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Whitfield v. Berryhill

United States District Court, D. South Carolina

May 10, 2017

Billie Jo Whitfield, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.

          ORDER

          Shiva V. Hodges United States Magistrate Judge.

         This appeal from a denial of social security benefits is before the court for a final order pursuant to 28 U.S.C. § 636(c), Local Civ. Rule 73.01(B) (D.S.C.), and the order of the Honorable Richard M. Gergel, United States District Judge, dated November 9, 2016, referring this matter for disposition. [ECF No. 9]. The parties consented to the undersigned United States Magistrate Judge's disposition of this case, with any appeal directly to the Fourth Circuit Court of Appeals. [ECF No. 8].

         Plaintiff files this appeal pursuant to 42 U.S.C. § 405(g) of the Social Security Act (“the Act”) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying the claim for 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 court reverses and remands the Commissioner's decision for further proceedings as set forth herein.

         I. Relevant Background

         A. Procedural History

         On January 22, 2013, Plaintiff filed an application for SSI[1] in which she alleged her disability began on February 20, 2010. Tr. at 118. Her application was denied initially and upon reconsideration. Tr. at 134-37 and 143-44. On April 30, 2015, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Jerry W. Peace. Tr. at 26-68 (Hr'g Tr.). The ALJ issued an unfavorable decision on June 5, 2015, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 8-25. 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 1-6. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on October 19, 2016. [ECF No. 1].

         B. Plaintiff's Background and Medical History

         1. Background

         Plaintiff was 50 years old at the time of the hearing. Tr. at 33. She completed the ninth grade. Tr. at 34. She had no past relevant work (“PRW”). Tr. at 36. She alleges she has been unable to work since February 20, 2010. Tr. at 118.

         2. Medical History

         The record contains a letter from Charles H. Hughes, M.D. (“Dr. Hughes”), dated August 18, 1992. Tr. at 487. Dr. Hughes stated Plaintiff had pins removed from her left elbow in March 1992, but that pins remained in her right knee. Id. He indicated Plaintiff had reduced ROM to flexion and extension of her right knee. Id. He stated Plaintiff was released to activities as tolerated, but would likely develop premature arthritis in her right knee and left elbow. Id. He indicated Plaintiff should avoid excessive bending, stooping, and kneeing with her right knee. Id.

         On October 12, 2006, Plaintiff underwent open reduction and internal fixation (“ORIF”) of her left distal fibula and placement of a syndesmosis screw, after having sustained a left ankle fracture. Tr. at 488-90.

         Plaintiff's recovery was complicated by a left bimalleolar malunion. Tr. at 496. Her physicians discussed working up possible infectious sources and performing hardware removal on the lateral side. Tr. at 496-504. They indicated they did not think that Plaintiff's ankle could be reconstructed to put the talus back under the plafond. Id. They informed Plaintiff that they would allow her to engage in activity as tolerated after removing the hardware, but that they would recommend ankle fusion if her pain did not resolve. Id. Plaintiff declined to proceed with hardware removal and surgery and opted to use a 3-D walker boot, attend physical therapy, and take anti-inflammatory and pain medications. Id.

         Plaintiff presented to the emergency room (“ER”) at Baptist Easley Hospital (“BEH”), on March 27, 2009, after having been assaulted. Tr. at 357. An x-ray of her left hand showed soft tissue swelling and osteoarthritic changes, but no evidence of acute bony trauma. Tr. at 360. An x-ray of her right hand revealed a probable acute fracture of her right ulna styloid, a possible acute fracture of her right fifth metacarpal, and osteoarthritic changes. Tr. at 362. An x-ray of Plaintiff's right humerus showed mild osteoarthritic changes, but no acute body abnormalities. Tr. at 364.

         Plaintiff again presented to the ER at BEH on November 2, 2009. Tr. at 367. She reported she twisted her left ankle. Id. The attending physician noted tenderness and swelling in Plaintiff's left medial malleolus. Tr. at 368. X-rays indicated chronic changes, but no acute abnormality. Id. The provider diagnosed a left ankle sprain and fitted Plaintiff with a controlled ankle motion (“CAM”) walker boot. Id.

         Plaintiff followed up in the ER at BEH on November 10, 2009, for left ankle pain and swelling. Tr. at 372. She stated she was unable to follow up with an orthopedist because she could not afford to pay an up-front fee of $200. Id. The attending physician observed that Plaintiff's left ankle range of motion (“ROM”) was restricted by pain and that Plaintiff was using a CAM walker. Tr. at 373. He referred Plaintiff to William Roberson, M.D. Id.

