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Hopkins v. Berryhill

United States District Court, D. South Carolina

November 21, 2017

Kenneth Hopkins, 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 June 28, 2013, Plaintiff filed applications for DIB and SSI in which he alleged his disability began on February 21, 2012. Tr. at 172-86. His applications were denied initially and upon reconsideration. Tr. at 108-12 and 120-21. On August 19, 2015, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Susan Poulos. Tr. at 32-61 (Hr'g Tr.). The ALJ issued an unfavorable decision on September 11, 2015, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 13-31. 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 January 18, 2017. [ECF No. 1].

         B. Plaintiff's Background and Medical History

         1. Background

         Plaintiff was 51 years old at the time of the hearing. Tr. at 36. He completed the ninth grade. Tr. at 37. His past relevant work (“PRW”) was as a commercial cleaner and a hand packager. Tr. at 55. He alleges he has been unable to work since February 21, 2012. Tr. at 180.

         2. Medical History

         In August 2006, magnetic resonance imaging (“MRI”) of Plaintiff's right knee revealed a meniscal tear. Tr. at 358. He underwent arthroscopic surgery on September 14, 2006. Tr. at 366-67. James N. Rentz, Jr., M.D. (“Dr. Rentz”), authorized Plaintiff to return to work without restrictions on October 23, 2006. Tr. at 371.

         Plaintiff presented to Terry D. Sims, FNP-BC, PNP-BC (“Mr. Sims”), at Great Falls Family Medicine (“GFFM”) on October 15, 2012. Tr. at 356. He complained that his legs were “giving out” and felt as if they were “coming out of the socket.” Id. He described arthritis pain, as well as a sharp, intermittent pain in the right side of his groin. Id. He indicated he believed his pain was related to his obesity. Id. Mr. Sims noted that Plaintiff weighed 358 pounds and agreed that his problems were likely related to his obesity. Id. He discussed diet and exercise and prescribed Mobic for arthritis and Phentermine for weight loss. Id.

         On November 12, 2012, Plaintiff complained of pain in his right leg and stated he was unable to lift it. Tr. at 355. He reported the pain was sometimes improved by arthritis medication. Id. Mr. Sims noted no abnormalities on physical examination. Id. He noted that Plaintiff had lost nine pounds and refilled Phentermine for weight loss. Id.

         On February 12, 2013, x-rays of Plaintiff's right knee showed osteoarthritic changes. Tr. at 278.

         Plaintiff presented to the emergency room (“ER”) at Springs Memorial Hospital (“SMH”) on May 20, 2013, with a complaint of worsened lower back pain. Tr. at 259. He reported throbbing pain that radiated down the back of his right leg. Id. He stated his pain was reduced by lying flat and was exacerbated by sitting and moving. Id. An x-ray showed no acute problems and no significant chronic abnormalities. Tr. at 276. The attending physician diagnosed acute sciatica, lumbar myofascial strain, and lower back pain and prescribed Cyclobenzaprine, Tramadol, and Prednisone. Tr. at 261.

         Plaintiff followed up with Mr. Sims on June 11, 2013. Tr. at 354. Mr. Sims indicated Plaintiff was experiencing radiculopathy in his bilateral legs. Id. He observed Plaintiff to have an altered gait; to be ambulating with a cane; and to be unable to perform a straight-leg raising (“SLR”) test. Id. He diagnosed back pain, generalized anxiety disorder, and morbid obesity; prescribed Valium and Lortab; and recommended Plaintiff rest, use heat and compression, and elevate his legs. Id.

         On July 12, 2013, Plaintiff complained of constant worry, back pain, shortness of breath, chest pain, and occasional numbness and tingling in his bilateral legs. Tr. at 353. Mr. Sims observed that Plaintiff was ambulating with a cane. Id. He diagnosed back pain, generalized anxiety disorder, and morbid obesity and continued Plaintiff on his current medications. Id.

         Plaintiff presented to the ER at Chester Regional Medical Center (“CRMC”) for pain in his left shoulder and neck on August 11, 2013. Tr. at 312. He stated he had injured his shoulder while lifting and carrying a heavy object. Tr. at 318. The attending physician diagnosed shoulder strain and prescribed Norco. Tr. at 317.

