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”). 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.
April 29, 2014, Plaintiff protectively filed an application
for DIB in which he alleged his disability began on June 1,
2013. Tr. at 77 and 156-57. His application was denied
initially and upon reconsideration. Tr. at 93-96 and 102-07.
On April 28, 2016, Plaintiff had a hearing before
Administrative Law Judge (“ALJ”) Jerry W. Peace.
Tr. at 43-68 (Hr'g Tr.). The ALJ issued an unfavorable
decision on July 14, 2016, finding that Plaintiff was not
disabled within the meaning of the Act. Tr. at 27-42.
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 March 8, 2017. [ECF No. 1].
Plaintiff's Background and Medical History
Background Plaintiff was 56 years old at the time of the
hearing. Tr. at 48. He completed high school and obtained a
welding certificate. Tr. at 49. His past relevant work
(“PRW”) was as a hand packager. Tr. at 63. He
alleges he has been unable to work since June 1, 2013. Tr. at
presented to the emergency room at Spartanburg Regional
Medical Center on June 1, 2013, after having been assaulted.
Tr. at 293. He reported he had twisted his ankle during the
altercation and complained of left ankle pain. Tr. at 290.
X-rays showed extensive comminuted fractures of
Plaintiff's left distal tibia and fibula. Tr. at 290. The
attending physician diagnosed closed fractures to the tibia
and fibula, facial laceration, and alcohol abuse. Tr. at 289.
He applied a cast, prescribed Hydrocodone-Acetaminophen for
pain, and instructed Plaintiff to ambulate with crutches and
to follow up with an orthopedist. Id.
Scott Broderick, M.D. (“Dr. Broderick”),
performed spanning internal fixation of Plaintiff's left
distal tibia and fibula on June 3, 2013. Tr. at 294-95. He
drained several blisters on the medial side of
Plaintiff's left ankle and noted soft tissue swelling.
Tr. at 294. A post-operative computed tomography
(“CT”) scan revealed a comminuted fracture of the
distal tibia and fibula. Tr. at 296. Dr. Broderick indicated
he planned to perform open reduction and internal fixation
(“ORIF”) surgery after Plaintiff's soft
tissue swelling decreased. Tr. at 295.
followed up with Dr. Broderick on June 7, 2013. Tr. at 321.
He reported left ankle pain. Id. Dr. Broderick
observed swelling in Plaintiff's left ankle and noted
that the blisters seemed to be “re-accumulating just a
little bit.” Id. He indicated Plaintiff's
skin looked “OK” and his pin sites looked
excellent. Id. He stated Plaintiff had good
sensation and range of motion of motion (“ROM”)
in his knee and was able to wiggle his toes. Id. He
refilled Hydrocodone-Acetaminophen. Tr. at 323.
11, 2013, Plaintiff reported no complaints. Tr. at 324. His
skin and pin sites were intact and he demonstrated full ROM
of his knee. Tr. at 325. He had intact sensation and could
barely wiggle his toes. Id. Dr. Broderick advised
Plaintiff to elevate his left leg until after surgery. Tr. at
Broderick performed ORIF on June 13, 2013. Tr. at 285. He
anticipated that Plaintiff would remain immobile for six
weeks and non-weight bearing for 12 weeks. Tr. at 287.
18, 2013, Plaintiff reported that he was elevating his leg
and doing well. Tr. at 330. Dr. Broderick noted
Plaintiff's incisions were intact, aside from a little
bloody drainage. Tr. at 331. He indicated Plaintiff had
excellent ROM of his knee and a soft calf. Id. He
applied a clean dressing, reattached the ankle splint, and
instructed Plaintiff to remain non-weight bearing.
followed up with Dr. Broderick for suture removal on July 2,
2013. Tr. at 332. He reported no complaints. Id. Dr.
Broderick observed Plaintiff to have an intact incision, a
soft right calf, full ROM of his left knee, and stiffness in
his left ankle. Id. He removed Plaintiff's
sutures and placed him in a short leg cast. Tr. at 333.
30, 2013, Plaintiff reported no complaints and indicated he
had not required pain medication. Tr. at 338. Dr. Broderick
observed Plaintiff to be neurovascularly intact and to have a
soft right calf, full ROM of the left knee, mild stiffness to
the left ankle, no effusion, minimal swelling, and a healing
incision. Id. Plaintiff's ankle abductors were
slightly weak, but he had satisfactory ankle motion.
Id. X-rays showed intact hardware and good
alignment, but were not consistent with significant healing.
Tr. at 339. Dr. Broderick placed Plaintiff in a removable
posterior splint and instructed him to wear while he was
awake and to remain non-weight bearing. Tr. at 340.
complained of some ankle pain on September 10, 2013. Tr. at
341. Dr. Broderick noted that Plaintiff was placing a little
bit of weight on his left ankle when he ambulated to the
bathroom, but was otherwise remaining non-weight bearing.
