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Frazier v. Berryhill

United States District Court, D. South Carolina

February 1, 2018

Loretta Jean Frazier, 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 15, 2012, Plaintiff protectively filed an application for DIB in which she alleged her disability began on March 30, 2012. Tr. at 70 and 159-61. Her application was denied initially and upon reconsideration. Tr. at 89-93 and 95-97. On October 15, 2012, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Ethan Chase. Tr. at 29-62 (Hr'g Tr.). The ALJ issued an unfavorable decision on November 12, 2015, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 12-28. 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 1-3. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on June 14, 2017. [ECF No. 1].

         B. Plaintiff's Background and Medical History

         1. Background

         Plaintiff was 47 years old at the time of the hearing. Tr. at 32. She completed the twelfth grade. Id. Her past relevant work (“PRW”) was as an activities director and an office manager. Tr. at 61. She alleges she has been unable to work since March 30, 2012. Tr. at 159.

         2. Medical History

         David H. Hammett, M.D. (“Dr. Hammett”), administered nerve blocks for greater occipital neuralgia on February 29, 2012. Tr. at 279-80. He used Botox to perform chemodenervation of muscles of the neck and muscles innervated by the facial nerve on March 28, 2012, for treatment of severe, chronic migraines. Tr. at 277. He noted that Plaintiff was “responding favorably to this treatment, with significantly fewer headaches, and with each headache notably easier to control when utilizing recommended treatments.” Id.

         Plaintiff presented to the emergency room (“ER”) at Aiken Regional Medical Center (“ARMC”) with a migraine on April 8, 2012. Tr. at 245. The attending physician administered intravenous medication and instructed Plaintiff to follow up with her neurologist. Tr. at 246 and 247.

         On May 10, 2012, Plaintiff denied a headache, but complained of neck and upper extremity pain and weakness. Tr. at 275. She reported that Botox injections had significantly improved the frequency and severity of her headaches. Id. However, she complained that she was depressed as a result of lifestyle changes. Id. She stated she had difficulty performing housework and preparing food and sometimes did not want to get out of bed. Id. Dr. Hammett noted no abnormalities on physical examination. Tr. at 275- 76. He prescribed Oxycodone-Acetaminophen 5-325 mg for headaches and indicated Plaintiff was scheduled for additional Botox injections in June. Tr. at 276.

         On June 29, 2012, Plaintiff complained of depression and anxiety “due to lack of pain free periods in her daily life.” Tr. at 271. She stated the Botox injections and nerve blocks helped her to perform her activities of daily living (“ADLs”), but that she continued to be fatigued with minimal activity as a result of decreased range of motion (“ROM”) and pain in her neck. Id. Dr. Hammett observed Plaintiff to have decreased power and tone in her upper and lower extremities. Id. He noted that Plaintiff had weak grip strength on the right and that it could “be overcome with minimal resistance.” Id. He stated Plaintiff had weakened extension of her bilateral hand muscles, slightly abnormal coordination, asymmetric shoulder position, increased reflexes, increased sensation, and slightly wide-based gait. Tr. at 272. He assessed chronic common migraine (without aura) with intractable migraine, cervical spondylosis, congenital torticollis, and muscle spasm. Id. He used Botox to perform chemodenervation of muscles of the neck and muscles innervated by the facial nerve. Tr. at 273. He noted that Plaintiff was “responding favorably to this treatment, with significantly fewer headaches, and with each headache notably easier to control when utilizing recommended treatments.” Id.

         Plaintiff presented to Robert D. Boone, M.D. (“Dr. Boone”), for an annual gynecological examination on July 16, 2012. Tr. at 212. She complained of migraine headaches, numbness in her bilateral hands and lower extremities, and pain in her lower extremities. Tr. at 213. Dr. Boone performed a pap smear and ordered a mammogram. Id. He advised Plaintiff to follow up with her neurologist. Id.

         Dr. Hammett administered nerve blocks for treatment of greater occipital neuralgia on July 20 and September 21, 2012. Tr. at 268 and 270. He used Botox to perform chemodenervation of muscles of the neck and muscles innervated by the facial nerve on October 3, 2012. Tr. at 266. He noted that Plaintiff was “responding favorably to this treatment, with significantly fewer headaches, and with each headache notably easier to control when utilizing recommended treatments.” Id.

