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.
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].
Plaintiff's Background and Medical History
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.
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.
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.
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
February 12, 2013, x-rays of Plaintiff's right knee
showed osteoarthritic changes. Tr. at 278.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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
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
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.
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.
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
presented to the ER for breathing difficulty and was
diagnosed with acute bronchitis on December 23, 2013. Tr. at
Sims refilled Plaintiff's prescriptions for Xanax and
Norco on January 13, 2014. Tr. at 738.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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”) score of 61. Tr. at 870. She
prescribed Prozac and Trazodone and encouraged Plaintiff to
follow up for regular therapy. Id.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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