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Gordon v. Colvin

United States District Court, D. South Carolina

August 3, 2016

Mamie D. Gordon, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant.

          Mamie D Gordon, Plaintiff, represented by W. Daniel Mayes, Smith Massey Brodie Thumond Guynn and Mayes.

          Mamie D Gordon, Plaintiff, represented by George C. Piemonte, Piemonte Law Firm, pro hac vice.

          Commissioner of Social Security Administration, Defendant, represented by Marshall Prince, U.S. Attorneys Office.

          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 Supplemental Security Income ("SSI"). 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 December 19, 2011, Plaintiff filed an application for SSI in which she alleged her disability began on March 3, 2011. Tr. at 158-66. Her application was denied initially and upon reconsideration. Tr. at 105-08 and 114-15. On March 19, 2014, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Jane A. Crawford. Tr. at 34-76 (Hr'g Tr.). The ALJ issued an unfavorable decision on May 27, 2014, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 13-33. 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 1-6. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on September 17, 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 40. She completed the tenth grade. Id. Her past relevant work ("PRW") was as a fast food worker and a marker/labeler. Tr. at 72. She alleges she has been unable to work since December 19, 2011.[1] Tr. at 40.

         2. Medical History

         Plaintiff presented to Malik Ashe, M.D. ("Dr. Ashe"), on December 29, 2010, with a complaint of sharp pain that radiated from her right hip to her right leg. Tr. at 314. She stated her pain was worsened by standing and climbing stairs. Id. Dr. Ashe observed Plaintiff to appear malnourished and older than her stated age. Id. He noted positive tenderness to palpation in Plaintiff's right anterior hip joint and reduced active and passive range of motion ("ROM") with flexion, extension, and internal and external rotation. Id. He observed Plaintiff to have decreased strength at of 3/5 in her right hip and an antalgic gait. Id. He indicated x-rays showed asymmetry at Plaintiff's right hip joint. Id. He referred her to an orthopedist for further evaluation and prescribed Mobic and Lortab. Id.

         On January 4, 2011, Plaintiff presented to orthopedic surgeon James N. Rentz, M.D. ("Dr. Rentz"), for right hip pain. Tr. at 371. Dr. Rentz observed that Plaintiff ambulated with a slight limp and complained of pain with ROM of the right hip. Tr. at 372. He noted Plaintiff's x-rays showed flattening and sclerosis at the femoral head and narrowing of the joint space. Id. He diagnosed avascular necrosis of the right hip. Id. He prescribed a cane and instructed Plaintiff to take over-the-counter medications. Id. He recommended Plaintiff proceed with right total hip replacement "when her pain gets to the point where she can no longer handle it." Id.

         Plaintiff followed up with Dr. Ashe for surgical clearance on January 14, 2011. Tr. at 309. Dr. Ashe observed Plaintiff to have positive tenderness with flexion, internal rotation, and external rotation of her right hip and to have 3/5 right hip strength. Tr. at 310. He indicated Plaintiff had a normal electrocardiogram ("EKG") and physical examination and would be cleared for total right hip replacement. Id.

         On February 7, 2011, Dr. Rentz explained that Plaintiff's x-rays were consistent with collapse of the femoral head and stage three avascular necrosis. Tr. at 369. Plaintiff elected to proceed with right total hip replacement. Tr. at 368.

         On February 17, 2011, Plaintiff presented to Catawba Mental Health Center for an initial clinical assessment. Tr. at 393-96. Therapist Jean M. Boyd, M. Ed. ("Ms. Boyd"), observed Plaintiff to appear neat and clean; to have lethargic motor activity; to complain of feeling tired all the time; to have an irritable and withdrawn attitude; to demonstrate a flat and blunted affect; to have a depressed and angry mood; to speak with a normal rate and tone; to show a disorganized thought process; to endorse panic attacks and phobias that included fear of crowds, driving, and coworkers; to endorse auditory and visual hallucinations; to deny delusions; to be oriented to person, place, time, and situation; to demonstrate poor personal decision making; to acknowledge, but fail to understand her problems; to have intact memory; to be easily distracted; and to demonstrate an average fund of knowledge. Tr. at 395-96. Ms. Boyd assessed a Global Assessment of Functioning ("GAF")[2] score of 55. Tr. at 396.

