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Jenkins v. Commissioner of Social Security Administration

United States District Court, D. South Carolina

March 2, 2017

Elyse D. Jenkins, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION

          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. 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 March 15, 2013, Plaintiff protectively filed applications for DIB and SSI in which she alleged her disability began on January 21, 2013. Tr. at 207-13 and 214-19.

         Her applications were denied initially and upon reconsideration. Tr. at 115-19 and 125- 30. On October 16, 2014, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Marcus Christ. Tr. at 35-63 (Hr'g Tr.). The ALJ issued an unfavorable decision on November 17, 2014, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 18-34. 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 4-9. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on April 21, 2016. [ECF No. 1].

         B. Plaintiff's Background and Medical History

         1. Background

         Plaintiff was 49 years old at the time of the hearing. Tr. at 38. She completed high school and two years of college. Tr. at 39. Her past relevant work (“PRW”) was as a customer service representative, a social services interviewer, and a daycare worker. Tr. at 56. She alleges she has been unable to work since January 21, 2013. Tr. at 207.

         2. Medical History

         On January 21, 2013, Plaintiff was transported to the Medical University of South Carolina (“MUSC”) after being injured in a motor vehicle accident (“MVA”). Tr. at 317. She sustained a broken left leg, a broken left arm, a left ankle dislocation, an injury to an artery in her left leg, and a concussion. Id. She underwent open reduction and internal fixation (“ORIF”) of a left radius fracture, irrigation and debridement of a left leg laceration, ORIF of a left tibial plateau fracture, and closed treatment without manipulation of a left subtalar dislocation. Id. During her hospital course, Plaintiff was evaluated for a traumatic brain injury, but underwent a full cognitive evaluation and was found to have no deficits. Tr. at 423. She was discharged from MUSC on January 29, 2013, with instructions to bear no weight with her left arm or left leg; to wear a cervical collar at all times until follow up; to avoid driving or operating machinery while taking narcotic medications; to transfer from her bed to a wheelchair; and to continue taking aspirin for popliteal artery narrowing. Tr. at 317, 320, and 423.

         Plaintiff followed up with Jeremy J. Ackermann, D.O. (“Dr. Ackermann”), on February 13, 2013. Tr. at 331. Dr. Ackermann noted that Plaintiff was immobile and non-weight bearing. Id. He stated a computed tomography (“CT”) scan showed Plaintiff to have a lingular nodule in her lung. Id. Plaintiff reported anxiety and depression. Id. She described her mood as “down” and her energy as decreased. Id. She stated she was worried about everything, crying regularly, and experiencing flashbacks. Id. She complained of headaches and pain in her left arm and leg and right lower leg. Tr. at 331- 32. Dr. Ackermann assessed a lung anomaly, closed fractures of the tibia and radius, and mixed depression and anxiety. Tr. at 332. He prescribed Citalopram Hydrobromide for depression and indicated he would refer Plaintiff for another CT scan in three to four months to confirm that the nodule was stable. Id.

         Plaintiff presented to Gabrielle L. Poole, P.A. (“Ms. Poole”), at MUSC Health on February 15, 2013. Tr. at 430. She reported a lot of pain, and Ms. Poole observed her to be non-weight bearing on her left arm and leg. Id. Ms. Poole removed splints from Plaintiff's left ankle and wrist. Id. She noted Plaintiff's incisions were healing well and that she was neurovascularly intact. Id. She continued Plaintiff's use of a hinged knee brace and placed her in a short leg controlled ankle motion (“CAM”) boot and a short arm cast. Id. She instructed Plaintiff to remain non-weight bearing, referred her to physical therapy, and instructed her to work on range of motion (“ROM”) of the knee and hand. Id. She indicated Plaintiff was to remain out of work until her next office visit. Tr. at 430 and 452.

         On March 8, 2013, an x-ray of Plaintiff's left wrist showed no evidence of hardware complication or failure, but indicated no significant interval healing. Tr. at 376. An x-ray of her left leg showed partial interval healing and no evidence of hardware failure or complication. Tr. at 377-78.

