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Creighton v. Commissioner of Social Security Administration

United States District Court, D. South Carolina

March 16, 2017

Teresa Creighton, Plaintiff,
Commissioner of Social Security Administration, Defendant.


          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 9, 2012, Plaintiff protectively filed applications for DIB and SSI in which she alleged her disability began on September 1, 2009. Tr. at 73, 74, 188-89, and 195-200. Her applications were denied initially and upon reconsideration. Tr. at 104-08, 109-13, 116-18, and 119-21. On July 22, 2014, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Robert C. Allen. Tr. at 29-55 (Hr'g Tr.). The ALJ issued an unfavorable decision on October 10, 2014, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 9-28. 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 1-5. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on June 17, 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 51. She completed high school and some college. Tr. at 34. Her past relevant work (“PRW”) was as a medical assistant. Tr. at 35. She alleges she has been unable to work since September 1, 2009. Tr. at 188.

         2. Medical History

         Plaintiff presented to Lexington County Mental Health for an initial clinical assessment on December 21, 2009. Tr. at 276-77. She complained of depression, sleeplessness, decreased appetite, and loss of interest in relationships. Tr. at 276. She reported having witnessed her husband's murder. Id. She stated she had previously responded well to medications and treatment through Gaston Mental Health. Id. Counselor Charles L. Griffin diagnosed post-traumatic stress disorder (“PTSD”) and assessed a global assessment of functioning (“GAF”) score[1] of 60.[2] Tr. at 277.

         Plaintiff met with counseling intern Gwen Huckeriede (“Ms. Huckeriede”), on January 27, 2010. Tr. at 278. She reported having been molested by an uncle at age 10 or 11. Id. She indicated she had trouble reaching out to others for support and had difficulty talking to her parents because they tended to be judgmental. Id. Ms. Huckeriede encouraged Plaintiff to ask questions and to determine what she hoped to accomplish through counseling. Id.

         Plaintiff was discharged from treatment at Lexington Mental Health on May 17, 2010, because she had failed to follow up for treatment. Tr. at 509.

         On February 10, 2012, Plaintiff presented to the emergency room (“ER”) at Hutcheson Medical Center, Inc., with complaints of shortness of breath, chest pain radiating to her back, weakness, fever, chills, coughing, and a recent 30-pound weight loss. Tr. at 284. The attending nurse observed Plaintiff to be wheezing and to have decreased air movement. Tr. at 285 and 286. However, a chest x-ray showed no acute abnormalities. Tr. at 300.

         Plaintiff presented to Lexington Medical Associates to establish primary care on June 12, 2012. Tr. at 346. She reported a history of asthma/chronic obstructive pulmonary disease (“COPD”), tobacco abuse, hypertension, acid reflux, and back pain that radiated to her left leg. Id. Nurse Practitioner Holly R. Owens (“Ms. Owens”), prescribed Soma for Plaintiff's back pain and encouraged her to engage in back exercises. Tr. at 347. She stated Plaintiff was prehypertensive and that she would prescribe medication if her blood pressure was elevated at her next visit. Id. She prescribed Ventolin and Spiriva for asthma/COPD, Chantix for smoking cessation, and Neurontin for postmenopausal symptoms. Id.

         Plaintiff presented to the ER at Lexington Medical Center on July 1, 2012, with a complaint of bilateral hand tremors and shaky legs. Tr. at 547. A neurological examination was normal. Id. Wesley Frierson, M.D., indicated the tremors were likely related to anxiety. Tr. at 548.

         Plaintiff complained of continuous back pain and some difficulty breathing on July 24, 2012. Tr. at 341. She reported some neuropathic pain in her lower extremities. Id. Ms. Owens observed Plaintiff to have full range of motion (“ROM”) of all extremities, 5/5 muscle strength, and negative edema to her bilateral lower extremities. Id. She encouraged Plaintiff to discontinue smoking. Id. She prescribed Soma for Plaintiff's back pain and indicated she may refer her to pain management and physical therapy in the future. Id. She prescribed Symbicort and advised Plaintiff to continue to use Spiriva and Ventolin. Id. She increased Plaintiff's dosage of Neurontin for postmenopausal symptoms and neuropathic pain. Id.