         Plaintiff was admitted to Piedmont Medical Center for right total hip arthroplasty on March 10, 2011. Tr. at 411. Dr. Rentz performed the surgery, and Plaintiff had no complications. Id. Plaintiff was released from the hospital on March 13, 2011, with home health to aid in her care and instructions to bear weight as tolerated with a walker. Id.

         Plaintiff presented to Piedmont Medical Center on April 14, 2011, after falling over her walker and injuring her right leg. Tr. at 437. She was diagnosed with a periprosthetic right proximal femur fracture around her femoral stem. Id. She was hospitalized overnight for pain control and discharged with a wheelchair. Tr. at 436.

         Plaintiff followed up with Dr. Rentz on April 27, 2011. Tr. at 363. She reported constant pain in her right upper leg. Id. Dr. Rentz prescribed Percocet and instructed Plaintiff to avoid weight bearing and to follow up in six weeks. Tr. at 364 and 365.

         Plaintiff reported decreased pain in her right leg on May 23, 2011. Tr. at 362. Dr. Rentz indicated she was ambulating well with her walker. Id. He instructed her to continue partial weight bearing and to follow up in one month. Id.

         On May 31, 2011, Plaintiff complained of a lack of energy and motivation. Tr. at 391. Ms. Boyd noted that Plaintiff had a flat and depressed affect. Id. She indicated Plaintiff had made limited progress because she continued to isolate and to have angry and sarcastic moods. Id.

         Plaintiff complained to Dr. Ashe of decreased appetite and leg pain on June 3, 2011. Tr. at 306. Dr. Ashe observed her to be ambulating with a rolling walker, but to demonstrate no other abnormalities. Id. He stated Plaintiff's reduced appetite was a likely side effect of her prescribed medications and indicated her depression was stable. Id.

         Plaintiff complained to Dr. Gay of multiple stressors on June 6, 2011. Tr. at 386-87. She reported continued grief over the death of her husband eight years earlier. Tr. at 387. She indicated she had experienced panic attacks, fear of crowds, and job loss as a result of anxiety. Id. She reported depression, anger, and irritability. Id. Dr. Gay contacted Plaintiff's pharmacy and was informed that Plaintiff last had her prescriptions for Effexor and Abilify filled in September and October. Id. Dr. Gay confronted Plaintiff with this information, and Plaintiff admitted that she was not taking her medications as prescribed. Id. Dr. Gay indicated Plaintiff's concentration was distracted and her mood was depressed, irritable, and frustrated. Tr. at 388. He observed Plaintiff to have fair eye contact, an apathetic attitude, motor retardation, a depressed and irritable mood, and a flat affect. Tr. at 388-89. Dr. Gay instructed Plaintiff to stop taking Abilify and to take Remeron for depression, poor sleep and appetite, and anxiety. Tr. at 389. He assessed a GAF score of 50. Tr. at 386.

         On June 24, 2011, Dr. Rentz indicated Plaintiff's right femur fracture had healed. Tr. at 361. He instructed her to bear weight as tolerated, but to continue to use her walker. Id. Plaintiff followed up with Dr. Rentz for right upper leg pain on July 14, 2011. Tr. at 359. She indicated she was doing better, but continued to experience weakness and fatigue when she attempted to walk. Id. Dr. Rentz indicated Plaintiff's complaints were normal and that she should continue to bear weight as tolerated. Id.

         On July 14, 2011, Plaintiff reported some improvement with her new medication. Tr. at 390. She indicated to Ms. Boyd that she continued to worry about financial stressors and to experience pain, but that she did not feel as nervous and agitated. Id. Plaintiff attended a group therapy session on August 18, 2011, but Ms. Boyd indicated she spoke only when asked direct questions and appeared to be very distraught. Tr. at 657. Ms. Boyd noted that the other group members made efforts to get Plaintiff to engage and offered potential solutions to her financial problems. Id. On August 19, 2011, Plaintiff reported poor sleep and Ms. Boyd noted she was very thin. Tr. at 385. Ms. Boyd encouraged Plaintiff to follow up with Dr. Rentz and her case manager at vocational rehabilitation. Id. On August 25 and September 1, 2011, Ms. Boyd indicated Plaintiff was unable to maintain eye contact and appeared to be anxious and depressed during the group therapy sessions. Tr. at 655 and 656. She observed that Plaintiff did not volunteer feedback and was mostly quiet. Id. She also noted Plaintiff was extremely thin and did not appear to be well-nourished. Id. Plaintiff participated in a group therapy session on September 8, 2011. Tr. at 654. She got along well with peers and offered feedback. Id. Ms. Boyd indicated Plaintiff maintained her usual flat, depressed affect. Id.

