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) to obtain judicial review
of the final decision of the Commissioner of Social Security
(“Commissioner”) denying his 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
about November 20, 2013, Plaintiff filed an application for
DIB in which he alleged his disability began on November 15,
2012. Tr. at 86, 204- 08. His application was denied
initially and upon reconsideration. Tr. at 98, 115, 122, 124.
On July 20, 2016, Plaintiff had a hearing before
Administrative Law Judge (“ALJ”) Mattie
Harvin-Woode. Tr. at 41-85 (Hr'g Tr.). The ALJ issued an
unfavorable decision on September 8, 2016, finding Plaintiff
was not disabled within the meaning of the Act. Tr. at 13-40.
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 September 15, 2017. [ECF No. 1].
Plaintiff's Background and Medical History
was 45 years old at the time of the hearing. Tr. at 46. He
completed high school, and his past relevant work
(“PRW”) was as a panel board inspector or
builder. Tr. at 46, 48, 50. He alleges he has been unable to
work since November 15, 2012. Tr. at 44, 205.
October 4, 2011, Plaintiff was evaluated by Ike C. Stewart,
M.D. (“Dr. Stewart”), for knee pain, stiffness,
and swelling. Tr. at 486-89. Dr. Stewart assessed gout,
ordered tests, administered an injection, and instructed
Plaintiff to take medications as prescribed. Tr. at 488. On
October 12, 2011, Plaintiff reported the medications were not
helping his knee pain. Tr. at 490-92. Dr. Stewart assessed
diabetes mellitus, hyperlipidemia, and knee arthritis.
October 26, 2012, Plaintiff visited the urgent care at
Colonial Family Practice and was evaluated by Edward J.
Meyers, M.D. (“Dr. Meyers”). Tr. at 645.
Plaintiff complained of lower back pain, reporting he had
injured his back at work. Id. An x-ray of the lumbar
spine revealed no fracture or dislocation. Tr. at 648. Dr.
Meyers noted Plaintiff had pain while bending, directed him
to undertake light duty for one week, and recommended he
alternate Tylenol and Motrin. Tr. at 493, 646-47.
October 27, 2012, Plaintiff was evaluated by Shelley G.
Stevens (“Stevens”), a physician's assistant
in urgent care at Colonial Family Practice. Tr. at 642-44.
Plaintiff complained his back pain had increased and the
medications were not helping. Id. Stevens noted
Plaintiff ambulated without difficulty and his x-ray was
negative. Tr. at 644. Stevens recommended Plaintiff continue
his prescriptions for one week. Id.
October 31, 2012, Plaintiff was evaluated by Dr. Stewart for
complaints of continued back pain. Tr. at 639-41. Dr.
Stewart's examination revealed paraspinal muscle
tenderness, but a normal range of motion (“ROM”)
and strength limits. Tr. at 640. Dr. Stewart prescribed
Vicodin and Skelaxin, indicating Plaintiff could return to
work at a sedentary job only. Tr. at 641.
November 5, 2012, Plaintiff was evaluated by Thomas L. Lucas,
III, M.D. (“Dr. Lucas”), for a follow up on his
chronic problems and lower back pain. Tr. at 635-38.
Plaintiff reported his pain was moderate to severe, worsened
with certain movements, and was constant, but Skelaxin and
Vicodin helped his pain. Tr. at 635. Dr. Lucas scheduled a
magnetic resonance imaging (“MRI”), noting
Plaintiff should not engage in heavy lifting or bending and
should continue sedentary work. Tr. at 637.
November 9, 2012, Plaintiff was evaluated by Judith
Chontos-Komorowski, M.D. (“Dr.
Chontos-Komorowski”) in the emergency department of
Palmetto Baptist Hospital. Tr. at 368-70. Plaintiff
complained of low back pain with some radiation to his hips
and thighs that had lasted for several weeks. Tr. at 368.
Plaintiff denied a specific injury, but noted he started a
new line at work and thought he felt something click or pull
on October 25, 2012, as he was working. Id.
Plaintiff reported his pain worsened when he changed
positions, but he had been able to walk. Id. Dr.
Chontos-Komorowski noted Plaintiff's cervical, thoracic,
and lumbar spines were nontender at the midline, but he did
have bilateral paralumbar tenderness. Tr. at 369. Dr.
Chontos-Komorowski also noted Plaintiff's strength was
symmetric, and he walked with a stable gait. Id. Dr.
