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Clarke v. Colvin

United States District Court, D. South Carolina

November 16, 2016

Ronald Allen Clarke, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant.



         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 his 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 herein.

         I. Relevant Background

         A. Procedural History

         On August 8, 2013, Plaintiff protectively filed applications for DIB and SSI in which he alleged his disability began on July 15, 2011. Tr. at 75, 73, 185-89, and 190- 95. His applications were denied initially and upon reconsideration. Tr. at 117-20, 121- 24, 128-31, and 132-35. On June 11, 2015, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Edward T. Morriss. Tr. at 23-40 (Hr'g Tr.). The ALJ issued a partially-favorable decision on August 10, 2015, finding that Plaintiff became disabled within the meaning of the Act on June 11, 2015. Tr. at 9-22. 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 1-4. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on November 24, 2015. [ECF No. 1].

         B. Plaintiff's Background and Medical History

         1. Background

         Plaintiff was 54 years old at the time of the hearing. Tr. at 18. He completed the eleventh grade. Id. His past relevant work (“PRW”) was as a construction worker. Tr. at 54. He alleges he has been unable to work since July 15, 2011. Tr. at 185.

         2. Medical History

         Plaintiff presented to Moncks Corner Medical Center on August 8, 2012, with nausea and vomiting. Tr. at 302. A physical examination revealed mild left-sided abdominal tenderness, but no other abnormalities. Tr. at 304. A computed tomography (“CT”) scan of Plaintiff's abdomen showed acute pancreatitis. Tr. at 303.

         Plaintiff followed up with Gregory Cain, M.D. (“Dr. Cain”), for medication refills on May 15, 2013. Tr. at 324. He reported improvement in his depressive symptoms with the addition of Venlafaxine, but requested a slightly higher dosage. Id. He stated his back pain was well-controlled with use of Lortab as needed. Id. He complained of some insomnia and requested medication to treat it. Id. Dr. Cain observed no abnormalities on physical examination. Id. He increased Plaintiff's dosage of Velafaxine to 75 milligrams, prescribed Ambien for insomnia, and refilled prescriptions for Lortab and Lisinopril-Hydrocholorothiazide. Tr. at 324-25.

         On October 3, 2013, Plaintiff indicated he had mild symptoms of depression and anxiety that included anhedonia, insomnia, fatigue, feelings of guilt or worthlessness, impaired concentration, and crying spells. Tr. at 318. He reported moderate back pain, but indicated it was stable on his medications. Tr. at 319. Dr. Cain observed Plaintiff to have paralumbar and parathoracic tenderness and decreased range of motion (“ROM”) with extension, lateral bending, and rotation. Tr. at 320. Plaintiff had normal gait, strength, sensation, and deep tendon reflexes in his bilateral extremities. Id. Dr. Cain indicated depression, insomnia, osteoarthritis, and hypertension were stable. Tr. at 320- 21. He prescribed Lortab 10-500 milligrams and Lisinopril-Hydrochlorothiazide 20-12.5 milligrams and instructed Plaintiff to follow up in two months. Tr. at 321.

         On October 11, 2013, Plaintiff presented to Trident Health Systems with syncope and dizziness. Tr. at 290. He reported left-sided chest pain and generalized weakness. Id. He denied neck pain, thoracic pain, lumbar pain, extremity pain, and extremity swelling. Tr. at 291. Plaintiff had full and painless ROM of his neck, back, and extremities. Tr. at 292. He demonstrated normal gait and had no neurological abnormalities. Id. A chest x-ray, electrocardiogram (“EKG”), electrocardiography (“ECG”), lab work, and a computed tomography (“CT”) scan of his head were normal. Tr. at 294. The attending physician diagnosed vertigo, chest wall pain, and dehydration. Tr. at 295.

         Plaintiff followed up with Dr. Cain for vertigo on November 7, 2013. Tr. at 315. He reported occasional episodes of dizziness and unsteady gait that lasted for minutes at a time. Id. He endorsed pain in his bilateral shoulders. Id. He complained of tenderness to palpation in the bicipital groove and humeral head of his left shoulder. Tr. at 317. Dr. Cain observed that Plaintiff's left shoulder ROM was decreased. Id. Plaintiff had normal strength, sensation, and reflexes in his bilateral upper and lower extremities. Id. Dr. Cain described him as having an anxious mood with a normal affect. Id. He administered a corticosteroid injection to Plaintiff's left shoulder and refilled his medications. Id.

