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Stepp v. Berryhill

United States District Court, D. South Carolina

December 6, 2017

Judith Stepp, 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 her 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 August 8, 2013, Plaintiff protectively filed an application for DIB in which she alleged her disability began on January 1, 2013. Tr. at 111 and 175-76. Her application was denied initially and upon reconsideration. Tr. at 124-27 and 129-30. On November 6, 2015, Plaintiff had a hearing before Administrative Law Judge ("ALJ") James M. Martin. Tr. at 42-86 (Hr'g Tr.). The ALJ issued an unfavorable decision on January 5, 2016, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 11-32. 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 22, 2017. [ECF No. 1].

         B. Plaintiffs Background and Medical History

         1. Background

         Plaintiff was 49 years old at the time of the hearing. Tr. at 27. She completed the seventh grade. Tr. at 49. Her past relevant work ("PRW") was as a nursing assistant, a cashier and dining cafeteria attendant, a dog catcher, a sewing machine operator, and a hand packer. Tr. at 72-73 and 75. She alleges she has been unable to work since February 22, 2015.[1]Tr. at 46.

         2. Medical History

         Plaintiff presented to Mitchell Dillman, M.D. ("Dr. Dillman"), on August 8, 2012, with complaints of right hand pain, swelling in both hands, frequently dropping items, pain and tenderness in her right foot, difficulty walking, and headaches that were accompanied by sensitivity to light and sound. Tr. at 388. She reported that she had decreased her insulin dosage because she was feeling too hungry. Id. Dr. Dillman observed Plaintiff to be obese, weighing 174 pounds and having a body mass index ("BMI") of 36.4. Tr. at 390. He diagnosed acute migraine, type II diabetes mellitus, and right ankle/foot pain. Tr. at 391. He prescribed acetaminophen-isomethpetene-caffeine and Diclofenac, recommended that Plaintiff take the prescribed dose of insulin, and referred her for an orthopedic consultation. Tr. at 391 and 393.

         Plaintiff presented to the emergency room ("ER") at Oconee Medical Center on August 15, 2012, with complaints of a migraine headache and nausea that had caused her to sustain two recent falls. Tr. at 273. She reported left ankle pain. Id. The attending physician observed swelling in Plaintiff's lateral malleolus. Tr. at 271. A computed tomography ("CT") scan and x-rays showed no abnormalities. Tr. at 275. The attending physician diagnosed migraine headache and ankle sprain. Id.

         Plaintiff complained of pain in her left hand and right foot on September 11, 2012. Tr. at 396. Dr. Dillman observed that Plaintiff walked with a limp, but had normal ankle range of motion ("ROM"). Tr. at 397. He diagnosed ankle/foot pain and carpal tunnel syndrome, prescribed Pennsaid, and provided a note excusing Plaintiff from work for the day. Tr. at 395 and 398.

         Plaintiff underwent left carpal tunnel release surgery on September 13, 2012. Tr. at 340-42.

         Plaintiff complained of hypoglycemia on October 16, 2012. Tr. at 400. Dr. Dillman diagnosed moderate hypoglycemia and uncontrolled, chronic back pain and prescribed Cymbalta, Lortab, Metformin, and Symbicort. Tr. at 402-03.

         On November 27, 2012, Plaintiff reported that her right foot pain had improved with use of Voltaren gel. Tr. at 406. Dr. Dillman refilled Plaintiffs medications and ordered blood work. Tr. at 406-07.

         Plaintiff followed up for diabetes management on February 27, 2013. Tr. at 408. Dr. Dillman indicated that Plaintiff was experiencing weekly episodes of hypoglycemia despite her compliance with treatment. Id. Plaintiff reported pain in her hip that was exacerbated by standing for long periods and working. Tr. at 410. Dr. Dillman diagnosed questionable brittle diabetes, hyperlipidemia, hypertension, and hip pain. Tr. at 410-11. He discussed diet and prescribed Crestor, Metformin, and Diclofenac. Tr. at 411. He referred Plaintiff for treatment with a diabetes educator and an ophthalmologist. Id.

         On May 29, 2013, Plaintiff reported that she had decreased her Levemir dosage to 40 units because her blood sugar was dropping during the night. Tr. at 415. She indicated her blood sugar was elevated 60 percent of the time and was below normal 13 percent of the time. Id. She complained of continued pain in her left hip and right heel. Id. Dr. Dillman observed Plaintiff to have normal gait and normal strength in her extremities. Tr. at 417. He noted tenderness to the plantar surface of Plaintiffs right foot and along her left iliotibial band. Id. He ordered blood work, prescribed Cymbalta and Lortab, and adjusted Plaintiffs diabetes medications. Tr. at 417-18.

