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 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.
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].
Plaintiffs Background and Medical History
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.Tr. at 46.
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.
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.
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.
underwent left carpal tunnel release surgery on September 13,
2012. Tr. at 340-42.
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.
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.
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
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.
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
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.
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
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.
was again treated for a migraine headache at Oconee Medical
Center on August 19, 2013. Tr. at 330-32.
August 20, 2013, x-rays of Plaintiff's left hip were
normal and an MRI of her brain was negative. Tr. at 352 and
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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 of 70  at the time of discharge and
instructed Plaintiff to follow up for outpatient psychiatric
treatment. Tr. at 442.
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. Tr. at 523. She recommended
Plaintiff follow up for outpatient treatment. Id.
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.
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
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.
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.
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.
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.
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 ...