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Webb v. Colvin

United States District Court, D. South Carolina

November 1, 2016

Janis Denise Webb, 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”) and 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.[1] 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 August 29, 2012, Plaintiff filed applications for DIB and SSI in which she alleged her disability began on August 4, 2012. Tr. at 162-65 and 453. Her applications were denied initially and upon reconsideration. Tr. at 156-57 and 454-58. On March 17, 2014, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Alice M. Jordan. Tr. at 511-80 (Hr'g Tr.). The ALJ issued an unfavorable decision on September 18, 2014, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 23-41. 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 8-10. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on January 28, 2016. [ECF No. 1].

         B. Plaintiff's Background and Medical History

         1. Background

         Plaintiff was 47 years old at the time of the hearing. Tr. at 529. She completed high school and vocational training in medical billing and coding. Tr. at 530. Her past relevant work (“PRW”) was as a medical billing clerk, a hospital admissions clerk, a retail sales clerk, a bookkeeper, a certified nursing assistant (“CNA”), and a motel clerk. Tr. at 569-70. She alleges she has been unable to work since May 29, 2012.[2] Tr. at 26.

         2. Medical History

         On August 4, 2011, Plaintiff reported having had no seizures since February. Tr. at 341. She complained of depression, appetite disturbance, and right hand pain. Id. Neurologist George Timothy Baxley, M.D. (“Dr. Baxley”) indicated Plaintiff had intact sensation, except at the right median nerve distribution. Id. He observed Plaintiff to have right hand grasp weakness and positive Tinel's and Phalen's signs on the right. Id. He administered an injection to Plaintiff's right hand. Id. Dr. Baxley indicated Plaintiff was wearing a brace for carpal tunnel syndrome and may need nerve conduction studies (“NCS”). Id. He stated “[i]n my opinion, she cannot engage in gainful employment due to her number of maladies.” Id.

         On October 14, 2011, Plaintiff complained of left hip pain to her provider at the Rosa Clark Clinic. Tr. at 298. An x-ray of Plaintiff's left hip showed mild degenerative spurring. Tr. at 290.

         Dr. Baxley indicated he was concerned that Plaintiff was developing a cervical myelopathy on November 3, 2011. Tr. at 340. He observed Plaintiff to have left circumduction of her gait and hand grasp weakness. Id. He recommended electromyography (“EMG”) and NCS of Plaintiff's neck, left sacroiliac region, and bilateral carpal tunnels and indicated he would consider magnetic resonance imaging (“MRI”) of her cervical spine. Id.

         Plaintiff presented to Eye and Contact Lens Associates for an eye examination on November 11, 2011. Tr. at 272-76. She was diagnosed with left optic nerve atrophy and bilateral myopia (nearsightedness), astigmatism, and presbyopia. Tr. at 276. The provider noted Plaintiff's optic nerve “looked the same as before” and indicated her vision was stable. Id. He prescribed new glasses. Id.

         On November 18, 2011, Plaintiff complained of cloudy urine and increased urinary frequency. Tr. at 297. Her provider at the Rosa Clark Clinic diagnosed a urinary tract infection and prescribed Cipro. Id.

         Dr. Baxley performed EMG and NCS on December 6, 2011. Tr. at 343. He indicated the bilateral L4 and C5 paraspinals showed distant fibrillations for EMG sampling. Id. He indicated NCS were negative and normal and the left SI joint was normal on the EMG studies. Id. He stated the findings were consistent with a bilateral mid-cervical and bilateral lower lumbar radiculopathy, but there was no evidence for carpal tunnel syndrome on either side. Id. He indicated Plaintiff had improved and should continue to follow up with Michael J. Ezell, D.C. (“Dr. Ezell”), for treatment. Id.

         Plaintiff presented to the emergency room (“ER”) at Oconee Medical Center, after having injured her right ankle on December 15, 2011. Tr. at 282. She stated she fell while climbing stairs. Id. An x-ray showed no evidence of fracture or dislocation. Tr. at 287. The attending physician diagnosed an ankle sprain. Tr. at 285.