         On June 28, 2013, Plaintiff reported that she had been checking her blood sugar three to four times each day and had noted two incidents of blood sugar in the 30s and 40s during the prior week. Tr. at 419. She indicated the incidents often occurred when she was working until after 6:00 p.m. and was unable to eat an early dinner. Id. She complained of headaches and pain in her buttocks and the left side of her low back that radiated to her thigh. Tr. at 420. She indicated the pain had not improved with physical therapy. Id. Dr. Dillman observed Plaintiff to have multiple paraspinous tender points in her lumbar spine and to be tender to palpation in her left buttock and trochanter. Tr. at 421. He discussed diet and adjustments to Plaintiff's diabetic medications and ordered magnetic resonance imaging ("MRI"). Id.

         Plaintiff was treated in the ER at Oconee Medical Center for migraine headaches on July 31, 2013, and August 11, 2013. Tr. at 314-15 and 322-24.

         Plaintiff followed up with Dr. Dillman for migraine headaches and back pain on August 13, 2013. Tr. at 422. Dr. Dillman ordered x-rays of Plaintiff s hip, administered an injection, and prescribed Ketorolac, Promethazine, and Sumatriptan. Tr. at 423.

         Plaintiff presented to neurologist George Baxley on August 15, 2013. Tr. at 351. Dr. Baxley indicated Plaintiff had migraines that were associated with photophobia, phonophobia, pulsatility, and intractability. Id. Plaintiff indicated her blood sugar had been fluctuating. Id. Dr. Baxley observed her to have intact reflexes, slightly-diminished distal sensation, and 4/5 strength. Id. He diagnosed status migrainosus with contribution from exogenous stress, blood sugar fluctuations, and component of rebound. Id. He decreased Plaintiff's ibuprofen dosage and prescribed Ultram and Sumatriptan. Id.

         Plaintiff was again treated for a migraine headache at Oconee Medical Center on August 19, 2013. Tr. at 330-32.

         On August 20, 2013, x-rays of Plaintiff's left hip were normal and an MRI of her brain was negative. Tr. at 352 and 354.

         Plaintiff complained of throbbing in her right leg and pain in her right ankle on August 27, 2013. Tr. at 424. She indicated the pain radiated down her right leg. Id. She also endorsed chronic left leg pain secondary to sciatica. Id. Dr. Dillman observed tenderness to Plaintiffs right ankle joint, but noted normal ROM and no muscle weakness. Tr. at 426. He ordered a venous ultrasound to rule out deep venous thrombosis. Id.

         On September 19, 2013, Dr. Dillman indicated in a mental questionnaire that Plaintiff had no mental diagnosis and was not being prescribed medications for a mental condition. Tr. at 387. He described Plaintiff as appropriately oriented with an intact thought process, appropriate thought content, normal mood and affect, and good attention, concentration, and memory. Id. He stated Plaintiff had only slight work-related limitation in function due to a mental condition and was capable of managing her own funds. Id.

         Plaintiff reported that her right leg pain had improved on September 20, 2013. Tr. at 428. Dr. Dillman observed that Plaintiff did not look well. Tr. at 429. He prescribed Levofloxacin, Prednisone, and Victoza. Tr. at 430.

         On October 17, 2013, Plaintiff reported that she continued to experience migraine symptoms, but that her headaches had improved. Tr. at 432. Dr. Baxley noted that the MRI of Plaintiffs brain was normal. Id. Plaintiff indicated that she had decreased her ibuprofen intake and that she had experienced fewer fluctuations in her blood glucose levels. Id. Dr. Baxley observed Plaintiff to have intact reflexes, slightly diminished distal sensation, and 4/5 strength. Id. He diagnosed chronic neuropathy secondary to diabetes, in addition to the prior diagnoses. Id. He prescribed Voltaren gel for neuropathic foot pain, discussed precautions to prevent falls, and refilled Plaintiffs prescription for Sumatriptan. Id.

         On October 30, 2013, Dr. Dillman noted that Plaintiff's hemoglobin Ale was elevated at 8.4 percent, which was an improvement from 9.4 percent. Tr. at 589. He refilled her medications and ordered lab work. Tr. at 590.

         On December 4, 2013, Plaintiff reported that she continued to experience hypoglycemia two to three times per week, but that her blood sugar was often elevated. Tr. at 585. She stated she was tolerating Victoza. Id. Dr. Dillman adjusted Plaintiff's medications for diabetes and discussed diet. Tr. at 587. He indicated Plaintiff required intensive diabetes counseling and specialty care that he could not provide and referred her to a diabetologist. Id.