         Plaintiff presented to Trident Health Systems on December 1, 2013, with chronic shoulder pain. Tr. at 285. The attending physician observed Plaintiff to have full ROM of his neck and painless ROM of his back. Tr. at 287. Plaintiff demonstrated tenderness to palpation, decreased ROM, and pain with external rotation of his left shoulder. Id. An x-ray of the left shoulder revealed minimal glenohumeral and moderate acromioclavicular (“AC”) joint arthropathy. Id. The attending physician diagnosed likely rotator cuff/shoulder impingement syndrome. Id.

         On December 17, 2013, J'Wanna D. Spann, MA (“Ms. Spann”), indicated Plaintiff had sought mental health services for “depression, low energy, loss of interest in pleasurable activities, and massive health problems.” Tr. at 338. She stated Plaintiff's health problems were likely a major contributor to his depressed mood and indicated Plaintiff had made no progress toward improving his mental health because he was seeking treatment for his physical complaints. Id.

         On January 13, 2014, Plaintiff requested refills of his medications for osteoarthritis, hypertension, and anxiety. Tr. at 312. Plaintiff assessed his pain as moderate and indicated it was controlled by his medications. Id. He stated he was not satisfied with his treatment for anxiety and requested that Dr. Cain prescribe a medication to be taken as needed. Tr. at 313. Dr. Cain observed Plaintiff to have paralumbar tenderness and decreased lumbar extension, lateral bending, and rotation. Tr. at 314. However, he noted Plaintiff had normal deep tendon reflexes, strength, and sensation and that a musculoskeletal exam otherwise revealed normal ROM, symmetry, tone, and strength. Id. He prescribed Xanax and refilled Plaintiff's other medications. Id.

         On January 14, 2014, state agency consultant Leslie Burke, Ph. D. (“Dr. Burke”), completed a psychiatric review technique form (“PRTF”) and considered Listing 12.04 for affective disorders. Tr. at 46-47. She assessed Plaintiff as having moderate restriction of activities of daily living; moderate difficulties in maintaining social functioning; moderate difficulties in maintaining concentration, persistence, or pace; and no repeated episodes of decompensation. Id. She performed a mental residual functional capacity (“RFC”) assessment and indicated Plaintiff was moderately limited with regard to the following abilities: to carry out detailed instructions; to maintain attention and concentration for extended periods; to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; to work in coordination with or proximity to others without being distracted by them; to complete a normal workday and workweek without interruptions from psychologically-based symptoms; to perform at a consistent pace without an unreasonable number and length of rest periods; to interact appropriately with the general public; to accept instructions and respond appropriately to criticism from supervisors; to respond appropriately to changes in the work setting; and to set realistic goals or make plans independently of others. Tr. at 52- 54.

         Plaintiff presented to Berkeley Mental Health Center on January 24, 2014, for an initial mental assessment. Tr. at 333-34. He indicated he was out of medications and had previously been cutting his dose in half to make the medication last longer. Tr. at 333. He complained of being “very depressed”; having “lots of anxiety”; experiencing panic attacks; avoiding crowds and public places; being angry with and yelling at others; neglecting his hygiene; experiencing sleep disturbance; and having poor energy and variable appetite. Id. Kristi West, DNP, APRN (“Ms. West”), performed a mental status examination and observed Plaintiff to have fair insight and judgment. Tr. at 333-34. She noted no other abnormalities on examination. Id. She assessed recurrent, moderate major depressive disorder. Tr. at 334.

         Plaintiff presented to Temisan L. Etikerentse, M.D. (“Dr. Etikerentse”), for a consultative examination on January 28, 2014. Tr. at 472-75. He endorsed low back pain that radiated down his left leg and indicated it had progressively worsened over the prior six-month period. Tr. at 472. He reported pain in his left arm and knees. Id. Plaintiff demonstrated normal ROM of his cervical spine. Tr. at 474. He had normal grip strength in his right hand, but his left grip strength was reduced to 4/5. Id. Dr. Etikerentse noted Plaintiff had difficulty with fine movements; tenderness to palpation, positive straight-leg raising (“SLR”) test at 70 degrees on the left; and demonstrated normal ROM of his hips, knees, ankles, and the small joints of his feet. Id. Plaintiff also had decreased ROM of his left shoulder. Tr. at 470. Dr. Etikerentse assessed controlled hypertension, difficulty hearing, back pain, possible left rotator cuff tear, and mild degenerative joint disease of the bilateral knees. Tr. at 474-75.

         On February 24, 2014, an x-ray of Plaintiff's right knee showed an irregular medial tibial plateau that was likely either degenerative or related to a prior osteochondral injury, as well as quadriceps enthesophytic spur formation. Tr. at 327.