         On April 9, 2012, Plaintiff and her husband reported that she had a seizure on the prior Friday evening. Tr. at 338. Dr. Baxley indicated Plaintiff may be having some sleep myoclonus. Id. Plaintiff continued to report swelling in her right foot and knee from the fall she sustained in December. Id. On physical examination, Dr. Baxley noted “[n]o edema other than mechanical edema with crepitus at the right knee and osteoarthritic-type swelling of the right ankle.” Id. He recommended Plaintiff undergo an electroenchaphalogram (“EEG”) and MRI of her brain and consult with an orthopedist. Tr. at 338-39.

         On May 10, 2012, the EEG was normal. Tr. at 279. The MRI of Plaintiff's brain showed bilateral, essentially symmetric, areas of subcortical white matter and cortical hyperintensity that were adjacent to some areas of localized cortical atrophy in the bilateral frontal lobes and posterior occipital parietal regions. Tr. at 280. The radiologist indicated he was uncertain as to the significance of the findings, but stated they may reflect sequelae of vasculitis or hypotensive ischemia with likely old chronic insults at the affected sites. Id.

         On May 29, 2012, Plaintiff complained to her provider at the Rosa Clark Clinic that she had been falling a lot and had injured her right knee. Tr. at 296. The provider encouraged her to follow up with Dr. Baxley. Id.

         On June 22, 2012, an MRI of Plaintiff's right foot showed mildly increased T2 signal within the proximal aspect of the second metatarsal and within the cuneiforms that could represent edema from bone bruising, as well as scattered areas of joint effusion about the foot and ankle. Tr. at 277. An MRI of Plaintiff's right knee showed a popliteal cyst and a small joint effusion. Tr. at 278.

         Plaintiff followed up with James C. McGeorge, M.D. (“Dr. McGeorge”), to discuss the MRI results on June 25, 2012. Tr. at 293. Dr. McGeorge indicated the MRI showed a popliteal cyst, but did not indicate any meniscal injury. Id. He observed Plaintiff to have mild effusions, but no increased warmth or erythema. Id. He administered a steroid injection. Id.

         On July 9, 2012, Dr. Baxley indicated Plaintiff was doing better and that her swelling had improved. Tr. at 337. He stated a recent EEG was normal and an MRI showed no change. Id. He instructed Plaintiff to follow up in six months. Id.

         Plaintiff complained of urinary incontinence on September 9, 2012. Tr. at 295. She indicated her right leg was swelling and that her back pain had increased since she sustained the fall in December. Id. The provider observed Plaintiff to be tender to palpation in her lumbosacral spine. Id.

         On September 10, 2012, Plaintiff complained of pain and swelling in her right leg and knee. Tr. at 292. Dr. McGeorge observed Plaintiff to have mild effusion, increased warmth, and erythema. Id. He administered a steroid injection. Id.

         State agency medical consultant Dale Van Slooten, M.D. (“Dr. Van Slooten”), reviewed the record and assessed Plaintiff's residual functional capacity (“RFC”) on October 16, 2012. Tr. at 130-32. He found that Plaintiff could occasionally lift and/or carry 20 pounds; could frequently lift and/or carry 10 pounds; could stand and/or walk for about six hours in an eight-hour workday; could sit for about six hours in an eight-hour work day; could occasionally climb ramps or stairs, balance, stoop, kneel, crouch, and crawl; could never climb ladders, ropes, or scaffolds; and should avoid even moderate exposure to hazards. Id. On February 11, 2013, state agency medical consultant William Crosby, M.D., assessed the same limitations. Tr. at 145-47.

