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Delesline v. Colvin

United States District Court, D. South Carolina

March 30, 2017

Vanessa Delesline, 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 her claim for Disability Insurance Benefits (“DIB”). 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 December 18, 2012, Plaintiff protectively filed an application for DIB in which she alleged her disability began on February 23, 2012. Tr. at 82 and 139-40. Her application was denied initially and upon reconsideration. Tr. at 85-88 and 90-91. On September 10, 2014, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Peggy McFadden-Elmore. Tr. at 26-57 (Hr'g Tr.). The ALJ issued an unfavorable decision on December 5, 2014, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 7-25. 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 1-3. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on January 17, 2016. [ECF No. 1].

         B. Plaintiff's Background and Medical History

         1. Background

         Plaintiff was 56 years old at the time of the hearing. Tr. at 34. She completed high school. Tr. at 37. Her past relevant work (“PRW”) was as a cashier. Tr. at 53. She alleges she has been unable to work since March 13, 2012.[1] Tr. at 30.

         2. Medical History

         Plaintiff reported poor sleep and generalized pain on July 15, 2011. Tr. at 235. Carlysle Barfield, M.D. (“Dr. Barfield”), instructed Plaintiff to start Lyrica and to taper and discontinue Prednisone and Neurontin. Id. He informed Plaintiff that he suspected she had fibromyalgia. Id. In a letter dated July 18, 2011, Dr. Barfield indicated that he had initially examined Plaintiff on July 1, 2011. Tr. at 237. He stated “[e]xamination revealed tenderness virtually everywhere she was palpated over her torso and extremities but no objective abnormalities.” Id. He indicated he felt Plaintiff likely had fibromyalgia, but that he needed to rule out polymyalgia rheumatica. Id.

         Plaintiff presented to the urgent care clinic at Nason Medical Center on February 4, 2012. Tr. at 279. She reported a history of chronic back and leg pain and stated her leg pain had worsened over the prior few days. Id. Scott Forrester, PA, diagnosed cystitis, back pain, and leg pain. Tr. at 280.

         On February 21, 2012, Plaintiff presented to orthopedic spinal surgeon Steven C. Poletti, M.D. (“Dr. Poletti”), with a complaint of constant lower extremity pain that was greater on the left than on the right. Tr. at 229. She endorsed some back pain, but classified her leg pain as much worse. Id. She stated her symptoms were exacerbated by all movement and were reduced by lying on her back for a short time. Id. Dr. Poletti observed Plaintiff to ambulate slowly and with an antalgic gait. Id. He noted she was diffusely tender. Id. He indicated Plaintiff was not using an assistive device to ambulate. Id. Plaintiff demonstrated no weakness and her reflexes were normal. Id. Dr. Poletti noted that magnetic resonance imaging (“MRI”) of Plaintiff's cervical spine showed very advanced cervical spondylosis with cord compression. Tr. at 230. He stated a straight-leg raising (“SLR”) test was positive on the right. Id. He recommended an updated MRI of Plaintiff's lumbar spine. Id.

         On February 29, 2012, Bennett D. Grimm, M.D. (“Dr. Grimm”), indicated the MRI showed Plaintiff to have fairly stable disc degeneration primarily at ¶ 5-S1 with disc collapse that resulted in bilateral foraminal stenosis, worse on the right than the left. Tr. at 227. He noted a loss of disc signal at ¶ 3-4 and L4-5 that resulted in minimal collapse and Modic changes at ¶ 5-S1. Id. Dr. Grimm observed Plaintiff to have negative bilateral SLR tests; full range of motion (“ROM”) of her knees; and full ROM of her hips with pain. Id. He assessed lumbar radiculopathy and recommended an epidural steroid injection (“ESI”) at ¶ 5-S1. Id. G. Robert Richardson, M.D., administered a left L5-S1 lumbar ESI. Tr. at 473.

