United States District Court, D. South Carolina
Elyse D. Jenkins, Plaintiff,
Commissioner of Social Security Administration, Defendant.
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 herein.
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.
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].
Plaintiff's Background and Medical History
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.
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.
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.
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.
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.
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
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
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.
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.
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.
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.
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.
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.
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.
20, 2013, a chest CT scan showed no change in the lingular
nodule. Tr. at 444.
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.
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.
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.
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.
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.
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.
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.
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.
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. ...