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 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.
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].
Plaintiff's Background and Medical History
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.
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.
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
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.
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
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.
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.
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.
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
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.
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.
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.
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.
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.
presented to Dr. Cain's office for medication refills on
April 8, 2014. Tr. at 344. He reported doing “fairly
well, ” and the provider noted his impairments were stable
on examination. Id.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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
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.
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.
Merrell administered bilateral L5-S1 transforaminal ESIs on
October 9, 2014. Tr. at 561-62.
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.
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.
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.
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.
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 ...