         State agency medical consultant Seham El-Ibiary, M.D. ("Dr. El-Ibiary"), reviewed the record and completed a physical residual functional capacity ("RFC") assessment on December 11, 2013. Tr. at 94-96. He found that Plaintiff had the following abilities: occasionally lift and/or carry 20 pounds; frequent lift and/or carry 10 pounds; stand and/or walk for a total of about six hours in an eight-hour workday; sit for a total of about six hours in an eight-hour workday; occasionally balancing and climbing ladders, ropes, and scaffolds; avoiding concentrated exposure to fumes, odors, dusts, gases, poor ventilation, etc.; and avoiding even moderate exposure to hazards. Id. A second state agency medical consultant, Ted Roper, M.D. ("Dr. Roper"), assessed the same RFC on February 26, 2014. Tr. at 106-08.

         State agency psychological consultant Camilla Tezza, Ph.D. ("Dr. Tezza"), also reviewed the record on December 11, 2013. Tr. at 94-96. She considered Listing 12.04 for affective disorders and determined that Plaintiff's impairment caused mild restriction of activities of daily living ("ADLs"); mild difficulties in maintaining social functioning, no difficulties in maintaining concentration, persistence, or pace; and no repeated episodes of decompensation. Id.

         On January 2, 2014, Plaintiff reported that her blood glucose level had ranged from 90 mg/dL to 130 mg/dL. Tr. at 579. She complained of increased urinary frequency, fatigue, weakness, and back pain. Tr. at 580. Dr. Dillman noted Plaintiffs abdomen was diffusely tender and diagnosed viral gastroenteritis. Tr. at 581.

         On February 6, 2014, Dr. Dillman noted that Plaintiff had recently presented to the hospital with a virus. Tr. at 575. Plaintiff continued to feel ill and reported an episode of low blood glucose on the prior morning. Id. Dr. Dillman prescribed Hydrocodone and Metformin and authorized Plaintiff to remain out of work until February 10, 2014. Tr. at 577-78.

         On April 9, 2014, Plaintiff reported that Dr. Baxley had administered injections to the base of her skull that had been ineffective. Tr. at 572. She complained of headaches and difficulty sleeping. Tr. at 573. Dr. Dillman observed tenderness to palpation of Plaintiffs occipital and parietal areas. Id. He diagnosed moderate-to-severe insomnia, in addition to previously-diagnosed conditions and prescribed Cymbalta, Proventil, Symbicort, and Trilipix and a trial of Doxepin. Tr. at 573-74.

         On June 4, 2014, Plaintiff complained that medication had not improved her insomnia. Tr. at 569. She reported daily headaches and suspected that they were stress-related. Id. She indicated the injections Dr. Baxley administered had only provided minimal relief. Id. Dr. Dillman noted no abnormalities on examination. Tr. at 571. He refilled Plaintiff's medications. Id.

         On August 6, 2014, Plaintiff reported symptoms of grief following her husband's death two months prior. Tr. at 564. She complained of difficulty sleeping, mood swings, anxiety, and impaired concentration. Tr. at 565. Dr. Dillman noted that approximately seven percent of the blood glucose readings in Plaintiff's log reflected hypoglycemia, but that her hypoglycemic episodes had decreased to once a week from two to three times per week. Tr. at 564. He stated Plaintiff appeared mildly ill and anxious. Tr. at 566. Plaintiffs hemoglobin Ale was 8.7 percent. Tr. at 567. Dr. Dillman adjusted Plaintiffs insulin dosage, prescribed Lorazepam, and refilled her other medications. Tr. at 567-68.

         On September 18, 2014, Plaintiff reported that she continued to feel nervous and shaky, but that Lorazepam was providing some relief. Tr. at 561. She complained of fluctuations in her blood glucose level and indicated her blood sugar was often low before dinner. Id. Dr. Dillman diagnosed chronic, uncontrolled anxiety and uncontrolled type II brittle diabetes. Tr. at 563. He refilled Lorazepam and Paroxetine. Id.

         Plaintiff complained that Lorazepam was providing no relief on October 30, 2014. Tr. at 557. She reported feeling anxious and being unpleasant with her children. Id. She endorsed daily hypoglycemic episodes. Id. She complained of pain in her back, joints, and muscles that had worsened since she decreased her dose of Cymbalta. Tr. at 559. She endorsed difficulty sleeping and concentrating. Id. Dr. Dillman observed that Plaintiff did "not look well" and appeared anxious. Id. He prescribed Clonazepam and Hydrocodone. Id.