         Plaintiff complained of left hip pain on September 15, 2011. Tr. at 356. She stated she had developed the pain after sustaining a fall three weeks earlier. Id. Dr. Rentz observed Plaintiff to have mild discomfort with flexion, extension, and rotation of the left hip, but indicated the x-rays showed no abnormalities. Tr. at 358. He diagnosed a left hip strain. Id.

         Plaintiff presented to Ms. Boyd for a therapy session on September 23, 2011. Tr. at 384. She complained of sleep disturbance, ruminative worry, financial distress, and feelings of low self-worth. Id. Ms. Boyd encouraged Plaintiff to maintain her sleep, avoid skipping meals, and improve her self-care. Id. Plaintiff presented for a group therapy session on September 29, 2011. Tr. at 653. She was unwilling to volunteer information, but did participate in an exercise with a partner. Id.

         Plaintiff followed up with Dr. Ashe on October 4, 2011. Tr. at 302. She complained of throbbing pain in her left leg that was worsened by standing, walking, and lying on her left side. Id. Dr. Ashe observed no abnormalities on examination and suggested Plaintiff's left leg pain was possibly the result of claudication from peripheral vascular disease. Id. He referred her for lower extremity arterial studies. Id.

         Plaintiff attended a group therapy session on October 6, 2011. Tr. at 652. Ms. Boyd indicated she got along well with peers and appeared to understand the topics, but was withdrawn from the group and declined to provide feedback. Id.

         On October 13, 2011, Plaintiff complained of depression and feeling alone, despite the fact that her son was in the house. Tr. at 381. She indicated she felt like her symptoms had improved on Effexor XR and requested that it be prescribed again. Id. Dr. Gay indicated Plaintiff's concentration was distracted and that she experienced ruminative thoughts, muscle tension, and agoraphobia. Tr. at 381-82. Plaintiff demonstrated fair eye contact, loud speech, irritable and depressed mood, and motor agitation. Tr. at 382. Dr. Gay assessed a GAF score of 50. Tr. at 380.

         On October 14, 2011, Plaintiff reported to Ms. Boyd that she continued to isolate and to cut off visits with her family members. Tr. at 377. She complained of poor sleep and appetite and feeling sick and tired. Id. She indicated she consumed two 12-ounce beers on two to three days per week. Id. Ms. Boyd cautioned her about using alcohol and encouraged her to engage in self-care and follow healthy habits. Id. Plaintiff actively participated and got along well with peers during group therapy sessions on October 20 and 27, 2011. Tr. at 650 and 651. Ms. Boyd indicated Plaintiff showed improvement in her stress management skills, but continued to have difficulty with her mood and depressive symptoms. Tr. at 650. Plaintiff participated in a group therapy session on November 3, 2011. Tr. at 649. Ms. Boyd indicated Plaintiff was initially withdrawn, easily agitated, angry, irritated, and reluctant to participate, but later provided feedback and got along well with peers. Id.

         Ms. Boyd saw Plaintiff on an emergency basis on November 10, 2011, after Plaintiff had threatened to kill her family members and was extremely distraught, angry, and tearful. Tr. at 378. While Ms. Boyd was attempting to obtain a bed for Plaintiff at an inpatient facility, Plaintiff left the clinic with a friend. Id. Ms. Boyd contacted the police and signed an order of detention. Id. Plaintiff indicated she would turn herself in, but failed to do so. Id. Ms. Boyd noted Plaintiff appeared to be regressing and may be using alcohol or drugs. Id.

         Plaintiff followed up with Dr. Rentz for left hip pain on December 29, 2011. Tr. at 354. She stated her pain was so severe that she was unable to walk or rest. Id. Plaintiff complained of pain with motion of her left hip. Id. X-rays showed a collapse of the femoral head that was consistent with avascular necrosis. Id. Dr. Rentz informed Plaintiff that the only option for treatment was to undergo left hip replacement. Id.