         Dr. Hammett completed a mental questionnaire on October 25, 2012. Tr. at 265. He indicated he had last treated Plaintiff on October 3, 2012. Id. He identified Plaintiff's mental diagnoses to be depression and anxiety, for which he prescribed Cymbalta and Xanax. Id. He stated the medication had helped Plaintiff's condition, but noted that psychiatric care had been recommended. Id. He described Plaintiff as being oriented to time, person, place and situation; having a distractible thought process and obsessive thought content; demonstrating a worried/anxious and depressed mood/affect; and showing poor attention/concentration and memory. Id. He described Plaintiff as exhibiting obvious work-related limitation in function as a result of her mental condition. Id. He indicated Plaintiff remained capable of managing her own funds. Id.

         Plaintiff followed up with Ty W. Carter, M.D. (“Dr. Carter”), on December 17, 2012. Tr. at 219. Dr. Carter noted that he had performed Plaintiff's cervical fusion at ¶ 4-5 in 2007. Id. He indicated Plaintiff had developed chronic neck pain and right upper extremity symptoms in 2009, but a computed tomography (“CT”) myelogram had been normal. Id. Plaintiff complained of pain that radiated from her neck down the lateral portion of her right arm to the dorsum of her hand, as well as severe right elbow pain, pain with movement, and difficulty sleeping. Id. Dr. Carter noted multiple trigger points on Plaintiff's cervical spine, midback, and right upper extremity. Id. He indicated Plaintiff had “exquisite tenderness” on resisted wrist extension on the right, but intact sensation throughout her upper extremities. Id. X-rays showed mild changes at the C5-6 level, but no collapse of disc or changing of the saggital alignment; no arthritic major disc levels; and a solid fusion at ¶ 4-5. Id. Dr. Carter ordered a new magnetic resonance imaging (“MRI”) scan of Plaintiff's cervical spine. Id. He prescribed oral steroids and indicated Plaintiff might benefit from an injection to her right elbow for lateral epicondylitis. Id.

         On December 27, 2012, Dr. Hammett used Botox to perform chemodenervation of muscles of the neck and muscles innervated by the facial nerve. Tr. at 260. He noted that Plaintiff was “responding favorably to this treatment, with significantly fewer headaches, and with each headache notably easier to control when utilizing recommended treatments.” Id.

         On January 7, 2013, Dr. Carter noted that the MRI showed solid fusion at ¶ 4-5. Tr. at 218. He stated there was an anterior osteophyte at ¶ 3-4, but no herniation at any level. Id. He recommended no surgical intervention and referred Plaintiff to William Durrett, M.D. (“Dr. Durrett”), for long-term pain management treatment. Id.

         On January 28, 2013, state agency psychological consultant Janet Boland, Ph. D. (“Dr. Boland”), considered Listings 12.04 for affective disorders and 12.06 for anxiety-related disorders and found that there was insufficient evidence to substantiate the presence of a mental impairment. Tr. at 67.

         Plaintiff presented to Dr. Durrett for an initial evaluation on January 22, 2013. Tr. at 299. Dr. Durrett observed Plaintiff to have decreased ROM to posterior extension and lateral flexion. Tr. at 300. He noted 4/5 upper extremity motor strength. Id. He stated Plaintiff had equal upper extremity pulses and reflexes, but decreased sensation to pinprick on the right at ¶ 6-7. Id. A straight-leg raising (“SLR”) test was positive at 35 degrees on the right, but negative on the left. Id. Plaintiff had decreased reflexes in her right lower extremity. Id. Her sensation was decreased to pinprick on the right at ¶ 4-5, but she had normal motor strength. Id. Dr. Durrett noted multiple tender points to palpation. Id. He assessed chronic, worsened cervical and lumbar radiculopathy with cervical dystonia. Id. He prescribed an anti-inflammatory medication and referred Plaintiff for a lumbar MRI to determine the level of radiculopathy. Id.

         Plaintiff reported increased bilateral sacroiliac (“SI”) and occipital pain with headache on February 22, 2013. Tr. at 298. Dr. Durrett observed tenderness to palpation of the bilateral SI joints and greater occipital area. Id. Patrick maneuver was positive, but Plaintiff had no motor or sensory changes and negative bilateral SLR. Id. Dr. Durrett administered bilateral SI joint and greater occipital injections. Id.