         Plaintiff attended five physical therapy sessions in November and December 2009. Tr. at 324-34. On December 8, 2009, the physical therapist noted that Plaintiff's left ankle strength and ROM were improving, but that she continued to require a cane and to demonstrate tenderness to touch, mild swelling, and decreased strength. Tr. at 324.

         Plaintiff next presented to the ER at EBH on January 28, 2010, after having twisted her left ankle. Tr. at 375. She reported pain and swelling. Id. The attending physician observed Plaintiff to have restricted ROM and swelling and tenderness over her left medial malleolus. Tr. at 376. An x-ray showed no acute bony injuries, but evidence of fixation from a prior fracture and significant degenerative changes, including joint space narrowing, subchondral bony sclerosis, and cyst formation on both sides of the ankle joint. Tr. at 377. The physician diagnosed a left ankle sprain and instructed Plaintiff to follow up with her primary care provider. Tr. at 376.

         Plaintiff presented to Wesley Grayson Lackey, M.D. (“Dr. Lackey”), at the Greenville Hospital System's Orthopedic Fracture Clinic on June 18, 2010. Tr. at 338. Dr. Lackey noted that Plaintiff had a history of ORIF of a left ankle fracture with syndesmotic fixation in 2006. Id. He stated she had subsequently developed a tibiofibular synostosis and post-traumatic arthritis with valgus tilt of the talus. Id. He indicated Plaintiff was “pretty much doing just fine” until she twisted her ankle three weeks prior. Id. Plaintiff reported increased swelling in her left ankle and was ambulating with a cane. Id. Dr. Lackey observed swelling, valgus alignment, too many toes sign, limited ROM, decreased dorsiflexion, and decreased plantar flexion. Id. He indicated x-rays of Plaintiff's left ankle showed tibiofibular synostosis, and valgus tilt of the talus with a lateral subchondral cyst secondary to degenerative changes. Id. He assessed post-traumatic arthritis of the left ankle with possible acute ankle sprain versus acute on chronic pain. Id. He advised Plaintiff of a variety of treatment options that included ankle fusion, Arizona ankle-foot orthosis (“AFO”), ankle joint injection, and a lace-up ankle brace. Id. Plaintiff declined all options other than the lace-up ankle brace. Id. Dr. Lackey advised her to rest, ice, and elevate her foot until she improved to her baseline. Id. Plaintiff reported she had not been working and requested a referral to physical therapy for a work evaluation score. Tr. at 339.

         Plaintiff presented to the ER at BEH on August 30, 2010, for left ankle pain and swelling. Tr. at 380. She stated her pain was exacerbated by movement and bearing weight. Id. An x-ray showed severe osteoarthritic changes in Plaintiff's left ankle joint. Tr. at 383. The attending physician advised Plaintiff to follow up with the Greenville Orthopedic Clinic within two days, to avoid bearing weight, and to continue her previous medications. Tr. at 381.

         On September 19, 2010, Plaintiff presented to the ER at BEH. Tr. at 386. She reported right hip pain, after having sustained a fall. Id. The attending physician observed that Plaintiff's right hip was tender, but that she had no swelling, erythema, or ecchymosis and that her ROM was unrestricted. Tr. at 387. He diagnosed a hip contusion, prescribed Vicodin and a Medrol Dosepak, and advised Plaintiff to follow up with her primary care physician. Id.

         Plaintiff complained of left ankle pain and indicated she was “retaining a lot of fluid” on December 8, 2010. Tr. at 344. Her provider at Samaritan Health Clinic (“SHC”) observed Plaintiff to have 1 pitting edema and to have lost 15 pounds since her last visit. Id.

         Plaintiff followed up at SHC and reported right heel pain on January 26, 2011. Tr. at 343. She stated the pain was worse upon rising and improved after she ambulated for several minutes. Id. Kathy Elmore, NP-C (“Ms. Elmore”) referred Plaintiff for an x-ray of her right foot. Id.

         Plaintiff presented to a provider at SHC on February 28, 2011. Tr. at 342. An x-ray of her right foot showed an old fracture at her fifth metatarsal, metal foreign bodies that were compatible with her report of having stepped on a needle as a child, and a heel spur. Tr. at 346. The medical provider offered Plaintiff a steroid injection, but she declined it. Tr. at 342. He advised Plaintiff to continue use of Naproxen, to get heel spur shoe inserts, to soak her foot in hot water, and to lose weight. Id.

