United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
V. Hodges, United States 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. § 405(g) and § 1383(c)(3) to
obtain judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”)
denying his 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 undersigned
recommends that the Commissioner's decision be reversed
and remanded for further proceedings as set forth herein.
August 28, 2009, Plaintiff filed an application for DIB in
which he alleged his disability began on February 16, 2009.
Tr. at 59 and 106-12. His application was denied initially and
upon reconsideration. Tr. at 63-66 and 71-72. On June 16,
2011, Plaintiff had a hearing before Administrative Law Judge
(“ALJ”) Frederick W. Christian. Tr. at 31-58. The
ALJ issued an unfavorable decision on November 10, 2011,
finding that Plaintiff was not disabled within the meaning of
the Act. Tr. at 14-30 and 654-70. The Appeals Council
subsequently denied Plaintiff's request for review. Tr.
at 1-3, 371-73. Plaintiff filed an action in this court on
May 1, 2012, seeking judicial review of the ALJ's
decision. Malone v. Commissioner Social Security
Administration, No. 3:12-1153-GRA, ECF No. 1. On June
14, 2013, the court issued an order reversing the ALJ's
decision and remanding the case to the Social Security
Administration (“SSA”) for further administrative
action. Tr. at 680-82. The Appeals Council consequently
issued an order remanding the case to an ALJ on August 30,
2013. Tr. at 674-78.
filed a second application for benefits. Tr. at 797-98. On
September 23, 2013, the SSA issued a decision finding that
Plaintiff became disabled under its rules on February 1,
2013. Tr. at 700-05.
had hearings before ALJ Harold Chambers on May 15, 2014, and
September 9, 2014. Tr. at 444-592 and 593-653 (Hr'g Tr.).
The ALJ issued an unfavorable decision on February 13, 2015,
finding that Plaintiff was not disabled within the meaning of
the Act. Tr. at 382-443. 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 346-48. Thereafter, Plaintiff
brought this action seeking judicial review of the
Commissioner's decision in a complaint filed on December
9, 2015. [ECF No. 1].
Plaintiff's Background and Medical History
Plaintiff was 42 years old on his alleged onset date and 46
years old on January 31, 2013. Tr. at 635. He completed the
eleventh grade. Tr. at 454. His past relevant work
(“PRW”) was as a construction worker and a
machine operator. Tr. at 570. He alleges he has been unable
to work since February 16, 2009. Tr. at 106.
February 16, 2009, Plaintiff injured his back while lifting a
fire-rated door at a job site. Tr. at 211. Magnetic resonance
imaging (“MRI”) on March 17, 2009, showed lumbar
degenerative disc disease with a diffuse disc bulge and a
supraimposed left paracentral disc protrusion that contacted
and posteriorly displaced the descending left S1 nerve root.
Tr. at 207-208. On March 23, 2009, John M. Hibbitts, M.D.
(“Dr. Hibbitts”), observed Plaintiff to have a
positive straight-leg raising (“SLR”) test on the
left, but to ambulate with a normal gait and to have
symmetric deep tendon reflexes (“DTRs”) and
normal range of motion (“ROM”) in his hips,
knees, and ankles. Tr. at 211. He diagnosed a symptomatic
herniated disc and recommended epidural steroid injections
(“ESIs”) and a rehabilitation program.
Id. During a follow up visit on April 20, 2009,
Plaintiff indicated rehabilitative therapy had provided some
relief, but stated he was reluctant to undergo ESIs because a
family member had suffered adverse effects from the
procedure. Id. T. S. Whitehead, PA-C (“Mr.
Whitehead”), assured Plaintiff that ESIs were safer
than they had been ten years earlier, but agreed to proceed
with increased therapy instead. Id. On May 4, 2009,
Mr. Whitehead indicated the increased physical therapy had
aggravated Plaintiff's pain and that he had agreed to
receive an ESI. Tr. at 210. Plaintiff reported no symptoms
after receiving the ESI. Id. Mr. Whitehead released
Plaintiff to return to work and specified that Plaintiff
could receive ESIs every six weeks as needed. Id.
returned to Mr. Whitehead on June 8, 2009, and reported that
his left leg discomfort was increasing. Id. Mr.
