United States District Court, D. South Carolina
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 Timothy M. Cain dated August 31, 2016,
referring this matter for disposition. [ECF No. 17]. 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.
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.
February 22, 2010, Plaintiff filed an application for DIB in
which he alleged his disability began on August 10, 2009. Tr.
at 117-18. His application was denied initially and upon
reconsideration. Tr. at 57-60, 65-66. On March 10, 2011,
Plaintiff had a hearing before Administrative Law Judge
(“ALJ”) Thomas G. Henderson. Tr. at 25-52
(Hr'g Tr.). The ALJ issued an unfavorable decision on
March 21, 2011, finding that Plaintiff was not disabled
within the meaning of the Act. Tr. at 8-24. 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 1-3.
Plaintiff brought an action seeking judicial review of the
Commissioner's decision in a complaint filed on October
5, 2011. Tr. at 435-38. On March 13, 2013, the court issued
an order reversing the Commissioner's decision and
remanding the matter for further administrative proceedings
pursuant to 42 U.S.C. § 405(g). Tr. at 439-65.
September 26, 2013, Plaintiff had a second hearing before ALJ
Henderson. Tr. at 406-14 (Hr'g Tr.). The ALJ issued an
unfavorable decision on November 7, 2013, finding that
Plaintiff was not disabled within the meaning of the Act. Tr.
at 396-405. Plaintiff brought an action seeking judicial
review of the Commissioner's decision in a complaint
filed on January 27, 2014. Keefer v. Commissioner of
Social Security Administration, No. 1:14-236-SVH, ECF
No. 1. On January 5, 2015, the court issued an order
reversing the Commissioner's decision and remanding the
case to an ALJ. Tr. at 610-43. On February 7, 2015, the
Appeals Council issued an order vacating the final decision
of the Commissioner, remanding the case to an ALJ for further
proceedings, and directing that the case be assigned to a
different ALJ. Tr. at 644-47.
August 24, 2015, Plaintiff had a third hearing before ALJ
Ronald Sweeda. Tr. at 582-99 (Hr'g Tr.). The ALJ issued
an unfavorable decision on September 23, 2015, finding that
Plaintiff was not disabled within the meaning of the Act. Tr.
at 570-81. The ALJ's decision provided Plaintiff with the
option to either file exceptions with the Appeals Council
within 30 days or to file an action in this court within 60
days of the date on which the ALJ's decision became
final. Tr. at 570-72. Thereafter, Plaintiff
brought this action seeking judicial review of the
Commissioner's decision in a complaint filed on November
24, 2015. [ECF No. 1].
Plaintiff's Background and Medical History
was 53 years old on his date last insured
(“DLI”). Tr. at 117. He completed the eighth
grade. Tr. at 135. His past relevant work (“PRW”)
was as a boiler operator and truck driver. Tr. at 191. He
alleges he has been unable to work since August 10, 2009. Tr.
Records Prior to Plaintiff's DLI
January 16, 2008, Plaintiff complained of fatigue to a
physician at Doctors Care, where an assessment included
fatigue and joint pain. Tr. at 301. Lab results dated January
21, 2008, indicated hypothyroidism, and Plaintiff was started
on Levothyroxine. Tr. at 292. Notes from follow up visits on
January 21, 2008, and February 18, 2008, showed diagnoses of
hypothyroidism, hyperlipidemia, and depression/anxiety. Tr.
at 288, 291. In May 2008, Plaintiff's prescriptions
included Levothyroxine for hypothyroidism, Celexa for
depression, and Pravastatin for elevated cholesterol. Tr. at
3, 2009, Plaintiff presented to the emergency room
(“ER”) at Roper Hospital with complaints of lower
abdominal pain and difficulty urinating. Tr. at 194. He
reported a history of kidney stones, prostatic stones,
anxiety, and hemorrhoids. Id. Discharge diagnoses
included chest pain of unknown cause and epididymitis
(inflammation of the organ just behind the testicle; often
caused by heavy lifting/exercise). Tr. at 206. The attending
physician recommended Plaintiff follow up with cardiac stress
testing and an ultrasound. Tr. at 206-07.
followed up with Francis Tunney, M.D. (“Dr.
Tunney”), at Patient One on May 5, 2009. Tr. at 218. He
complained of snoring and daytime fatigue and reported a
history of depression. Id. On examination, Plaintiff
exhibited a normal gait and stance, musculoskeletal posture,
balance, mood, and memory. Tr. at 220. Dr. Tunney noted that
Plaintiff's scrotal pain was of unclear etiology and
advised him to follow up with his primary care physician.
