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Evans v. Colvin

United States District Court, D. South Carolina

October 13, 2016

Shannon K. Evans, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant.


          Shiva V. Hodges United States Magistrate Judge.

         This appeal from a denial of social security benefits is before the court for a 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 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.

         I. Relevant Background

         A. Procedural History

         On March 11, 2011, Plaintiff filed an application for DIB in which she alleged her disability began on September 10, 2008. Tr. at 161-62. Her application was denied initially and upon reconsideration. Tr. at 108-11, 117-18. On May 30, 2013, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Thaddeus J. Hess. Tr. at 73-97 (Hr'g Tr.). The ALJ issued an unfavorable decision on July 18, 2013, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 56-72. Subsequently, the Appeals Council denied Plaintiff's request for review, [1] making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 6-8. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on September 16, 2015. [ECF No. 1].

         B. Plaintiff's Background and Medical History

         1. Background

         Plaintiff was 43 years old at the time of the hearing. Tr. at 78. She completed an associate's degree in nursing. Id. Her past relevant work (“PRW”) was as a manicurist, an occupational health technician, and a registered nurse. Tr. at 94. She alleges she has been unable to work since May 26, 2010.[2] Tr. at 78.

         2. Medical History

         a. Evidence Prior to Plaintiff's Date Last Insured (“DLI”)[3]

         Plaintiff has a history of failed cervical fusion at the C5-6 level. Tr. at 290. In early-2009, Domagoj Coric, M.D. (“Dr. Coric”), performed a vertebrectomy at C6 and anterior fusion from C5 to C7.[4] Tr. at 290, 293.

         On May 26, 2010, Plaintiff reported persistent stiffness and muscular pain in her neck that radiated between her shoulder blades and intermittently into her right upper extremity. Tr. at 290. She complained of numbness in her left pinkie finger that increased with activity. Id. She reported walking up to two miles per day, but stated walking and other activity exacerbated her symptoms. Id. Dr. Coric noted no abnormalities on examination. Id. He indicated x-rays showed evidence of Plaintiff's prior surgeries, as well as kyphosis and spondylosis at the C4-5 level. Id. He noted Plaintiff had residual symptoms, but had reached maximum medical improvement. Id. He limited Plaintiff to sedentary work that required she not lift over five pounds; be permitted to frequently change positions; and avoid crawling, squatting, bending, climbing, or looking down for extended periods. Tr. at 291. He assigned a 20 percent permanent partial disability rating to Plaintiff's back. Tr. at 292.

         On September 20, 2010, Plaintiff complained to Gregory Sanders, PA-C (“Mr. Sanders”), of a three-month history of left ankle pain and swelling. Tr. at 264. Mr. Sanders indicated Plaintiff's MRI showed no fractures, but noted she had some mild swelling and was tender at her lateral collateral ligament complex and posterior talofibular ligament. Id. He prescribed an ankle brace and physiotherapy. Id.

         Plaintiff presented for a physiotherapy evaluation on September 30, 2010. Tr. at 266. She had some mild left ankle edema and tenderness, but demonstrated a normal gait and was able to bear weight. Tr. at 267. She demonstrated reduced left ankle range of motion (“ROM”) and strength. Id. Rhonda Maloney, PT (“Ms. Maloney), recommended Plaintiff participate in one physiotherapy session per week for four weeks. Tr. at 268. On October 5, 2010, Plaintiff reported no pain, after taking a five-mile walk over the prior weekend. Tr. at 273. She successfully completed physiotherapy, and Ms. Maloney released her from treatment on October 22, 2010, and instructed her to follow a home exercise plan. Tr. at 270.

         Plaintiff presented to Joshua Beardsley, PA-C (“Mr. Beardsley”), on October 6, 2010. Tr. at 286. She reported a flare up of neck pain that was intolerable at times and that necessitated she take narcotic pain medications. Id. Mr. Beardsley discussed the symptoms with Dr. Coric and discussed further workup with Plaintiff. Tr. at 288. Plaintiff indicated her symptoms had not increased to the point that she was willing to pursue further workup. Id. Mr. Beardsley indicated Plaintiff should slowly increase her activities, but refrain from doing things that caused her pain or discomfort. Id. He prescribed Naprosyn and encouraged Plaintiff to contact the office if she changed her mind about proceeding with further workup. Id.

         Plaintiff telephoned Dr. Coric to report increased neck and upper extremity pain on October 27, 2010. Tr. at 284. Dr. Coric recommended she proceed with a myelogram and post-myelogram computed tomography (“CT”) scan. Id.