         On January 10, 2012, Ms. Boyd noted that Plaintiff had a "flat, moderately depressed, apathetic mood/attitude." Tr. at 376. Plaintiff informed Ms. Boyd that she had attended vocational rehabilitation for four weeks, but that she was informed that they would be unable to find a job for her. Id. Plaintiff claimed she was taking her medications, but Ms. Boyd concluded that she had not been taking her medications properly because she would have required refills. Id. Plaintiff became visibly angry and agitated when Ms. Boyd questioned her about her alcohol use. Id. Ms. Boyd noted that Plaintiff had come into the office smelling of alcohol and often underreported her alcohol use. Id. She noted "Pt. appears to continue to use Alcohol and possible crack/meth use, as pt. possess signs of extreme agitation, quick tempered, aggression one minute and then passive the next." Id.

         Plaintiff underwent left hip replacement on January 24, 2012. Tr. at 485. As a result of blood loss, she developed acute anemia and required a blood transfusion. Id. She improved and tolerated physical therapy well. Id. On January 27, 2012, she was discharged with instructions for home health services. Id.

         On January 30, 2012, state agency medical consultant Thomas German, M.D., reviewed Plaintiff's medical records and completed a physical residual functional capacity ("RFC") assessment. Tr. at 83-84. He indicated Plaintiff was limited as follows: occasionally lift and/or carry 50 pounds; frequently lift and/or carry 25 pounds; stand and/or walk for about six hours in an eight-hour workday; sit for about six hours in an eight-hour workday; frequently climb ramps/stairs, balance, stoop, kneel, crouch, and crawl; and occasionally climb ladders/ropes/scaffolds. Id. State agency medical consultant William Hopkins, M.D., reviewed the evidence and assessed the same physical RFC on May 7, 2012. Tr. at 99-100.

         Dr. Rentz indicated Plaintiff was doing great on February 8, 2012. Tr. at 349. He prescribed Percocet and instructed Plaintiff to continue to participate in physical therapy. Id. He indicated she should remain 50% weight bearing until February 20, but could bear weight as tolerated thereafter. Id. He recommended Plaintiff continue to use her walker for another month because she sustained a fall after her last surgery. Id.

         State agency consultant Lisa Clausen, Ph. D. ("Dr. Clausen"), reviewed the medical evidence and completed a psychiatric review technique form ("PRTF") on February 10, 2012. Tr. at 81-83. She considered Listings 12.04 for affective disorders and 12.06 for anxiety-related disorders and assessed mild restriction of activities of daily living ("ADLs"), moderate difficulties in maintaining social functioning; and moderate difficulties in maintaining concentration, persistence, or pace. Id. Dr. Clausen indicated Plaintiff was moderately limited with regard to the following abilities: to understand and remember detailed instructions; to carry out detailed instructions; to maintain attention and concentration for extended periods; to interact appropriately with the general public; and to accept instructions and respond appropriately to criticism from supervisors. Tr. at 85. She stated Plaintiff was "able to understand and remember simple instructions, but may have difficulties understanding more detailed instructions"; was "able to follow simple instructions, but may have difficultie[s] with multi-tasking complex instructions"; "may need occasional reminders when distracted by pain considerations when attending for extended periods of time"; "would work best in an environment with a modicum of social stimulation that is supportive" and in "an environment that avoids ongoing interaction with the public"; and was limited to "simple, unskilled" work with "minimal contact with supervisors, coworkers and the general public." Tr. at 85-86.

         On February 15, 2012, Dr. Rentz provided Plaintiff an excuse to remain out of work from January 24, 2012, through May 21, 2012. Tr. at 348. Plaintiff presented to Dr. Rentz on February 23, 2012, after having fallen the day before. Tr. at 347. Dr. Rentz observed Plaintiff to have no swelling or bruising and to be walking well with her walker. Id. He diagnosed a contusion, but indicated Plaintiff had not damaged her hip. Id. He instructed her to continue to bear weight as tolerated and to use a walker as needed. Id.

         Plaintiff presented to psychiatrist Felicitas Bugarin, M.D. ("Dr. Bugarin"), on March 21, 2012. Tr. at 464-65. She indicated she continued to grieve her husband and to feel guilty for his death. Tr. at 464. She stated she felt tired all the time and tended to isolate from others and avoid social activities. Id. Dr. Bugarin assessed a GAF score of 55. Tr. at 465.

         On March 25, 2012, Plaintiff indicated that she felt depressed and desired to isolate and withdraw from others. Tr. at 648. Ms. Boyd noted that Plaintiff was unwilling to volunteer any information and appeared tired throughout the session. Id.

