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 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. For the reasons that follow, the
undersigned recommends that the Commissioner's decision
be reversed and remanded for further proceedings as set forth
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].
Plaintiff's Background and Medical History
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. Tr. at 26.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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”) score of
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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