         Plaintiff continued to complain of pain in her posterior shoulder and bilateral occipital and suprascapular areas on March 19, 2013. Tr. at 297. She reported daily migraine headaches. Id. She indicated the injections provided good relief, but started to wear off after one-and-a-half to two weeks. Id. Dr. Durrett observed muscle spasm and tenderness to palpation of the bilateral occipital and suprascapular areas. Id. He administered bilateral greater occipital and suprascapular injections. Id.

         Plaintiff presented to the ER at ARMC with a three-day history of headache, nausea, and vomiting on March 29, 2013. Tr. at 225. A CT scan of Plaintiff's brain showed no acute intracranial pathology and no evidence of intracranial hemorrhage, mass, or mass effect. Tr. at 223-24. The attending physician administered intravenous medications and instructed Plaintiff to follow up with her primary care physician. Tr. at 228 and 237.

         On April 4, 2013, Plaintiff reported a sudden onset of bilateral upper extremity weakness, facial weakness, and difficulty walking that occurred during the prior week. Tr. at 255. Dr. Hammett observed no neurological abnormalities and normal sensation and reflexes, but noted bilateral motor weakness in Plaintiff's upper and lower extremities and unsteady, wide-based gait. Tr. at 255-56. He indicated possible diagnoses of cerebral embolism with cerebral infarction, multiple sclerosis, weakness of facial muscles, and weakness of limb and referred Plaintiff for an MRI of the brain. Tr. at 256. The MRI showed very mild diffuse cortical atrophy for Plaintiff's age, but no evidence of acute or chronic infarction or other significant parenchymal abnormalities. Tr. at 258. Dr. Hammett used Botox to perform chemodenervation of muscles of the neck and muscles innervated by the facial nerve. Tr. at 253. He noted that Plaintiff was “responding favorably to this treatment, with significantly fewer headaches, and with each headache notably easier to control when utilizing recommended treatments.” Id.

         On April 16, 2013, Plaintiff complained of increased bilateral occipital pain with occipital headache, bilateral suprascapular pain, posterior shoulder pain, posterior hip pain, and bilateral SI joint pain. Tr. at 296. Dr. Durrett observed tenderness to palpation of the bilateral SI joints, positive bilateral Patrick maneuver, negative bilateral SLR, tenderness to palpation of the bilateral suprascapular areas, no motor or sensory changes, and tenderness to palpation of the bilateral greater occipital area. Id. He administered bilateral SI joint and bilateral suprascapular injections. Id.

         Plaintiff presented to Khaled F. Kamel, M.D. (“Dr. Kamel”), on April 30, 2013. Tr. at 293. She complained of daily pain throughout her body and occasional right-sided weakness and numbness that accompanied headaches. Id. She reported difficulty standing and walking and stated she sometimes used a wheelchair. Id. Dr. Kamel noted there was “primarily give way weakness and embellishment on examination.” Tr. at 294. He stated a sensory examination was decreased on the right more than the left. Id. He stated Plaintiff had trace to 1 reflexes in her lower extremities and 1 to 2 reflexes in her upper extremities. Id. He assessed “[p]robable fibromyalgia” and recommended that Plaintiff's Lyrica dosage be increased. Id.

         Plaintiff complained of right greater than left occipital pain with occipital headache, right suprascapular pain, and right lumbar radicular symptoms on May 16, 2013. Tr. at 292. Dr. Durrett observed tenderness to palpation of the right greater occipital and suprascapular areas, as well as muscle spasm. Id. Plaintiff had positive SLR on the right at 35 degrees. Id. Dr. Durrett administered right greater occipital and suprascapular injections. Id.

         On June 7, 2013, Plaintiff reported improvement in her upper back and occipital and suprascapular areas. Tr. at 291. She complained of increased right lumbar pain with radiation to her posterior hip and thigh. Id. Dr. Durrett observed tenderness to palpation of the right posterior L2-3, L3-4, and L4-5 facet joints. Id. He noted negative SLR and no motor or sensory changes. Id. He administered right L2-3, L3-4, and L4-5 facet medial branch blocks. Id.