         Plaintiff presented to Robin L. Moody, Ph. D., LPC (“Dr. Moody”), for a mental status examination on October 22, 2012. Tr. at 308. She indicated she felt depressed because three of her family members had passed away within the year and one of her friends was in the intensive care unit. Tr. at 308-09. She stated she slept at night and during the day for a total of nine to 10 hours. Tr. at 309. She indicated she socialized with members of her church. Id. She reported poor energy, feelings of helplessness, and loss of interest in her hobbies. Id. She indicated she experienced anxiety while driving and riding in a car and when her husband raised his voice to her. Id. Dr. Moody observed Plaintiff to be oriented; to have normal speech; to demonstrate normal affect; to have logical thought processes; to appear to be of average intelligence; to have fair concentration; and to demonstrate adequate memory during examination, but to have difficulty with delayed recall on the Folstein Mini-Mental Status Exam. Tr. at 310. She indicated Plaintiff appeared to be exaggerating some symptoms based on her score of 6/15 on Rey's 15-Item Malingering Scale, which was consistent with a strong possibility of malingering. Tr. at 311. Dr. Moody stated the following:

She seems rather manipulative and after the interview she stood up to leave and suddenly sat back down as if she were dizzy. The examiner did not acknowledge this so she continued to sit and stare and commented that this is what happens every day. She also reported that she feels withdrawn at times, yet she still attends church and a study group. She may be exaggerating some symptoms.

Id. Her diagnostic impression was “Consider Mood Disorder Due to Stroke” and she assessed a Global Assessment of Functioning (“GAF”)[3] score of 56.[4] Id.

         On October 22, 2012, state agency consultant Xanthia Harkness, Ph. D. (“Dr. Harkness”), reviewed the record and completed a psychiatric review technique form (“PRTF”). Tr. at 128-29. She considered Listing 12.04 for affective disorders and assessed Plaintiff as having mild restriction of activities of daily living (“ADLs”), mild difficulties in maintaining social functioning, concentration, persistence, or pace. Id. She considered Dr. Moody's report and Plaintiff's function report and found that her symptoms imposed “only minimal limitations on her ability to carry out basic work activities.” Tr. at 129. State agency consultant Kevin King, Ph. D, assessed the same level of restriction on February 11, 2013. Tr. at 142-44.

         On October 30, 2012, Debra A. King, Ph. D., LPC, LPCS, NCC (“Dr. King”), sent a letter thanking attorney Les Shayne for referring Plaintiff for an evaluation. Tr. at 313- 20. She indicated that she felt Plaintiff had been disabled since her last date of employment. Tr. at 313. She stated she had examined Plaintiff during sessions on September 7, 20, and 27, 2012. Id. She indicated Plaintiff became tired as the sessions progressed and that her ability to participate decreased as she became more tired. Id. Dr. King stated she believed Plaintiff to be validly reporting her condition. Tr. at 314. She indicated Plaintiff would have difficulty concentrating to perform a job; would require frequent breaks; would need support in completing tasks; and would miss a considerable amount of work. Id. She stated Plaintiff would have difficulty working around people, taking orders from superiors, and completing tasks in a timely manner. Id. Dr. King diagnosed post-traumatic stress disorder (“PTSD”), dysthymia, and depression. Tr. at 315. She indicated Plaintiff's GAF score to be 50.[5] Id. She stated Plaintiff's score on the Social Readjustment Rating Scale indicated a strong likelihood that she would develop more physical and emotional problems if she did not increase her stress management skills. Tr. at 315-16. Plaintiff's score on the Response to Stress Survey suggested she did not respond well to stress and her responses to the Self-Esteem Inventory indicated she had low self-esteem. Tr. at 316. Dr. King completed a PRTF on November 19, 2012. Tr. at 321-34. She indicated her impressions were applicable for the period from September 7, 2012, to the present. Tr. at 321. She stated Plaintiff's impairment met Listing 12.04 for affective disorders. Id. She identified Plaintiff's depressive symptoms anhedonia or pervasive loss of interest in almost all activities, appetite disturbance with change in weight, sleep disturbance, psychomotor agitation or retardation, decreased energy, feelings of guilt or worthlessness, and difficulty concentrating or thinking. Tr. at 325. She assessed Plaintiff to have extreme restriction of ADLs; extreme difficulties in maintaining social functioning; extreme difficulties in maintaining concentration, persistence, or pace; and four or more repeated episodes of decompensation, each of extended duration. Tr. at 330.