         On August 28, 2012, Plaintiff reported that she had discontinued Chantix on her own because it was increasing her irritability and she continued to smoke. Tr. at 338. She requested medication for anxiety and irritability. Id. She indicated she was only using Symbicort once daily, and Ms. Owens instructed her to take it twice a day as prescribed. Id. Plaintiff indicated Neurontin was providing no relief for her postmenopausal symptoms, and Ms. Owens discontinued it. Id. Ms. Owens prescribed Buspar for Plaintiff's irritation and anxiety and indicated she would consider prescribing Seroquel in the future. Id.

         Plaintiff presented to J.P. Ginsberg, Ph. D. (“Dr. Ginsberg”), for a mental status examination on September 1, 2012. Tr. at 301-03. She indicated that she drove to the examination and was able to drive without problems. Tr. at 301. She reported feeling “mad all the time” and having difficulty communicating her point in conversation. Id. She stated her family doctor had prescribed Buspar, but that she felt it was ineffective. Id. Plaintiff reported sleeping for only three hours per night and bathing a couple of times per week. Tr. at 302. She endorsed suicidal thoughts and a history of suicide attempts. Id. She reported no recent violent outbursts, but indicated she had been arrested for domestic violence in the past. Id. She denied paranoia and visual hallucinations, but indicated she sometimes heard a voice that she could not make out. Id. She complained of a sad and depressed mood, feelings of guilt and worthlessness, and difficulty concentrating. Id. She stated she enjoyed playing with her puppy, had some friends, and received support from her family members. Id. Plaintiff denied attending church and stated she did not like shopping for groceries, but would visit stores if her mother or son drove her. Id. She indicated she had a poor appetite and had lost 30 pounds over the prior six-month period. Id. She stated she cleaned her house and had “a tendency towards obsessive compulsiveness.” Id. She reported having been sexually abused by an uncle at the ages of nine and 12 and having been raped and physically abused by her husband. Id. She indicated her son subsequently killed her husband, but was not prosecuted. Id. She reported nightmares that occurred twice a month. Id. She endorsed a history of alcohol and cocaine abuse, but denied current use. Id.

         Dr. Ginsberg observed Plaintiff to be appropriately dressed and to have good hygiene and grooming. Id. He noted a resting tremor in Plaintiff's upper extremities. Id. He described Plaintiff as demonstrating a restricted affect, having poor eye contact, and appearing distracted. Id. He indicated Plaintiff's speech was normal. Id. He observed Plaintiff to have “noticeably slowed, vague and concrete, but not obviously loosened or disorganized” thoughts. Id. He indicated she was able to tell time on a clock, but could not make change. Id. He stated Plaintiff scored 33 out of 38 possible points on the Short Test of Mental Status. Id. He estimated her intelligence quotient (“IQ”) to be average or possibly below. Id. He assessed diagnostic impressions of anxiety disorder, not otherwise specified (“NOS”); depression, NOS; sexual abuse as a child; sexual and physical abuse as an adult; and probable PTSD. Tr. at 303. He indicated a need to rule out mixed personality disorder. Id. Dr. Ginsberg concluded that “[t]here may be some invalidity or lack of consistency in her reports, however, she is reporting an extreme amount of social and relationship adjustment problems that are very serious and repeated, so that it is difficult to know what her credibility is.” Id. He stated “overall severe axis II characterological pathology seems indicated by the history she has given.” Id. He indicated Plaintiff's hygiene and ADLs were “not directly impacted, ” but that her social interactions reflected “lifelong difficulties in forming successful intimate relationships and support systems. Id. He stated Plaintiff's cognitive functioning was “fair, ” but “less than expected given her report of having achieved an associate's degree.” Id. He indicated Plaintiff was “marginally competent to manage her own funds.” Id.