         On July 12, 2013, Plaintiff complained of increased pain in her bilateral SI and suprascapular areas and posterior hips and shoulders. Tr. at 290. Dr. Durrett noted muscle spasms and tenderness to the bilateral suprascapular areas to palpation, tenderness to the bilateral SI areas to palpation, positive Patrick maneuver, and negative bilateral SLR. Id. He administered bilateral SI joint and suprascapular injections. Id. He noted that Plaintiff “had near immediate pain relief.” Id. He indicated he would explore the possibility of a spinal cord stimulator trial for chronic radiculopathy. Id.

         On July 17, 2013, state agency psychological consultant Timothy Laskis, Ph. D. (“Dr. Laskis”), considered Listings 12.04 and 12.06 and found that Plaintiff had no restriction of ADLs, no difficulties in maintaining social functioning, and no difficulties in maintaining concentration, persistence, or pace. Tr. at 78-79. He determined that Plaintiff had experienced no periods of decompensation that were of extended duration. Id.

         An x-ray of Plaintiff's lumbar spine was unremarkable on August 15, 2013. Tr. at 303.

         On August 20, 2013, state agency medical consultant Rebecca Meriwether, M.D. (“Dr. Meriwether”), assessed the following physical residual functional capacity (“RFC”): occasionally lift and/or carry 20 pounds; frequently 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 climbing ramps and stairs, balancing, stooping, kneeling, crouching, and crawling; never climbing ladders, ropes, or scaffolds; occasionally reaching overhead with the bilateral upper extremities; and avoiding even moderate exposure to hazards. Tr. at 80-83.

         On August 28, 2013, Plaintiff complained of pain in her occipital area, neck, shoulder, and suprascapular area with daily headaches that lasted for five to six hours. Tr. at 308. She reported good relief following injections, but indicated they wore off after two to three weeks. Id. Dr. Durrett recommended Plaintiff be scheduled for Botox injections as soon as possible. Id. He noted that Plaintiff was tender to palpation of the right SI joint and right greater occipital and suprascapular areas. Tr. at 309. He observed Plaintiff to have muscle spasm and positive Patrick maneuver on the right. Id. He administered right greater occipital, right suprascapular, and right SI joint injections. Id.

         Plaintiff reported increased pain in her right SI and suprascapular areas and posterior hip and shoulder on October 2, 2013. Tr. at 310. Dr. Durrett observed tenderness to palpation of the right SI joint and suprascapular areas. Id. He noted positive Patrick maneuver on the right, negative SLR bilaterally, and no motor or sensory changes. Id. He administered right SI joint and suprascapular injections. Id.

         Plaintiff presented to Melvyn L. Haas, M.D. (“Dr. Haas”), for a neurological evaluation on October 16, 2013. Tr. at 311. She reported that she had been unable to obtain Botox injections for several months because Dr. Hammett had relocated. Id. She complained of daily headaches over the prior two-week period. Id. She reported weakness in her bilateral arms and legs and indicated she sometimes used a wheelchair because she had sustained falls. Id. Dr. Haas observed that Plaintiff had mild give way tendency in all four extremities, but he considered her strength to be normal. Tr. at 312. He noted decreased pinprick sensation with repeated testing; normal vibratory sensation on the left; and absent vibratory sensation on the right. Id. He observed a mild positional hand tremor. Tr. at 313. He described Plaintiff's posture as “somewhat stooped” and indicated she walked “with a short shuffling gait” and became “progressively more stooped as she walk[ed].” Id. He noted that Plaintiff progressively straightened up as she walked backward to get back in her wheelchair. Id. Dr. Haas indicated Plaintiff could rotate her head 75 degrees to the left and right and could flex and extend fully. Id. He stated Plaintiff had migraines and medication overuse headaches. Id. He recommended she stop taking OxyContin, Motrin, Tylenol, and other medications on a regular basis. Id. He prescribed Propranolol LA for tachycardia and migraine, scheduled MRI scans of the brain and cervical spine, and advised Plaintiff to follow up in six weeks. Id.

         Plaintiff reported reduced lower back pain on October 30, 2013. Tr. at 314. She complained of occipital headache and pain in the posterior shoulder and bilateral occipital and suprascapular areas. Id. Dr. Durrett noted muscle spasm and tenderness to palpation of Plaintiff's bilateral occipital and suprascapular areas. Id. He administered injections to the areas and recommended additional Botox injections. Id.