         On January 14, 2013, Plaintiff reported no recent seizures, but complained of knee pain, weakness, fatigue, and decreased activity. Tr. at 335. Dr. Baxley observed Plaintiff to have 4- strength, hand grasp weakness, stiff gait, and brisk deep tendon reflexes. Tr. at 336. He noted Plaintiff had a “very stiff gait with suspicious cervical myelopathy.” Id. He stated it was “unfortunate” that Plaintiff had been turned down for disability because “she [periodically] is excessively sleepy during the day.” Id.

         Plaintiff presented to Dr. McGeorge for persistent right knee pain on January 14, 2013. Tr. at 392. She indicated she received some temporary relief from a steroid shot, but continued to develop swelling when she walked. Id. Dr. McGeorge observed Plaintiff's right leg to be noticeably larger than her left. Id. He also noted that she had pitting edema and adductor canal and calf pain on the right. Id. He suspected Plaintiff had either a plica or internal derangement, but indicated a need to rule out deep venous thrombosis (“DVT”) before proceeding with other treatment. Id. An ultrasound revealed no DVT in Plaintiff's right lower extremity. Tr. at 391.

         On January 21, 2013, Plaintiff continued to report right knee pain. Tr. at 390. Dr. McGeorge indicated he suspected Plaintiff had either a plica or internal derangement and stated he would schedule her for surgery. Id.

         Plaintiff presented to Emmitt Carter, PA-C (“Mr. Carter”), for a preoperative examination on February 5, 2013. Tr. at 385-87. Mr. Carter observed Plaintiff to have 1 edema in her right knee, but to have no redness, warmth, or ecchymosis. Tr. at 386. He indicated Plaintiff's range of motion (“ROM”) was full and unencumbered, but that she was tender to palpation along her medial and lateral joint lines. Id. Plaintiff demonstrated no laxity when Mr. Carter stressed her cruciate and collateral ligaments. Id. She was neurovascularly intact in her right lower extremity. Id. Mr. Carter explained to Plaintiff the risks and benefits of surgery. Tr. at 387.

         Dr. McGeorge performed operative right knee arthroscopy on February 7, 2013, that revealed Plaintiff to have a plica. Tr. at 384. The next day, Plaintiff appeared to be improving and had no gross effusion to her knee. Tr. at 383. Plaintiff reported “almost no pain” on February 12, 2013. Tr. at 382. Dr. McGeorge indicated Plaintiff had good ROM and that ecchymosis was resolving in the posterior aspect of her knee. Id. On February 26, 2013, Plaintiff again reported “almost no pain in her knee.” Tr. at 381. Dr. McGeorge observed her to arise from a chair without using her arms and to squat down to 90 degrees without a problem. Id. He instructed Plaintiff to increase her activity level and to follow up in three weeks. Id.

         On March 5, 2013, an MRI of Plaintiff's cervical spine revealed a very large central/right paracentral disc height at C5-6 that caused severe spinal stenosis and cord compression. Tr. at 377. Plaintiff had trace cord edema. Id. The disc was “slightly more pronounced to the right side, ” where there was “considerable attenuation of the left and right C6 nerve roots.” Id. It also showed a prominent central disc height at C6-7 with upward extrusion of disc material behind the C6 vertebral body that caused cord compression and spinal stenosis, but no cord edema. Id. There was moderate crowding of the left and right C7 nerve roots at the nerve root foramen that was slightly greater on the right side. Id. The MRI further revealed a mild central disc bulge at C4-5. Id.

