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Cyr v. Berryhill

United States District Court, D. South Carolina

December 12, 2017

Maryann Cyr, 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 June 11, 2013, Plaintiff protectively filed an application for DIB in which she alleged her disability began on March 5, 2013. Tr. at 52 and 116-23. Her application was denied initially and upon reconsideration. Tr. at 67-70 and 72-73. On June 8, 2015, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Ann G. Paschall. Tr. at 26-43 (Hr'g Tr.). The ALJ issued an unfavorable decision on July 31, 2015, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 10-25. 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 27, 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 30. She completed high school and some college courses. Id. Her past relevant work (“PRW”) was as a secretary and an office manager. Tr. at 39. She alleges she has been unable to work since March 5, 2013. Tr. at 116.

         2. Medical History

         Plaintiff underwent magnetic resonance imaging (“MRI”) of the lumbar spine on March 24, 2011, that showed degenerative disc disease at ¶ 2-3 to L4-5 with disc narrowing most-pronounced at ¶ 3-4. Tr. at 262. It revealed no significant central stenosis. Id. However, it indicated mildly prominent extraforaminal zone disc bulging at ¶ 2-3 that effaced the fat signal anteriorly adjacent to the L3 nerve root and a small subarticular zone disc protrusion without clear mass effect on any nerve roots at ¶ 4-5. Id.

         On April 5, 2011, orthopedist Gerald Rollins, M.D. (“Dr. Rollins”), noted that the MRI showed degenerative changes and degenerative arthropathy at ¶ 2-3 and L3-4 and to a lesser extent at ¶ 4-5. Tr. at 255. He recommended that Plaintiff undergo diagnostic medial branch blocks. Tr. at 256. He indicated he would recommend facet rhizotomy if Plaintiff responded to the medial branch blocks as anticipated. Id. He discouraged surgical fusion at ¶ 2-3, L3-4, and L4-5 as too aggressive a treatment, but indicated “that is what it would require to get [Plaintiff] improved from a surgical standpoint.” Id.

         On April 15, 2011, James Behr, M.D. (“Dr. Behr”), administered diagnostic bilateral medial branch blocks at ¶ 1, L2, L3, and L4. Tr. at 253-54. Dr. Behr subsequently performed bilateral L2, L3, L4, and L5 medial branch radiofrequency ablation (rhizotomy) with fluoroscopic guidance on April 27, 2011. Tr. at 251-52.

         On May 18, 2011, Plaintiff reported her back pain had improved following surgery. Tr. at 249 and 250. Dr. Rollins assessed facet arthropathy bilaterally at ¶ 2-3, L3-4, and L4-5 with some degenerative changes, but indicated rhizotomy had worked well. Id. He instructed Plaintiff to follow up as needed. Id.

         Plaintiff presented to neurologist Carol A. Kooistra, M.D. (“Dr. Kooistra”), on September 28, 2012. Tr. at 194. Dr. Kooistra indicated that Plaintiff had presented eight months prior for pain in her back and bilateral legs. Tr. at 194. Plaintiff reported that she had been laid off from her job. Id. She stated she was considering a job as a school bus driver and requested that Dr. Kooistra perform a physical examination. Id. Dr. Kooistra observed Plaintiff to have normal tone, bulk, strength, fine motor movements, sensation, and tandem gait. Id. She diagnosed neuralgia, low back pain, and polyneuropathy in diabetes. Id. She discussed glucose management and advised Plaintiff to continue her current regimen and to follow up in four months. Id.

         Plaintiff presented to Oconee Medical Center with a left foot injury on October 18, 2012. Tr. at 231. An x-ray showed mild arthritic changes of the toes, but no fracture or dislocation. Tr. at 240. The attending physician noted decreased range of motion (“ROM”) and ecchymosis in Plaintiff's left foot. Tr. at 231-32. He diagnosed a foot sprain and prescribed Hydrocodone-Acetaminophen. Tr. at 232.

         Plaintiff reported her pain as a 10 on a 10-point scale on March 26, 2013. Tr. at 192. She complained of a recent onset of pain in the greater trochanteric region of her left lateral hip. Id. She indicated her medications had allowed her to function better, but that she continued to experience significant low back pain at times. Id. Dr. Kooistra observed signs of pain with ROM of Plaintiff's left hip and tenderness in her greater trochanteric region. Id. She noted Plaintiff had normal tone, bulk, strength, fine motor movements, sensation, and tandem gait. Id. She assessed low back pain, polyneuropathy in diabetes, and bursitis. Id. She prescribed Nucynta and administered a trigger point injection. Id.

         Plaintiff reported increased pain in her low back and hip and rated her pain as a 10 on August 27, 2013. Tr. at 208. Dr. Kooistra observed Plaintiff to have signs of pain with ROM of the left hip and tenderness to the greater trochanteric region. Id. She assessed low back pain and bursitis, prescribed Nucynta and Flexeril, and administered a trigger point injection to Plaintiff's left greater trochanteric region. Id.