         Plaintiff complained to Dr. Barfield of increasing back pain on March 6, 2012. Tr. at 221. She indicated the lumbar ESI had provided no relief. Id. She described the pain in her lower back as worse on the left than the right side. Id. Dr. Barfield observed Plaintiff to be tender in her lumbar spine. Id. He administered a Marcaine injection and instructed Plaintiff to engage in exercises for low back strain. Id.

         On March 27, 2012, Plaintiff reported she had received some immediate relief from the Marcaine injection, but that the pain in her lower extremities had increased again during the prior week. Tr. at 222. She complained of numbness in her feet with prolonged sitting. Id. Dr. Barfield instructed Plaintiff to continue Savella, Lyrica, and Klonopin. Id. He discontinued Plaintiff's prescription for Mobic and administered another Marcaine injection. Id.

         On April 17, 2012, Dr. Poletti indicated Plaintiff's lumbar MRI showed retrolisthesis of L5 on S1 with edema changes in the endplate that were greater on the right than the left. Tr. at 250. He noted that Plaintiff's back pain had increased to the point that she had needed to visit the emergency room (“ER”) on several occasions. Id. He recommended x-rays and a lumbosacral support. Id. He stated surgery was an option, but he considered it a last resort. Id. He recommended Plaintiff consider a rhizotomy procedure. Id.

         Plaintiff presented to Ellen Rhame, M.D. (“Dr. Rhame”), on April 26, 2012, for an initial pain management consultation. Tr. at 261. She complained of pain in her lower back, buttocks, and posterior lower extremities. Id. She indicated the pain was worse in her left lower extremity than her right. Id. Plaintiff also reported a history of fibromyalgia and bilateral lower extremity paresthesia. Id. She indicated her pain was worsened by standing and affected her sleep and appetite. Id. Dr. Rhame observed Plaintiff to have positive Patrick's test bilaterally; full ROM of the hips; multiple trigger points above and below the waistline; tender bilateral lumbar facets; intact bilateral lower extremity sensation; 5/5 lower extremity strength; negative SLR test; and 1 bilateral patellar and Achilles deep tendon reflexes. Tr. at 263. She noted Plaintiff performed heel and toe walking without difficulty. Id. She indicated she would schedule Plaintiff for left-sided L3, L4, and L5 medial branch blocks and S1 and S2 lateral branch blocks for lumbar spondylosis and sacroilitis symptoms. Id. She stated she would consider rhizotomy if Plaintiff responded well to the medial and lateral branch blocks. Id. She also indicated she would consider referring Plaintiff for physical therapy. Id. She prescribed Relafen and Tizanidine and advised Plaintiff to continue taking Lyrica and Savella and to reduce her weight. Tr. at 263-64. Dr. Rhame administered left L3, L4, and L5 medial branch blocks and left S1 and S2 lateral branch blocks on April 30, 2012. Tr. at 268.

         Plaintiff reported pain in her lower back and right lower extremity on May 10, 2012. Tr. at 265. She stated it was worse with walking and standing. Id. She indicated she had received no relief from the medial and lateral branch blocks. Id. Virginia Blease, PA-C (“Ms. Blease”), observed Plaintiff to have 5/5 musculoskeletal strength in her bilateral lower extremities; intact dorsal and plantar flexion; negative bilateral SLR tests; and normal muscle tone. Id. However, she indicated Plaintiff ambulated with an antalgic gait. Id. She continued Plaintiff's prescriptions for Relafen and Zanaflex, authorized her to receive a TENS unit, and referred her for physical therapy. Id.

         On May 22, 2012, Plaintiff reported that her back and leg pain was worsened by standing and reduced by sitting. Tr. at 264. She endorsed some swelling in her lower extremities and indicated she intended to address it with her primary care physician. Id. Ms. Blease observed Plaintiff to have 4/5 strength in her bilateral lower extremities; intact dorsal and plantar flexion; negative SLR tests; normal muscle tone; and antalgic gait. Id. She recommended a lumbar ESI at ¶ 5-S1and prescribed Nucynta for pain. Id. On June 4, 2012, Dr. Rhame administered a left L5-S1 lumbar ESI. Tr. at 267.