Id. He noted slight swelling around the fracture
site with no erythema or induration. Tr. at 342. He stated
Plaintiff had very limited ankle motion, but was at the
neutral position. Id. X-rays showed no change. Tr.
at 342-43. Dr. Broderick noted that the x-rays did not show
the healing he had expected, but indicated good alignment.
Id. He advised Plaintiff to slowly advance weight
bearing with an air splint and referred him for a physical
therapy evaluation. Tr. at 343.
reported minor aches and pains and indicated he was fully
weight bearing on December 10, 2013. Tr. at 346. He reported
occasional left ankle pain and swelling, but denied any
significant pain. Id. Dr. Broderick observed
Plaintiff to demonstrate slightly antalgic gait; good ROM in
the left hip and knee; 4 abductors; no effusion; ankle
dorsiflexion to neutral; ankle plantar flexion to about 30
degrees; and good sensation to light touch. Id.
X-rays showed a distal broken screw, but excellent alignment.
Tr. at 347. Although, the fracture lines on both the tibia
and fibula remained evident, there was increased callus
formation. Id. Dr. Broderick was concerned about
possible non-union of the fractures. Tr. at 348. He ordered a
CT scan and refilled Hydrocodone-Acetaminophen. Id.
December 13, 2013, a CT scan of Plaintiff's left ankle
showed incomplete healing and partial nonunion of the
fractures of the distal tibia and fibula, as well as probable
disuse osteopenia changes in the bony structures. Tr. at 307.
December 17, 2013, Plaintiff was using a cane to ambulate,
but indicated he used it as a course of habit and did not
require it. Tr. at 353. Plaintiff denied tenderness and
swelling and had good strength and ankle motion. Id.
He indicated no more than minor twinges of pain on occasion
and requested that Dr. Broderick release him to return to
work. Id. Dr. Broderick discussed the CT findings
with Plaintiff and recommended bone grafting, but Plaintiff
declined additional surgery. Tr. at 355. Dr. Broderick
refilled Plaintiff's prescription for
Hydrocodone-Acetaminophen and authorized him to engage in
activities as tolerated and to return to work on February 1,
April 8, 2014, Plaintiff reported that he had returned to
work on January 31, 2014. Tr. at 356. He indicated he was
tolerating his job, despite the fact that it required he
stand on a concrete floor for 12 hours a day. Id. He
endorsed some discomfort at the end of the workday, but
denied any significant ankle swelling and indicated he did
not often require pain medication. Id. Dr. Broderick
observed Plaintiff to have weak left abductors, as compared
to those on the right. Id. Plaintiff demonstrated
good ROM of the left knee and no tenderness. Id. He
was able to wiggle his toes. Id. His light touch
sensation was within normal limits. Id. He had no
swelling at the ankle. Id. He was able to dorsiflex
to just past the neutral position and to plantar flex 25 to
30 degrees. Id. X-rays indicated no change in
alignment and showed that Plaintiff's fracture was
beginning to consolidate. Id. Dr. Broderick refilled
Plaintiff's prescription for Hydrocodone-Acetaminophen.
April 29, 2014, Plaintiff initially reported knee swelling
and a significant increase in pain. Tr. at 359. He stated
that he had recently lost his job. Id. Dr. Broderick
noted that “[i]t sounds as though he may have lost it
due to some issues with a drug test as opposed to his ability
or inability to perform his duties.” Id. He
stated that upon further questioning, Plaintiff indicated his
leg pain had not really changed. Id. Dr. Broderick
noted that Plaintiff's ROM, swelling, and pain could be
exacerbated by the way his leg was bent. Id. He
observed that Plaintiff's gait was “maybe slightly
antalgic, ” but “was basically unchanged from
previous exams.” Id. He observed Plaintiff to
have good ROM, reasonable swelling, and 5/5 abductors in his
left lower extremity. Id. Dr. Broderick told
Plaintiff that he felt uncomfortable discussing disability
with him because he had returned to work. Tr. at 360. He
stated he believed Plaintiff could “work relatively
well, may be just a little bit more slowly with his
3, 2014, state agency medical consultant Joseph Geer, M.D.
(“Dr. Geer”), completed a physical residual
functional capacity (“RFC”) assessment. Tr. at
72-74. He indicated Plaintiff could occasionally lift and/or
carry 50 pounds; could frequently lift and/or carry 25
pounds; could stand and/or walk for a total of about six
hours in an eight-hour workday; could sit for a total of
about six hours in an eight-hour workday; could frequently
kneel, crawl, and climb ladders, ropes, and scaffolds; and
should avoid concentrated exposure to hazards. Id.
presented to Lisa Sanders, FNP (“Ms. Sanders”),
for cramping in his right hand and pain in his left leg and
right shoulder and hand. Tr. at 415. He reported some pain
relief with use of Aleve. Id. He rated his pain as
an eight on a 10-point scale and indicated it was exacerbated
by rain. Id. He complained of weakness, stiffness,
and intermittent edema in his left leg. Tr. at 415-16. Ms.