Records After Plaintiff's DLI
initiated care with David Castellone, M.D. (“Dr.
Castellone”) of Palmetto Primary Care on November 13,
2009. Tr. at 368. He reported pain in his hips, legs, and
back and swelling in his right leg. Id. He stated he
had been diagnosed with hypertension, anxiety, and depression
years before and indicated he had been experiencing back ache
and back pain for months. Id. Dr. Castellone
diagnosed new anxiety, hypertension, degenerative disc
disease, and paresthesias/weakness in the legs. Id.
He also ordered magnetic resonance imaging
(“MRI”) and nerve conduction studies and
prescribed Celexa and Lortab. Tr. at 369. An MRI of
Plaintiff's lumbar spine dated November 19, 2009,
revealed mild degenerative facet arthropathy at ¶ 5-S1,
but no compromise of the exiting L5 nerve root. Tr. at 222.
Ruth Hoover conducted a nerve conduction study
(“NCS”) on November 24, 2009. Tr. at 365. She
noted that the results were difficult to interpret due to a
lot of cramping during the test. Id. She noted signs
of acute (rather than chronic) nerve root irritation at
¶ 1 bilaterally. Id. Dr. Hoover opined that
Plaintiff's description of his pain was a bit confusing
in that it seemed variable. Id. She stated that the
MRI was not impressive, but that she was “impressed by
the clinical picture and the appearance of S1 irritation
despite the MRI.” Id. She ultimately noted
that the NCS were within normal limits, but that some of
Plaintiff's muscles showed moderately increased
spontaneous activity. Id.
returned to Dr. Castellone on December 1, 2009, with
constipation, back pain, depression, and anxiety. Tr. at 359.
He described his back pain, depression, and anxiety as severe
and indicated the back pain began months before. Id.
Dr. Castellone diagnosed Plaintiff with worsening
degenerative disc disease and worsening radiculopathy, as
well as stable anxiety and hypertension. Tr. at 361. He
referred Plaintiff to a pain clinic and gastroenterologist.
presented to Summar C. Phillips, M.D. (“Dr.
Phillips”), of Pain Care Physicians of Charleston on
December 3, 2009, with lower back pain. Tr. at 225. He
reported pain in his lower back that had begun years earlier.
Id. He stated the pain radiated into his hips,
buttocks, legs, and feet bilaterally and was sustained at
five to six on a 10-point scale most days. Id. He
described it as being worse in the evening and sometimes
associated with weakness, tingling, and numbness.
Id. He stated that Lortab worked best to alleviate
his pain, but that it only “takes the edge off.”
Id. Plaintiff reported his daily activities included
working as a truck driver and general house maintenance, but
said that he was unable to perform those tasks without pain.
Id. Dr. Phillips administered an epidural steroid
injection at ¶ 5-S1. Tr. at 226. Following the
injection, Plaintiff reported that his pain was reduced to a
underwent nuclear stress testing on December 8, 2009. Tr. at
305. He was assessed as having fair exercise tolerance.
Id. The physician who administered the test noted a
mild defect, but the results were otherwise normal.
returned to Dr. Phillips on December 23, 2009. Tr. at 229. He
reported that his response to the prior injection was
“real good” for two weeks, but that he still had
weakness and that his pain gradually returned to a five.
Id. Dr. Phillips administered another epidural
steroid injection at ¶ 5-S1, which he indicated reduced
his pain to a two. Tr. at 230, 231.
underwent an MRI on December 31, 2009. Tr. at 307. It
revealed mostly mild diffuse spondylosis and the presence of
a disc osteophyte complex at ¶ 6-7 that extended
intraforaminally on both sides and could contact the exiting
C7 (nerve roots). Id. The MRI also demonstrated a
focal central superior and inferior extrusion that caused
moderate central stenosis and mild anterior cord flattening.
January 6, 2010, Plaintiff reported to Dr. Phillips that the
last lumbar epidural injection had not provided any relief
and that he had required daily use of Lortab and Flexeril.
Tr. at 233. Dr. Phillips noted that Plaintiff's leg pain
had improved significantly, but that he continued to
experience persistent pain in his lower back and buttocks.