Whitehead discussed treatment options, and Plaintiff
requested a referral to a surgeon. Id.
9, 2009, neurosurgeon Michael N. Bucci, M.D. (“Dr.
Bucci”), reviewed Plaintiff's MRI, and noted two
small bulging discs at ¶ 5-S1 and on the left at ¶
4-5. Tr. at 228. His examination revealed Plaintiff had
negative bilateral SLR tests, no sensory loss, normal
reflexes, and full muscle strength throughout his body. Tr.
at 229. He concluded that surgery was not necessary and
referred Plaintiff to Eric P. Loudermilk, M.D. (“Dr.
Loudermilk”), a pain specialist. Tr. at 229 and 231.
August 7, 2009, Plaintiff complained of an intermittent
burning pain in his left lower back that radiated to his left
foot. Tr. at 233. Dr. Loudermilk's examination showed no
significant tenderness, normal SLR test, intact nerves,
normal sensation, normal motor strength, normal reflexes, and
normal gait. Tr. at 234. Dr. Loudermilk administered a lumbar
ESI. Tr. at 232. When Plaintiff returned for a second lumbar
ESI on August 20, 2009, he reported little relief from the
prior ESI. Tr. at 246. Plaintiff again reported no
significant relief on September 1, 2009. Tr. 235. Dr.
Loudermilk stated he was skeptical about Plaintiff's
radiculopathy because he had not responded well to the ESIs.
Id. He referred Plaintiff for nerve conduction
studies (“NCS”) of his left leg. Id. On
September 28, 2009, Dr. Loudermilk indicated the NCS showed
an L5 and an S1 radiculopathy. Tr. at 236. Plaintiff reported
a lot of anxiety and trouble sleeping, and Dr. Loudermilk
prescribed Klonopin in addition to Lyrica and Lortab.
Id. He referred Plaintiff for a computed tomography
(“CT”) myelogram that showed no evidence of nerve
root impingement. Tr. at 236, 240, and 252. On October 13,
2009, Dr. Loudermilk performed a lumbar epidural blood patch
procedure to treat Plaintiff's post-myelogram spinal
headaches. Tr. at 239. He recommended Plaintiff continue to
use Lortab and Lyrica for pain, but stated he was not a
surgical candidate. Tr. at 240.
October 27, 2009, state agency medical consultant Hugh
Wilson, M.D. (“Dr. Wilson”), reviewed
Plaintiff's medical records and completed a physical
residual functional capacity (“RFC”) assessment.
Tr. at 258-65. Dr. Wilson opined that Plaintiff retained the
capacity to occasionally lift twenty pounds, frequently lift
ten pounds, stand and/or walk about six hours in a workday,
and sit about six hours in a workday. Tr. at 259. He
indicated Plaintiff's condition limited him to frequent
climbing of ramps or stairs; frequent balancing; occasional
stooping, kneeling, crouching, and crawling; and precluded
him from climbing ladders, ropes, or scaffolds. Tr. at 260.
November 25, 2009, Dr. Loudermilk prescribed Paxil for
depression. Tr. at 278. He indicated Plaintiff was suffering
from chronic mechanical low back pain of unclear etiology
with mild lumbar disc bulging and disc protrusions and
without evidence of nerve root compression. Id. He
stated Plaintiff needed to complete a work hardening program
and return to some type of gainful employment. Id.
On January 19, 2010, Dr. Loudermilk opined that Plaintiff was
at maximum medical improvement and should be able to return
to gainful employment. Tr. at 276. He noted Plaintiff was
having some problems with depression and increased his dosage
of Paxil. Id.
approximately February 2010, Plaintiff underwent a functional
capacity evaluation (“FCE”). Plaintiff's
physicians noted that the FCE report indicated Plaintiff did
not give his full effort. See Tr. at 270 and 275.
