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Watts v. Berryhill

United States District Court, D. South Carolina

September 12, 2017

Steven Watts, Plaintiff,
v.
Nancy A. Berryhill, [1] Acting Commissioner of Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION

          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 his 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 26, 2013, Plaintiff protectively filed applications for DIB and SSI in which he alleged his disability began on September 19, 2012. Tr. at 118, 119, 201-07, and 208-16. His applications were denied initially and upon reconsideration. Tr. at 150- 54, 157-58, and 159-60. On August 14, 2015, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Colin Fritz. Tr. at 44-95 (Hr'g Tr.). The ALJ issued an unfavorable decision on October 14, 2015, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 22-39. 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 1-7. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on January 17, 2017. [ECF No. 1].

         B. Plaintiff's Background and Medical History

         1. Background

         Plaintiff was 47 years old at the time of the hearing. Tr. at 48. He completed the ninth grade. Tr. at 51. His past relevant work (“PRW”) was as a forklift operator and general production worker. Tr. at 52-53 and 81-82. He alleges he has been unable to work since September 19, 2012. Tr. at 48.

         2. Medical History

         Plaintiff regularly visited pain management physician Robert LeBlond, M.D. (“Dr. LeBlond”), for treatment of low back pain and medication refills from October 5, 2011, through September 13, 2012. See Tr. at 654-74.

         Plaintiff was admitted to Greenville Memorial Hospital (“GMH”) on September 19, 2012, following a rollover motor vehicle accident (“MVA”).[2] Tr. at 301. He sustained fractures to multiple ribs, the L2 to L5 spinous process, the L1 to L5 transverse process, the acetabulum, the inferior rami, the left femur, the right tibial plateau, and the right great toe. Tr. at 304. He underwent open reduction and internal fixation (“ORIF”) of his right actetabulum and lateral tibial plateau and intermedullary nailing of his left femur. Id. His recovery was complicated by development of an ileus and deep venous thrombosis. Id. Plaintiff participated in physical therapy during his recuperation period and was transferred to Roger C. Peace Rehabilitation Hospital (“RCPRH”) for additional intensive rehabilitation on October 10, 2012. Tr. at 304-05.

         Plaintiff participated in inpatient rehabilitation at RCPRH from October 10, 2012. Tr. at 440. He received a therapeutic dose of Coumadin and his blood pressure medication was adjusted to address hypertension. Id. His pain was well-controlled with OxyContin and Roxicodone, and he made good progress with physical therapy. Id. On October 26, 2012, Plaintiff was discharged to his sister's home, where 24-hour care was to be provided. Id. At the time of discharge, he was instructed to remain non-weight bearing on his legs and his left hand, but was able to perform modified independent transfer from his wheelchair. Id.

         Plaintiff presented to GMH with a right gluteal abscess on November 1, 2012. Tr. at 550. The abscess was drained, and Plaintiff was instructed to follow up in the Green Surgery Clinic in one week. Tr. at 553 and 563.

         Plaintiff presented to Richard William Gurich, Jr., M.D. (“Dr. Gurich”), for follow up on the abscess on November 6, 2012. Tr. at 614. He complained of chronic pain in his back, chest, hips, and knees. Id. He indicated the right gluteal abscess was healing with no further signs of infection, but reported a new abscess on his left posterior thigh. Id. Dr. Gurich observed the right buttock abscess to be healing well. Tr. at 615. He expressed purulence and decompressed the abscess on Plaintiff's left posterior thigh. Id. He instructed Plaintiff to complete his course of Bactrim and to soak in warm water as needed. Id.

         Plaintiff followed up with Mark Zelickson, M.D. (“Dr. Zelickson”), regarding the abscesses on November 13, 2012. Tr. at 632. Dr. Zelickson indicated the wound on Plaintiff's right buttock was granulating and had no surrounding induration or erythema and the wound on his left thigh was nearly closed. Id. He noted that Plaintiff had limited mobility, but instructed him to turn frequently while in bed and to avoid sitting in his wheelchair for long periods. Id.

         On November 16, 2012, John Scott Broderick, M.D. (“Dr. Broderick”), observed that Plaintiff had no tenderness in his distal radius, full pronation and supination, and flexion and extension reduced by 10 degrees in his left upper extremity. Tr. at 628. Plaintiff had only slightly decreased range of motion (“ROM”) in his left lower extremity. Tr. at 628-29. He was neurovascularly intact and had no signs of infection in his right lower extremity. Tr. at 629. His x-rays were consistent with healing fractures. Id. Dr. Broderick removed Plaintiff's cast and instructed him to bear weight as tolerated on his left wrist. Id. He indicated Plaintiff should remain non-weight bearing on his bilateral lower extremities. Id.