Id. Plaintiff reported that medications helped as
long as he sat still. Id. He stated he had been
limiting his daily activity to just resting and taking it
easy due to the pain. Id. On examination, Plaintiff
exhibited tenderness in the area of the SI joint on the
right, tenderness over the sacrum midline, and pain upon
flexion and extension of the lumbar spine. Id.
However, he maintained full range of motion
(“ROM”) of the lumbar spine. Id. Dr.
Phillips diagnosed low back pain, radicular symptoms of the
lower limbs, neck pain, cervical radiculopathy, sacroiliitis,
and facet arthropathy syndrome. Id. She opined that
Plaintiff's pain could be caused by either the facet
arthropathy shown on the MRI or by SI joint arthropathy. Tr.
at 234. Dr. Phillips noted that Plaintiff's leg pain,
which had previously prevented him from walking, improved
greatly with the two lumbar injections. Id. However,
Plaintiff continued to report leg pain in a bilateral S1
pattern while lying flat. Id. She further noted that
given Plaintiff's good response to lumbar epidural
injections, Plaintiff most likely had simple lumbar
radiculopathy. Id. Dr. Phillips recommended that
Plaintiff start Celebrex and undergo another injection in one
returned to Dr. Phillips on January 13, 2010, complaining of
severe pain in his neck for several days. Tr. at 235. Dr.
Phillips started to administer a cervical epidural injection,
but did not complete it because Plaintiff reported
lightheadedness and dizziness. Id. Plaintiff
returned the following day, and Dr. Phillips performed a
successful cervical epidural injection at ¶ 5-6. Tr. at
January 28, 2010, Plaintiff reported that the cervical
epidural injection had helped with the pain and stiffness in
his neck and with some with the radiating pain down his arms.
Tr. at 243. He complained of weakness in his legs and pain
between his shoulder blades and in his low back. Id.
On examination, Dr. Phillips found thoracic and lumbar
paraspinal tenderness and assessed Plaintiff's progress
as “moderate at best.” Tr. at 243-44. She noted
that Plaintiff would be a great candidate for a spinal cord
stimulator. Tr. at 244. She suspected that Plaintiff's
upper back pain was muscular in nature and prescribed a
transcutaneous electrical nerve stimulation
(“TENS”) unit, ice therapy, and lidoderm patches.
Tr. at 244.
received another lumbar epidural injection on February 16,
2010. Tr. at 245. On March 9, 2010, Plaintiff reported relief
from that injection, but stated that all the injections wore
off after a while. Tr. at 249. He complained of shooting pain
and muscle spasms in his hip, legs, and back. Id. He
stated that bending or twisting aggravated his pain, but that
taking hot baths and using medication improved it.
Id. Although still in pain, he agreed that his
quality of life had improved with the injections and that he
was able to perform his normal activities in less pain.
April 8, 2010, Plaintiff sought an opinion regarding leg
weakness, discomfort, and refractory pain from John Plyler,
M.D., a neurologist with Charleston Neurology Associates. Tr.
at 317. He reported leg weakness and discomfort in his hips
and legs, episodic arm jerking, dizziness, and numbness of
his feet. Id. He stated that he had multiple
epidural injections with only a marginal response over time.
Id. On examination, Plaintiff had decreased but
symmetric reflexes, patchy sensory spots distally, and some
spasm in his neck and lumbar muscles. Id. Dr. Plyler
noted he was “significantly overweight.”
Id. He assessed diagnoses of chronic neck/back pain,
paresthesias and dysthesia, possible myofascial fibromyalgia
pain syndrome, tinnitus, anxiety, and depression. Tr. at
317-18. He recommended an electrophysiology evaluation, brain
imaging, and baseline labs. Tr. at 318. The nerve study was
normal. Tr. at 319-21. An MRI of the thoracic spine showed
left central disk protrusion at ¶ 9-T10 that effaced the
left ventral aspect of the thoracic cord; however, the
thoracic cord demonstrated normal signal. Tr. at 316. An MRI
of Plaintiff's brain was unremarkable. Tr. at 313, 315.
follow-up visit with Dr. Plyler on April 27, 2010, Plaintiff
reported weakness in his legs and discomfort in his legs and
throughout his spine. Tr. at 313. He indicated his legs gave
out with any physical activity. Id. He reported
tremors, shakes, and syncopal and blackout events, which he
stated had been occurring for about five years. Id.