Dr. Loudermilk wrote there were multiple inconsistencies that
would suggest Plaintiff may have been able to perform at a
greater physical capacity than he was exhibiting. Tr. at 275.
March 16, 2010, Plaintiff indicated to Dr. Loudermilk that he
had recently sustained a fall after his “back went
out.” Tr. at 274. Plaintiff stated he felt like
something was “slipping” in his lumbar spine.
Id. Dr. Loudermilk indicated he would refer
Plaintiff for flexion and extension x-rays to determine if
there was something “slipping.” Id. He
stated Plaintiff needed to work toward closing his
Workers' Compensation case and returning to a status of
gainful employment. Id. Flexion and extension view
x-rays showed no abnormal motion segment. Tr. at 282. Lumbar
spine imaging indicated degenerative disc space narrowing
posteriorly at ¶ 4-L5 and L5-S1. Tr. 282.
March 29, 2010, Plaintiff presented to Carol W. Burnette,
M.D. (“Dr. Burnette”), for an evaluation of his
impairment rating. Tr. at 270-73. Dr. Burnette indicated
Plaintiff walked with a slightly antalgic gait and had some
increased muscle tension and a restricted ROM in his lumbar
spine. Tr. at 272. A neurological examination revealed an
altered sensation in Plaintiff's left posterolateral leg
and foot, but Plaintiff had normal tone and motor strength.
Id. Dr. Burnette assessed impairment ratings of 16
percent to Plaintiff's lumbar spine and 12 percent to his
whole person. Tr. at 273. She recommended permanent work
restrictions that included no lifting greater than 30 pounds
occasionally, no repetitive bending or twisting, and no
prolonged sitting or standing without the ability to change
positions at will. Id.
April 13, 2010, Dr. Loudermilk noted that Plaintiff tolerated
Xolox, Klonopin, Lyrica, and Paxil without side effects. Tr.
at 269. He assessed mild lumbar disc bulging without obvious
nerve root compression. Id.
17, 2010, Dr. Loudermilk indicated in a mental status form
that Plaintiff was oriented to time, person, place, and
situation; had an intact thought process; had obsessive
thought content; had a worried/anxious mood/affect; had
adequate attention and concentration; had adequate memory;
and exhibited slight work-related limitation in function due
to a mental condition. Tr. at 284.
28, 2010, state agency consultant Craig Horn, Ph. D.
(“Dr. Horn”), opined that depression and anxiety
caused only mild difficulties in Plaintiff's abilities to
maintain social functioning and concentration, persistence,
or pace. Tr. at 287-300. On June 10, 2010, state agency
medical consultant Dale Van Slooten, M.D. (“Dr. Van
Slooten”), assessed the same limitations as Dr. Wilson.
Tr. at 301-08. Dr. Van Slooten specifically noted that
Plaintiff's alleged limitations in standing, sitting, and
walking were not supported by the evidence and that his
allegations of severe pain were not supported by MRI results
or physical examinations. Tr. at 306.
reported symptoms of depression and crying spells to Dr.
Loudermilk in September 2010. Tr. at 319.
October 1, 2010, chiropractor Donald Worley, D.C., stated he
had treated Plaintiff since August 16, 2010, and noted he
walked with an antalgic gait, demonstrated decreased ROM, and
had severe muscle spasms to palpation. Tr. at 313.
presented to psychiatrist Geera Desai, M.D. (“Dr.
Desai”), in October and November 2010. See Tr.
at 309-312. On October 28, 2010, Plaintiff stated he was
unable to lift his infant son and did not want to be around
anyone. Tr. at 312. He reported that his mind wandered and
that he suffered from crying spells and had difficulty
sleeping. Tr. at 310. Dr. Desai prescribed Xolox and Pristiq.