Chontos-Komorowski indicated Plaintiff's exam was
suggestive of sciatica. Id. Based on her review of
lumbar spine imaging, Dr. Chontos-Komorowski indicated
Plaintiff had degenerative changes and spondylolisthesis
secondary to a bilateral pars defect, but no acute
abnormality. Tr. at 369, 371. Dr. Chontos-Komorowski started
Plaintiff on oral steroids, analgesics, and Flexeril, gave
him a work excuse, and directed him to follow up with an
orthopedist. Tr. at 369.
November 13, 2012, Plaintiff presented to Midlands
Orthopaedics with a moderate amount of distress and inability
to sit comfortably. Tr. at 401. An MRI was scheduled to
evaluate for a probable herniated disc. Id.
November 27, 2012, an MRI of Plaintiff's lumbar spine
revealed “a persistent broad-based bulge with
superimposed central and somewhat superiorly oriented
protrusion/herniation resulting in moderate degree of central
canal narrowing” at ¶ 4-5 and “additional
multilevel degeneration” noted with L1-2 being
unremarkable. Tr. at 377, 479.
November 30, 2012, Plaintiff was seen at Midlands
Orthopaedics with complaints of lower back pain. Tr. at 394,
399-401. Plaintiff appeared to be in a moderate amount of
discomfort, but had improved since the last visit. Tr. at
400. Robert M. Peele, Jr., M.D. (“Dr. Peele”),
prescribed Flexeril and Percocet and scheduled a lumbar
epidural steroid injection. Tr. at 401.
December 7, 2012, Plaintiff received a lumbar epidural
steroid injection at Midlands Orthopaedics. Tr. at 395-98.
January 2, 2013, Plaintiff was seen at Midlands Orthopaedics
for a follow-up appointment. Tr. at 385, 393-95. Plaintiff
reported a twenty percent improvement following the
injection, but he continued to have pain down his right leg.
Tr. at 394. Although it appeared Plaintiff was in less
discomfort than he had been previously, he still appeared
uncomfortable, shifting his weight constantly. Id.
Flexeril and Percocet were prescribed and another lumbar
epidural steroid injection was scheduled. Tr. at 395.
January 7, 2013, Plaintiff received a second lumbar epidural
steroid injection at Midlands Orthopaedics. Tr. at 385-92.
January 29, 2013, Plaintiff presented to Midlands
Orthopaedics for a follow-up appointment. Tr. at 383-85.
Plaintiff reported a twenty percent improvement after his
second injection, similar to the first. Tr. at 384. Plaintiff
was referred to a surgeon and was prescribed Meperidine and
Naproxen. Tr. at 385.
February 27, 2013, Plaintiff was seen at Columbia
Neurosurgical Associates by Brett C. Gunter, M.D. (“Dr.
Gunter”) for complaints of back and leg pain. Tr. at
467. Plaintiff described the onset of his back injury and
indicated only minimal relief from injections. Id.
Plaintiff explained his back pain was a constant ache that
worsened when he stood, walked, bent, or sat too long.
Id. Plaintiff reported his pain was eased
temporarily and marginally by changing positions.
Id. Plaintiff described his hip and leg pain as an
intermittent, sharp, shooting pain that traveled from his
back to his hips, down his anterior thighs, and into his
lower legs and that increased during transitions, standing,
walking, and sitting too long. Id. Dr. Gunter noted
Plaintiff's MRI from November 27, 2012, showed a grade I
anterolisthesis of L4 on L5 and a herniated nucleus pulposis
at ¶ 4-5 with severe central and lateral recess
stenosis. Tr. at 468. Dr. Gunter diagnosed lumbar herniated
nucleus pulposis and spondylolisthesis at ¶ 4-5 with
weakness in the lower extremities. Id. Dr. Gunter
planned to proceed with surgery and prescribed Lortab and
Flexeril. Tr. at 469.
April 24, 2013, Plaintiff confirmed he desired surgery, and
Dr. Gunter indicated Plaintiff should remain out of work. Tr.
at 411, 470-71.
2, 2013, Plaintiff underwent a right L4-5 transforaminal
lumbar interbody fusion without complications in a surgery
performed by Dr. Gunter. Tr. at 407-08, 412-13, 477-78. The
following day, Dr. John W. Haynes, M.D. (“Dr.