         On April 24, 2011, Plaintiff presented to the ER at BEH for pain and swelling in her feet. Tr. at 394. The attending physician observed tenderness and swelling throughout Plaintiff's bilateral ankles and feet, but noted she had normal ROM. Tr. at 395. He prescribed Vicodin and advised Plaintiff to follow up with her primary care provider. Id.

         Plaintiff presented to Roland Knight, M.D. (“Dr. Knight”), for a comprehensive orthopedic consultative examination on June 22, 2011. Tr. at 398-403. She reported a history of left ankle bimalleolar fracture with ORIF that resulted in ankle swelling, restricted ROM, and continued pain with walking; right knee and left elbow injuries that required surgical intervention and resulted in intermittent stiffness, pain, and catching of the knee and mildly restricted ROM of the elbow; loss of strength in the left hand with numbness in the left ring and little fingers and distal forearm; occasional right midfoot sensitivity; intermittent pain, stiffness, and soreness in her lower back; and depression. Tr. at 398-99. She reported crying and suicidal thoughts, but denied having attempted suicide. Tr. at 399. Dr. Knight observed Plaintiff to be 5'7” tall and to weigh 230 pounds. Id. He noted Plaintiff was wearing a CAM boot walker on her left ankle and using a cane. Id. He observed some atrophy of the intrinsic muscles in Plaintiff's left hand and weakness of pinch, but noted her grip power was normal. Id. He found no localized sensitivity in Plaintiff's hands. Id. Plaintiff demonstrated normal ROM of her lumbar spine. Id. A straight-leg raising (“SLR”) test was negative, and Plaintiff had no spasms and normal reflexes. Id. Dr. Knight indicated Plaintiff's left elbow ROM was mildly restricted in extension and flexion.[2] Id. Plaintiff demonstrated reduced dorsiflexion and plantar flexion in her left ankle[3], but normal ROM in her hips, knees, and other lower extremity joints. Tr. at 400. She was able to walk on her heels, but was unable to walk on her toes or to fully stoop. Id. Dr. Knight observed that Plaintiff limped on her left lower extremity. Id. He interpreted x-rays of Plaintiff's left ankle to show a valgus deformity of the tibiotalar joint, sinostosis between the distal fibula and tibia, a lateral fibular plate, multiple screws with intact hardware, irregular articular surfaces of the distal tibia and talus, narrowed joint space, and increased space between the medial malleolus and the medial border of the talus. Id. His impressions were healed distal tibiofibular fractures with internal fixation and posttraumatic arthritis of the tibiotalar joint. Id. He diagnosed posttraumatic contracture of the left ankle and left elbow; intrinsic weakness and numbness of the left hand, secondary to ulna stretch or strain; questionable right knee early posttraumatic arthritis; obesity; and depression. Id. He stated it was necessary that Plaintiff use a cane and a CAM walker to provide comfort and improve her gait. Id. He observed that Plaintiff was tearful during parts of the examination. Tr. at 401.

         Plaintiff presented to Robin L. Moody, Ph. D., LPC (“Dr. Moody”), for a consultative mental status examination on July 19, 2011. Tr. at 416-18. She endorsed symptoms of depression that included depressed mood, fatigue, weight gain, insomnia, withdrawal, loss of interest in pleasurable activities and socialization, and difficulty concentrating. Tr. at 416. She denied suicidal or homicidal ideations, delusions, and hallucinations. Id. She reported abilities to perform light household chores, prepare meals, shop alone, manage her funds, and bathe and dress herself. Id. She indicated she had last worked in 2006. Tr. at 417. She reported rare use of alcohol and indicated she had not used illegal drugs since she completed an inpatient treatment program more than five years prior. Id.

         Dr. Moody observed that Plaintiff ambulated slowly with a cane. Id. She indicated Plaintiff appeared oriented; did not display any unusual mannerisms; was able to answer all questions to the best of her ability; had a normal affect; and described her mood as anxious. Id. Dr. Moody noted Plaintiff had logical and goal-directed thought processes and a cooperative attitude. Id. She stated Plaintiff appeared to be of average intelligence, had intact memory, and had slight impaired concentration. Id. Plaintiff scored 27/30 points on the Mini-Mental State Examination (“MMSE”) and missed two items for delayed recall. Id. Dr. Moody diagnosed recurrent, moderate major depressive disorder; history of physical abuse; and polysubstance dependence in sustained full remission. Tr. at 418. She stated Plaintiff could complete chores, prepare meals, shop alone, spend time with friends, manage funds, and maintain family relationships. Tr. at 417. She indicated it was possible that Plaintiff “may be exaggerating her symptoms.” Id.