         Plaintiff presented to David Goldsmith, PA-C (“Mr. Goldsmith”), on December 10, 2012, for pain management. Tr. at 651. He reported pain in his shoulder and bilateral thighs and increased pain in his right lumbosacral area. Id. He endorsed generalized weakness in his lower extremities and numbness and tingling in his toes. Id. Mr. Goldsmith observed Plaintiff to be seated in a wheelchair. Id. He noted Plaintiff's back was tender along the right lumbosacral area, but that he had full ROM with dorsiflexion and plantar flexion of the feet, bilateral knee extension and flexion, and a negative straight-leg raising (“SLR”) test. Tr. at 652. He observed Plaintiff to be able to stand, but indicated his posture was flexed. Id. Mr. Goldsmith refilled Plaintiff's prescriptions for Lortab 10/500 mg, Flexeril 10 mg, and Amitriptyline 100 mg. Id.

         On December 14, 2012, x-rays revealed Plaintiff's hardware to be in good position and his fractures to be healing with no displacement. Tr. at 625. He complained of pain in his hip and knee, but stated he felt as if he were improving. Id. Plaintiff had intact sensation and normal strength in his lower extremities, but had slightly decreased ROM in his left leg. Id. He had good strength and sensation in his left wrist, but his ROM was slightly decreased. Tr. at 625-26. Kyle Jeray, M.D. (“Dr. Jeray”), instructed Plaintiff to bear weight as tolerated and referred him back to RCPRH for additional therapy. Tr. at 626.

         Plaintiff denied significant impairment and side effects from his medications on January 9, 2013. Tr. at 649. He rated his pain as a nine on a 10-point scale. Id. Dr. LeBlond refilled Plaintiff's medications and instructed him to follow up in four weeks. Id.

         Plaintiff requested pain medication on February 8, 2013. Tr. at 622. He denied paresthesias, but complained of achiness in his right hip, left distal femur, and right shoulder. Id. Dr. Jeray observed Plaintiff to have positive Hawkins and Neer signs and to be tender to palpation in the subacromial space of his right shoulder. Tr. at 622-23. Plaintiff had external rotation to approximately 45 degrees and active abduction to 95 degrees with discomfort. Tr. at 623. His right hip incision was well-healed, and he denied pain with maximum internal and external rotation. Id. His left distal femur was tender to palpation at the fracture site, but he had no swelling or erythema. Id. Dr. Jeray assessed subacromial bursitis, administered a corticosteroid injection to Plaintiff's right shoulders, and prescribed Tramadol. Id. He instructed Plaintiff to continue to bear weight as tolerated. Id. He noted that Plaintiff was using a wheelchair to rest, but he encouraged him to continue to walk as much as possible. Id. He indicated Plaintiff was “pursuing disability” and did “not have current intentions to return to the work force.” Id.

         On February 19, 2013, Plaintiff complained of pain across his back and into his left thigh and leg and right hip and groin. Tr. at 646. He indicated he was doing fairly well with the increased medication dosage. Id. Mr. Goldsmith observed that Plaintiff was no longer in the wheelchair and was walking with a cane. Id. He noted that Plaintiff had no insurance and was having difficulty seeing some of his medical providers. Id. He indicated Plaintiff had good strength and sensation in his lower extremities; negative SLR test; antalgic gait; a half inch leg length discrepancy; tenderness along the facets and sacroiliac (“SI”) joints; and restricted ROM with flexion, extension, and lateral rotation. Id. He adjusted Plaintiff's cane to a shorter position. Id. He refilled Plaintiff's prescription for Lortab 10/500 mg; advised him to stop taking Flexeril and to taper and discontinue Amitriptyline; and prescribed Ambien for sleep. Tr. at 647.

         During a follow up visit on March 20, 2013, Plaintiff reported that he was sleeping much better since starting Ambien. Tr. at 644. He assessed his pain as between an eight and a 10, but indicated it was tolerable with medication. Id. Mr. Goldsmith refilled Plaintiff's prescriptions for Ambien 10 mg and Lortab 10/500 mg tablets. Id.