Id. On November 29, 2010, Plaintiff indicated he
felt tired and aggravated and did not want to be around
reported increased neck pain and bilateral upper extremity
numbness to Sherri Cheek, APRN (“Ms. Cheek”), on
October 8, 2010. Tr. at 318.
October 28, 2010, Plaintiff reported depression, poor sleep,
crying spells, stomach upset, poor memory, and poor
concentration. Tr. at 924. He stated he could not sit for
more than 30 minutes; lift more than 30 pounds; engage in
prolonged walking; bend over; or take a bath. Tr. at 925. Dr.
Desai observed Plaintiff to be alert and oriented, but to
constantly pace the floor and to have poor eye contact.
Id. She noted he made facial grimaces that suggested
he was in pain and appeared to be depressed and somaticizing.
Id. She increased Pristiq to 100 milligrams and
prescribed 100 milligrams of Desyrel. Id.
November 5, 2010, Ms. Cheek indicated an MRI of
Plaintiff's cervical spine revealed some arthritis with
an annular bulge from C3-4 through C5-6, with straightening
of the cervical curve. Tr. at 317. She stated she felt like
“a lot of” Plaintiff's “pain was coming
from depression.” Id.
November 29, 2010, Plaintiff indicated Desyrel was helping
him to sleep, but stated his pain was sometimes strong enough
to wake him. Tr. at 923. He indicated Trazodone caused him to
feel dizzy and sleepy the next day. Id. He
complained of feeling worn out, tired, aggravated, and
depressed. Id. He indicated he was avoiding others.
reported some improvement with the addition of Skelaxin on
December 3, 2010, but indicated the medication made him
drowsy. Tr. at 316. Ms. Cheek stated Plaintiff's
medications were effectively treating his pain. Id.
December 22, 2010, Plaintiff reported he was on edge and mad
at the world. Tr. at 922. He complained of depression and
agitation. Id. Dr. Desai recommended Plaintiff speak
to Dr. Loudermilk about increasing his dosage of Klonopin.
January 4, 2011, Dr. Loudermilk stated Plaintiff continued to
suffer from chronic mechanical low back pain and left leg
pain, as well as anger and mood lability. Tr. at 315. He
arranged for Plaintiff to be fitted with a muscle stimulator
January 19, 2011, Plaintiff reported improvement with the
increased dose of Klonopin. Tr. at 921. He endorsed
difficulty sleeping at night, but stated he only took half of
a Trazodone because it made him extremely sleepy, irritable,
tired, and angry. Id. Dr. Desai observed Plaintiff
to be frustrated, depressed, and somaticizing. Id.
February 1, 2011, Dr. Loudermilk indicated Plaintiff had
fallen and injured his right calf and foot. Tr. at 314.
March 17, 2011, Plaintiff complained that he was experiencing
significant pain, feeling stressed, and having difficulty
sleeping. Tr. at 920. Dr. Desai completed a mental RFC form
and specified multiple limitations and restrictions. Tr. at
reported increased pain on April 29, 2011. Tr. at 955. He
stated Xolox was only controlling his pain for four to five
hours instead of six hours at a time. Id. Ms. Cheek
prescribed Ultram for Plaintiff to take in between his doses
of Xolox. Id.
3, 2011, Plaintiff reported he was in pain and had difficulty
ambulating. Tr. at 920. Dr. Desai indicated Plaintiff was
depressed and could not concentrate or enjoy day-to-day life.
27, 2011, Plaintiff indicated his medications were working
well and he was tolerating them without side effects. Tr. at
954. He complained of left-sided headaches, but Dr.
Loudermilk indicated he did not feel the headaches were
related to the back pain. Id.
14, 2011, Plaintiff complained to Dr. Desai of excessive
daily low back pain and an inability to sleep. Tr. at 919.
presented to Ron O. Thompson, Ph. D. (“Dr.
