS") to look for electrical evidence of
nerve-root compromise. Id. On May 9, 2008, Dr. Grier
indicated he did not receive a report of Plaintiff's NCS,
but that she informed him that it showed carpal tunnel
syndrome ("CTS") on the right, but no evidence of
radiculopathy. Tr. at 330. From May 2008 through July 2009,
Dr. Grier reported Plaintiff was receiving reasonable pain
relief and was stable on her medications. Tr. at 330, 332,
333, 334, 335, 336.
presented to Dawne Hershberger, CFNP ("Ms.
Hershberger"), on September 4, 2009. Tr. at 215. Ms.
Hershberger noted tenderness in Plaintiff's head, neck,
and lumbar spinous processes. Tr. at 216. She stated
Plaintiff's movement was moderately restricted in all
directions. Id. Plaintiff indicated the injections
she had received at the pain clinic were not helpful and that
she could not afford to continue her pain management
treatment. Id. Ms. Hershberger refilled
Plaintiff's prescription for Lortab and instructed her to
return in three to four months. Id.
December 31, 2009, Plaintiff complained of increased joint,
neck, and back pain as a result of cooler temperatures. Tr.
at 218. Ms. Hershberger observed tenderness in
Plaintiff's head, neck, lumbar spinous processes,
bilateral wrists, and bilateral hands. Id.
April 28, 2010, Plaintiff reported increased stress and
anxiety as a result of being unemployed and living with her
husband's parents. Tr. at 220. She complained of numbness
in her hands. Tr. at 221. Ms. Hershberger indicated
Plaintiff's affect was sad and that she appeared anxious,
apprehensive, and depressed. Tr. at 220. She observed
tenderness in Plaintiff's cervical and lumbar spinous
processes. Id. She increased Plaintiff's
Amitriptyline dosage from 10 to 25 milligrams and continued
her prescriptions for Lortab, Robaxin, Tramadol, Neurontin,
and Clonazepam. Tr. at 221.
complained of increased neck pain on June 14, 2010. Tr. at
222. Ms. Hershberger observed Plaintiff to be sad, anxious,
apprehensive, tearful, and in moderate distress. Id.
She noted tenderness and reduced flexion and extension in
Plaintiff's cervical spinous processes. Id. She
indicated the pain was making Plaintiff's anxiety worse.
Id. She referred Plaintiff for a cervical x-ray that
showed mild spondylosis at C5-6 and loss of the normal
lordotic curve. Tr. at 223, 271.
August 16, 2010, Plaintiff reported joint pain, muscle
cramps, headaches, middle-of-the-night awakenings, and
increased stress. Tr. at 217. Ms. Hershberger indicated
Plaintiff's affect was sad; that she appeared anxious,
apprehensive, and depressed; and that she cried off-and-on
throughout the visit. Id. She observed Plaintiff to
have tenderness in her cervical and lumbar spinous processes.
Id. She indicated Plaintiff may benefit from an
anti-inflammatory medication, prescribed Vicoprofen, and
discontinued Lortab. Tr. at 225.
complained of joint pain, depressive symptoms, and increased
nervousness on December 13, 2010. Tr. at 228. Ms. Hershberger
described Plaintiff as having a sad and flat affect and
appearing anxious, apprehensive, apathetic, and depressed.
Tr. at 229. She indicated Plaintiff cried during the exam.
Id. She noted tenderness in Plaintiff's cervical
and lumbar spinous processes and bilateral upper and lower
paraspinal muscles. Tr. at 228. She discontinued
Plaintiff's prescription for Robaxin, prescribed Soma and
Nortriptyline, and continued Plaintiff's other
medications. Tr. at 229-30.
February 10, 2011, Plaintiff indicated her anxiety and pain
had increased as a result of having to assist her elderly
in-laws. Tr. at 231. She endorsed numbness in her upper
extremities and problems with excessive sitting and standing.
Id. She complained of difficulty performing
household chores that required she bend or lift. Id.
Ms. Hershberger observed Plaintiff to have tenderness in her
cervical and lumbar spinous processes and bilateral upper
paraspinal muscles. Tr. at 232. Plaintiff demonstrated
reduced flexion and extension. Id. Ms. Hershberger
indicated Plaintiff appeared anxious and apprehensive and was
tearful during the examination. Id.
reported worsening back pain on April 22, 2011, and indicated
she was unable to get out of bed on one recent morning. Tr.
at 234. Ms. Hershberger noted Plaintiff's affect was flat
and sad and that she was in mild mental distress.
Id. She observed Plaintiff to demonstrate a slow
gait and an irregular stride length and to have tenderness in
her cervical and lumbar spinous processes, sacroiliac joint,
and bilateral upper and lower paraspinal muscles.
