United States District Court, D. South Carolina
Joseph M. Brown, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant.
V. Hodges United States Magistrate Judge
appeal from a denial of social security benefits is before
the court for a final order pursuant to 28 U.S.C. §
636(c), Local Civ. Rule 73.01(B) (D.S.C.), and the order of
the Honorable R. Bryan Harwell, United States District Judge,
dated February 5, 2016, referring this matter for
disposition. [ECF No. 8]. The parties consented to the
undersigned United States Magistrate Judge’s
disposition of this case, with any appeal directly to the
Fourth Circuit Court of Appeals. [ECF No. 7].
files this appeal pursuant to 42 U.S.C. § 405(g) of the
Social Security Act (“the Act”) to obtain
judicial review of the final decision of the Commissioner of
Social Security (“Commissioner”) denying the
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 court reverses
and remands the Commissioner’s decision for further
proceedings as set forth herein.
March 13, 2014, Plaintiff filed an application for DIB in
which he alleged his disability began on November 8, 2013.
Tr. at 147-48. His application was denied initially and upon
reconsideration. Tr. at 84-87 and 89-94. On December 3, 2014,
Plaintiff had a hearing before Administrative Law Judge
(“ALJ”) Edward T. Morriss. Tr. at 39-55
(Hr’g Tr.). The ALJ issued an unfavorable decision on
January 28, 2015, finding that Plaintiff was not disabled
within the meaning of the Act. Tr. at 26-38. 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 16, 2015. [ECF No. 1].
Plaintiff’s Background and Medical History
was 57 years old at the time of the hearing. Tr. at 42. He
completed high school and one year of college. Id.
His past relevant work (“PRW”) was a vascular
lead technician. Tr. at 197. He alleges he has been unable to
work since November 8, 2013. Tr. at 147.
presented to the emergency room (“ER”) at the
Milwaukee Veterans Affairs Medical Center
(“VAMC”) on June 8, 2013, with a complaint of
back pain. Tr. at 378. Two days later, he presented to nurse
practitioner Terrence A. Hess (“Mr. Hess”), and
reported that he had recently injured his head, low back, and
right elbow when he fell off a Stairmaster. Tr. at 326. He
stated he exacerbated his pain while assisting a patient. Tr.
at 326-27. Mr. Hess observed that Plaintiff ambulated without
an assistive device; had 5/5 bilateral lower extremity
strength; was able to flex his back; and had no point
tenderness or bulging over his lumbar spine. Tr. at 328.
Plaintiff expressed frustration that his primary care
physician had recently cut his Methadone dosage in half.
Id. Mr. Hess discussed with Plaintiff other ways to
treat chronic back pain and declined to increase his dosage
of Methadone. Id.
also presented to the ER on June 10, 2013. Tr. at 362-66.
Staff physician David Tennenbaum, M.D. (“Dr.
Tennenbaum”), indicated the following:
Patient has taken an increase in number of methadone and he
has used up his prescription in advance of the next available
prescription renewal. Patient has returned to the emergency
room repeatedly seeking pain medication and has attempted to
receive medication through his primary care clinic without
success. Patient also notes his persistent uncontrolled pain
which [impairs] his ability to function. Patient is
requesting an [interim] supplemental prescription until his
next prescription is available on June 16.
Tr. at 364. Dr. Tennenbaum issued a supplemental prescription
for Methadone until June 16. Tr. at 366.
20, 2013, Dennis J. Maiman, M.D., Ph. D. (“Dr.
Maiman”), wrote a letter to John T. Fish, III, M.D.