Sanders observed Plaintiff to ambulate with a limp, to use a
cane, and to have slightly reduced left leg strength at 4/5.
Id. She indicated Plaintiff had full ROM of his
right shoulder. Tr. at 415. She diagnosed osteoarthritis and
prescribed Mobic. Id.
30, 2014, a second state agency medical consultant, Stephen
Burge, M.D. (“Dr. Burge”), completed a physical
RFC assessment and assessed the same restrictions as Dr.
Geer. Tr. at 86-89.
Sanders completed a disabled placard and license plate
application for Plaintiff on August 11, 2014. Tr. at 243. She
stated Plaintiff was unable to ordinarily walk 100 feet
nonstop without aggravating an existing medical condition,
including the increase of pain. Tr. at 243 and 244. She
indicated Plaintiff's disability was permanent. Tr. at
complained of significant left ankle pain on September 16,
2014. Tr. at 425. He reported generalized pain in his ankle
and tibia. Id. Dr. Broderick observed Plaintiff to
walk with a cane and a slight limp. Id. He noted
that Plaintiff had minimal, if any, swelling in his ankle.
Id. Plaintiff was able to dorsiflex to the neutral
position and had intact knee flexion and extension.
Id. He had 5/5 abductors on the left and right.
Id. He had intact sensation to light touch.
Id. X-rays showed more callus formation and no
change in the position of the hardware. Id. Dr.
Broderick referred Plaintiff for an updated CT scan. Tr. at
December 29, 2015, Plaintiff reported that his wrist was
“doing pretty good” with use of the wrist brace.
Tr. at 432. He complained of burning and stinging in his left
ankle and foot and rated his pain as an eight on a 10-point
scale after having taken medication. Id. Ms. Sanders
observed Plaintiff to ambulate with a limp and to use a cane.
Id. She noted 4/5 strength in Plaintiff's left
leg. Id. Plaintiff demonstrated no edema.
Id. He had strong and equal bilateral grip strength.
Id. Ms. Sanders diagnosed arthropathy and right
carpal tunnel syndrome; prescribed Gabapentin; and refilled
Baclofen and Mobic. Tr. at 432-33.
presented to Ms. Sanders for a recheck of pain in his left
leg and right shoulder and hand on March 23, 2015. Tr. at
434. He endorsed numbness in his right hand and pain and
stiffness in his right shoulder. Id. He indicated
his right hand problems were causing him to wake during the
night. Id. He stated he was taking Aleve and Mobic
for pain. Id. Ms. Sanders observed Plaintiff to have
4/5 strength in his left leg and to ambulate with a limp.
Id. She noted full ROM in Plaintiff's right
shoulder, but indicated he was slightly stiff with movement
of his right shoulder and left leg. Id. She
diagnosed arthritic-like pain and carpal tunnel syndrome;
refilled Baclofen and Mobic; and advised Plaintiff to use a
wrist splint. Tr. at 434-35.
April 15, 2016, Plaintiff presented to Ms. Sanders for
examination and completion of disability paperwork. Tr. at
429. Ms. Sanders stated Plaintiff's “[d]isability
is related to his left leg.” Id. She indicated
Plaintiff had undergone “3-4 previous surgical
interventions” and “ultimately . . . had to have
a plate placed into his leg.” Id. She stated
Plaintiff had attempted to work, but was unable to do so
because of pain.” Id. She noted that Plaintiff
was ambulating with a cane and had difficulty walking.
Id. She indicated Plaintiff complained of a burning
sensation in his leg and pain in his right hand and was
wearing a supportive hand brace. Id. She observed
Plaintiff to have 4/5 strength in his left leg and to
ambulate with a limp. Id.
Sanders provided responses to a clinical assessment of pain
form that Plaintiff took to the examination. Tr. at 431. She
noted Plaintiff's pain was present to such an extent as
to be distracting to adequate performance of daily activities
or work. Id. She indicated walking, standing, and
bending increased Plaintiff's pain to such a degree as to
cause distraction or total abandonment of tasks. Id.
She specified that only minor side effects could be expected
from Plaintiff's prescribed medication. Id. She
claimed Plaintiff's pain and side effects from medication
were severe enough to limit effectiveness due to distraction,
inattentiveness, drowsiness, etc. Id. She indicated
Plaintiff's pain level might become less intense or less
frequent in the future, but would still remain significant.
Id. She noted Plaintiff's treatment had provided
no appreciable impact and had only briefly reduced his pain
hearing on April 28, 2016, Plaintiff testified that he had
been terminated from his most recent job because he failed a
drug test. Tr. at 51. He indicated he did not subsequently
attempt to obtain a job because he was experiencing pain in
his legs and throughout his body. Tr. at 52. He stated he was
unable to work because of pain in his leg that was
exacerbated by standing and walking. Id. He endorsed
a need for a cane to ambulate. Id. He indicated his
ability to work was further restricted by problems with his