         State agency medical consultant Rebecca Meriwether, M.D. (“Dr. Meriwether”), completed a physical RFC assessment on March 7, 2014, and indicated Plaintiff was limited as follows: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for about six hours in an eight-hour workday; sit for about six hours in an eight-hour workday; occasionally climb ramps/stairs, balance, stoop, kneel, crouch, and crawl; never climb ladders/ropes/scaffolds; unable to lift overhead with the left upper extremity; frequently able to handle and finger with the left hand; and must avoid concentrated exposure to hazards. Tr. at 49-52.

         Plaintiff presented to Dr. Cain's office for medication refills on April 8, 2014. Tr. at 344. He reported doing “fairly well, ” and the provider[1] noted his impairments were stable on examination. Id.

         Plaintiff presented to Anthony D. Poole, PA (“Mr. Poole”), in Dr. Cain's office on April 16, 2014, and reported that he had been approved for Medicaid and desired to establish regular treatment. Tr. at 345. He reported worsened mental health symptoms after undergoing cognitive behavioral therapy. Id. He complained of frequent agitation and stated Celexa was not helping his symptoms. Id. He indicated his pain was exacerbating his depression. Id. Mr. Poole observed Plaintiff to be intermittently tearful and to appear mildly anxious. Id. He discussed the matter with Dr. Cain and they agreed to change Plaintiff's medication to Effexor and to refer him to James H. Way, Ph. D. (“Dr. Way”), for counseling. Tr. at 346. He initially prescribed 75 milligrams of Effexor, but indicated the dosage would be titrated to 150 milligrams after two weeks. Id.

         On April 22, 2014, Plaintiff presented to Lowcountry Orthopaedics, and reported severe pain in his low back, neck, and shoulders that was exacerbated by all activities. Tr. at 363. He complained of numbness in his left hand and fingers that worsened at night and caused him to drop items. Tr. at 364. He indicated Lortab was providing little relief. Id. Christopher A. Merrell, M.D. (“Dr. Merrell”), observed Plaintiff to have paracervical and lumbar tenderness to palpation; pain with cervical and lumbar ROM; decreased sensation of the radial forearm, thumb, and index finger at ¶ 5-6; positive Spurling's test; and antalgic gait. Tr. at 365. He prescribed 300 milligrams of Gabapentin and referred Plaintiff for lumbar and cervical magnetic resonance imaging (“MRI”) and electromyography (“EMG”) and nerve conduction studies (“NCS”) of his left upper extremity. Tr. at 365-66. He diagnosed cervical radiculitis, cervical spondylosis without myelopathy, degeneration of lumbar intervertebral disc, and lumbar spondylosis without myelopathy. Id.

         On May 6, 2014, Plaintiff reported Gabapentin caused him to “feel drunk.” Tr. at 361. Dr. Merrell stated the MRI of Plaintiff's cervical spine showed a rightward disc protrusion at ¶ 4-5 and degenerative disc disease at ¶ 5-6 and the MRI of his lumbar spine indicated leftward disc herniation at ¶ 4-5 and L5-S1. Tr. at 362. He decreased Plaintiff's dosage of Gabapentin, replaced Lortab with Percocet, and recommended cervical and lumbar epidural steroid injections (“ESIs”). Tr. at 362-63. On May 8, 2014, he administered a left C7-T1 translaminar ESI. Tr. at 369-70.

         On May 20, 2014, Dr. Merrell observed the following abnormalities on examination: paracervical and lumbosacral tenderness to palpation; pain with cervical and lumbar ROM; decreased sensation in the C6 dermatome to radial forearm, thumb, and index finger; antalgic gait; and positive Spurling's test. Tr. at 358-59. He stated “[a]t this time[, ] I do not feel that he is able to work in any capacity due to pain.” Tr. at 360. Dr. Merrell administered bilateral L5-S1 transforaminal ESIs on May 22, 2014. Tr. at 367-68. On May 27, 2014, Dr. Merrell noted the same abnormalities on physical examination that he indicated during the prior week's visit. Tr. at 355-56. He stated an EMG showed C5 radiculopathy and bilateral carpal tunnel syndrome, right worse than left. Tr. at 356. He referred Plaintiff to William E. Wilson, M.D. (“Dr. Wilson”), for a cervical surgical consultation, ordered carpal tunnel braces, and refilled his medications. Id.

