United States District Court, D. South Carolina
Mamie D. Gordon, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant.
D Gordon, Plaintiff, represented by W. Daniel Mayes, Smith
Massey Brodie Thumond Guynn and Mayes.
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
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 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.
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].
Plaintiff's Background and Medical History
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. Tr. at 40.
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.
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.
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.
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.
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") score of 55. Tr. at 396.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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