         Plaintiff was referred to Oconee Medical Center for suicidal ideation on November 13, 2014, after she endorsed suicidal thoughts during a grief counseling session. Tr. at 484. She was hospitalized at Oconee Medical Center through November 15, 2014. Tr. at 488. She was subsequently transferred to Patrick B. Harris Psychiatric Hospital, where she remained until November 19, 2014. Tr. at 440-42. Kathleen O'Leary, M.D. ("Dr. O'Leary"), noted that Plaintiff was a potential danger to herself or others and had failed outpatient treatment. Tr. at 439. She indicated Plaintiffs depression had worsened and she had developed suicidal ideation secondary to psychosocial stressors related to her husband's death. Tr. at 440. She diagnosed major depressive disorder without psychosis, bereavement, poorly-controlled insulin-dependent diabetes, sleep apnea, hypertension, chronic obstructive pulmonary disease ("COPD"), back pain, migraine headaches, hyperlipidemia, and gastroesophageal reflux disease ("GERD") and prescribed Klonopin, Ambien, Prilosec, Cymbalta, Lipitor, Lantus, Lisinopril, and Metformin. Tr. at 441-42. She assessed a global assessment of functioning ("GAF") score [2]of 70 [3] at the time of discharge and instructed Plaintiff to follow up for outpatient psychiatric treatment. Tr. at 442.

         Plaintiff presented to Amanda L. Varner, M. Ed. ("Ms. Varner"), at Oconee Mental Health for an initial clinical assessment on November 21, 2014. Tr. at 520. She reported seeing visions of her deceased husband. Id. She indicated she would start a sentence and neglect to finish it before starting the next sentence and would often forget her actions. Id. She complained of difficulty sleeping and indicated she had no motivation or energy. Id. Ms. Varner observed Plaintiff to be appropriately oriented, to have a blunted affect and a depressed mood, to demonstrate intact memory and concentration, and to have a below-average fund of knowledge. Tr. at 522-23. She diagnosed depressive disorder, not otherwise specified ("NOS") and assessed a GAF score of 60.[4] Tr. at 523. She recommended Plaintiff follow up for outpatient treatment. Id.

         Plaintiff followed up with Aim Khalafellah, M.D. ("Dr. Khalafellah"), for psychiatric treatment on November 25, 2014. Tr. at 527. She reported that the increased dose of Cymbalta had been helpful. Id. Dr. Khalafellah observed Plaintiff to be cooperative; to have a euthymic mood and an appropriate affect; to demonstrate intact memory, attention, and concentration; to show good insight and judgment; and to have an average fund of knowledge. Id. He diagnosed severe, recurrent major depressive disorder without psychotic features and assessed a GAF score of 55. Tr. at 528.

         On December 1, 2014, Plaintiff reported that she had felt better since her hospitalization. Tr. at 552. She complained of hypoglycemia. Id. Her hemoglobin Ale continued to be elevated at 9.7 percent. Tr. at 556. Dr. Dillman indicated that he would attempt to refer Plaintiff to a diabetes specialist. Id.

         Plaintiff presented to Dr. Dillman with worsening anxiety and mood swings on January 6, 2015. Tr. at 549. She indicated that she was working a lot and that her back pain had increased. Id. She reported visiting a mental health counselor and attending church. Id. Dr. Dillman observed that Plaintiff appeared anxious. Tr. at 551. He recommended a book and suggested that Plaintiff seek counseling from her minister instead of taking stronger pain medication. Id.

         Plaintiff presented to the ER at Greenville Health System on January 25, 2015, for an upper respiratory infection and COPD exacerbation. Tr. at 480. She complained of shortness of breath that occurred when she walked for short distances. Id. The attending physician observed mild wheezing, but no signs of respiratory distress. Tr. at 481. He prescribed an antibiotic medication and instructed Plaintiff to follow up with Dr. Dillman. Tr. at 482.

         On February 6, 2015, Plaintiff presented to Dr. Dillman with symptoms of acute gastritis. Tr. at 547. Dr. Dillman prescribed Zantac, Clonazepam, Lisinopril, Metformin, Proventil, Ranitidine, and Symbicort. Id.

         Plaintiff presented to the ER at Greenville Health System on February 22, 2015, after she experienced a syncopal episode while driving and hit a side rail. Tr. at 465. She reported feeling extremely emotional prior to the accident. Id. She endorsed a left-sided headache. Id. The attending physician diagnosed syncope, advised Plaintiff to follow up with Dr. Dillman, and instructed her not to drive until she was cleared by her primary care physician or a neurologist. Tr. at 468.

         On February 26, 2015, an electroencephalogram ("EEG") was normal. Tr. at 460. A carotid ultrasound showed mild bilateral internal carotid artery stenosis that the interpreting physician did ...


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