(“Dr. Fish”), in which he explained that he had
performed a lumbar fusion surgery on Plaintiff’s back
in 2005. Tr. at 273-74. He stated Plaintiff had done well for
several years, but began experiencing pain in his back and
leg again in 2011. Tr. at 273. He indicated Plaintiff
complained of difficulty walking long distances, standing for
long periods, and standing without bending. Id. He
stated Plaintiff indicated the pain radiated from his
buttocks through his right leg. Id. Dr. Maiman
indicated Plaintiff demonstrated diminished lumbar range of
motion (“ROM”), severe paravertebral tenderness,
and decreased ankle jerk. Id. He stated the last
magnetic resonance imaging (“MRI”) available for
review was performed two years earlier and showed some mild
stenosis above the fusion. Id. He stated he had
advised Plaintiff to maintain or resume normal activities and
to avoid bedrest. Id. He indicated he emphasized
stress management, postural correction, frequent
repositioning, and cardiovascular conditioning. Id.
He stated he would refer Plaintiff for a new MRI. Tr. at 274.
3, 2013, an MRI of Plaintiff’s lumbar spine showed mild
reversal of lumbar lordosis with mild grade I
spondylolisthesis at the L2-3 level; unchanged degenerative
disc disease and advanced facet degeneration at the L2-3
level with moderate stenosis of the spinal canal and mild
narrowing of the neural foramina, left greater than right;
stable modest degenerative changes elsewhere in the lumbar
spine with no significant narrowing of the canal or foramina;
and stable postsurgical changes at the L4-5 and L5-S1 levels.
Tr. at 276-77.
was referred to the ER at the Milwaukee VAMC on July 10,
2013, after an EKG in the vascular lab showed him to have a
heart rate in the 180s and he endorsed dizziness,
palpitations, and shortness of breath. Tr. at 351. He
admitted that he had been using his Methadone more frequently
than prescribed and stated he had been out of the medication
for a few days. Tr. at 353. He indicated he was unable to
refill his prescription until July 16 and requested that he
be given additional Methadone. Id. Harold Glenn
Lenett, M.D., assessed supraventricular tachycardia,
hypertension, and chronic low back pain with drug seeking
behavior. Tr. at 358.
Maiman wrote a second letter to Dr. Fish on July 25, 2013.
Tr. at 275. He explained that the MRI showed stenosis at L2-3
and L3-4 that resulted from a bulging disc and facet
arthropathy. Id. He indicated that he had discussed
with Plaintiff the possibility of additional surgery for
further decompression and stabilization and had told
Plaintiff that the surgery would require a two-day
hospitalization, six weeks in an orthosis, and a
rehabilitation program. Id. He stated he had
discussed the risks with Plaintiff and had informed him that
improvement was likely, but not guaranteed. Id. Dr.
Maiman indicated Plaintiff informed him that he would soon be
moving and that he had offered to refer Plaintiff to a
surgeon in Charleston. Id.
August 8, 2013, Plaintiff presented to the ER at Pro Health
Care with a complaint of back pain after sustaining a fall
while playing Frisbee. Tr. at 288. Elizabeth Hawkins, PA-C
(“Ms. Hawkins”), observed Plaintiff to have
midline tenderness down his lumbar spine and premature
tenderness in his right side. Tr. at 289. She noted that
Plaintiff walked with a slight limp on his right side.
Id. Ms. Hawkins prescribed Percocet and instructed
Plaintiff to follow up with his primary care physician or
neurosurgeon. Tr. at 290.
August 26, 2013, Daniel Haller, M.D. (“Dr.
Haller”), indicated Plaintiff’s Methadone dosage
was decreased from 40 milligrams twice a day to 10 milligrams
twice a day and that Plaintiff rarely had to take an
additional dose. Tr. at 346. He noted Plaintiff’s blood
pressure was elevated and prescribed
Lisinopril/Hydrochlorothiazide 20/12.5 milligrams twice a
day. Tr. at 346 and 347. He recommended Plaintiff continue to
attempt to lose weight. Tr. at 347.
presented to Katya Pontzloff, M.D. (“Dr.