         Plaintiff continued to endorse right shoulder pain on April 5, 2013, and Dr. Jeray referred him for magnetic resonance imaging (“MRI”). Tr. at 619.

         On April 18, 2013, Plaintiff indicated his medication did not cause significant side effects or impair his judgment, coordination, or ability to drive. Tr. at 642. Plaintiff rated his pain as an eight on a 10-point scale. Id. Dr. LeBlond refilled Plaintiff's prescriptions for Ambien, Norco, Lisinopril, Chlorothalidone, and Klor-Con. Id.

         Plaintiff complained of pain in his right hip, groin, left knee, and shoulder on April 19, 2013, but indicated it was satisfactorily controlled with medication. Tr. at 616. Dr. Goetz observed Plaintiff to have sensation intact to light touch, 5/5 strength from L2 through S1, and pain with internal and external rotation of the right hip and groin. Id. He noted Plaintiff had left knee extension reduced by 10 degrees, flexion to 130 degrees, and stability to varus and valgus stress. Id. He stated Plaintiff had good activation of the quads and minimal aching in the left thigh. Id. Plaintiff denied pain with flexion, extension, and prosupination of his left wrist. Id. He had intact strength and sensation in the left wrist, but lacked 10 degrees of extension and flexion. Tr. at 616-17. Dr. Goetz indicated the MRI of Plaintiff's right shoulder showed some mild glenohumeral osteoarthritis and some posterior labral fraying, but no cuff tear of massive labral pathology. Tr. at 617. He instructed Plaintiff to take an anti-inflammatory medication and offered him an intraarticular shoulder injection, but Plaintiff indicated he would prefer to follow up with his pain management physician for an injection. Id.

         Plaintiff rated his pain as an eight on a 10-point scale and denied significant side effects from his medications on May 16, 2013. Tr. at 640. Dr. LeBlond refilled his medications. Id.

         On June 14, 2013, Plaintiff reported that his pain was exacerbated by walking and better with rest. Tr. at 638. He endorsed chronic pain in his back, hip, and pelvis and intermittent numbness in his leg. Id. Dr. LeBlond observed Plaintiff to have an antalgic gait and slightly decreased deep tendon reflexes (“DTRs”), but intact sensation and negative straight-leg raising (“SLR”) test. Id. He encouraged Plaintiff to continue to use heat and home exercises, to fill his prescription for antidepressant medication, and to follow up with the county mental health center. Tr. at 639.

         On July 17, 2013, Plaintiff denied side effects from medication and described his pain as a seven on 10-point scale. Tr. at 636. Dr. LeBlond refilled Plaintiff's prescriptions for Ambien and Norco and instructed him to continue to take Lisinopril, Chlorothalidone, and Klor-Con. Id. Plaintiff reported no change, and Dr. LeBlond refilled his medications on August 19, 2013. Tr. at 685.

         On September 3, 2013, state agency medical consultant Joseph Geer, M.D. (“Dr. Geer”), reviewed the evidence and completed a physical residual functional capacity (“RFC”) assessment. Tr. at 102-04. He indicated Plaintiff had the following limitations: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for about six hours in an eight-hour workday; sit for about six hours in an eight-hour workday; never climb ladders, ropes, or scaffolds; occasionally climb ramps and stairs, stoop, kneel, crouch, crawl, and reach overhead with the right upper extremity; frequently balance; and avoid even moderate exposure to hazards. Id. A second state agency medical consultant, Dale Van Slooten, M.D. (“Dr. Van Slooten”), assessed the same physical RFC on December 27, 2013. Tr. at 128-30.

         Melissa A. Moore, M.D. (“Dr. Moore”), reviewed the evidence on September 3, 2013, and determined that Plaintiff had no medically-determinable mental impairment. Tr. at 99.

         On September 16, 2013, Plaintiff indicated his pain was fairly well-controlled with medications, but stated he noticed numbness in his feet when he attempted to sleep. Tr. at 682. He reported pain in his right back and pelvic area and occasional pops in his hip. Id. Mr. Goldsmith observed that Plaintiff had an antalgic gait and a flexed back and demonstrated difficulty standing erect. Id. He advised Plaintiff to visit the South Carolina Department of Mental Health for depression and to follow up with a primary care physician for treatment of hypertension. Id.

         Plaintiff described his pain as an eight on a 10-point scale and denied significant impairment from medications on October 24, 2013. Tr. at 680. Dr. LeBlond refilled his medications. Id.