Dr. Plyler recommended an additional thyroid panel, a vitamin
D supplement, a possible rheumatological evaluation, a sleep
evaluation, a neurosurgical evaluation for the thoracic disc,
and a cardiology opinion with regard to syncope. Tr. at
consultant Olin Hamrick, Jr., Ph. D., completed psychiatric
review technique form (“PRTF”) on June 2, 2010.
Tr. at 251-64. He found there was insufficient evidence upon
which to make a medical disposition or assess Plaintiff's
functional limitations. Id.
29, 2010, Plaintiff reported to Dr. Castellone's office
that he had almost passed out, that the left side of his face
was swollen, and that he was experiencing memory loss. Tr. at
357. On examination, Plaintiff exhibited decreased ROM and
pain in his extremities. Tr. at 358. He was referred for a
carotid Doppler flow study. Id.
August 3, 2010, Plaintiff consulted with Jason Highsmith,
M.D. (“Dr. Highsmith”), a neurosurgeon. Tr. at
331. On examination, Dr. Highsmith noted that Plaintiff was
in significant pain with motion and was “clearly
uncomfortable.” Id. Plaintiff exhibited
paraspinous tenderness throughout the craniocervical
junction, as well as in the neck, mid-back, and low back.
Id. He also had significant pain with palpation of
his right hip and “actually winced[d]
significantly.” Id. Dr. Highsmith concluded
that because the thoracic MRI showed no focal lesion or other
pathology of the thoracic spine, Plaintiff was not a surgical
candidate. Tr. at 332. He recommended Plaintiff follow up
with a rheumatologist. Id.
returned to Dr. Castellone on August 12, 2010, and
characterized his back pain as gnawing and severe. Tr. at
355. Plaintiff's memory and dizziness were noted to be
better with medication. Id. Dr. Castellone noted
that Plaintiff had “new” fibromyalgia and that
his anxiety and hypertension were improving. Tr. at 356. He
referred Plaintiff to a rheumatologist. Id.
consultant Lisa Varner completed a PRTF on August 25, 2010.
Tr. at 266-79. She determined the record provided
insufficient evidence upon which to make a medical
disposition or to assess Plaintiff's functional
limitations. Id. She noted that a record from May
2009 showed a diagnosis of depression; however, examination
showed normal orientation, affect, mood, memory, and insight
and judgment. Tr. at 278.
November 1, 2010, Plaintiff was seen by Gregory Niemer, M.D.
(“Dr. Niemer”), at Low Country Rheumatology. Tr.
at 341. He reported daily neck and back pain and stated the
epidurals and TENS unit had not helped. Id. His
diagnoses included fibromyalgia with multiple trigger points
and degenerative disc disease of the lumbar and cervical
spine. Tr. at 345, 347. Dr. Niemer recommended Plaintiff
follow up with pain management for injections. Tr. at 345.
Plaintiff followed up with Dr. Niemer on January 26, 2011.
Tr. at 340. He reported having trouble getting to sleep and
indicated his pain impacted his activities of daily living
(“ADLs”). Id. Examination demonstrated
16 out of 18 tender points. Id. Dr. Niemer diagnosed
fibromyalgia, degenerative disc disease, and insomnia.
saw Dr. Castellone for an annual examination on February 4,
2011. Tr. at 352. Dr. Castellone noted that Plaintiff's
degenerative disc disease and fibromyalgia were worsening and
that his anxiety was stable. Tr. at 354. He recommended diet,
exercise, and stress management. Id.
February 10, 2011, Plaintiff saw Barton Sachs, M.D.
(“Dr. Sachs”), of the Medical University of South
Carolina's (“MUSC's”) Orthopaedic Spine
Surgery Center. Tr. at 386. Plaintiff described total body
pain and discomfort and numbness throughout all four
extremities. Id. He reported that he had stopped
driving a truck over a year earlier because of dizzy spells
and passing out. Id. On examination, Plaintiff was
in no apparent distress and appeared to have full ROM in all
four extremities. Tr. at 386-87. Dr. Sachs noted that
Plaintiff's x-rays showed some advanced degenerative disc
disease at ¶ 6-7 with some spurring, but did not
indicate any gross encroachment of the spinal canal. Tr. at
387. Plaintiff had no significant areas of tenderness at
¶ 7 and no gross instability on flexion or extension.
Id. The radiologist interpreted the x-rays to show
no alignment abnormalities and mild degenerative disc
disease. Tr. at 392. Dr. Sachs noted that Plaintiff moved
well. Tr. at 387. His impression was that Plaintiff's