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Glenn v. Berryhill

United States District Court, D. South Carolina

November 15, 2017

Kenneth Glenn, Plaintiff,
v.
Nancy A. Berryhill, 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”). 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 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].

         B. Plaintiff's Background and Medical History

         1. 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 156.

         2. Medical History

         Plaintiff 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.

         John 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.

         Plaintiff 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.

         On June 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 326.

         Dr. 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.

         On June 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. Id.

         Plaintiff 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.

         On July 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.

         Plaintiff 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.

         Plaintiff 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.

         On 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.

         On 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, 2014. Id.

         On 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. Id.

         On 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 injury.” Id.

         On June 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.

         Plaintiff 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.

         On July 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.

         Ms. 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 243.

         Plaintiff 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 427.

         On 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.

         Plaintiff 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.

         On 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.

         Ms. 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 level. Id.

         C. The Administrative Proceedings

         1. The Administrative Hearing

         a. Plaintiff's Testimony

         At the 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 ...


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