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 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.
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].
Plaintiff's Background and Medical History
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.
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.
was admitted to Greenville Memorial Hospital
(“GMH”) on September 19, 2012, following a
rollover motor vehicle accident
(“MVA”). 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.
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.
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.
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
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
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.
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.
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.
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.
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
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.
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.
continued to endorse right shoulder pain on April 5, 2013,
and Dr. Jeray referred him for magnetic resonance imaging
(“MRI”). Tr. at 619.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.