Haynes”), examined Plaintiff and found the hardware was
intact, alignment was satisfactory, and there were no
compression deformities or other acute pathology evident. Tr.
at 409. After his operation, Plaintiff had elevated blood
sugar levels, which were eventually controlled through
medication. Tr. at 412. Plaintiff's pain continued to
improve each day, and he was discharged on May 10, 2013. Tr.
at 412, 436-41. His medications included Flexeril, Percocet,
Roxicodone, Lantus, Novolog, and a multivitamin. Tr. at 413.
5, 2013, an image of Plaintiff's spine showed
postoperative L4-5 fusion with mild disc space narrowing at
the operative site and at ¶ 5- S1, but the remainder of
the lumbar spine appeared unremarkable with no spondylolysis
or spondylolisthesis present. Tr. at 481. Plaintiff reported
not doing much better overall and continuing to have a lot of
back pain. Tr. at 472. Dr. Gunter indicated Plaintiff was
“openly tearful” and “ha[d] some trouble
with communicating.” Id. According to Dr.
Gunter, there had been a “[t]echnically satisfactory
outcome, but clinically no improvement.” Id.
Dr. Gunter planned for Plaintiff to taper off his Oxycodone
and Percocet, as well as transition from a walker to a cane.
Id. Dr. Gunter recommended Plaintiff seek psychiatry
or behavioral consultation for management of his depressed
mood and remain off work. Id.
31, 2013, an image of Plaintiff's spine showed stable
appearance with posterior fusion at ¶ 4-5, mild disc
space narrowing at ¶ 5- S1, and mild anterior
spondylolisthesis at ¶ 4-5. Tr. at 482. Plaintiff
presented to Dr. Gunter for a follow-up visit and reported
reducing his pain medication to two Oxycodone and two
Percocet per day, but he was still experiencing a lot of pain
with little relief. Tr. at 466. Dr. Gunter noted satisfactory
appearance of the interbody device and instrumentation based
on his review of Plaintiff's x-ray. Id. Dr.
Gunter planned for Plaintiff to wean off Percocet, get out of
his brace, remain off work, and begin therapy to develop a
home exercise program. Id.
August 27, 2013, Plaintiff began treatment with Post Trauma
Resources. Tr. at 553-54. Lawrence Bergmann, Ph.D.
(“Dr. Bergmann”), evaluated Plaintiff at his
initial appointment, noting he had a flat affect and was
depressed. Tr. at 554. Dr. Bergmann listed diagnoses of major
depressive disorder (single episode, moderate, principal),
pain disorder associated with psychological factors and
medical condition, and chronic pain with a global assessment
of function (“GAF”) score of 45. Id. Dr.
Bergmann noted Plaintiff's attention and concentration
were characterized by distractibility. Id. Dr.
Bergmann also noted Plaintiff's psychological issues had
developed following his work injury and he required mental
health treatment, including psychotherapy and medication
prescribed by a psychiatrist. Id.
August 28, 2013, Plaintiff presented for a follow-up visit
with Dr. Gunter. Tr. at 474. Plaintiff reported continuing
pain in his lower back and taking two Percocet per day.
Id. Dr. Gunter directed Plaintiff to begin physical
therapy for four weeks and then return to light duty on the
job with ten-minute rest breaks every thirty minutes.
September 4, 2013, Plaintiff saw Roger Deal, M.D. (“Dr.
Deal”), a medically-licensed psychiatrist at Post
Trauma Resources. Tr. at 560. Dr. Deal noted Plaintiff was
having positive results on his sleep with Trazodone,
recommended adding medication to help control anxiety
associated with chronic pain, and prescribed small doses of
September 5, 2013, Plaintiff began attending physical therapy
sessions at Sumter Physical Therapy Clinic. Tr. at 453-63.
Dr. Gunter had ordered Plaintiff to attend physical therapy
three times a week for six weeks. Tr. at 455. He specifically
indicated the therapy should include “[l]umbar physical
therapy with emphasis on local measures such as ultrasound,
heat, ice, massage, and [a transcutaneous electrical nerve
stimulation (‘TENS”) unit], with core and
extremity strengthening, [ROM] exercises, and [a] home
exercise program.” Id. A progress report by
Sumter Physical Therapy Clinic reported Plaintiff attended
eighteen visits before stopping due to pain. Tr. at 458;
see also Tr. at 453-63 (describing therapy sessions
on September 9, 13, 16, 18, 23, 25; October 2, 9, 14, 21, 23,
28, 30; and November 4, 6, 8, and 11 with Amy Watts, physical
therapist assistant, or Rocklin Hoover, a physical
September 19, 2013, Plaintiff presented to Dr. Deal and
reported his surgeon had cleared him to return to work, but
he was puzzled because he did not think he was capable of
doing his job given his current pain level. Tr. at 562.