         State agency consultant Timothy Laskis, Ph. D. (“Dr. Laskis”), completed a psychiatric review technique form (“PRTF”) on October 15, 2012. Tr. at 60 and 67. He considered Listings 12.04 for affective disorders and 12.06 for anxiety-related disorders, but concluded Plaintiff did not meet either Listing. Tr. at 60 and 67. He stated that there was insufficient evidence to substantiate the presence of an affective disorder; to assess the severity of Plaintiff's PTSD; or to determine whether she had restriction of activities of daily living (“ADLs”), difficulties in maintaining social functioning, or difficulties in maintaining concentration, persistence, or pace prior to her date last insured (“DLI”) of June 30, 2011. Tr. at 60. Dr. Laskis considered Listings 12.04 and 12.06 for the current period. Tr. at 67-68. He found that Plaintiff had mild restriction of ADLs, moderate difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, or pace. Id. He concluded that the medical evidence showed Plaintiff had the ability to perform simple, unskilled tasks, but should avoid public interaction. Id. Dr. Laskis indicated Plaintiff was moderately limited with respect to the following work-related abilities: to understand and remember detailed instructions; to carry out detailed instructions; to maintain attention and concentration for extended periods; 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 get along with coworkers or peers without distracting them or exhibiting behavioral extremes; and to respond appropriately to changes in the work setting. Tr. at 69-71.

         Also on October 15, 2012, state agency medical consultant Lindsey Crumlin, M.D. (“Dr. Crumlin”), reviewed the evidence and concluded that it was insufficient for her to determine the severity of Plaintiff's physical impairments. Tr. at 66.

         On October 16, 2012, Plaintiff reported that Buspar had not helped her depression and irritability. Tr. at 330. She requested a prescription for Seroquel. Id. Ms. Owens stated Plaintiff's slightly elevated blood pressure was consistent with prehypertension. Id. She discontinued Buspar and prescribed Seroquel. Id.

         Plaintiff presented to J. Russell Williams (“Dr. Williams”), with an upper respiratory infection on November 16, 2012. Tr. at 325. She indicated she continued to smoke. Id. Dr. Williams observed Plaintiff to have wheezing and limited air movement. Id. He prescribed Doxycycline, Prednisone, Lortab, and Chantix. Id.

         On December 19, 2012, state agency medical consultant Craig Horn, Ph. D. (“Dr. Horn”), indicated there was insufficient evidence in the record to assess the severity of Plaintiff's mental impairments on her DLI. Tr. at 99.

         Plaintiff was transported to the ER at Lexington Medical Center on January 24, 2013, after reporting to her sister that she was suicidal and had taken three Lortab pills with Nyquil and alcohol. Tr. at 563. She appeared intoxicated, but was in no acute distress. Tr. at 558. She was discharged and instructed to follow up at Lexington County Mental Health within two days. Tr. at 567.

         Plaintiff presented to Palmetto Health Baptist for pulmonary function testing on February 1, 2013. Tr. at 370. She reported dyspnea when climbing hills and stairs, a productive cough, and frequent wheezing. Id. Mark J. Mayson, M.D. diagnosed a severe obstructive ventilatory deficit without any significant bronchospastic component. Tr. at 371.

         On February 13, 2013, Plaintiff requested that her dosages of Buspar and Seroquel be increased and that she be prescribed medication for sleep. Tr. at 452. Dr. Williams agreed to increase Plaintiff's psychiatric medication dosages and to prescribe Restoril for sleep, but he strongly advised her to seek psychiatric care. Id.

         Dr. Williams completed a mental condition form on February 13, 2013. Tr. at 380. He indicated Plaintiff's mental diagnoses were PTSD and depression. Id. He indicated her medications included Buspar and Seroquel. Id. He indicated the medication had helped Plaintiff's condition, but that psychiatric care had been recommended through Lexington County Mental Health. Id. He described Plaintiff as being oriented to time, person, place, and situation; having an intact thought process; demonstrating appropriate thought content; displaying a normal mood/affect; having good attention/concentration; and showing good memory. Id. He stated he was “[n]ot qualified to say” whether Plaintiff exhibited any work-related limitation in function due to her mental condition. Id. He indicated Plaintiff was capable of managing her own funds. Id.