         On March 27, 2012, Plaintiff requested medication to increase her appetite and complained of a shooting pain from her left leg to her ankle. Tr. at 300. She was ambulating with a walker. Tr. at 301. Drewid Plyler, PA-C ("Mr. Plyler"), prescribed medication to treat an H. pylori infection. Tr. at 300. Plaintiff followed up with Mr. Plyler on April 9, 2012. Tr. at 298. She reported weakness, nausea, and weight loss. Id. Mr. Plyler noted Plaintiff's blood sugar was increased and referred her for an A1c test. Id. He discontinued Pravastatin and prescribed 50, 000 units of Vitamin D and Livalo. Id.

         On April 30, 2012, Plaintiff complained of pain and swelling in her left hip and leg. Tr. at 345. Dr. Rentz observed Plaintiff to have good ROM of her hips and knees and no swelling or edema. Id. He indicated x-rays of Plaintiff's bilateral hips were normal. Id. He prescribed Ultram and told Plaintiff that her complaints were normal and that she just needed more time to improve. Id.

         State agency consultant Jeanne Wright, Ph. D. ("Dr. Wright"), reviewed the record and completed a PRTF on May 7, 2012. Tr. at 96-98. She considered Listings 12.04 and 12.06 and determined Plaintiff had mild restriction of ADLs, moderate difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, or pace. Tr. at 96. She found that Plaintiff had moderate limitation in the same areas indicated by Dr. Clausen. Tr. at 101-02. Dr. Wright stated Plaintiff "would work best in an environment with a modicum of social stimulation that is supportive" and in "an environment that avoids ongoing interaction with the public." Tr. at 102. She further indicated Plaintiff was "limited to simple, unskilled" work with "minimal contact with supervisors, coworkers and the general public." Id.

         On June 6, 2012, Plaintiff informed Ms. Boyd that she felt better than she had in a while. Tr. at 647. She indicated her sleep and appetite continued to be poor, but stated she had decided not to worry. Id. Ms. Boyd noted Plaintiff appeared more relaxed and endorsed less anxiety and worry. Id.

         Plaintiff returned to Dr. Rentz for left hip pain on July 5, 2012. Tr. at 622-23. Dr. Rentz diagnosed greater trochanteric bursitis of the left hip and administered a Depo-Medrol and Marcaine injection. Tr. at 622.

         Plaintiff complained of swelling in her bilateral legs on July 12, 2012. Tr. at 573-74. Mr. Plyler instructed her to elevate her legs and to use compression stockings. Tr. at 573.

         Plaintiff followed up with Dr. Bugarin on July 27, 2012, and reported anger and irritability. Tr. at 598. Dr. Bugarin stated Plaintiff became very agitated when she was asked questions. Id. She assessed a GAF score of 55. Tr. at 599.

         Plaintiff complained of feeling tired and depressed on October 12, 2012. Tr. at 644. She indicated to Ms. Boyd that she had attempted suicide in the past by drinking, taking pills, and cutting her wrist. Id. However, she indicated she had no current suicidal plan or intent. Id. On November 2, 2012, Plaintiff complained of poor sleep, lack of appetite, low energy, lack of motivation, and self-isolation. Tr. at 643. Ms. Boyd noted that Plaintiff presented as "very apathetic, passive and agitated" during the session. Id.

         On November 8, 2012, Plaintiff complained of a burning sensation on her left posterior thigh and a constant stabbing pain in her left side. Tr. at 571. Mr. Plyler assessed sciatica, Vitamin D deficiency, and hyperlipidemia. Id.

         On November 14, 2012, Dr. Bugarin observed that Plaintiff looked good and appeared to have gained some weight. Tr. at 596. Plaintiff complained of poor sleep, and Dr. Bugarin increased her dose of Trazodone. Id. Dr. Bugarin assessed a GAF score of 55. Tr. at 597.

         Plaintiff participated in physical therapy at Chester Regional Medical Center from August 7, 2012, through December 5, 2012. Tr. at 505-58. On December 5, 2012, her physical therapist noted she was able to ambulate with her cane and turn around without holding on. Tr. at 507. He stated Plaintiff was doing well and would be ready for discharge once she became a little more comfortable while walking with her cane. Id.

         On December 14, 2012, Plaintiff reported to Ms. Boyd that her uncle had recently passed away and that she was having difficulty dealing with her grief and interacting with family members. Tr. at 642. Ms. Boyd observed Plaintiff to be highly agitated, angry, and depressed. Id. On January 11, 2013, Plaintiff reported multiple stressors related to her ...


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