Plaintiff was frustrated he was not being sent for pain
management treatment. Id. Dr. Deal noted
Plaintiff's sleep had improved and he had tolerated
Valium well, so he increased Trazodone and continued Valium.
September 25, 2013, Plaintiff saw Dr. Gunter at a follow-up
appointment. Tr. at 475. Plaintiff reported continuing lower
back and leg pain that had worsened over time. Id.
Plaintiff indicated he was unable to continue therapy, as it
was worsening his pain. Id. Dr. Gunter directed
Plaintiff to continue therapy and not take more than one
Percocet per day. Id. Dr. Gunter indicated Plaintiff
would need a referral to a pain management specialist if he
could not manage his pain. Id.
October 1, 2013, Plaintiff presented to Dr. Bergmann. Tr. at
555. Dr. Bergmann observed Plaintiff used a cane, shifted
consistently in his chair, and reported continued pain and
physical limitations with a depressed mood. Id. Dr.
Bergmann noted Plaintiff's response to interventions was
October 15, 2013, Plaintiff met with Dr. Bergmann, who noted
he appeared to be in pain and stood up for part of the
session. Tr. at 556. Plaintiff reported feeling overwhelmed,
depressed, and anxious. Id. Dr. Bergmann noted he
would discuss Plaintiff's concern that he was
experiencing side effects from sleep medication with Dr.
Deal. Id. Dr. Deal noted Plaintiff was extremely
uncomfortable and unable to sit in a chair for long without
getting up to move around. Tr. at 563. Dr. Deal increased
Plaintiff's Valium and Trazodone medications, indicating
he had a marked increase in pain levels with nothing to take
for pain control. Id.
October 28, 2013, Plaintiff began treatment with William C.
Aldrich, M.D. (“Dr. Aldrich”), at Colonial Family
Practice. Tr. at 494-98. Plaintiff's primary complaint
was more frequent bowel movements than normal. Tr. at 496. As
part of his physical examination, Dr. Aldrich noted Plaintiff
had lumbar spine pain with radiculopathy, but a normal spine
ROM. Tr. at 497. Plaintiff was also assessed for diabetes,
gout, hyperlipidemia, and diarrhea. Tr. at 498. Dr. Aldrich
referred Plaintiff to Michael T. Warrick, M.D. (“Dr.
Warrick”), for his lumbar spine pain and ordered lab
tests. Tr. at 498, 521-25.
October 29, 2013, Plaintiff met with Dr. Bergmann, who noted
Plaintiff was in pain and could not sit for the entire
session. Tr. at 557. Plaintiff reported continuing pain with
poor pain management, experiencing confusion, feeling
overwhelmed, having gastrointestinal issues, and not
sleeping. Id. Dr. Bergmann noted Plaintiff's
response was good. Id. Dr. Deal noted Plaintiff had
been unable to keep his medications down due to an upset
stomach, and he decreased the dosages of his medications. Tr.
November 7, 2013, Plaintiff presented to the Lexington
Medical Center for back pain, and a computed tomography
(“CT”) scan of Plaintiff's lumbar spine
depicted a “L4-5 fusion with right sided
laminotomies.” Tr. at 448-51. The findings revealed
“some heterotopic bone formation posteriorly at the
L4-5 level, which results in mild canal stenosis without
definite nerve root contact” and “mild
degenerative disc disease . . . with mild broad-based disc
bulge resulting in mild canal stenosis and mild bilateral
neural foraminal narrowing.” Tr. at 483.
November 14, 2013, Dr. Bergmann saw Plaintiff and noted pain
was a primary stressor for Plaintiff, who bent over in
apparent pain several times, wincing when walking. Tr. at
558. Dr. Bergmann noted Plaintiff's response was
“ok, not much he can do at this point.”
Id. Dr. Deal noted Plaintiff was very distressed and
fearful of the prescribed medications, so he had not been
taking them with his upset stomach. Tr. at 565. Plaintiff
reported his pain was very high and made him miserable.
Id. Dr. Deal suggested Plaintiff discontinue his
medications until his gastrointestinal problems improved and
noted his response remained symptomatic with insomnia,
anxiety, depression, and chronic pain. Id.