         Plaintiff presented to Sonya L. Cothran-Pate, FNP (“Ms. Cothran-Pate”), for Coumadin management on October 28, 2013. Tr. at 676. He reported depressed mood and indicated he desire to try another antidepressant because he did not like the way Citalopram made him feel. Id. Ms. Cothran-Pate noted that Plaintiff had gained 13 pounds since his last visit and his blood pressure was elevated at 160/100 mg/Hg. Id. She observed Plaintiff to have normal strength and tone in his upper and lower extremities. Tr. at 677. She prescribed Paroxetine HCl 20 mg for depression and advised Plaintiff to follow a low sodium diet and to lose weight. Id.

         On November 22, 2013, Plaintiff rated his pain as an eight on a 10-point scale without medication, but indicated it was “acceptable with medications.” Tr. at 678. Mr. Goldsmith observed Plaintiff to have good strength and sensation and equal DTRs in his lower extremities. Id. He noted Plaintiff had a mildly antalgic gait; tightness in his hamstrings in the standing position; difficulty with full extension; and walked with 20 to 30 degrees of forward flexion. Id. He indicated Plaintiff had facet pain with loading and was tender in the lumber paraspinals. Id. Mr. Goldsmith noted Plaintiff had some deconditioning and encouraged him to engage in routine exercise and stretching. Id.

         On December 27, 2013, state agency psychological consultant Larry Clanton, Ph. D. (“Dr. Clanton”), reviewed the record and considered Listings 12.04 for affective disorders and 12.09 for substance addiction disorders. Tr. at 126. He found that Plaintiff had mild restriction of activities of daily living (“ADLs”), no difficulties in maintaining social functioning, and no difficulties in maintaining concentration, persistence, or pace. Tr. at 126-27. He concluded that Plaintiff's mental impairments imposed “minimal limitation on the ability to perform work tasks.” Tr. at 127.

         On February 16, 2015, Plaintiff presented to Ms. Cothran-Pate for a headache and hypertension. Tr. at 689. He reported that he had run out of his blood pressure medications eight months earlier. Id. He also complained of back pain, insomnia, and depression. Id. Ms. Cothran-Pate noted no significant abnormalities on physical examination. Tr. at 689-90. She referred Plaintiff to pain management for treatment of his chronic back pain. Tr. at 691.

         Plaintiff presented to Christopher K. Broome, APRN (“Mr. Broome”), on April 13, 2015. Tr. at 696. He reported aching lower back pain that was accompanied by intermittent radicular symptoms in his right lower extremity. Id. He indicated his pain was “modestly relieved with medications and rest.” Id. Mr. Broome recommended SI joint injections, but Plaintiff declined them because he had no insurance and did not believe they were financially feasible. Id. Mr. Broome informed Plaintiff that comprehensive pain management required a variety of treatment modalities and could not be accomplished simply by increased doses of narcotic medications. Id. He indicated Plaintiff's last urine drug screen showed elevated metabolites of ethyl alcohol and informed Plaintiff that he should not be consuming alcohol while taking Norco. Id. Mr. Broome observed Plaintiff to have tenderness to the bilateral proximal trapezia and throughout his lumbosacral and SI spine. Tr. at 697. He noted no new focal or sensory deficits and normal DTRs. Id. He diagnosed lumbar joint disease and SI joint pain related to degenerative joint disease. Id. He refilled Plaintiff's prescription for Norco 7.5/325 mg and instructed him to take it every eight hours, as needed. Id. He also refilled Neurontin 300 mg and instructed Plaintiff to take one to two tablets every eight hours, as needed. Id.

         On May 11, 2015, Plaintiff rated his pain as a four with medication and a seven without medication. Tr. at 698. He indicated his pain was only moderately relieved with medication and rest and was exacerbated by ambulation. Id. Mr. Broome noted tenderness in Plaintiff's bilateral proximal trapezia and throughout his lumbosacral and SI spine. Id. He stated Plaintiff had no new focal or sensory deficits, normal DTRs, and no reproduction or exacerbation of radicular symptoms during the examination. Id. He again recommended SI joint injections, and Plaintiff maintained that it was not financially feasible. Tr. at 699.

         Plaintiff denied side effects from medication on June 12, 2015. Tr. at 700. Mr. Broome observed Plaintiff to be tender over his lumbar facet joints and SI joints bilaterally, but noted no other significant findings on physical examination. ...


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