         On November 12, 2010, Dr. Coric stated he was asked to increase Plaintiff's lifting restriction from five to ten pounds “to see if this would offer her more opportunities from a vocational rehabilitation perspective.” Tr. at 281. Plaintiff indicated attempts to lift up to ten pounds had exacerbated her symptoms. Id. She complained of constant neck pain that radiated between her shoulder blades and from her neck to her bilateral shoulders. Id. She reported numbness in her right little finger and weakness in both of her hands. Id. Dr. Coric observed Plaintiff to have mild bilateral hand weakness at 5-/5 and decreased sensation corresponding to the C8 distribution on the right. Id. He stated he had reviewed Plaintiff's myelogram and post-myelogram CT scan and that it showed kyphosis at C5-6 that had progressed somewhat since her last study. Tr. at 282. He indicated Plaintiff's spinal cord was draped over her kyphosis, but that the scan showed no evidence of cord compression. Id. He noted underfilling of both the C8 nerve roots below Plaintiff's fusion and from C5 to C7. Id. He observed increased motion above Plaintiff's fusion at C4-5 and underfilling in the left C5 nerve root. Id. He stated there was a solid fusion from C5 to C7 and no evidence for cord compression or gross instability. Id. Dr. Coric discussed with Plaintiff the options to treat the kyphosis at C5-6. Id. He stated that any attempt to revise the kyphosis would require a major spinal reconstructive operation. Id. He encouraged Plaintiff to delay the additional surgery until her symptoms became “absolutely intolerable.” Id. He indicated Plaintiff was permanently limited to lifting no more than five pounds. Id.

         On January 21, 2011, Plaintiff reported to Dr. Coric that she had attempted part-time, sedentary work as a personal care assistant, but was unable to tolerate the job. Tr. at 278. She complained of persistent numbness and tingling in her right upper extremity and pain between her shoulder blades. Id. Dr. Coric observed Plaintiff to have mild hand weakness at 5-/5 bilaterally, diminished grip strength, and decreased sensation corresponding to the C8 distribution. Id. He noted no other abnormalities. Id. He indicated the most recent CT scan showed increased kyphosis at the C7-T1 level, as compared to the 2009 and 2010 studies. Tr. at 279. He stated he did not expect Plaintiff would be able to return to even sedentary work. Id.

         Plaintiff followed up with Dr. Coric on February 4, 2011. Tr. at 274-75. She reported a decrease in her neck pain and right upper extremity symptoms and indicated the numbness in her right upper extremity was mostly positional. Tr. at 274. Dr. Coric noted that Plaintiff had decreased sensation in the fourth and fifth digits of her right upper extremity. Id. The examination was otherwise unremarkable. Id. X-rays of Plaintiff's cervical spine showed interbody fusion with anterior plate stabilization at C5 to C7, kyphosis at C5, and posterior fixation at C6-7, but no evidence of instability. Id. Electrodiagnostic studies showed no evidence of radiculopathy, but indicated median entrapment of the median and ulnar nerves in Plaintiff's right upper extremity. Id. Dr. Coric indicated he did not feel that Plaintiff could return to even sedentary work on a regular basis. Tr. at 275.

         Dr. Coric contacted Plaintiff on April 26, 2011, to discuss the results of her recent CT scan. Tr. at 318. Plaintiff reported neck pain and upper extremity radiation. Id. Dr. Coric recommended continued nonsurgical pain management. Id.

         State agency medical consultant Adrian Corlette, M.D. (“Dr. Corlette”), reviewed the record and completed a physical residual functional capacity (“RFC”) assessment on June 13, 2011. Tr. at 307-14. He indicated Plaintiff was limited as follows: occasionally lift and/or carry 10 pounds; frequently lift and/or carry 10 pounds; stand and/or walk at least two hours in an eight-hour workday; sit about six hours in an eight-hour workday; occasionally reach overhead, climb ramps/stairs, balance, stoop, and kneel; never climb ladders/ropes/scaffolds, crouch, or crawl; and avoid concentrated exposure to hazards. Id.

         Plaintiff received a right epidural steroid injection at C5 on July 26, 2011, and a left epidural steroid injection at C4-5 on August 16, 2011. Tr. at 319, 320. On September 7, 2011, Plaintiff complained to Dr. Coric of a constant aching pain in her neck and occasional sharp pain that extended into her shoulders. Tr. at 315. She described difficulty holding her head up after any significant period of activity. Id. She indicated injections at C4-5 had provided no significant relief and requested surgical intervention. Id. Dr. Coric noted Plaintiff had good motor strength and tone in her upper and lower extremities, but demonstrated decreased sensation to light touch and pinprick in her right fourth and fifth fingers. Id. He explained that a cervical MRI from July 15, 2011, and a CT scan from April 4, 2011, showed a solid interbody fusion from C5 to C7, mild kyphosis centered at C4-5, and spondylosis at C4-5 with a broad-based disc bulge that contacted, but did not appear to compress the cord. Tr. at 316. He indicated it was difficult to ascertain the exact source of Plaintiff's pain. Id. He stated it could be the kyphosis and adjacent-level spondylosis, but that would not explain the whole picture. Id. He indicated he did not recommend surgery because it may require extension of the fusion from C2-3 to C7-T1 to address kyphosis. Id. He stated the required procedure would “have significant potential morbidity” and would “certainly leave her with axial neck pain to the site of the procedure itself.” Id. Plaintiff persisted in her request to proceed with surgery. Id. Dr. Coric indicated he would obtain a standing scoliosis series, consult with other physicians, and contact Plaintiff regarding a treatment plan. Id.

         b. Evidence After Plaintiff's DLI

         Plaintiff received epidural injections on the left side at C4-5 on February 10, 2012, and on the right side on March 19, 2012, and July 3, 2012. Tr. at 340, 342, 345.