         Plaintiff presented to Husam Mourtada, M.D. (“Dr. Mourtada”), for a consultative examination on September 10, 2013. Tr. at 215. Dr. Mourtada observed Plaintiff to have 5/5 motor strength in her upper extremities and right lower extremity and 4/5 strength in her left lower extremity. Tr. at 216. A straight-leg raising (“SLR”) test was negative. Id. Plaintiff demonstrated no focal or sensory deficits. Id. Her deep tendon reflexes were reduced at 1. Id. She was tender to palpation across her lower lumbar spine. Id. Her cervical ROM was reduced to 45 degrees of flexion, 45 degrees of extension, and 30 degrees of lateral flexion.[1] Tr. at 213. Her lumbar ROM was reduced to 65 degrees of flexion, 15 degrees of extension, and 15 degrees of lateral flexion.[2] Id. She demonstrated no motor atrophy and normal gait. Tr. at 216. She was able to squat and to perform tandem, heel, and toe walking. Id. An x-ray of Plaintiff's lumbar spine showed degenerative disc disease at ¶ 2-3 and L3-4 and subtle atherosclerosis of the abdominal aorta and iliac arteries. Tr. at 211. Dr. Mourtada assessed hypertension, hyperlipidemia, and chronic low back pain. Tr. at 216. He found that Plaintiff was able to independently manage her funds. Tr. at 217.

         On September 25, 2013, state agency medical consultant Dale Van Slooten (“Dr. Van Slooten”), reviewed the record and completed a physical residual functional capacity (“RFC”) assessment. Tr. at 50. He indicated Plaintiff had the following limitations: occasionally lift and/or carry 50 pounds; frequently lift and/or carry 25 pounds; stand and/or walk for a total of about six hours in eight-hour workday; sit for a total of about six hours in an eight-hour workday; frequently balance, kneel, crouch, crawl, and climb ramps and stairs; occasionally stoop and climb ladders, ropes, and scaffolds. Id.

         A second state agency medical consultant, William Hopkins, M.D. (“Dr. Hopkins”), reviewed the record and completed a physical RFC assessment on December 11, 2013. Tr. at 59-60. He indicated Plaintiff was limited as follows: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for about six hours in an eight-hour workday; sit for about six hours in an eight-hour workday; frequently balancing, kneeling, crouching, crawling, and climbing ramps and stairs; and occasionally stooping and climbing ladders, ropes, and scaffolds. Id.

         On February 14, 2014, Plaintiff reported that she had been unable to afford an MRI of her lumbar spine. Tr. at 223. She indicated her last injection had provided a month of relief, but had worn off. Id. She continued to complain of pain in her low back and left hip and rated her pain as a nine. Id. Dr. Kooistra observed Plaintiff to show signs of left hip pain on ROM testing and to have reduced reflexes. Id. She noted that Plaintiff demonstrated normal tone, bulk, strength, fine motor movements, sensation, and tandem gait. Id. She instructed Plaintiff to continue her current medication regimen. Id.

         Plaintiff presented to Mary Black Memorial Healthcare System for increased left elbow pain on February 15, 2014. Tr. at 269. The attending physician observed Plaintiff to have decreased ROM to extremes of supination and pronation in her left elbow. Tr. at 272. He diagnosed a left elbow sprain and instructed Plaintiff to take 600 mg of ibuprofen. Id.

         Plaintiff presented to After Hours Family Practice for medication refills on March 29, 2014. Tr. at 228. She reported left elbow pain. Id. Her blood pressure was elevated at 164/84 mm/Hg. Id. The provider prescribed Hydrochlorothiazide and Mobic and instructed Plaintiff to follow up in six months. Id.

         On June 26, 2014, Plaintiff reported that her low back and hip pain had increased even though she had been engaging in aquatic therapy. Tr. at 221. She indicated Nucynta no longer provided adequate relief and Flexeril provided relief at night, but was too sedating for her to use during the day. Id. Dr. Kooistra observed Plaintiff to have normal tone, bulk, strength, fine motor movements, sensation, and tandem gait. Id. She noted trace and symmetric reflexes. Id. She prescribed an extended-release Butrans patch. Id.

         On August 13, 2014, Plaintiff presented to Oconee Medical Center with shoulder pain. Tr. at 237. The attending physician observed tenderness in Plaintiff's left superior deltoid, pain with abduction, little pain with rotation, and no swelling or erythema. Tr. at 238. He diagnosed subdeltoid bursitis and prescribed Percocet and Prednisone. Tr. at 230. An x-ray of Plaintiff's left shoulder showed no evidence of acute fracture or dislocation and unremarkable acromioclavicular (“AC”) and glenohumeral joints. Tr. at 229.