Pontzloff”), at the Charleston VAMC for an initial
primary care visit on November 26, 2013. Tr. at 466-70. He
reported chronic daily low back pain that was associated with
activities that included riding a bike and bending to pick up
objects. Tr. at 467. He stated he could walk and climb
stairs, but was unable to run or jog. Id. He
indicated he took 15 milligrams of Methadone daily and used a
transcutaneous electrical nerve stimulation
(“TENS”) unit. Id. Dr. Pontzloff
observed that Plaintiff had decreased ROM of his lumbar spine
and tenderness in his paraspinal region, but had normal
strength, reflexes, gait, and balance. Tr. at 470.
walked in to the nurse clinic at the Charleston VAMC on
December 2, 2013. Tr. at 462-64. He indicated that he
typically took three to four Methadone five milligram tablets
twice a day, but was last prescribed five milligrams of
Methadone to be taken three times daily. Tr. at 463. He
complained of pain that he rated as a five on a 10-point
scale and described it as radiating down his lower extremity
and into his toes. Id. Dr. Pontzloff indicated
Plaintiff could take three of the five milligram tablets
twice a day. Tr. at 464.
Pontzloff contacted Plaintiff on December 3, 2013, to discuss
his test results. Tr. at 460. She indicated Plaintiff’s
hemoglobin A1c was elevated at 6.6 and his vitamin D level
was low at 17. Tr. at 460. Plaintiff indicated he had started
taking Oscal D for his vitamin D and was interested in the
MOVE weight management program. Id. Dr. Pontzloff
indicated she would reevaluate Plaintiff’s lab results
in six months to determine if additional medications were
December 27, 2013, Plaintiff contacted the Charleston VAMC to
request an early renewal of Methadone. Tr. at 456. He stated
he had fallen down the stairs backwards and was taking four
Methadone pills per day instead of three. Id. Dr.
Pontzloff authorized Plaintiff to receive an early refill of
Methadone. Tr. at 455.
contacted the Charleston VAMC on January 17, 2014, regarding
his Methadone dosage. Tr. at 450. He indicated he was not
receiving a dose equivalent to the amount he had been
prescribed at the Milwaukee VAMC. Id. He indicated
his doctor in Milwaukee had last prescribed 20 milligrams of
Methadone twice a day and that he had previously been
prescribed 40 milligrams of Methadone twice a day.
Id. He stated he had been prescribed 15 milligrams
twice a day in Charleston, but he had continued to take 20
milligrams twice a day and was almost out of Methadone. Tr.
at 450-51. He requested that he be allowed to pick up more
Methadone at his previous dosage. Tr. at 451.
contacted the Charleston VAMC on February 5, 2014, to request
that he be allowed to pick up his Methadone prescription on
February 13. Tr. at 449. Medical support assistant Vontella
Smith informed Plaintiff that the Methadone prescription was
for 28 days only and required a written renewal. Id.
Dr. Pontzloff subsequently authorized Plaintiff to receive an
early refill. Tr. at 450.
February 28, 2014, Plaintiff again contacted the Charleston
VAMC to request that his prescription for Methadone be
refilled early. Tr. at 447-48. He stated he was leaving town
on March 11 and requested that he be allowed to pick up his
prescription on March 10. Tr. at 448. Dr. Pontzloff returned
Plaintiff’s call on March 6, 2014. Tr. at 445- 46.
Plaintiff indicated he was leaving for New York City on March
8 and would be gone for three weeks. Tr. at 445. Dr.
Pontzloff explained to Plaintiff that he could not obtain
early refills every time. Id. She authorized
Plaintiff to receive the early refill, but stated he would
not be eligible for another refill until April 7. Tr. at
contacted the Charleston VAMC on March 25, 2014, to request
that he be allowed to pick up his prescription for Methadone
on April 5, 2014 “because pt is commuting for his job
and needs medication to take with him.” Tr. at 443.