         On August 8, 2011, state agency consultant Janet Boland, Ph. D. (“Dr. Boland”), reviewed the evidence and completed a psychiatric review technique form (“PRTF”). Tr. at 81-94. She considered Listing 12.04 for affective disorders and 12.09 for substance addiction disorders. Tr. at 81. She found that Plaintiff had mild restriction of activities of daily living (“ADLs”), mild difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, or pace. Tr. at 91. Dr. Boland also completed a mental residual functional capacity (“RFC”) assessment. Tr. at 95-98. She found that Plaintiff was moderately limited with respect to her abilities to understand and remember detailed instructions; carry out detailed instructions; maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; complete a normal workday and workweek without interruptions from psychologically-based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods; and interact appropriately with the general public. Id.

         State agency medical consultant William Hopkins, M.D. (“Dr. Hopkins”), completed a physical RFC assessment on August 11, 2011, and found Plaintiff to have the following limitations: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for at least two hours in an eight-hour workday; sit for about six hours in an eight-hour workday; frequently stoop, reach with the left upper extremity, and perform fine and gross manipulation with the left hand; occasionally climb ramps and stairs, balance, kneel, crouch, and crawl; never climb ladders, ropes, or scaffolds; and avoid concentrated exposure to hazards. Tr. at 99-106.

         On January 9, 2012, Norma L. Cano, FNP-C (“Ms. Cano”), observed Plaintiff to have 1 pitting edema to her bilateral lower extremities. Tr. at 451. She advised Plaintiff to use Thrombo-Embolic Deterrent (“TED”) hose, change her diet, stop smoking, and lose weight. Id. On February 9, 2012, Ms. Cano observed that Plaintiff's edema had improved with use of TED hose. Tr. at 450.

         On June 6, 2012, an x-ray of Plaintiff's left ankle showed postoperative and advanced arthritic changes to the left ankle and increased soft tissue swelling. Tr. at 439.

         On June 14, 2012, Plaintiff reported some improvement in her pain on an increased dose of Mobic. Tr. at 448. Ms. Cano assessed bilateral ankle pain, but noted Plaintiff had no swelling and full ROM in her extremities. Id.

         On September 12, 2012, Ms. Cano noted that Plaintiff's left lower extremity might be slightly more discolored than her right lower extremity. Tr. at 447. She advised Plaintiff to increase her activity, decrease her weight, stop smoking, and wear TED hose daily. Id.

         On January 30, 2013, Plaintiff reported that Mobic was no longer addressing her symptoms. Tr. at 443. She reported worsening daily joint pain that prevented her from being active. Id. She indicated she used a cane for ambulation. Id. Ms. Cano assessed joint pain in the bilateral knees and left ankle, gastroesophageal reflux disease (“GERD”), chronic pain, and use of a cane/assistive device. Id. She discontinued Mobic and prescribed Celebrex. Id.

         On May 28, 2013, Plaintiff presented to Alan Peabody, M.D. (“Dr. Peabody”), for a consultative examination. Tr. at 465-67. Plaintiff reported left ankle pain with a history of fracture and surgical intervention; intermittent right knee pain with a history of fracture; intermittent left elbow pain and left hand weakness and numbness with a history of left elbow fracture; hip pain, and depression. Tr. at 465. Dr. Peabody observed Plaintiff to be moderately obese and “in some distress with pain in her left foot and ankle.” Tr. at 466. He stated Plaintiff was wearing a brace on her left ankle and using a cane for balance. Id. He noted Plaintiff had 2 edema in her left ankle and was tender to palpation. Id. He stated Plaintiff was only able to extend and flex her left foot to about 20 degrees. Id. He indicated she had “virtually no lateral motion of the foot.” Id. He observed Plaintiff to have well-healed scars over her right knee and left elbow. Tr. at 467. He noted atrophy of the interosseous muscle in Plaintiff's left hand and particularly in her fourth and fifth digits. Id. He stated Plaintiff demonstrated full ROM of her upper extremities, normal grip strength on the right, and normal grip strength in the first and second fingers on the left. Id. He indicated Plaintiff could perform normal fine motor movements, except with the fourth and fifth fingers of her left hand. Id. He described Plaintiff's gait as “somewhat [of a] hobble because of her stiff ankle.” Id. He indicated she had marked motor weakness in the third, fourth, and fifth fingers of her left hand and was unable to squat because of her ankle. Id. His impressions were fracture of the right knee, motor vehicle accident with fractures of the left elbow and ankle, probable ulnar damage to the left arm, posttraumatic arthritis in the bilateral ankles, and exogenous obesity. Id. An x-ray of Plaintiff's left ankle showed severe post-traumatic degenerative osteoarthritis at the level of the ankle with fixation of distal long bone fractures. Tr. at 462. An x-ray of Plaintiff's right knee indicated three-compartment degenerative osteoarthritis and a healed fracture of the patella with fractured cerclage wire. Tr. at 463.