         Plaintiff consulted with Larry S. Davidson (“Dr. Davidson”), on March 7, 2013. Tr. at 374-75. Dr. Davidson observed Plaintiff to have 4-/5 grip strength, but to have normal mental status, no sensory deficits to light touch, and normal motor strength throughout the upper and lower extremities. Tr. at 375. He indicated Plaintiff had grossly normal gait and symmetric reflexes. Id. He reviewed Plaintiff's MRI and assessed cervical myelopathy. Tr. at 373. He recommended Plaintiff undergo anterior cervical decompression with fusion. Id.

         On March 19, 2013, Dr. McGeorge indicated Plaintiff was having a recurrence of knee pain and stated that it may be coming from her cervical myelopathy. Tr. at 380. He administered a steroid injection to Plaintiff's right knee. Id.

         Plaintiff visited Philip J. Hodge, M.D. (“Dr. Hodge”), for a second opinion on April 15, 2013. Tr. at 359. She assessed her pain as a six on a 10-point scale and described it as starting on the right side of her neck and moving down her arms, through the right side of her spine, and into her right leg. Id. Dr. Hodge observed Plaintiff to have difficulty with tandem walk, 3 reflexes, and numbness on her right side, but indicated she had 5/5 strength in her upper and lower extremities and that her mental status was normal. Id. He reviewed the MRI of Plaintiff's cervical spine and indicated he felt that Plaintiff needed C6 corpectomy to prevent further disability. Tr. at 360.

         Plaintiff rated her neck pain as a nine on a 10-point scale on June 6, 2013. Tr. at 356. Dr. Hodge indicated Plaintiff had normal mental status, memory, cognition and capacity for sustained mental activity. Id. He indicated she was unable to perform the tandem walk, but observed her to have 5/5 strength in upper and lower extremities. Id. He stated Plaintiff had 3 reflexes and numbness on her right side. Id. He assessed cervical stenosis and cervical myelopathy and discussed the risks and benefits of C6 corpectomy with Plaintiff. Tr. at 357.

         Dr. Hodge performed C6 corpectomy; placement of allograft at the C6 vertebral space; anterior arthrodesis and fusion from C5 to C7; placement of an intervertebral prosthetic device from C5 to C7, and anterior plate fixation from C5 to C7 on June 21, 2013. Tr. at 363-64.

         Plaintiff reported tingling and numbness from her right arm through her fingers and rated her pain as a five on a 10-point scale on July 2, 2013. Tr. at 353. Dr. Hodge observed Plaintiff to have 4 grip strength, but to have normal mental status, coordination, gait, and station. Id. He stated Plaintiff's hoarseness, swallowing, leg swelling, and coordination were improving and that her grip strength would improve with time. Id.

         Plaintiff presented to Sarah E. Peterson, M.D. (“Dr. Peterson”), to establish treatment on July 12, 2013. Tr. at 408. She reported a history of seizures that were well-controlled on Lamictal and with taking a nap every afternoon. Id. She indicated she had not had a seizure in over a year. Id. She denied difficulties with sleep, concentration, racing thoughts, confusion, memory loss, and suicidal thoughts, but endorsed feeling depressed. Tr. at 409. Dr. Peterson indicated a mental status exam was normal and that Plaintiff looked well and did not appear to be in pain. Tr. at 410. She observed Plaintiff to have no lower extremity edema. Id. She assessed chronic malaise and fatigue, depression, epilepsy, and hypertension, but noted that all of Plaintiff's impairments other than depression were controlled. Tr. at 410-11. She increased Plaintiff's dosage of Prozac to 20 milligrams and refilled her other medications. Tr. at 411.

         On July 30, 2013, Plaintiff reported to Dr. Hodge that the tingling and numbness in her right arm had resolved. Tr. at 350. Dr. Hodge observed Plaintiff to have normal, gait, station, coordination and mental status. Id.