         On March 12, 2013, Plaintiff followed up with Nancy Morgan Miller, P.A. (“Ms. Miller”). Tr. at 432. Ms. Miller observed Plaintiff to have some swelling in her left proximal tibia, knee, ankle, and wrist. Id. She indicated Plaintiff was neurovascularly intact in her left upper and lower extremities, but was very tender to palpation of her left wrist. Id. She fitted Plaintiff with a wrist brace. Tr. at 431. She removed Plaintiff's short ankle cast and replaced it with an air stirrup brace. Id. She indicated Plaintiff could be full weight bearing as tolerated with her left upper extremity and 50% weight bearing with her left lower extremity for the next two weeks. Tr. at 432. She stated Plaintiff should remain out of work. Id.

         Plaintiff followed up with Ms. Miller on April 19, 2013. Tr. at 433. She complained that her left ankle would swell if she stood on it for any period of time. Id. She also reported pain in her left wrist. Id. Ms. Miller observed Plaintiff to have minimal swelling in her left wrist and decreased ROM with supination and pronation to a lesser extent. Id. She noted Plaintiff continued to ambulate with a mildly antalgic gait using one crutch. Id. She indicated Plaintiff had some continued swelling in her left lower extremity, but had full extension of her left knee and good left ankle ROM. Id. She instructed Plaintiff to bear weight as tolerated and to continue to wear an Aircast splint on her left ankle as needed. Id.

         Plaintiff presented for an initial physical therapy evaluation on March 19, 2013. Tr. at 339. She reported that her pain was most severe in her left ankle and knee. Id. The physical therapist noted that Plaintiff was in a wheelchair, but had crutches and was 50% weight bearing. Id. She observed Plaintiff to have active ROM of her left knee from -10 to 100 degrees, passive ROM of her left knee from -5 to 110 degrees, left ankle dorsiflexion to 0 degrees, left ankle inversion to 5 degrees, left ankle eversion to 5 degrees, and left ankle plantar flexion to 45 degrees. Id. Plaintiff demonstrated 3-/5 quad strength and 3 ankle strength. Id. Plaintiff had left knee circumference of 56 centimeters and right knee circumference of 54 centimeters. Id. Her midpatella circumference was 45 centimeters on the left and 44 centimeters on the right. Id. The physical therapist indicated that Plaintiff was to remain 50% weight bearing until March 22, but was to progress as tolerated thereafter. Id. She stated Plaintiff's goals for therapy were to be independent with her home exercise program; to be walking with a normal gait and without an assistive device; to have 4 or greater strength in her left lower extremity; and to have minimal to no edema. Id.

         On March 26, 2013, Plaintiff reported to her physical therapist that she had not been doing the home exercises. Tr. at 345. The physical therapist noted that Plaintiff's ROM was increasing, but that Plaintiff continued to report pain with passive ROM. Id.

         On April 12, 2013, Plaintiff complained that her left ankle was making it difficult for her to walk. Tr. at 338. The physical therapist noted that Plaintiff was making slow progress because of inconsistent attendance and questionable compliance with her home exercise plan. Id.

         On April 19, 2013, an x-ray of Plaintiff's left leg showed stable plate and screw fixation and evidence of interval healing. T.r at 373-74. An x-ray of her left wrist showed stable plate and screw fixation with no hardware complications, but minimal interval healing. Tr. at 373. Plaintiff complained of ankle swelling that occurred when she was on her feet for any period of time. Tr. at 447. She also reported pain with supination and pronation of her wrist. Id. Ms. Morgan observed Plaintiff to have decreased ROM and minimal swelling in her left wrist. Id. She stated Plaintiff had full extension of her left knee and 110 degrees of flexion. Id. She observed some swelling in Plaintiff's left lower extremity. Id. She noted good ROM, but some tenderness and swelling in Plaintiff's left ankle. Id. She instructed Plaintiff to continue to bear weight as tolerated with her left upper and lower extremities and to use the Aircast splint as needed. Id. She indicated Plaintiff should continue to receive physical and occupational therapy and should remain out of work until her next evaluation. Id.