         Plaintiff presented to Dr. Way on May 28, 2014. Tr. at 403-04. He reported symptoms that included depressed mood, decreased interest, decreased pleasure, agitation, feelings of worthlessness, irritability, decreased concentration, tearfulness, helplessness, hopelessness, and anxiety. Tr. at 403. He indicated he was withdrawn and had difficulty being around crowds. Id. Dr. Way described Plaintiff as having adequate grooming; being appropriately dressed; maintaining good eye contact; demonstrating restlessness; having normal speech with an irritable tone; demonstrating a depressed and irritable mood; having a restricted affect; demonstrating logical thought processes; and being tearful. Tr. at 404. He diagnosed recurrent, moderate depression. Id.

         On May 29, 2014, Mr. Poole observed Plaintiff to have paracervical tenderness to palpation and to be using bilateral wrist splints. Tr. at 407. Plaintiff requested medication for smoking cessation, and Mr. Poole refilled Plaintiff's medications and prescribed Nicoderm patches. Id.

         Plaintiff presented to Dr. Wilson on June 4, 2014, with complaints of severe neck pain and numbness and tingling throughout his right arm. Tr. at 439-40. He indicated his symptoms had worsened over the prior four-month period. Tr. at 440. Dr. Wilson observed Plaintiff to have bilateral paracervical and trapezii tenderness; pain with cervical ROM; diminished reflexes; decreased deltoid abduction and biceps flexion on the right; decreased sensation of the outer upper arm at ¶ 5; decreased sensation of the radial forearm, thumb, and index finger at ¶ 6; and positive Spurling's test. Tr. at 442. He discussed possible surgical intervention and instructed Plaintiff that he would need surgical clearance from his primary care physician. Tr. at 443.

         Berkeley Community Mental Health Center closed Plaintiff's case on June 16, 2014, per his request. Tr. at 414. Ms. Spann indicated Plaintiff had made little progress in meeting his mental health goals because of his physical complications. Id.

         Janet Boland, Ph. D., (“Dr. Boland”), assessed the same degree of functional impairment as Dr. Burke on June 17, 2014. Tr. at 83. She indicated Plaintiff was moderately limited with respect to most of the same functions that Dr. Burke indicated, but found that he was not significantly limited in his ability to set realistic goals or make plans independently of others. Tr. at 90-92.

         On June 17, 2014, Plaintiff presented for a pre-operative evaluation. Tr. at 439. Christopher S. Schafer, PA-C (“Mr. Schafer”), observed Plaintiff to have bilateral paraspinal and trapezii tenderness; pain with extension and rotation; and 5/5 strength in the bilateral upper extremities, with the exception of 4/5 strength in the biceps and with right deltoid abduction. Id. He indicated Plaintiff had diminished reflexes in the bilateral biceps and triceps and diminished sensation to the C5-6 dermatome on the right. Id. He discussed the surgical option and possible complications with Plaintiff, and Plaintiff elected to proceed with C4-5 and C5-6 anterior cervical discectomy and fusion with instrumentation and bone grafting. Id. Dr. Wilson performed the surgery on June 23, 2014, without complications. Tr. at 427-29.

         On July 8, 2014, Plaintiff complained of generalized pain in his neck, as well as pain in his bilateral trapezii and shoulders. Tr. at 435. He reported numbness in his bilateral hands. Id. Mr. Schafer observed Plaintiff to have swelling, tenderness, and limited active ROM. Tr. at 436. An x-ray revealed Plaintiff's hardware to be intact and in good position. Tr. at 436. Mr. Schafer instructed Plaintiff on active ROM exercises and encouraged him to engage in them. Id.

         On July 29, 2014, state agency medical consultant Michele Spero, M.D. (“Dr. Spero”), assessed the same limitations as Dr. Meriwether, except she stated Plaintiff should not lift overhead with either upper extremity and should limit handling and fingering to frequent with the bilateral hands. Tr. at 87-90.

         On August 5, 2014, Plaintiff complained of loss of ROM and pain in his interscapular area, bilateral upper arms, and low back. Tr. at 459. Dr. Wilson observed Plaintiff to have no swelling, tenderness, or warmth and to be neurovascularly intact, but to have limited active ROM. Tr. at 460. He ordered physical therapy. Tr. at 461. He indicated Plaintiff's work status was “off work” and that Plaintiff would be unable to return to work for an indeterminate amount of time. Id.

         Plaintiff presented to Kathryn B. Conner, PA-C (“Ms. Conner”), for bilateral hand pain on August 11, 2014. Tr. at 456. He reported grip weakness and neck pain with radiation. Id. An x-ray of Plaintiff's hand revealed diffuse osteoarthritis. Tr. at 458. Ms. Conner reviewed the treatment options, and Plaintiff elected to proceed with surgery. Id.