Thompson”), for a consultative examination on July 11,
2011. Tr. at 339-41. Dr. Thompson performed several tests of
mental and psychological functioning. Id. He noted
that Plaintiff's speech was normal and coherent, but that
Plaintiff appeared to have poor stress-coping skills, was
easily distracted, and had delayed cognitive processing. Tr.
at 339. Dr. Thompson estimated Plaintiff had low borderline
intellectual functioning. Id. However, his
intelligence quotient (“IQ”) testing fell in the
mild range of mental deficiency. Tr. at 340. Dr. Thompson
noted Plaintiff appeared to score far below what would be
expected of one who had performed his past work for a number
of years. Id. He attributed the inconsistency to
Plaintiff's poor psychological adjustment to his physical
allegations. Tr. at 341. Dr. Thompson noted that
Plaintiff's complaints of pain were extraordinary and
histrionic and that his psychiatric symptoms appeared to be
quite pronounced and related to anxiety and preoccupation
with pain. Id. Dr. Thompson opined that Plaintiff
could not possibly concentrate on simple, repetitive types of
tasks without being involved in a dangerous situation.
Id. He indicated Plaintiff would have extreme
restrictions responding to work pressures and marked
restrictions in his ability to interact appropriately with
the public, supervisors, and coworkers in a usual work
setting. Tr. at 342-44.
12, 2011, Plaintiff presented to neurologist Russell Rowland,
M.D. (“Dr. Rowland”), for a consultative
examination. Tr. at 327-31. He reported low back pain, daily
headaches, and depression. Tr. at 328. Plaintiff had no
muscle atrophy and full strength in all of his extremities.
Tr. at 329-30. Plaintiff demonstrated limited ROM of his hips
and knees, but Dr. Rowland did not believe he was putting
forth full effort. Tr. at 330. SLR tests were negative.
Id. Dr. Rowland concluded that Plaintiff's
symptoms far outweighed the physical findings and the results
of the MRI of his lumbar spine. Tr. at 331. He stated there
appeared to be “a lot of emotional overlay with his
pain.” Id. He opined that Plaintiff could
continuously lift 21 to 50 pounds; sit for an hour at a time;
stand for 30 minutes at a time; walk for 10 minutes at a
time; sit for six hours in an 8hour workday; stand for six
hours in an eight-hour workday; walk for four hours in an
eight-hour workday; continuously reach, handle, finger, feel,
push, and pull; frequently climb ramps and stairs;
occasionally stoop, kneel, crouch, and crawl; and never
balance, climb ladders or scaffolds, or be exposed to
unprotected heights or dangerous, moving machinery. Tr. at
September 16, 2011, Plaintiff indicated to Meredith Purgason,
APRN (“Ms. Purgason”), that the injections
administered during the last visit had relieved his wrist
pain. Tr. at 950. He denied side effects from his
medications, but stated Tramadol was not effectively
controlling his pain. Id. Ms. Purgason suggested
adding a prescription for a Butrans patch, but Plaintiff
instead agreed to continue taking the same medications.
November 16, 2011, Plaintiff reported he was experiencing
increased stress, irritability, and mood swings. Tr. at 880.
He questioned whether these symptoms may be side effects of
his pain medication. Id. Ms. Purgason indicated to
Plaintiff that his increased irritability was likely the
result of increased stress and depression. Id.
January 20, March 15, and May 10, 2012, Ms. Purgason
indicated Plaintiff was compliant with his medications;
denied adverse side effects; and stated his medications kept
his pain at a tolerable level. Tr. at 877, 878, and 879.
15, 2012, Plaintiff indicated to Dr. Desai that he had
difficulty driving long distances and was sleeping for half
the day. Tr. at 890. He expressed sadness over his inability
to participate in activities. Id.
28, 2012, Plaintiff complained of a flare up of low back pain
that was radiating down his left leg and to his inner left
thigh. Tr. at 876. He stated his medications provided some
relief and indicated he was tolerating them without adverse
effects. Id. Ms. Purgason prescribed a Medrol
Dosepak and refilled Plaintiff's other medications.
August 13, 2012, Plaintiff indicated to Dr. Desai that he was
significantly limited by his pain and was unable to spend
quality time with his children. Tr. at 891.
