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Culbertson v. Colvin

United States District Court, D. South Carolina

May 13, 2016

Veronica Culbertson, 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 November 9, 2011, Plaintiff filed an application for DIB in which she alleged her disability began on August 1, 2009.[1] 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].

         B. Plaintiff's Background and Medical History

         1. Background

         Plaintiff 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.

         2. Medical History

         Plaintiff 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, 315, 320-21.

         On 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. at 327.

         Plaintiff 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.

         Plaintiff 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.

         On 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.

         On 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.

         Plaintiff 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.

         On 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.

         Plaintiff 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.

         On 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.

         Plaintiff 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 medications. Id.

         On 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.

         On May 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.

         Plaintiff 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. at 240-41.

         On 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 243-44.

         Plaintiff 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.

         On 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.

         State 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.

         Plaintiff 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. Id.

         State 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.

         On June 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. Id.

         On 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.

         On 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. at 401.

         On 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 ROM. Id.

         Plaintiff 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.

         C. The Administrative Proceedings

         1. The Administrative Hearing

         a. Plaintiff's Testimony

         At the 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 ...


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