         Plaintiff presented to the ER at SMH for lower back pain and nausea on August 17, 2013. Tr. at 286. The attending physician diagnosed dysuria and prescribed Cipro and Lortab. Tr. at 290.

         On September 3, 2013, Plaintiff presented to the ER at CRMC for back pain. Tr. at 311. The attending physician observed Plaintiff to have full range of motion (“ROM”), 5/5 motor strength, and normal gait. Tr. at 315. He diagnosed lumbar myofascial strain and prescribed Flexeril and Norco. Tr. at 313.

         Plaintiff presented to Harriet Steinert, M.D. (“Dr. Steinert”), for a consultative examination on September 11, 2013. Tr. at 342-46. He reported that he walked with a cane most of the time because his legs would sometimes buckle. Tr. at 342. He endorsed pain in all joints and indicated his hearing was impaired by constant ringing. Id. Plaintiff reported decreased sensation to touch in the third, fourth, and fifth fingers of his right (dominant) hand. Id. Dr. Steinert noted Plaintiff had not undergone an electromyography (“EMG”) of his right upper extremity. Id. Plaintiff denied having chronic obstructive pulmonary disease (“COPD”), but endorsed frequent shortness of breath and a history of chronic bronchitis. Id. He indicated he experienced urinary frequency and pelvic pain that were caused by an enlarged prostate. Id. He stated he experienced leg numbness if he sat for more than 20 minutes at a time. Id. He estimated he could walk 100 feet, but indicated he felt as if his hip joints would pop out while he was walking. Id. He stated he had sleep apnea, but denied using a continuous positive airway pressure (“CPAP”) machine because it made him feel as if he were choking. Tr. at 343. He indicated he was prescribed Xanax because he felt “stressed out, ” but he denied having visited a mental health clinic or having been hospitalized for mental illness. Id. Dr. Steinert observed that Plaintiff was morbidly obese at 5'7” tall and 350 pounds. Id. She noted Plaintiff walked into the examination room with a cane, but climbed on to the examination table without assistance. Id. She stated Plaintiff had full ROM of all joints in his extremities. Tr. at 344. He demonstrated no swelling, erythema, deformities, or tenderness to palpation of his joints. Id. He had no peripheral edema in his extremities. Id. His grip strength was normal, and he had normal fine and gross motor skills in both hands. Id. He had no atrophy in his extremities and had normal and equal deep tendon reflexes. Tr. at 345. Dr. Steinert observed Plaintiff to flex at the waist to 60 degrees; extend to five degrees; and laterally flex fully, with complaints of pain. Id. She noted no tenderness to palpation in Plaintiff's thoracic or lumbar spine or paraspinous muscles. Id. She observed Plaintiff to walk across the room with a normal gait and no assistive device. Id. Plaintiff was unable to walk on his toes and heels or to tandem walk. Id. He could not rise from a squatting position. Id. Plaintiff demonstrated no sensory or motor deficits, but reported a needlelike sensation when Dr. Steinert touched his right third, fourth, and fifth fingers. Id. Dr. Steinert observed that Plaintiff was unable to fit into a normal chair because of his obesity. Id. She stated Plaintiff did not experience shortness of breath during the examination. Id. She noted Plaintiff had decreased ROM of his lumbar spine and complained of pain with movement. Id. She diagnosed morbid obesity, chronic lumbar spine pain of uncertain etiology, tinnitus, and benign prostatic hypertrophy. Id.

         On September 11, 2013, state agency psychological consultant Xanthia Harkness, Ph.D. (“Dr. Harkness”), completed a psychiatric review technique form (“PRTF”). Tr. at 64-65. She considered Listing 12.06 for affective disorders, but found that Plaintiff's mental impairments were not severe because they caused only mild restriction of activities of daily living (“ADLs”), mild difficulties in maintaining social functioning, and mild difficulties in maintaining concentration, persistence, or pace. Id.