October 19, 2012, Plaintiff reported pain in his back and
left leg and endorsed numbness and tingling in his arms and
hands d. Tr. at 874. Dr. Loudermilk referred Plaintiff for a
cervical MRI, discontinued Xolox, prescribed Mobic and
Roxicodone, and provided information on spinal cord
stimulation. Id. The MRI of Plaintiff's cervical
spine showed generalized cervical spondylosis, multilevel
disc bulging, and osteophyte formation with varying degrees
of central canal stenosis and neural foraminal impingement.
Tr. at 882-83.
Desai indicated Plaintiff was continuing to do well on
Pristiq, voiced no concerns or complaints, and was mentally
stable on November 7, 2012. Tr. at 891.
November 16, 2012, Plaintiff indicated a desire to proceed
with a trial of a spinal cord stimulator to help reduce the
pain in his back and left leg. Tr. at 873. Dr. Loudermilk
noted that Plaintiff's cervical MRI showed multilevel
cervical spondylosis with disc bulging and spurs, but did not
suggest a need for surgery. Id. He discontinued
Mobic based on Plaintiff's report of adverse side
December 14, 2012, Plaintiff indicated to Dr. Loudermilk that
he was experiencing pain in his bilateral thumbs. Tr. at 866.
Dr. Loudermilk administered a Cortisone injection at the base
of Plaintiff's right thumb and referred him to a hand
surgeon. Id. Plaintiff expressed a desire to hold
off on implantation of a spinal cord stimulator because he
had met his insurance deductible, but Dr. Loudermilk could
not guarantee him that the procedure would be performed by
the end of the year. Id.
presented to L. Edwin Rudisill, Jr., M.D. (“Dr.
Rudisill”), with a complaint of severe left thumb pain.
Tr. at 862-63. Dr. Rudisill diagnosed left trigger thumb and
administered an injection. Id. When Plaintiff
returned to Dr. Rudisill on March 19, 2013, he reported
temporary relief as a result of the prior injection, but
stated his thumb was catching again. Tr. at 863. Dr. Rudisill
administered a second injection. Id.
January 11, 2013, Plaintiff reported severe pain in his neck,
back, and lower extremities and stated he was out of
medication. Tr. at 871. Ms. Purgason authorized refills.
reported increased depression and inability to sleep to Dr.
Desai on February 6, 2013. Tr. at 889. He noted his mind was
racing during the night. Id. Dr. Desai prescribed
100 milligrams of Pristiq and 100 milligrams of Trazodone.
February 8, 2013, Plaintiff complained of a severe flare up
of low back and left leg pain. Tr. at 870. Ms. Purgason
prescribed a Medrol Dosepak and referred Plaintiff for an MRI
of his lumbar spine. Id.
of Plaintiff's lumbar spine showed a left-sided L4-5 disc
protrusion with a small disc fragment that migrated inferior
to the disc along the anterior aspect of the left L5
transverse root and may produce radiculopathy; a mild
left-sided L5-S1 disc protrusion with a deep annular tear; a
right-side predominant disc bulge at ¶ 3-4; and
discogenic edema of the L4-5 and L5-S1 endplates. Tr. at 881.
followed up with Ms. Purgason on March 1, 2013, to discuss
the results of his MRI. Tr. at 869. She stated Plaintiff
received some relief of his symptoms through use of
Roxicodone, Ultram, and Klonopin and noted that he was
tolerating the medications without adverse effects.
Id. Ms. Purgason indicated she would consult with
Dr. Loudermilk. Id. Dr. Loudermilk administered
lumbar ESIs on March 15, March 28, and April 18, 2013. Tr. at
868 and 884-86.
April 9, 2013, Plaintiff presented to Michael Reing, M.D.
(“Dr. Reing”), for a surgical consultation. Tr.
at 892. Dr. Reing observed Plaintiff to have point tenderness
and decreased sensation in his lateral left thigh, but to
have normal motor function, feeling, and DTRs. Tr. at 893. He
recommended surgery. Id. On April 22, 2013, Dr.