         State agency medical consultant William Cain, M.D. (“Dr. Cain”), completed a physical residual functional capacity (“RFC”) assessment on May 30, 2013. Tr. at 70-73. He indicated Plaintiff had the following restrictions: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for a total of about six hours in an eight-hour workday; sit for a total of about six hours in an eight-hour workday; frequently operate hand and foot controls with the left hand and foot; frequently balance; occasionally climb ramps and stairs, stoop, kneel, crouch, and crawl; never climb ladders, ropes, or scaffolds; frequently perform gross manipulation with the left hand; and avoid all exposure to unprotected heights. Id. Lisa Mani, M.D. (“Dr. Mani”), assessed the same restrictions on October 26, 2013. Tr. at 96-99.

         Dr. Ackermann completed a mental status form on June 3, 2013. Tr. at 436. He indicated Plaintiff's diagnoses to be depression and anxiety. Id. He stated he had prescribed Citalopram, but was unable to assess the effectiveness of the medication because Plaintiff had not followed up. Id. He described Plaintiff as oriented to time, person, place, and situation; having an intact thought process; demonstrating appropriate thought content; having a normal mood and affect; and showing adequate attention, concentration, and memory. Id. He indicated Plaintiff exhibited slight work-related limitation in function as a result of a mental condition. Id.

         On June 5, 2013, state agency consultant Camilla Tezza, Ph. D. (“Dr. Tezza”), reviewed the record and completed a psychiatric review technique form. Tr. at 69-70. She considered Listings 12.04 for affective disorders and 12.06 for anxiety-related disorders and found that Plaintiff had mild restriction of activities of daily living (“ADLs”); mild difficulties in maintaining social functioning; mild difficulties in maintaining concentration, persistence, or pace; and no episodes of decompensation that were of an extended duration. Id.

         On June 20, 2013, a chest CT scan showed no change in the lingular nodule. Tr. at 444.

         Plaintiff complained of anxiety, depression, discomfort in her left leg, and significant low back pain on June 26, 2013. Tr. at 441. She continued to report crying spells, irritability, and anxiety, but indicated her energy had slightly improved. Id. She indicated she was only taking Citalopram occasionally. Id. Dr. Ackermann observed Plaintiff to have bilateral paralumbar spasms and tenderness and slightly limited ROM secondary to pain. Id. He noted trace edema in Plaintiff's left ankle. Id. He prescribed Baclofen for muscle spasms and advised Plaintiff to engage in back stretching and strengthening exercises. Id.

         On July 12, 2013, Plaintiff reported swelling in her left ankle and knee after sitting for a long period. Tr. at 445. She complained of left wrist pain with supination. Id. She indicated she was unable to care for her family or to do many of the activities she had done prior to the accident. Id. She stated she had been practicing typing in an effort to return to her job at the call center. Id. Ms. Miller observed Plaintiff to ambulate with a mildly antalgic gait and to use a cane. Id. She stated Plaintiff was tearful. Id. She noted Plaintiff had decreased ROM of her left shoulder with abduction and forward flexion. Id. She observed decreased supination and flexion in Plaintiff's left wrist. Id. She stated Plaintiff had left knee flexion to 115 degrees and lacked 10 degrees of full extension. Id. Plaintiff had minimal swelling in her left ankle and good ROM. Id. X-rays of Plaintiff's left leg showed good alignment, stable hardware, and interval healing. Id. X-rays of her left wrist indicated good alignment, stable hardware, and a healed fracture. Id. Ms. Miller instructed Plaintiff to discontinue use of her left wrist brace and left ankle Aircast splint and to work toward ambulating without her cane. Id. She referred Plaintiff for additional physical therapy for her left shoulder, wrist, knee, and ankle. Id. Plaintiff's orthopedic surgeon Langdon A. Hartsock, M.D. (“Dr. Hartsock”), indicated Plaintiff should remain out of work pending a reevaluation in six months. Tr. at 450.

         On September 25, 2013, Dr. Ackermann indicated that Plaintiff had continued to deal with injuries and to follow up with her orthopedist, physical therapist, and occupational therapist. Tr. at 448. He stated Plaintiff's providers had not identified a date for her to return to work and indicated her orthopedist would update her work status at the beginning of the next year. Id.