         State agency medical consultant Donna Stroud, M.D. (“Dr. Stroud”), completed a physical residual functional capacity (“RFC”) assessment the same day. Tr. at 65-67. She found that Plaintiff had the following restrictions: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for a total of six hours in an eight-hour workday; sit for a total of six hours in an eight-hour workday; frequently climbing ramps and stairs; occasionally balancing, stooping, kneeling, crouching, crawling, and climbing ladders, ropes, and scaffolds; must avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation; and must avoid concentrated exposure to hazards. Id.

         Plaintiff complained of pain in his right arm, left shoulder, and lower back on September 19, 2013. Tr. at 352. Mr. Sims noted that Plaintiff had visited the ER and was seeking disability benefits. Id. He ordered a new cane. Id.

         Plaintiff presented to the ER at CRMC on October 14, 2013, with right arm numbness. Tr. at 484. The attending physician diagnosed resolved right arm radiculopathy. Id. He encouraged Plaintiff to continue to take his anti-inflammatory medications and to consider obtaining an MRI if his symptoms persisted. Id.

         On October 29, 2013, Plaintiff presented to the ER at SMH, after having sustained a fall from a chair. Tr. at 534. He complained of pain in his back and left hip. Id. The attending physician observed Plaintiff to be in mild distress; to have moderate tenderness to palpation of his hip; and to ambulate with a slow gait and use of a cane. Tr. at 536. He diagnosed a left hip contusion and prescribed Norco. Id.

         On October 31, 2013, Plaintiff reported that Norco was not helpful and that he was continuing to experience sharp pain in his hip. Tr. at 351. Mr. Sims observed Plaintiff to have decreased ROM in his extremities and to be unable to perform the SLR test. Id. He diagnosed back pain and bilateral hip pain; prescribed Norco; and recommended rest, heat, compression, and elevation. Id. He suggested that Plaintiff obtain an MRI, but Plaintiff indicated he was unable to afford it. Id.

         Carl Anderson, M.D. (“Dr. Anderson”), a second state agency medical consultant, completed a physical RFC assessment on December 12, 2013. Tr. at 87-89. He indicated Plaintiff was restricted as follows: occasionally lifting and/or carrying 50 pounds; frequently lifting and/or carry 25 pounds; standing and/or walking for a total of about six hours in an eight-hour workday; sitting for a total of about six hours in an eight-hour workday; never climbing ladders, ropes, or scaffolds; frequently balancing, stooping, kneeling, and crouching; never crawling or climbing ladders, ropes, or scaffolds; must avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation; and must avoid concentrated exposure to hazards. Id.

         On December 18, 2013, a second state agency psychological consultant, Anna P. Williams, Ph.D. (“Dr. Williams”), completed a PRTF and found that Plaintiff's mental impairments were not severe. Tr. at 86-87.

         Plaintiff presented to the ER for breathing difficulty and was diagnosed with acute bronchitis on December 23, 2013. Tr. at 486-97.

         Mr. Sims refilled Plaintiff's prescriptions for Xanax and Norco on January 13, 2014. Tr. at 738.

         Plaintiff followed up with Mr. Sims for chest pain and discomfort, shortness of breath while walking, and depression on February 24, 2014. Tr. at 735-36.Mr. Sims advised Plaintiff to rest, use heat, and elevate his extremities. Tr. at 737.

         On March 25, 2014, Plaintiff complained of lower back pain and dyspnea. Tr. at 732. Mr. Sims observed Plaintiff to be in mild distress and to ambulate with a cane. Tr. at 734. He advised Plaintiff to rest, use heat, and elevate his extremities. Tr. at 735.

         Plaintiff presented to the ER with abdominal pain on April 3, 2014. Tr. at 499. The attending physician diagnosed cellulitis of the trunk and prescribed Septra. Tr. at 498.

         Plaintiff presented to Catawba Mental Health for an initial clinical assessment on April 9, 2014. Tr. at 863. He indicated his mind was constantly racing and that he was unable to sleep at night. Id. He stated he had experienced significant weight gain as a result of overeating. Id. He reported a history of physical and sexual abuse and marital problems. Id. He endorsed suicidal ideation, but indicated he would not act on his thoughts because of his religious beliefs. Id. Tamara Edington, MS (“Ms. Edington”), observed Plaintiff to be appropriately oriented; to have an anxious and depressed mood and an appropriate affect; to demonstrate normal speech and thought content; to show no evidence of hallucinations or delusions; to have intact memory; and to demonstrate easily-distracted concentration and attention. Tr. at 865-66. She recommended that Plaintiff receive mental health treatment. Tr. at 867.