Simon V. Scalia, M.D. (“Dr. Scalia”), authorized
Plaintiff to pick up the prescription on April 4. Tr. at 444.
contacted Dr. Scalia by telephone on April 23, 2014, and
reported that he was concerned about his inability to get a
job in ultrasound. Tr. at 438. He indicated he would be
leaving town for work on May 1 and requested that he be
allowed to pick up his prescription for Methadone on either
April 29 or 30. Id.
followed up with Dr. Scalia on May 20, 2014. Tr. at 430. Dr.
Scalia indicated Plaintiff was “traveling alot for work
as U.S. tech eating salty food not able to lose
weight.” Id. Plaintiff reported stiffness and
back pain that radiated to his right leg. Tr. at 431. He also
endorsed a depressed mood. Id. Dr. Scalia noted
Plaintiff had no spinal tenderness and a negative
straight-leg raise test. Tr. at 432. He stated
Plaintiff’s hypertension was poorly controlled and that
all his symptoms were exacerbated by weight gain.
5, 2014, state agency medical consultant Cleve Hutson, M.D.
(“Dr. Hutson”), reviewed the evidence and
assessed the following physical residual functional capacity
(“RFC”): 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 climbing ramps/stairs, kneeling, crouching, and
crawling; never climbing ladders/ropes/scaffolds; and must
avoid concentrated exposure to hazards. Tr. at 62-65. On
August 11, 2014, state agency medical consultant Larry
Caldwell, M.D. (“Dr. Caldwell”), assessed the
same physical RFC. Tr. at 75-77.
contacted the Charleston VAMC on June 11, 2014, to request an
early refill of Methadone. Tr. at 514. He stated he would be
out of town when the medication was due to be refilled on
June 17, but would return in time for his appointment on June
23. Id. Dr. Scalia authorized the early refill, but
indicated Plaintiff would not be eligible for another refill
for 28 days after June 17. Tr. at 515.
presented for a social work triage assessment on June 13,
2014. Tr. at 509. He indicated he was injured in an
automobile accident in March 2013 that exacerbated his back
pain. Tr. at 510. He indicated he had been unemployed since
November 2013 and was unable to find a job as an ultrasound
technologist. Id. He stated his savings had been
depleted; that he had a family of four that included two
children ages 15 and 17; and that his family’s only
source of income was his wife’s part-time job at
Wal-Mart. Id. Plaintiff asked if he was eligible for
any funds for medication or other assistance through the
Department of Veterans Affairs (“VA”).
Id. The social worker indicated she would mail a
prescription assistance form to Plaintiff and offered him
contact information for local charities to help with bills.
followed up with Dr. Scalia on July 2, 2014, and reported
acute low back pain. Tr. at 505. He indicated he had a
partial fall three to four weeks earlier, while he was
working in Chicago. Id. Dr. Scalia observed
Plaintiff to have paraspinal tenderness. Tr. at 507.
Robert S. Friedman, M.D. (“Dr. Friedman”),
reviewed Plaintiff’s record for a pain consultation on
July 9, 2014. Tr. at 499-500. Dr. Friedman noted that
Plaintiff had a “pattern of reporting falls for dose
escalation and early refills.” Tr. at 499. He noted
that Plaintiff had been switched from 80 milligrams of
Methadone per day to 40 milligrams per day. Id. He
stated Plaintiff’s pain control was ineffective with
Methadone. Id. He recommended opioid education, a
sleep study, testing of serum Methadone levels, rapid
tapering from Methadone, participation in the MOVE program,
tapering from Flexeril, aquatic therapy, and
electrocardiogram (“EKG”). Id.
10, 2014, Plaintiff presented to the ER at Charleston VAMC.
Tr. at 493. He complained of increased low back pain,
following a fall in his bathtub that occurred a
week-and-a-half earlier. Id. Michael L. Taylor, M.D.