Id. She indicated Plaintiff's peripheral
neuropathy was worsening and that her depression had
increased as a result of her pain. Tr. at 235. She prescribed
Lortab 10-500 milligrams and continued Plaintiff's other
April 27, 2011, an MRI of Plaintiff's lumbar spine
indicated degenerative disc space narrowing and disc
desiccation at L2-3 and a left paracentral disc bulge at
L3-4, but no significant neural foraminal compromise. Tr. at
391. An MRI of her cervical spine showed slightly increased
cervical spondylosis, posterior osteophyte formation, varying
degrees of central canal stenosis, and neural foraminal
impingement, but it indicated no large disc extrusion or
migration. Tr. at 393.
20, 2011, Plaintiff complained of deep neck pain and
pressured, grinding back pain. Tr. at 236. She indicated her
depression was worsened by family conflict and sleep
disturbance. Id. She stated Nortriptyline had not
improved her sleep or decreased her pain. Id. Ms.
Hershberger observed tenderness in Plaintiff's cervical
and lumbar spinous processes and noted she had difficulty
rising from a seated position. Id. Plaintiff
complained of increased pain in her hands. Id. Ms.
Hershberger indicated Plaintiff appeared anxious and
apprehensive. Tr. at 236-37. She discontinued Nortriptyline,
prescribed 600 milligrams of Neurontin, and instructed
Plaintiff to take one-half to one pill three times daily. Tr.
at 237. She also prescribed Ambien for sleep. Tr. at 238.
reported increased symptoms of gastroesophageal reflux
disease ("GERD") on September 12, 2011. Tr. at 239.
Ms. Hershberger described Plaintiff as walking with a slow
gait; having occipital groove tenderness and
moderately-restricted movement in her neck; demonstrating
tenderness in her cervical and lumbar spinous processes,
bilateral lower paraspinal muscles, and sacroiliac joint; and
showing reduced lateral motion bilaterally. Id. She
noted Plaintiff's affect was flat and that she appeared
to be apathetic. Id. Ms. Hershberger prescribed
Dexilant for GERD and 800 milligrams of Motrin for pain. Tr.
at 240. She continued Plaintiff's other medications. Tr.
December 12, 2011, Ms. Hershberger noted that Plaintiff
ambulated with a slow gait; was tender to palpation in her
head, neck, cervical spinous processes, thoracic spinous
processes, lumbar spinous processes, sacroiliac joint,
bilateral hands, and the dorsal areas of her feet;
demonstrated severely reduced head and neck flexion and
extension; and had moderately reduced lateral motion and
bilateral rotation. Tr. at 242-43. She described Plaintiff as
appearing apprehensive, anxious, and depressed. Tr. at 243.
Ms. Hershberger stated she would attempt to refer Plaintiff
to a pain management physician near her home because her pain
was not completely controlled by her medications.
Id. She prescribed 50 milligrams of Nortriptyline
and continued Plaintiff's other medications. Tr. at
presented to Bruce A. Kofoed, Ph. D. ("Dr.
Kofoed"), for a psychological evaluation on January 18,
2012. Tr. at 250-53. She indicated she had experienced
significant weight loss over the last couple of years without
planning to do so. Tr. at 250. Dr. Kofoed noted that she
appeared underweight. Id. Plaintiff reported a
history of childhood sexual molestation and endorsed symptoms
that included generalized anxiety and poor sleep.
Id. Dr. Kofoed indicated Plaintiff functioned within
the average range of intellectual ability; showed good social
interaction skills; and demonstrated fair to good recall for
verbal and nonverbal information. Tr. at 252. He diagnosed
depressive disorder, not otherwise specified
("NOS"), and anxiety, NOS. Id. He
indicated a need to rule out a diagnosis of post-traumatic
stress disorder ("PTSD") because of Plaintiff's
history of sexual abuse as a child and physical abuse during
her second marriage. Id. He stated Plaintiff was
capable of independently managing her funds. Id.
January 19, 2012, state agency consultant Craig Horn, Ph. D.
("Dr. Horn"), reviewed the evidence and completed a
psychiatric review technique form ("PRTF"). Tr. at
77-78. Dr. Horn considered Listings 12.04 for affective
disorders and 12.06 for anxiety-related disorders. Tr. at 77.
He determined Plaintiff had no restriction of activities of
daily living ("ADLs"); no difficulties in
maintaining social functioning; no difficulties in
maintaining concentration, persistence, or pace; and no
episodes of decompensation of extended duration. Id.