         Plaintiff presented to the ER at ARMC on December 2, 2013, with chest pain and elevated blood pressure. Tr. at 488. The attending physician noted that Plaintiff's vital signs were positive for tachycardia, but that lab work, electrocardiogram (“EKG”), and chest x-ray were negative. Tr. at 491. Plaintiff received intravenous fluids and was discharged to her home. Id.

         On December 3, 2013, Plaintiff complained of occipital, neck, and shoulder pain and daily migraines that lasted for four to five hours. Tr. at 315. Dr. Durrett noted tenderness to palpation of Plaintiff's posterior cervical elements and occipital, suprascapular, and frontal areas. Id. He administered Botox injections. Id.

         On December 18, 2013, Plaintiff reported that Propranolol had improved her headaches, but had caused low blood pressure. Tr. at 316. She reported only two minor headaches since December 3. Id. Dr. Haas observed Plaintiff's posture to be stooped and curled to the right as she walked. Id. However, he noted “[i]nterestingly, the more she walks, the straighter she becomes. Id. He assessed migraine without aura and increased Plaintiff's dosage of Propranolol. Id.

         Plaintiff complained of increased left lumbar pain with radiation to the posterior hip and thigh and bilateral occipital pain with occipital headache on January 16, 2014. Tr. at 317. Dr. Durrett noted tenderness to palpation of the left posterior L2-3, L3-4, and L4-5 facet joints. Id. Plaintiff also had minimal tenderness of the SI joints and tenderness of the bilateral greater occipital area to palpation with extension and reproduction of symptoms. Id. Dr. Durrett administered left L2-3, L3-4, and L4-5 facet medial branch blocks. Id.

         On February 21, 2014, Plaintiff complained of severe, worsened bilateral occipital pain with headaches. Tr. at 318. She also endorsed increased pain in the right SI area and posterior hip. Id. Dr. Durrett administered a right SI joint injection. Id.

         On March 19, 2014, Plaintiff reported that she had received little relief from the last Botox injections. Tr. at 319. She indicated her headaches returned after only two weeks and were occurring daily. Id. She reported back pain and indicated she was starting water aerobics. Id. Dr. Haas observed Plaintiff to stand straight, walk in tandem, and have mildly antalgic gait. Id. His impression was medication overuse headache. Id. He indicated Plaintiff would continue to have a headache as long as she used daily analgesic medication. Id. He advised Plaintiff to continue to exercise. Id.

         On April 14, 2014, Plaintiff complained of increased pain in her bilateral SI area and posterior hip “after doing a lot of work around the house, bending and lifting and such.” Tr. at 320. She reported significant improvement in her upper back, neck, and occipital area. Id. Dr. Durrett observed tenderness to palpation of the bilateral SI joints, positive Patrick maneuver, negative bilateral SLR, and no other motor or sensory changes. Id. He administered bilateral SI joint injections. Id.

         On May 5, 2014, Plaintiff complained of increased bilateral occipital pain with occipital and migraine headaches that lasted for five to six hours per day. Tr. at 321. She reported worsened bilateral suprascapular and posterior shoulder pain with tightness over the prior two- to three-week period. Id. Dr. Durrett noted tenderness of the bilateral occipital area to palpation with extension and bilateral suprascapular areas with muscle spasm, but no other motor or sensory changes. Id. He administered bilateral greater occipital and suprascapular injections. Id.

         Plaintiff returned to Dr. Hammett for treatment on June 25, 2014. Tr. at 331. Dr. Hammett noted that Plaintiff had unsuccessfully tried Topamax, Amitriptyline, Propranolol, Depakote, and Cymbalta for migraine prevention. Tr. at 332. Plaintiff reported daily headaches that lasted for greater than four hours. Id. She complained of a six-month history of worsened lower back pain that was associated with cramping and tenderness in the hips that radiated down both legs. Id. Dr. Hammett noted some moderate dystonic motor activity in Plaintiff's posterior cervical region; mildly limited ROM of the neck; and “exquisite tenderness” overlying areas of the bilateral occipital nerves. ...


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