         Plaintiff presented to Dr. Peterson for a gynecological examination on August 12, 2013. Tr. at 403. She reported that she was doing well and that her neck pain and depressive symptoms had improved. Id.

         On September 10, 2013, Plaintiff reported her neck pain to be a six on a 10-point scale. Tr. at 347. She endorsed numbness from her fingers to her elbow. Id. Dr. Hodge indicated Plaintiff was stumbling occasionally, but had normal mental status. Id. He continued Plaintiff's medications and instructed her to follow up in three months. Tr. at 348.

         Plaintiff followed up with Dr. Hodge regarding numbness in her right arm on December 10, 2013. Tr. at 344. She denied being in pain. Id. Dr. Hodge observed Plaintiff to have a normal gait and normal mental status. Id. He instructed her to follow up again in three months. Id.

         Plaintiff presented to Dr. Peterson on January 8, 2014, with complaints of dizziness and pressure, pain, and throbbing in her ears. Tr. at 399. Dr. Peterson observed no abnormalities on examination. Tr. at 400. She referred Plaintiff to an ear, nose, and throat specialist and prescribed Oxybutynin ER for chronic urinary incontinence. Id.

         On February 17, 2014, Plaintiff reported experiencing urinary incontinence and occasional dizzy spells that lasted for approximately five minutes at a time. Tr. at 395. She indicated the dizziness was accompanied by neck stiffness. Id. Dr. Peterson indicated Plaintiff “[a]ppears healthy, [l]ooks well, ” and “[d]oes not appear to be in pain.” Tr. at 396. She described Plaintiff's mental status as normal. Id. She increased Plaintiff's dosage of Oxybutynin ER for incontinence. Tr. at 397. She stated Plaintiff's dizziness appeared to be benign, but she offered a prescription for Antivert that Plaintiff declined. Id.

         On March 10, 2014, Plaintiff followed up with Dr. Hodge regarding numbness in her right arm and pain in her right leg. Tr. at 423. Dr. Hodge observed Plaintiff to have normal gait, normal mental status, and 3 reflexes. Tr. at 424. He prescribed Meclizine for dizziness. Tr. at 425.

         3. Non-Medical Evidence

         On February 14, 2014, Sheri Beaty (“Ms. Beaty”), indicated she had known Plaintiff for four years and that Plaintiff's health had declined over time. Id. She stated Plaintiff tired easily while walking and had to stop to rest. Id. She denied having witnessed Plaintiff's seizures, but indicated she understood that Plaintiff had to lie down each day to prevent them. Id. She described Plaintiff as sometimes staring into space and declining to participate in conversation. Id. She indicated Plaintiff continued to have difficulty with walking and climbing. Id.

         On February 17, 2014, Pat Wilson (“Ms. Wilson”), indicated she had known Plaintiff for two-and-a-half years. Tr. at 264. She indicated Plaintiff no longer attended her church, but that they continued to be friends. Id. She described Plaintiff as stumbling and falling a lot, becoming tired easily, having difficulty focusing, and having problems with her back and hips. Id. She observed Plaintiff to have difficulty standing in church and participating in the choir during the time that they attended the same church. Id. She stated she sometimes drove Plaintiff to doctor's visits. Id. She indicated she was worried by Plaintiff's depression and weight loss. Id. She stated Plaintiff continued to drag her right foot and to stumble following her surgery. Id.

         On February 25, 2014, Plaintiff's mother Sandra Howington (“Ms. Howington”), described Plaintiff as being unable to walk, drive, or speak clearly; becoming tired easily; and sleeping for long periods following her stroke. Tr. at 268. She stated Plaintiff's speech had improved, but that she continued to have difficulty walking. Id. She indicated she sometimes picked up Plaintiff to take her shopping and that she had witnessed incidents in which Plaintiff stared and did not speak. Id. She recalled that Plaintiff's falls increased before she had ...

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