(“Dr. Taylor”), observed Plaintiff to be tender
to palpation over his left sacroiliac joint and to
demonstrate a slightly antalgic gait, but he noted Plaintiff
had normal strength and no edema. Tr. at 495. A nurse
observed Plaintiff to have limited right ROM due to pain. Tr.
at 496. Another nurse indicated Plaintiff ambulated with a
steady gait, but had difficulty transitioning from a standing
to a sitting position. Tr. at 498. Dr. Taylor prescribed
Lortab and instructed Plaintiff to keep his scheduled
appointment with the neurosurgeon. Tr. at 495.
presented to physical therapist Janine M. Tumminia
(“Ms. Tumminia”), for a physical therapy
consultation on July 22, 2014. Tr. at 486-87. He reported
that he had used a TENS unit in the past and that it was
somewhat helpful. Tr. at 486. Ms. Tumminia indicated
Plaintiff’s active ROM was limited in his trunk and
that he had reduced strength of 4-4 in his bilateral lower
extremities. Id. She issued a TENS unit and
requested that Dr. Scalia refer Plaintiff for aquatic therapy
for core and low back strengthening. Tr. at 487.
30, 2014, psychologist Layne A. Goble, Ph. D. (“Dr.
Goble”), provided a pain consultation after reviewing
Plaintiff’s medical record. Tr. at 486. Dr. Scalia
requested the consultation based on possible psychosocial
factors related to Plaintiff’s chronic pain. Tr. at
485. He indicated Plaintiff was interested in pursuing
non-opioid medications and aquatherapy. Id. Dr.
Goble recommended Dr. Scalia consider having Plaintiff engage
in cognitive behavioral therapy for chronic pain and pursue
the MOVE program. Id. He indicated he supported Dr.
Friedman’s recommendation that Plaintiff be assessed
for sleep apnea. Id.
followed up with Dr. Scalia for a primary care visit on
September 2, 2014. Tr. at 592. Plaintiff stated he had not
obtained a sleep study through the VAMC, but had scheduled a
sleep study at a private physician’s office.
Id. He indicated he was eating more salads and had
lost weight. Id.
September 8, 2014,  Dr. Scalia indicated Plaintiff had an
unsteady gait and authorized prosthetics to issue an orthotic
cane. Tr. at 564-55.
September 17, 2014, Plaintiff presented to social worker
Adriel Brown (“Ms. Brown”) to discuss his
problems with maintaining stable housing. Tr. at 579-81.
Plaintiff denied suicidal and homicidal ideation and auditory
and visual hallucinations. Tr. at 580. He reported he was not
working, but was seeking employment. Id. He
indicated his wife worked part-time and that he had been
unable to secure employment as an ultrasound technician since
he moved from Milwaukee to South Carolina. Id. Ms.
Brown noted no abnormalities on a mental status examination.
Tr. at 580-81.
presented to social worker Tania Demaggio (“Ms.
Demaggio”) on October 22, 2014. Tr. at 605. He
indicated he was notified that he would be evicted from his
home if he failed to pay the rent by October 25. Tr. at 606.
Ms. Demaggio reviewed possible assistance resources with
also followed up with Dr. Scalia on October 22, 2014. Tr. at
606-09. He complained of low back pain and financial stress.
Tr. at 606. He indicated he underwent a sleep study and was
diagnosed with obstructive sleep apnea. Id. Dr.
Scalia noted Plaintiff was only able to perform the
straight-leg raise test to 45 degrees on the right, but that
he demonstrated normal gait and balance. Tr. at 609. He
assessed poorly-controlled hypertension as a result of
noncompliance; obstructive sleep apnea with a need to obtain
a CPAP machine; and obesity. Id. He advised
Plaintiff to take his medications on a regular basis, but to
start weaning off of Methadone. Id.
November 7, 2014, Plaintiff contacted the Charleston VAMC to
request that his pain medication be increased back to the
regular dose as a result of increased pain. Tr. at 601. Dr.
Scalia recommended that Plaintiff continue to take
three-and-a-half Methadone tablets until closer to his
prescription refill date. Tr. at 602. On November 19, 2014,