         Plaintiff reported fatigue and lower extremity pain on May 28, 2012. Tr. at 381. She indicated Lyrica was ineffective. Id. Monica Lominchar, M.D. (“Dr. Lominchar”), discontinued Zocor and Lyrica. Id.

         On June 19, 2012, Dr. Poletti indicated Plaintiff had received only some relief from injections and recommended she consider facet rhizotomy. Tr. at 249. He indicated he would discuss the procedure with Dr. Netherton and schedule it in the coming weeks. Id.

         Plaintiff presented to Dr. Lominchar for surgical clearance on July 13, 2012. Tr. at 377. She complained of left knee pain and edema and requested a prescription for Flexeril. Id. Dr. Lominchar observed no edema. Id. She indicated Plaintiff was morbidly obese and that her knee pain was likely caused by osteoarthritis. Id. She prescribed Flexeril. Id. X-rays showed mild degenerative osteoarthritic changes in the medial joint compartment of Plaintiff's left knee. Tr. at 360.

         Plaintiff contacted Dr. Lominchar's office on July 30, 2012, to report that her blood pressure was elevated at 160/104 during a preoperative visit. Tr. at 375. Dr. Lominchar prescribed five milligrams of Norvasc. Id.

         On August 3, 2012, Plaintiff's blood pressure was 122/76. Tr. at 374. She reported she had not taken Norvasc and indicated her blood pressure was previously elevated because of an argument with her daughter. Id. Dr. Lominchar decreased Plaintiff's dosage of Norvasc to two-and-a-half milligrams. Id.

         Plaintiff underwent surgery on August 6, 2012. Tr. at 272. Prior to the surgery, she reported left lower extremity weakness with numbness. Id. Dr. Poletti observed Plaintiff to have a slow, antalgic gait; limited ROM of her lumbar spine with extension; positive SLR test on the left; subjective dysesthesia in the left lower extremity with diminished gastrocnemius muscle function and Achilles reflex; and diminished sensation in the left foot. Id. He performed far lateral (transpedicular) decompression at ¶ 5-S1; posterior lumbar interbody fusion at ¶ 5-S1; placement of machined intervertebral interbody spacer at ¶ 5-S1; and pedicle screw instrumentation at ¶ 5-S1 using the Globus Revolve pedicle strew fixation system. Tr. at 274. Plaintiff made good progress and met her physical therapy goals following surgery. Tr. at 276. She was discharged on August 8, 2012. Id.

         On August 17, 2012, Plaintiff presented to East Cooper Medical Center with a complaint of pain in her low back and left leg. Tr. at 304. A computed tomography (“CT”) scan of Plaintiff lumbar spine showed postsurgical and degenerative changes at ¶ 5-S1, but no complication of the surgical hardware, acute or chronic fracture, pars defect, or spondylolisthesis. Tr. at 308. Kevin Keenan, M.D., released Plaintiff with prescriptions for Zofran and Oxycodone. Tr. at 310.

         Plaintiff presented to Amanda Thurber, PA-C (“Ms. Thurber”), in Dr. Poletti's office for her first postoperative visit on August 20, 2012. Tr. at 277. She complained of cramping, numbness, and occasional sharp pain that radiated down her left leg. Id. Ms. Thurber reviewed x-rays that showed Plaintiff's instrumentation to be stable. Id. She observed Plaintiff to ambulate with a slightly antalgic gait, but without a cane or walker. Id. She noted Plaintiff had negative bilateral SLR tests. Id. She indicated Plaintiff had symmetric, 5/5 strength and symmetric and intact deep tendon reflexes. Id. Ms. Thurber explained to Plaintiff that she was experiencing normal postoperative symptoms. Id. She indicated Plaintiff should avoid bending, lifting, or twisting and should wear her brace while she was up and moving about. Id.

         Plaintiff was tearful and reported significant pain on August 21, 2012. Tr. at 373. She indicated she had followed up with Dr. Poletti's office on the prior day, but had received no assistance. Id. Dr. Lominchar indicated she would follow up with Dr. Poletti's office. Id.