He considered Ms. Hershberger's opinion, Dr. Kofoed's
evaluation report, and Plaintiff's ADLs and determined
that Plaintiff's impairments did not significantly impact
her functions or activities and were nonsevere. Tr. at 78.
agency medical consultant Matthew Fox, M.D. ("Dr.
Fox"), also reviewed the record on January 19, 2012, and
assessed Plaintiff's physical residual functional
capacity ("RFC"). Tr. at 79-82. Dr. Fox indicated
Plaintiff could occasionally lift and/or carry 20 pounds;
could frequently lift and/or carry 10 pounds; could stand and
walk for about six hours in an eight-hour workday; could sit
for about six hours in an eight-hour workday; could
frequently climb ramps and stairs and balance; could
occasionally climb ladders, ropes, and scaffolds; could never
stoop; could frequently handle and finger; and should avoid
even moderate exposure to hazards. Id.
reported increased anxiety and recent panic attacks on
February 28, 2012. Tr. at 254. She endorsed joint pain,
muscle pain, sleep disturbance, increased stress, depressive
symptoms, and decreased energy. Id. She indicated
she had recently visited a pain clinic, but was unable to
pursue injections or physical therapy because her insurance
would not cover either course of treatment. Id. Ms.
Herberger observed tenderness in Plaintiff's head, neck,
lumbar spinous processes, cervical spinous processes,
sacroiliac joint, and the dorsal areas of her bilateral feet.
Tr. at 255. She noted Plaintiff appeared anxious,
apprehensive, apathetic, flat, and depressed. Id.
Ms. Hershberger prescribed Citalopram for anxiety.
agency medical consultant Robert H. Heilpern, M.D. ("Dr.
Heilpern"), reviewed the evidence and completed a
physical RFC assessment on June 8, 2012. Tr. at 94-96. He
found that Plaintiff could occasionally lift and/or carry 20
pounds; could frequently lift and/or carry 10 pounds; could
stand and/or walk for about six hours in an eight-hour
workday; could sit for a total of about six hours in an
eight-hour workday; could frequently climb ramps or stairs,
balance, kneel, crouch, and crawl; could occasionally stoop;
could never climb ladders, ropes, or scaffolds; and should
avoid unprotected heights and hazards. Id.
11, 2012, state agency consultant Robert Estock, M.D.
("Dr. Estock"), reviewed the record and completed a
PRTF. Tr. at 92-93. Dr. Estock considered Listings 12.04 and
12.06, but found that Plaintiff had no restriction of ADLs;
no difficulties in maintaining social functioning; no
difficulties in maintaining concentration, persistence, or
pace; and no repeated episodes of decompensation.
August 14, 2012, Ms. Hershberger indicated Plaintiff made no
complaint of pain. Tr. at 396. Plaintiff endorsed symptoms of
depression and anxiety, and Ms. Hershberger noted she was
crying during the visit. Tr. at 396, 397. Ms. Hershberger
observed Plaintiff to walk with a slow gait; to have chronic
inflammatory changes consistent with osteoarthritis; to have
tenderness in her head, neck, lumbar spinous processes,
thoracic spinous processes, cervical spinous processes,
hands, and right patella; and to have moderately restricted
range of motion ("ROM") in all directions. Tr. at
397. She discontinued Clonazepam and prescribed Ativan and
Citalopram. Tr. at 398.
December 12, 2012, Plaintiff complained of arthralgia, joint
and limb pain, anxiety, depression, and feeling tired. Tr. at
400. She indicated her symptoms were exacerbated by having to
care for her elderly in-laws. Tr. at 402. Ms. Hershberger
observed Plaintiff to have restricted musculoskeletal ROM and
tenderness in her lumbosacral spine and bilateral wrists. Tr.
January 25, 2013, Plaintiff complained to Ms. Hershberger of
a gradual onset of severe right anterior knee pain. Tr. at
403. Ms. Hershberger described Plaintiff as having a flat
affect and appearing anxious, depressed, and in pain. Tr. at
404. She observed Plaintiff to have tenderness and restricted
presented to physical therapist Robert Keene ("Mr.
Keene") for a functional capacity evaluation
("FCE") on June 18, 2013. Tr. at 437-42. Mr. Keene
indicated Plaintiff could meet the physical demand
characteristics for light work with a maximum ability to
occasionally lift 15 pounds, but that she was limited to
standing and walking for less than two hours in an eight-hour
day. Tr. at 437. He stated the subjective and objective data
showed Plaintiff to have demonstrated full and consistent
effort on testing. Id.
hearing on November 19, 2013, Plaintiff testified that she
lived with her husband and mother-in-law in her
mother-in-law's house. Tr. at 32-33. She testified that
her husband and mother-in-law paid the household bills and
expenses. Tr. at 33. She ...