         Keith Santiago, M.D. (“Dr. Santiago”), performed right carpal tunnel release surgery and administered a left carpal tunnel corticosteroid injection on September 4, 2014. Tr. at 464-65.

         On September 16, 2014, Plaintiff complained of decreased ROM in his upper extremities and pain in his bilateral shoulders, upper arms, low back, and bilateral legs. Tr. at 453-54. Dr. Wilson assessed bilateral shoulder impingement and indicated he would refer Plaintiff to a shoulder surgeon. Tr. at 455. He indicated Plaintiff should consult with a pain management physician and would likely need lumbar surgery in the future. Id.

         Plaintiff reported decreased symptoms of carpal tunnel syndrome on September 17, 2014. Tr. at 451. Dr. Santiago indicated Plaintiff's incision demonstrated no signs of infection and that Plaintiff had full finger extension. Tr. at 453. He recommended scar massage and finger and wrist ROM and strengthening exercises. Id.

         On September 22, 2014, Plaintiff presented to David H. Jaskwhich, M.D. (“Dr. Jaskwhich”), for shoulder pain that was accompanied by weakness and worse on the left than the right. Tr. at 550-51. Dr. Jaskwhich observed Plaintiff to have tenderness in the glenohumeral joint region of his left shoulder; limited active ROM on the left; forward flexion with passive ROM limited to 110 degrees on the right and 90 degrees on the left; positive Neer's test; positive O'Brien's test, and flexion and abduction limited to 4/5 on the left. Tr. at 552. He assessed shoulder pain and a full thickness rotator cuff tear; referred Plaintiff for an MRI; and discussed possible surgery. Tr. at 552-53.

         Plaintiff followed up with Dr. Merrell on September 25, 2014. Tr. at 547. He reported difficulty standing and walking as a result of pain in his back, posterior calf, and thigh. Tr. at 548. Dr. Merrell indicated Plaintiff was unable to tolerate Morphine. Tr. at 550. He prescribed Gabapentin and Percocet and advised Plaintiff that he must discontinue use of marijuana and should only obtain pain medications through Lowcountry Orthopaedics. Id. He administered a lumbar transforaminal ESI at ¶ 5-S1. Id.

         On October 6, 2014, Dr. Santiago observed Plaintiff to have a well-healed scar and full finger ROM. Tr. at 547. Plaintiff expressed a desire to proceed with left carpal tunnel release surgery, and Dr. Santiago indicated he would schedule the surgery in the near future. Id.

         Dr. Merrell administered bilateral L5-S1 transforaminal ESIs on October 9, 2014. Tr. at 561-62.

         Plaintiff presented to Kelly L. Merrell, ANP-BC (“Ms. Merrell”), for a medication visit on October 23, 2014. Tr. at 541. Ms. Merrell continued Plaintiff's prescriptions for 300 milligrams of Gabapentin, to be taken at bedtime, and 10 milligrams of Percocet, to be taken up to four times per day. Tr. at 544.

         Plaintiff complained of neck pain on October 28, 2014. Tr. at 538. Dr. Wilson indicated Plaintiff's cervical fusion was healing. Tr. at 540. An x-ray of Plaintiff's lumbar spine showed spondylosis from L3 to S1 and disc space collapse at ¶ 4-5 and L5-S1. Tr. at 563. Dr. Wilson discussed with Plaintiff the possibility of lumbar surgery. Tr. at 540.

         On October 31, 2014, Dr. Jaskwhich indicated an MRI of Plaintiff's left shoulder showed evidence of a partial tear of the supraspinatus and subscapularis and damage to the biceps tendon. Tr. at 538. He stated he would address Plaintiff's shoulder problems, if necessary, after he underwent surgery to his lumbar spine. Id.

         On November 3, 2014, Plaintiff presented to David Rodgers, M.D. (“Dr. Rodgers”), to establish treatment. Tr. at 487. He indicated problems that included dizziness, constipation, neck pain, chronic back pain, numbness in his bilateral hands, anxiety, and depression. Id. Dr. Rodgers noted Plaintiff used a cane. Tr. at 488. He prescribed medication for hypertension and discussed smoking cessation. Tr. at 489.

         On November 21, 2014, Dr. Wilson indicated Plaintiff had bilateral ankle weakness, L5 sensory changes, and positive SLR test. Tr. at 535. He discussed with Plaintiff ...

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