         Plaintiff presented to Kimberly Kruse, Psy. D. (“Dr. Kruse”), for a consultative examination on February 18, 2013. Tr. at 421-23. She reported that her husband was killed six years earlier. Tr. at 421. She indicated that her husband had been abusive and that her parents had been strict and had punished her “by whipping, which did leave marks.” Id. She indicated she had been isolative and had not driven in a while. Id. She stated she was easily frustrated in social situations. Id. She reported nightmares and flashbacks. Id. She endorsed a history of three hospitalizations for alcohol abuse and depression. Id. She reported sleeping only a couple of hours each night. Tr. at 422. She denied using a computer, but indicated she enjoyed watching television and reading novels. Id. She stated she maintained her hygiene, did laundry, and prepared a shopping list for her son to use at the grocery store. Id. She indicated she occasionally talked to friends on the telephone. Id.

         Dr. Kruse described Plaintiff's mood as “somewhat anxious” and her affect as “restricted.” Id. She indicated Plaintiff was alert, oriented, and demonstrated normal psychomotor activity and speech. Id. She described Plaintiff's thought processes as logical, linear, and goal-directed. Id. She stated Plaintiff maintained appropriate eye contact. Id. She indicated Plaintiff had denied suicidal and homicidal ideations and had no overt psychosis or delusional process. Id. She estimated that Plaintiff's intelligence was average. Id. She observed Plaintiff to demonstrate intact neurocognitive abilities; to be able to recall three out of three objects from immediate memory and three out of three objects after delay and interference tasks; to have no impairment to a controlled oral word association task; to be able to perform simple mathematical calculations; to have intact visual-spatial processing; and to demonstrate intact attention and auditory comprehension. Id. Dr. Kruse's diagnostic impressions were major depressive disorder (“MDD”), by history; anxiety disorder, NOS; history of alcohol abuse; and nicotine dependence. Id. She stated “[f]rom a neurocognitive perspective based on mini-mental status exam, she does appear capable of performing simple repetitive tasks.” Tr. at 423. She indicated “[f]unctional limitations may present due to depression and anxiety, ” but that Plaintiff was able to communicate effectively, use appropriate judgment, understand and follow instructions, and manage funds appropriately. Id.

         On March 5, 2013, Dr. Horn considered Listings 12.04 and 12.06 on the PRTF. Tr. at 82-83. He assessed Plaintiff as having mild restriction of ADLs, moderate difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, or pace. Id. He completed a mental residual functional capacity (“RFC”) assessment and indicated Plaintiff had moderate limitations in her abilities to understand and remember detailed instructions; to carry out detailed instructions; to work in coordination with or proximity to others without being distracted by them; to interact appropriately with the general public; to get along with coworkers or peers without distracting them or exhibiting behavioral extremes; and to respond appropriately to changes in the work setting Tr. at 86-88. Dr. Horn indicated as follows:

Claimant can perform unskilled work activity that does not require constant interaction with the general public.
1. Claimant is able to understand and remember simple instructions but could not understand and remember detailed instructions.
2. Claimant is able to carry out short and simple instructions but not detailed instructions. Claimant is able to maintain concentration and attention for periods of at least 2 hours.
3. Claimant would perform best in situations that do not require on-going interaction with the public.
4. Claimant is able to be aware of normal hazards and take appropriate precautions.
RATING SUMMARY: Overall, claimant's symptoms and impairments are severe but would not preclude the performance of simple, repetitive work tasks in a setting that does not require on-going interaction with the public.

Tr. at 88.

         Plaintiff presented to Thomas J. Motycka, M.D. (“Dr. Motycka”), for a consultative examination on March 15, 2013. Tr. at 425-28. She reported a history of three back surgeries. Tr. at 425. She described pain in her low back that radiated to her left leg and foot. Id. She indicated she had difficulty standing for longer than 20 minutes and had to lean to the right when sitting. Id. Dr. Motycka observed that Plaintiff had “a brisk gait, with normal carriage, when in our facility.” Id. He also noted she was “smiling throughout the entire exam and sitting comfortably on the exam table not needing to fidget or reposition.” Tr. at 426. He indicated Plaintiff had normal gesturing, made good eye contact, and was cooperative. Id. He observed Plaintiff's back to be nontender. Id. The noted the entire orthopedic examination was normal and showed Plaintiff to have normal range of motion testing, negative straight leg raising (“SLR”) tests, 5/5 grip strength, normal walking and squatting abilities, no need for an assistive device, 5/5 muscle strength testing, and normal and symmetric reflexes. Tr. at 427. He ...

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