Reing performed left hemilaminectomy and discectomy. Tr. at
presented to Dr. Thompson for a second consultative
examination on July 17, 2013. Tr. at 910-13. Dr. Thompson
indicated Plaintiff looked to be in pain and was quite
sluggish. Tr. at 910. He described Plaintiff's mood as
irritable and depressed and indicated his affect was sad and
tearful. Id. He noted Plaintiff was able to follow a
two-step instruction and had fair insight and judgment.
Id. He stated Plaintiff had intact recent and remote
memory, but poor attention and concentration. Id.
Dr. Thompson indicated Plaintiff “seems to have made a
very poor psychological adjustment to his pain and current
difficulties.” Tr. at 911. Plaintiff reported problems
with withdrawal, anhedonia, and daily crying spells.
Id. Dr. Thompson indicated “[a]s he presents
today, I believe he would not be able to perceive or avoid
danger in a typical work place and he seems to have
difficulty with emotional control.” Id. He
concluded as follows:
This gentleman seems to have emotionally gone downhill and
has sunk deeper into depression than the last time I saw him
according to my previous notes and report on him. I do not
believe he is capable of managing benefits currently due to
the neurovegetative symptoms of major depression, poor
concentration and attention, and certainly do not believe he
could be trusted to work independently in a typical work
environment without coming into contact with machinery or
becoming at risk for another injury as he presents on this
Tr. at 912.
ALJ's request, Plaintiff presented to John C. Whitley,
III, Ph. D. (“Dr. Whitley”), for a psychological
evaluation on July 22, 2014. Tr. at 974-80. Plaintiff
reported struggling with memory and concentration throughout
his life, but indicated his pain exacerbated his memory and
concentration problems. Tr. at 975. He stated his back pain
caused him to feel sad and depressed and to avoid others.
Id. He indicated he cried easily, had limited
energy, and had little motivation. Id. Dr. Whitley
observed that Plaintiff “appeared to be in significant
pain”; was very restless in his seat; and had to stand
several times during the interview because of pain. Tr. at
977. He noted Plaintiff was sad and frustrated. Id.
Plaintiff had grossly intact recent and remote memory; was
able to recall four of four objects immediately and two of
four objects after a 15-minute delay; was able to recite
three digits forwards and backwards and spell
“world” forwards and backwards; performed serial
threes, fives, and sevens in a forward manner; interpreted
proverbs; understood conversational speech; discussed a
current event; and performed simple subtraction. Id.
Dr. Whitley observed Plaintiff to have a mildly slow, but
coherent and organized thought process. Id. He
indicated Plaintiff's thoughts were sometimes interrupted
by pain. Id. He indicated Plaintiff was cooperative
and responsive; put forth effort during the interview; and
did not attempt to embellish his symptoms. Id. He
stated Plaintiff's IQ scores, which ranged from 72 to 81,
and other testing, which showed him to be reading on a third
grade level and performing math on a fifth grade level, were
“felt to be a mild underestimation of his true
functioning abilities, ” but “appeared to
represent his current difficulties.” Tr. at 978-79. He
diagnosed depressive disorder due to chronic back pain with
depressive features, adjustment disorder with mixed anxiety
and depressive mood, and borderline intellectual functioning.
Tr. at 979. Dr. Whitley stated Plaintiff did not meet
qualifications for mental retardation. Tr. at 980.
June 16, 2011
testified that he attended special education classes and was
unable to read or write. Tr. at 36. He stated he worked in
the construction industry as a carpenter's helper, a
plumber's helper, and an electrician's helper;
operated heavy equipment; and loaded and unloaded rolls of
plastic in a factory setting. Tr. at 36-37.
testified he stopped working on February 16, 2009, after
injuring his back. Tr. at 38-39. He indicated he experienced
severe back pain that radiated through his legs and caused
throbbing, tingling, and stabbing sensations. Tr. at 39 and
45. He endorsed severe headaches and numbness and tingling in
his arms. Tr. 39-40 and 43. Plaintiff testified he had
difficulty maintaining his balance and had sustained falls.