         On December 20, 2013, Plaintiff reported she had recently discovered that her husband was cheating on her. Tr. at 463. She indicated her mood was down and depressed and that she had experienced crying spells, irritability, and anxiety. Id. She stated she was only taking Citalopram occasionally, but felt that it helped and that her energy level had slightly improved. Id. Dr. Ackermann noted Plaintiff had painful ROM of her right knee, but no obvious edema or calf tenderness. Tr. at 463-64. He observed Plaintiff to be mildly anxious and crying during the examination. Tr. at 464. He advised Plaintiff to take Citalopram as directed and referred her for counseling at Serenity Mental Health. Id. He discontinued Plaintiff's prescription for Lortab and replaced it with Acetaminophen-Hydrocodone Bitartrate 325-5 milligrams. Id.

         Plaintiff presented to Stacey Rothwell, PA-C (“Ms. Rothwell”), for an orthopedic follow up visit on March 4, 2014. Tr. at 467. She reported left wrist weakness and severe muscle spasms in her left lower extremity. Id. She indicated her muscle spasms were disturbing her sleep and causing her to feel fatigued during the day. Id. She requested a referral for additional rehabilitation. Id. Ms. Rothwell observed Plaintiff to have some weakness with supination and 4/5 grip strength in her left upper extremity. Id. She noted Plaintiff had intact sensation and “essentially full” ROM of her left wrist. Id. She observed Plaintiff to have crepitus in her left knee; to be able to flex from zero to 120 degrees; to have decreased sensation along the lateral aspect of her incision; and to have 4/5 quad strength. Id. Ms. Rothwell indicated Plaintiff required additional rehabilitation to treat weakness in her left upper and lower extremities. Id. She recommended Plaintiff engage in aggressive therapy three days a week and practice home exercises between therapy visits. Id. She indicated Plaintiff should return in six to eight weeks for an evaluation and indicated they hoped to “release her back to work full duty” at that time. Id. She prescribed Flexeril, but advised Plaintiff not to take it in combination with Baclofen. Id. An x-ray of Plaintiff's left leg showed significant interval healing and no evidence of hardware failure. Tr. at 475. Dr. Hartsock indicated Plaintiff should remain out of work until her next visit in six to eight weeks. Tr. at 449.

         Plaintiff presented to Hope Clinic for a second opinion regarding left knee and arm pain on March 29, 2014. Tr. at 454-55. The provider observed Plaintiff to walk with a normal gait and to have no edema or tenderness in her extremities or spine. Tr. at 455. He informed Plaintiff that it was not unusual for her to have the deficits she complained of after such major surgery. Id. He prescribed Neurontin and instructed Plaintiff to follow up in one month. Id.

         On March 31, 2014, Plaintiff complained of a severe frontal headache that was accompanied by nausea. Tr. at 460. She reported chronic pain in her left leg and wrist and requested a referral to physical therapy. Id. She stated she took Norco sparingly for pain and had not filled her prescription from December 2013. Id. She indicated she was seeing Jack H. Booth Psy. D (“Dr. Booth”), for depression and anxiety, but denied taking Citalopram regularly. Id. She endorsed symptoms that included a down and depressed mood, crying spells, irritability, and anxiety. Id. Plaintiff complained of pain with ROM testing of her right knee. Tr. at 460-61. Dr. Ackermann observed Plaintiff to have no obvious edema, no calf tenderness, and to be crying and mildly anxious during the examination. Id. He ordered a Toradol injection for Plaintiff's headache, referred her for physical therapy, and advised her to use Citalopram as directed. Id.

         Plaintiff followed up with Dr. Hartsock on June 17, 2014. Tr. at 468. She reported physical therapy was helpful. Id. Dr. Hartsock observed Plaintiff to have full ROM of her left knee and left wrist, healed incisions, and an intact neurovascular examination. Id. He indicated he would renew Plaintiff's physical therapy for another four weeks and expected that “she should be able to return to work full duty without restrictions.” Id.

         On June 19, 2014, Plaintiff complained of a headache that had lasted for three days and was not relieved by over-the-counter medications. Tr. at 456. She indicated she had experienced a similar headache two months earlier. Id. Eric G. Lloyd, P.A. (“Mr. ...


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