United States District Court, D. South Carolina
V. Hodges United States Magistrate Judge.
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].
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.
January 22, 2013, Plaintiff filed an application for
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].
Plaintiff's Background and Medical History
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.
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
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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. Id. Plaintiff
demonstrated reduced dorsiflexion and plantar flexion in her
left ankle, 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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
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.
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
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 ...