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 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.
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.
Plaintiff's Background and Medical History
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. Tr. at 30.
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
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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
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.
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.
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.
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.
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.
modified barium swallow test was normal on October 16, 2012.
Tr. at 414-16.
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
reported upper chest tightness on November 9, 2012. Tr. at
369. Dr. Lominchar diagnosed atypical chest pain.
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.
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.
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.
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.
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
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
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.
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.
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.
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.
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.
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