Tr. at 40. He stated he used a cane and a wheeled walker to
balance and alternate from sitting to standing and vice
versa. Tr. at 40 and 42. He indicated he was seeing a
psychiatrist for emotional problems that were often
manifested by anger, sadness, and crying. Tr. at 44.
reported that he could not sit and stand comfortably for more
than a short period of time. Tr. at 42. He testified he was
very emotional because of his inability to participate in
activities with his children. Tr. 44. He stated he used to
play golf, go fishing and hunting, and play with his
children. Id. He endorsed side effects from his
medications that included dizziness, lightheadedness, and
drowsiness. Tr. at 45-46.
stated he was able to care for his personal needs without
assistance. Tr. at 47. He indicated he occupied his time by
walking around, watching television, and lying down during
the day. Id. He testified he saw a chiropractor
three times a week. Tr. at 49.
testified he experienced sharp pain in his low back that
radiated through his legs and caused numbness. Tr. at 612. He
stated that, following his injury in February 2009, he filed
a Workers' Compensation claim and was referred to
doctors. Tr. at 601- 02. He indicated a Workers'
Compensation doctor authorized him to return to work on light
duty, but he was unable to complete the workday. Tr. at 603.
He stated he attempted physical therapy, but it increased his
pain. Tr. at 604. He indicated he underwent back surgery in
April 2013. Tr. at 606.
testified his pain typically ranged between a seven and an
eight on a 10-point scale and was aggravated by turning the
wrong way, exiting a car, sitting, and other activities. Tr.
at 613. He stated his pain disrupted his sleep. Id.
He testified his ability to walk varied from day to day. Tr.
at 614. He stated he could sometimes lift 10 to 20 pounds,
but other times had difficulty performing any lifting. Tr. at
615. He indicated he had difficulty bending to pick up items
from the floor. Id.
endorsed little change in his pain since undergoing the
surgery in February 2013. Tr. at 618. He stated the pain that
was radiating to his groin had disappeared, but indicated he
continued to experience pain through his legs. Id.
testified he received psychiatric treatment from Dr. Desai.
Tr. at 617-18. He stated he felt helpless and was unable to
care for his children. Id. He indicated he developed
marital problems that resulted in divorce. Tr. at 618. He
testified he had enjoyed hunting, fishing, golfing, and
playing church-league softball, but was no longer able to
engage in those activities. Tr. at 625-26, 632. He stated he
had been living with his parents for a year-and-a-half. Tr.
at 633. He indicated he spent most days watching television,
talking to his parents, and walking around the yard. Tr. at
633-34. He stated he was able to care for most of his
personal needs, but sometimes required help to put on his
shoes and socks. Tr. at 634.
testified he was enrolled in special education classes while
in school. Tr. at 620. He stated he had difficulty reading,
writing, performing mathematical operations, and learning
material. Id. He denied the ability to read a
newspaper or letter. Id.
September 9, 2014
Plaintiff testified he was in basic or special classes when
he was in school. Tr. 454-55. He stated he was expelled after
getting into a fight. Tr. at 457-58.
reported he injured his back while lifting a fire-rated door.
Tr. at 466. He stated his back went out and he fell to the
floor. Id. He indicated he asked Dr. Hibbitts to
allow him to return to work during the summer of 2009, but
left work permanently in September 2009, when he was unable
to perform light duty work. Tr. at 467-68.
testified he experienced pain in his back and legs. Tr. at
471. He indicated he initially experienced pain in his left
leg, but had begun to notice pain in both legs in 2013.
Id. He stated he underwent a discectomy in April
2013. Tr. at 472-73.
testified that he had been using a cane since he was injured.
Tr. at 474. He stated he often fell. Id. He