         Plaintiff followed up with Justin Swain, PA-C (“Mr. Swain”), in Dr. Poletti's office on September 17, 2012. Tr. at 484. She reported persistent low back pain and complications from her medications that included nausea and thrush. Id. Mr. Swain indicated Plaintiff had been “somewhat slow to progress overall, ” but had intact strength and reflexes in her lower extremities. Id. He noted x-rays of Plaintiff's lumbar spine showed her fusion and instrumentation to be stable. Id.

         Plaintiff complained of nausea, weight loss, and a four-week history of sore throat on September 28, 2012. Tr. at 371. She stated the sore throat started after her surgery. Id. She indicated she continued to experience chronic back pain that radiated to her bilateral legs and stated her family members were concerned that she was taking too many pills. Id. Dr. Lominchar referred Plaintiff for a barium swallow test and prescribed Mobic for back and leg pain and Azithromycin for sore throat. Tr. at 372.

         On October 8, 2012, Plaintiff contacted Dr. Lominchar's office to report that Mobic was providing no relief and to request medication for spasms. Tr. at 370. She indicated she was not taking pain medication because she was not eating. Id.

         A modified barium swallow test was normal on October 16, 2012. Tr. at 414-16.

         Plaintiff continued to report pain in her back, hip, and leg on October 22, 2012. Tr. at 485. Mr. Swain observed Plaintiff to ambulate with a slow, antalgic gait; to have limited ROM of her lumbar spine; to demonstrate signs of pain with extension; to have a positive SLR test on the left; and to have intact strength and deep tendon reflexes. Id. He indicated Plaintiff's x-rays remained stable. Id. Plaintiff stated she had stopped taking her medications, except for a rare Nucynta, because her family members had complained she was oversedated. Id. Mr. Swain indicated he would work with Plaintiff to find the right dosage of medication to control her pain without oversedating her. Id. He adjusted her medications accordingly. Id.

         Plaintiff reported upper chest tightness on November 9, 2012. Tr. at 369. Dr. Lominchar diagnosed atypical chest pain. Id.

         Plaintiff presented to Bon Secours St. Francis Hospital on November 15, 2012, with chest pain. Tr. at 356. A chest CT scan indicated probable right upper lobe pneumonia. Id.

         On November 20, 2012, Mr. Swain observed that Plaintiff was “healing slowly overall” and had shown “minimal progress with regards to her back and leg pain.” Tr. at 486. He noted Plaintiff was taking Neurontin, Nucynta, and Valium. Id. He observed Plaintiff to have a slow, antalgic gait; to demonstrate limited ROM of her lumbar spine; to show signs of pain with extension; to have a positive SLR test; and to show no evidence of worsening or focal neurological deficits. Id. He recommended Plaintiff attend physical therapy for modalities and stretching and start the process of weaning out of her brace. Id.

         Plaintiff followed up with Dr. Lominchar on November 20, 2012. Tr. at 366. She continued to report difficulty swallowing and right upper chest discomfort, but had no shortness of breath. Id. Dr. Lominchar indicated Plaintiff had dysphagia and should consult a gastroenterologist. Id.

         Plaintiff presented to the ER with complaints of chest pain and vomiting on November 24, 2012. Tr. at 394. Steven Feingold, M.D., prescribed Zofran and Phenergan and instructed Plaintiff to resume daily use of Prilosec. Tr. at 398.

         Plaintiff followed up with Ryan Aprill, PA-C (“Mr. Aprill”), in Dr. Poletti's office on January 2, 2013. Tr. at 452. She complained of chronic back pain with radiation into her bilateral lower extremities. Id. She indicated she continued to wear a brace and to use a cane. Id. She stated she spent most of her time “at home caring for her house, ” but traveled outside her home once or twice a week. Id. Mr. Aprill indicated Plaintiff's x-rays were stable. Id. He described Plaintiff as “very slow with her movements” and indicated she ambulated with an antalgic gait and used a cane for assistance. Id. Plaintiff reported pain with extension and SLR testing. Id. Mr. Aprill discontinued Plaintiff's prescription for Valium, prescribed Nucynta and Cymbalta, and referred her for physical therapy for core and lumbar strengthening. Id.