         Plaintiff presented to Ms. Edington on April 24, 2014. Tr. at 861. Ms. Edington observed Plaintiff to be tearful, but alert and oriented. Id. Plaintiff reported increased appetite and decreased sleep and energy level. Id. Ms. Edington scheduled Plaintiff for a medical evaluation and therapy sessions. Id.

         On April 30, 2014, Plaintiff's weight had increased to 386 pounds. Tr. at 730. He reported depression and decreased ADLs. Tr. at 731. Mr. Sims observed Plaintiff to be depressed and anxious; to have limited ROM; and to be unable to perform the SLR test. Id. He refilled Plaintiff's prescriptions for Norco and Xanax; discussed diet, exercise, and weight loss; and advised rest, use of heat, and elevation of the extremities. Tr. at 732.

         On May 8, 2014, Plaintiff reported to Ms. Edington that he would isolate himself from others and overeat. Tr. at 862. Ms. Edington indicated Plaintiff had started to discuss and process issues that were bothering him. Id.

         On May 29, 2014, Mr. Sims observed Plaintiff to be in mild distress; to demonstrate an irregular gait and to use a cane to ambulate; to have reduced ROM; and to be unable to perform the SLR test. Tr. at 728. He prescribed Norco, Mobic, and Xanax; advised Plaintiff to rest, use heat, and elevate his extremities; and discussed diet, exercise, and weight loss. Tr. at 728-29.

         On June 3, 2014, Mr. Sims noted Plaintiff was in moderate distress, had limited ROM, demonstrated an irregular gait, and was unable to perform the SLR test. Tr. at 725. He continued Plaintiff's medications. Id.

         Plaintiff discussed his family stressors with Ms. Edington on June 16, 2014. Tr. at 868. He indicated that his father-in-law, who had been living with him, had recently passed away. Id. He felt as if he could be more assertive because his mother-in-law and other family members no longer had a reason to visit his house all the time. Id. Plaintiff followed up with Christie Williamson, M.D. (“Dr. Williamson”), the same day for an initial assessment. Tr. at 869. Ms. Williamson noted that Plaintiff had been noncompliant with therapy over prior weeks. Id. Plaintiff indicated he was becoming less mobile because of his obesity and health problems. Id. Dr. Williamson observed Plaintiff to be appropriately oriented, to have a tired mood and an appropriate affect, and to demonstrate fair judgment and insight. Id. She diagnosed post-traumatic stress disorder (“PTSD”), history of childhood sexual abuse, and history of physical abuse and assessed a global assessment of functioning (“GAF”)[2] score of 61.[3] Tr. at 870. She prescribed Prozac and Trazodone and encouraged Plaintiff to follow up for regular therapy. Id.

         On June 26, 2014, Plaintiff reported that he had sustained multiple falls and requested Mr. Sims's permission to use his father's walker. Tr. at 719. Mr. Sims observed Plaintiff to be in mild distress; to have limited ambulation and an irregular gait; to demonstrate a normal mood and affect; to have limited ROM; and to be unable to perform the SLR test. Tr. at 720-21. He prescribed Norco, Losartan, Xanax, and Mobic, advised Plaintiff to rest, use heat, and elevate his lower extremities, and recommended that he use a walker to prevent falls. Tr. at 722.

         Plaintiff followed up with Ms. Edington for individual therapy on July 2, 2014. Tr. at 872. He complained that he did not feel like he could express his opinions in his home. Id. He indicated he wanted to better express his feelings and make changes, but feared he would be unsuccessful. Id.

         On July 28, 2014, Plaintiff reported improved sleep, but continued to endorse frequent crying spells. Tr. at 873. He denied changes as a result of his medications. Tr. at 874.

         Plaintiff reported poor mood with only mild improvement on August 1, 2014. Tr. at 875. He indicated he was tearful at times. Id. Ms. Williamson continued Plaintiff on Trazodone. Tr. at 876.

