United States District Court, D. South Carolina
Shannon K. Evans, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant.
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 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.
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,
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].
Plaintiff's Background and Medical History
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. Tr. at 78.
Evidence Prior to Plaintiff's Date Last Insured
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. Tr. at 290, 293.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
Evidence After Plaintiff's DLI
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.
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.
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.
Evidence Presented to Appeals Council
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.
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
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.
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.
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
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.
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.
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 ...