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Brown v. Colvin

United States District Court, D. South Carolina

June 17, 2016

Joseph M. Brown, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant.


          Shiva V. Hodges United States Magistrate Judge

         This 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].

         Plaintiff 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.

         I. Relevant Background

         A. Procedural History

         On 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].

         B. Plaintiff’s Background and Medical History

         1. Background

         Plaintiff 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.

         2. Medical History

         Plaintiff 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.

         Plaintiff 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.

         On June 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.

         On July 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.

         Plaintiff 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.

         Dr. 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.

         On 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.

         On 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.

         Plaintiff 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.

         Plaintiff 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.

         Dr. 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 needed. Id.

         On 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.

         Plaintiff 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.

         Plaintiff 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.

         On 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 445-46.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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. Id.

         On June 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.

         Plaintiff 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.

         Plaintiff 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. Id.

         Plaintiff 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.

         Anesthesiologist 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.

         On July 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.

         Plaintiff 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.

         On July 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.

         Plaintiff 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.

         On September 8, 2014, [1] Dr. Scalia indicated Plaintiff had an unsteady gait and authorized prosthetics to issue an orthotic cane. Tr. at 564-55.

         On 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.

         Plaintiff 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 Plaintiff. Id.

         Plaintiff 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.

         On 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, ...

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