         Plaintiff presented to physical therapist Trina Kiernan (“Ms. Kiernan”), for an evaluation on January 9, 2013. Tr. at 390. She reported pain on palpation of her lower back and down the lateral aspect of her lower extremities. Id. Ms. Kiernan observed Plaintiff to have decreased sensation as a result of numbness and tingling and increased lordosis. Id. She noted Plaintiff's lumbar flexion was half of the normal range; her extension was a quarter of the normal range; her right rotation was a quarter of the normal range; her left rotation was half of the normal range; her right lateral bending was a quarter of the normal range; and her left lateral bending was half of the normal range. Id. She indicated Plaintiff had normal ROM, strength, deep tendon reflexes, flexibility, and lumbar joint play in her lower extremities, but complained of pain with resistive flexion on the left. Id. She stated Plaintiff was unable to walk on her heels or toes and could not perform one-legged balancing. Tr. at 391. Plaintiff demonstrated normal muscle strength on manual muscle testing, except for 4 strength with left hip flexors and left knee flexion. Id. Ms. Kiernan indicated Plaintiff was a good candidate for physical therapy, but that it was too painful for her to complete at that time. Id. She referred Plaintiff back to Dr. Poletti for additional imaging studies. Id.

         Plaintiff complained of dysphagia and low back pain on January 10, 2013. Tr. at 364. Dr. Lominchar noted Plaintiff's pneumonia had resolved. Id. She scheduled Plaintiff for a gastroenterology consultation. Tr. at 365.

         Plaintiff followed up with Courtney E. Bock, PA-C (“Ms. Bock”), in Dr. Poletti's office on January 15, 2013. Tr. at 451. She reported swelling and increased pain in her lower back. Id. Ms. Bock observed no evidence of inflammation, swelling, or hematoma and indicated x-rays showed Plaintiff's fusion to be consolidating well. Id. However, she noted Plaintiff was “particularly tender around the L-3 spinous process” and stated this was several inches above her L5-S1 incision. Id. She indicated Plaintiff had no bowel or bladder dysfunction and no focal deficits on exam. Id. She observed Plaintiff to have limited lumbar ROM; to use a cane for assistance; and to have positive SLR tests bilaterally to reproduce lower back pain at full extension. Id. She recommended Plaintiff proceed with a postoperative MRI. Id.

         On January 24, 2013, an MRI of Plaintiff's lumbar spine revealed mild noncompressive spondylosis at ¶ 1-2, L2-3, and L3-4; moderate facet arthropathy and mild diffuse bulge without root compression at ¶ 4-5; and evidence of previous surgery at ¶ 5-S1, with considerable granulation tissue, but no residual nerve root compression. Tr. at 453-54.

         A physical therapy progress note dated February 6, 2013, indicates Plaintiff reported her pain to be an eight on a 10-point scale. Tr. at 387. Ms. Kiernan described Plaintiff as ambulating with an antalgic gait and with the assistance of a cane. Id. Plaintiff reported she was unable to stand to cook, sleep for four hours at a time, return to work, shop for groceries, or ambulate without an assistive device, and Ms. Kiernan indicated her goals would be to improve these functions. Id.

         On March 12, 2013, Plaintiff was discharged from physical therapy after eight sessions and three missed appointments. Tr. at 505. She reported no lasting improvement in her back pain and stated she did not feel like physical therapy was helping. Id. She reported that she was unable to perform household chores, cook, walk any distance, or work. Id.

         Plaintiff followed up with Mr. Swain on March 28, 2013. Tr. at 450. Mr. Swain noted that x-rays of Plaintiff's lumbar spine showed appropriate positioning of the posterior instrumentation and interbody fusion at ¶ 5-S1. Id. He noted Plaintiff had continued to endorse back pain and minimal leg pain. Id. He recommended Plaintiff use a transcutaneous electrical nerve stimulation (“TENS”) ...

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