         Debra C. Price, Ph. D. (“Dr. Price”), a state agency consultant, completed a PRTF on June 21, 2013. Tr. at 111-12. She considered Listing 12.04 for affective disorders and found that Plaintiff had mild restriction of ADLs, mild difficulties in maintaining social functioning, and mild difficulties in maintaining concentration, persistence, or pace. Tr. at 111. Another state agency consultant Craig Horn, Ph. D. (“Dr. Horn”), indicated the same degree of mental limitation on August 20, 2013. Tr. at 125-26.

         State agency medical consultant Ted Roper, M.D. (“Dr. Roper”), reviewed the evidence and completed a physical RFC assessment on June 25, 2013. Tr. at 112-15. He found that Plaintiff had the following limitations: lift and/or carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk for a total of two hours in an eight-hour workday; sit for a total of about six hours in an eight-hour workday; occasionally climb ramps and stairs, balance, stoop, kneel, and crouch; never crawl or climb ladders, ropes, or scaffolds; frequently finger and handle with the left upper extremity; and avoid concentrated exposure to hazards. Id. Another state agency medical consultant, Dale Van Slooten, M.D. (“Dr. Van Slooten”), reviewed the record and assessed the same physical RFC on August 21, 2013. Tr. at 126-29.

         On August 21, 2013, Plaintiff complained of a three-week history of right hip pain that was accompanied by a burning sensation and a popping sound. Tr. at 483. Ms. Cano noted that Plaintiff had used a cane for support for “a long time” as a result of ankle injury and pain. Id. She stated Plaintiff had limited ROM in her left ankle and overcompensated with her right leg when she walked. Id. She assessed right hip pain and referred Plaintiff for an x-ray. Id.

         On September 11, 2013, Plaintiff followed up with Ms. Cano to review the x-ray report. Tr. at 480. Ms. Cano indicated the x-ray was negative. Id. She prescribed 100 milligrams of Neurontin twice daily and advised Plaintiff to lose weight, engage in stretching exercises, and walk as tolerated. Id.

         Plaintiff reported severe, burning right hip pain on October 31, 2013. Tr. at 479. Ms. Cano observed Plaintiff to be tearful, to have positive tenderness, to ambulate with a limp, and to use a cane. Id. She referred Plaintiff for an MRI of her right hip and increased her dosage of Neurontin to 300 milligrams twice a day. Id.

         On November 19, 2013, magnetic resonance imaging (“MRI”) of Plaintiff's lumbar spine showed mild multilevel degenerative disc and facet changes at multiple levels. Tr. at 468.

         Plaintiff reported chronic low back pain that radiated to her right hip on December 11, 2013. Tr. at 477. She indicated she had noticed some improvement in her pain since her dosage of Neurontin had been increased. Id. Ms. Cano indicated Plaintiff might benefit from physical therapy and referred her for an initial evaluation. Id. She advised Plaintiff to stretch before exercising and to work on losing weight. Id.

         On January 10, 2014, Plaintiff reported she had been unable to attend the physical therapy consultation because her mother was undergoing cancer treatment. Tr. at 476. She requested that she be referred again. Id. Ms. Cano assessed chronic back pain and rewrote the referral for a physical therapy evaluation. Id.

         On April 9, 2014, Plaintiff reported continued pain, after having strained her right sciatic nerve three weeks prior. Tr. at 474. She indicated physical therapy had been helpful. Id. Ms. Cano instructed Plaintiff to continue taking Celebrex and Baclofen and administered a Depo Medrol injection. Id.

         On September 24, 2014, Plaintiff requested a disabled placard for her vehicle. Tr. at 471. Ms. Cano indicated Plaintiff had been using a cane to ambulate for four years. Id. She noted ...


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