         On September 5, 2012, Plaintiff reported significant improvement following her last two epidural steroid injections. Tr. at 347. She continued to endorse chronic neck pain that radiated up to her skull and down between her shoulder blades, but stated it was tolerable with the injections. Id. Dr. Coric observed no abnormalities on examination. Id. He noted Plaintiff was neurologically stable and that her symptoms were well-controlled. Tr. at 348. He discussed proceeding with a fourth steroid injection, but warned Plaintiff that she would not be eligible for another injection until February or March of 2013. Id.

         Plaintiff received a left epidural steroid injection at C5 on September 28, 2012. Tr. at 351. On March 28, 2013, an MRI of Plaintiff's cervical spine showed mild multilevel degenerative disc disease, but no compressive lesion or stenosis. Tr. at 356.

         c. Evidence Presented to Appeals Council

         On March 22, 2013, Plaintiff reported an increase in her cervical pain and daily migraine headaches. Tr. at 42. She reported that recent steroid injections at C4-5 had not decreased her symptoms. Id. Physician Assistant Elton S. Clawson (“Mr. Clawson”), ordered an MRI and indicated Plaintiff should follow up with Dr. Coric to discuss its results. Tr. at 43.

         Plaintiff followed up with Dr. Coric on April 10, 2013. Tr. at 39. She reported daily neck pain that radiated to her head and triggered migraines, as well as pain that radiated from her shoulder blades through her upper extremities Id. Dr. Coric observed no significant abnormalities on examination. Tr. at 39. He indicated the recent MRI showed no evidence of progression of kyphosis or root compression. Tr. at 40. He recommended Plaintiff remain as active as she could tolerate and follow up in one to two years to reassess her kyphosis. Id.

         Plaintiff presented to Andrew Sumich, M.D. (“Dr. Sumich”), at Carolina Neurosurgery and Spine on June 17, 2013. Tr. at 36-38. Dr. Sumich reviewed Plaintiff's records, examined her, and elected to proceed with epidural steroid injections. Id. He administered four trigger-point injections in Plaintiff's bilateral trapezii and rhomboids. Tr. at 37.

         On July 23, 2013, Plaintiff indicated to Dr. Sumich that her most recent epidural steroid injection gave her the most relief of any epidural she had received. Tr. at 33. Dr. Sumich performed six trigger-point injections in Plaintiff's bilateral cervical paraspinal musculature, trapezii, and rhomboids. Tr. at 35.

         On September 9, 2013, Plaintiff complained to nurse practitioner Brandon Allison (“Mr. Allison”), of a recent flare up of neck pain and headaches. Tr. at 29. She reported difficulty extending her neck, weakness in her right arm, and feeling as if she were “carrying a bowling ball on her head.” Id. Mr. Allison noted decreased ROM of Plaintiff's cervical spine, 4 right biceps strength, 4/5 right wrist extensor, and 4 right grip. Tr. at 30. He scheduled Plaintiff for a right C4-5 epidural steroid injection and ordered an MRI of her cervical spine. Tr. at 31.

         On September 9, 2013, an MRI of Plaintiff's cervical spine showed a new C4-5 central subligamentous disc herniation mildly displacing, but not compressing the spinal cord or C5 nerve root. Tr. at 52. It indicated a slightly greater kyphotic angulation at C4-5. Id.

         Dr. Sumich administered epidural steroid injections on the right side of Plaintiff's neck at C4-5 on September 16, 2013. Tr. at 45. Plaintiff followed up with Dr. Sumich on October 10, 2013. Tr. at 26-27. She complained of axial neck pain with radiation to her trapezius muscles. Tr. at 26. Dr. Sumich observed Plaintiff to have moderate, decreased ROM of her cervical spine. Tr. at 27. He administered four trigger-point injections in the bilateral trapezii and cervical paraspinal musculature. Id.

         On November 1, 2013, Plaintiff complained to Dr. Coric of progressively severe neck pain that radiated up to her head and down between her shoulders and through her right upper extremity. Tr. at 22. She endorsed numbness and weakness in her bilateral hands. Id. Dr. Coric noted no significant abnormalities on physical examination. Tr. at 22-23. He indicated he reviewed Plaintiff's September 2013 cervical MRI with Plaintiff and her husband. Tr. at 23. Plaintiff was adamant that her symptoms were ...

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