         Plaintiff presented to human services coordinator Kimberly Sconyers (“Ms. Sconyers”) for an individual therapy session on August 14, 2014. Tr. at 877. He reported that he was doing well, sleeping well, and feeling positive. Id.

         Plaintiff presented to the ER at CRMC following a motor vehicle accident on August 25, 2014. Tr. at 505. He endorsed neck pain and tenderness. Id. X-rays of his cervical spine showed cervical spondylosis and minimal changes of osteoarthritis. Tr. at 511-12. The attending physician diagnosed acute neck pain, whiplash, and chronic pain syndrome and prescribed Flexeril and Norco. Tr. at 504.

         Plaintiff reported exercise intolerance and fatigue on September 25, 2014. Tr. at 713. Mr. Sims observed Plaintiff to demonstrate an irregular gait and to be ambulating with a walker. Tr. at 713-14. He noted Plaintiff was anxious, depressed, and agitated and had abnormal recent memory. Tr. at 713. He indicated Plaintiff had limited ROM and difficulty rising from a seated position and was unable to perform the SLR test. Tr. at 713-14. Mr. Sims prescribed Norco, Meloxicam, and Xanax and advised Plaintiff to rest, use heat, and elevate his lower extremities. Tr. at 714-15.

         Plaintiff was admitted to SMH from September 30, through October 1, 2014, for chest pain. Tr. at 381-98. He indicated he had been driving all day and had experienced a sudden onset of chest pain when he returned home to take a nap. Tr. at 381. The attending physician observed Plaintiff to have trace pitting edema in his lower extremities, but no other abnormalities. Tr. at 382. She ruled out acute coronary syndrome and determined Plaintiff's chest pain was likely musculoskeletal in etiology. Tr. at 385. Plaintiff's discharge diagnoses included morbid obesity, hypertension, hyperlipidemia, anxiety, chronic pain syndrome, and chronic tobacco abuse. Id.

         Plaintiff followed up with Mark A. Ciminelli, M.D. (“Dr. Ciminelli”), regarding chest pain on October 14, 2014. Tr. at 399-400. Dr. Ciminelli stated an echocardiogram suggested mitral regurgitation and a questionable segmental wall motion abnormality with overall systolic dysfunction at the low limit of normal. Tr. at 399. He diagnosed acute chest pain, benign essential hypertension, shortness of breath, and obesity. Tr. at 400. He noted Plaintiff's symptoms were consistent with angina. Id. He recommended Plaintiff undergo a nuclear stress test or left heart catheterization, but Plaintiff was unable to afford the tests. Id.

         On October 16, 2014, Dr. Williamson noted that Plaintiff had missed his most recent appointment. Tr. at 879. She notified Plaintiff by telephone that she would refill his prescriptions for Prozac and Trazodone. Id. Plaintiff was discharged from Catawba Mental Health on October 24, 2014, after he dropped out of treatment. Tr. at 880.

         Plaintiff complained of back pain on October 27, 2014. Tr. at 708. Mr. Sims observed Plaintiff to demonstrate an irregular gait, to ambulate with a walker, to be in moderate distress, to appear anxious, depressed, and agitated, to have abnormal recent memory, to demonstrate limited ROM, to have difficulty rising from a seated position, and to be unable to perform the SLR test. Tr. at 709-10. He prescribed Norco and advised Plaintiff to rest, use heat, and elevate his lower extremities. Tr. at 711.

         Mr. Sims observed Plaintiff's physical examination to be unchanged on November 24, 2014. Tr. at 706. He refilled Norco and again advised Plaintiff to rest, use heat, and elevate his lower extremities. Tr. at 707.

         Mr. Sims noted similar findings on physical examination on December 22, 2014. Tr. at 702. He prescribed Losartan, Xanax, and Norco, advised Plaintiff to rest, use heat, and elevate his lower extremities, and discussed diet, exercise, and weight loss. Tr. at 703-04.

         Plaintiff presented to the ER at CRMC for flank pain on January 1, 2015. Tr. at 514. The attending physician observed Plaintiff to be moderately-tender to palpation in his right lateral anterior chest. Tr. at 516. He diagnosed chest wall strain and ...


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