         Plaintiff presented to After Hours Family Practice on September 24, 2014, for medication refills. Tr. at 227. Her blood pressure was controlled. Id. The provider prescribed Mobic, Hydrochlorothiazide, and Lovastatin. Id.

         On September 25, 2014, Plaintiff reported her pain was generally well-tolerated, but complained of some mid-day breakthrough pain. Tr. at 244. She rated her pain as an eight. Id. She also endorsed right shoulder pain with motion. Id. Dr. Kooistra noted that Plaintiff was “continuing to work.” Id. She observed Plaintiff to have trace and symmetric reflexes and normal tone, bulk, strength, fine motor movements, sensation, and tandem gait. Id. She noted evidence of pain over Plaintiff's AC joint with abduction and a positive impingement sign. Id. She diagnosed neuralgia and shoulder pain and increased Plaintiff's dosage of Norco 10/325 mg to three times a day. Id.

         On January 5, 2015, Plaintiff returned to After Hours Family Practice for medication refills. Tr. at 227. She noted that she had been out of Hydrochlorothiazide for two days, and her blood pressure was elevated at 168/90 mm/Hg. Id.

         On March 19, 2015, Dr. Kooistra noted that Plaintiff's last urine drug screen showed evidence of Oxycodone and its metabolites, alcohol, and tetrahydrocannabinol (“THC”). Tr. at 242. Plaintiff denied use of alcohol and Oxycodone, but indicated she had tried marijuana once for pain management. Id. Dr. Kooistra indicated she would continue to prescribe Norco 10/325 mg because of Plaintiff's history of compliance with her medications. Id. She observed Plaintiff to demonstrate normal tone, bulk, strength, fine motor movements, sensation, and tandem gait and trace and symmetric reflexes. Id.

         Plaintiff presented to After Hours Family Practice for medication refills and lab work on April 20, 2015. Tr. at 280. She complained of chronic pain in her back and hips and indicated she had stopped taking Mobic. Id. Her provider increased Plaintiff's dose of Lovastatin and prescribed Metformin and Adipex. Id.

         Plaintiff presented to After Hours Family Practice for a blood pressure check on April 29, 2015. Tr. at 279. Her blood pressure was elevated at 152/80. Id. She complained of a headache and edema in her bilateral lower legs. Id. She indicated she was taking Hydrochlorothiazide and requested a prescription for Lasix. Id. The provider denied her request, but increased her dose of Hydrochlorothiazide and added a prescription for Lisinopril. Id.

         On May 8, 2015, an MRI of Plaintiff's lumbar spine showed a mild diffuse posterior disc bulge with no definite impingement upon the exiting or traversing nerve roots at ¶ 2-3; neural foraminal narrowing as a result of a broad-based posterior disc protrusion and facet spurring at ¶ 3-4; and a broad-based posterior disc protrusion without definite impingement upon the exiting or traversing nerve roots at ¶ 4-5. Tr. at 282. An MRI of Plaintiff's pelvis revealed reactive marrow change on either side of the interior aspect of her right sacroiliac joint that was consistent with either degenerative change within the right sacroiliac joint or early sacroilitis. Tr. at 285. It also showed degenerative disc signal at multiple levels of the lower lumbar spine and mild degenerative change of the pubic symphysis. Id.

         C. The Administrative Proceedings

         1. The Administrative Hearing

         a. Plaintiff's Testimony

         At the hearing on June 8, 2015, Plaintiff testified that she had stopped working because her back pain had worsened to the point that she could no longer sit or stand for more than 10 to 15 minutes at a time. Tr. at 32. She described the pain as radiating from her low back to her bilateral hips and being worse in the left hip. Tr. at 33. She also endorsed pain in her left shoulder that was exacerbated by lifting and “sleep[ing] on it the wrong way.” Tr. at 33-34. She stated she had been diagnosed with diabetes and had neuropathy in her hands and feet. Tr. at 34-35.

         Plaintiff testified that the neuropathy in her hands prevented her from using them for extended periods. Tr. at 35. She indicated she could sit, stand, and walk for 10 to 15 minutes each. Tr. at 37. She claimed that she needed to walk for 15 minutes after sitting for 10 to 15 minutes. Id. She stated the heaviest item she could lift without pain was a gallon of milk. Tr. at 34. She claimed that Flexeril caused her to feel tired. Tr. at 37. She indicated she had difficulty focusing on television shows because of her pain and tiredness. Tr. at 38. She stated she was most comfortable when lying down. Id. She estimated that she would typically lie down for four hours per day, but would lie down for a longer period on rainy days. Id.

         Plaintiff testified that she lived with her husband. Tr. at 31. She stated she was able to drive. Id. She indicated she had difficulty bending to put on her shoes and socks. Tr. at 34. She stated she washed dishes, vacuumed, and prepared meals, but had to take frequent breaks. Tr. at 35-36. She testified that ...


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