November 20, 2013, Plaintiff presented to Dr. Gunter for a
follow-up visit. Tr. at 464-65, 476. Dr. Gunter noted
Plaintiff continued to have intractable lower back, leg, and
hip pain; he had a reduced ROM in all cardinal planes tested;
and used a cane when walking; however, the surgical scar over
his lumbar spine was well healed and the power in his lower
extremities was five out of five bilaterally. Tr. at 464. Dr.
Gunter further noted the CT scan of Plaintiff's lumbar
spine showed appropriate placement of the instrumentation.
Id. Dr. Gunter recorded the following assessment:
Solidly fused and adequately decompressed. He has no further
surgical alternatives. He has had no benefit from surgery and
he considers his symptoms worse. Every treatment including
non-surgical treatments has resulted in worsening of his
symptoms including therapy and lumbar epidural steroid
injections. His current syndrome of pain appears magnified
compared to my expectations especially when I consider other
patients having undergone a similar treatment. He has no
further surgical alternatives. He is at [m]aximum medical
improvement from a surgical standpoint. He is permanently
restricted to MEDIUM duty according to the USDL guidelines
due to mechanical alteration of his spine from fusion. He
believes he is completely “disabled” due to pain.
Due to his “uncontrollable back pain” he should
see and be managed by a Pain Management Specialist. His
Impairment rating is 23% of the whole person according to the
American Medical Association Guides to the Evaluation of
Permanent Impairment 5th edition with a reasonable degree of
Id. Dr. Gunter temporarily restricted Plaintiff from
work until a pain management specialist could achieve better
pain control for him. Tr. at 465.
November 22, 2013, Dr. Aldrich saw Plaintiff for an upset
stomach and for follow up on lab tests. Tr. at 499-501,
526-28. Dr. Aldrich assessed hypertension, hyperlipidemia,
diabetes, abdominal pain, gout, post-traumatic stress
disorder, and lumbar spine pain. Tr. at 501. Dr. Aldrich
noted Plaintiff's musculoskeletal examination revealed
pain, but normal ROM, muscle strength, and muscle tone.
Id. Dr. Aldrich indicated Plaintiff needed pain
management for his lumbar spine pain, referred him to Dr.
Alejo for his abdominal pain, and prescribed
medications. Tr. at 501, 533.
December 12, 2013, Plaintiff presented to Dr. Bergmann in
pain and hunched over. Tr. at 559. Plaintiff reported his
pain was poorly controlled, and he continued to feel
depressed, frustrated, and unsure about his next steps.
Id. Plaintiff informed Dr. Deal that Imodium had
helped to control his bowel problems. Id. Dr. Deal
advised Plaintiff to increase his Trazodone and take five
milligrams of Valium, if needed, at night. Tr. at 566.
December 16, 2013, Dr. Aldrich saw Plaintiff and assessed
hypertension, diabetes, diarrhea, erectile dysfunction,
lumbar spine pain, and chronic back pain. Tr. at 503-05,
January 16, 2014, Plaintiff presented to Dr. Bergmann, who
noted he was very depressed, avoided all eye contact, was
discouraged, and had very poor pain control. Tr. at 541-42.
Dr. Deal noted some anxiety reduction, but Plaintiff remained
easily agitated and frustrated by pain. Tr. at 545-46. Dr.
Deal added five milligrams of Valium to Plaintiff's
medication regimen to help muscle tension and anxiety.
January 27, 2014, Plaintiff began treatment at Sumter Spine
Pain Center and met with Dr. Warrick on Dr. Aldrich's
referral. Tr. at 653-55. Plaintiff reported lower back pain
that radiated into both buttocks and stated his prior
surgery, injections, and physical therapy had not diminished
his pain. Tr. at 653. Plaintiff reported Percocet had worked
initially, but its effect had since lessened. Id.
After evaluating Plaintiff, Dr. Warrick noted the following:
Overall, patient's physical activity level is low. He
reports other medical issues that make a more productive
lifestyle difficult including chronic diarrhea. He spends a
lot of time in the bed or on the couch. He reports multiple
His exam today is notable for decreased lumbar ROM in flexion
and extension, diffuse lumbar [tenderness to palpation].
Intact and brisk reflexes bilaterally and negative [straight
Overall, I have concern that his symptoms are more pronounced
and debilitating than might be expected for his current level
of pathology. I am concerned for underlying psychological
issues such as mood disorder, as well as possible secondary
gain-this is obviously common in this patient population.
At this point, I would suggest that he has a mixed mood
disorder. He sees a psychiatrist in Columbia-post-trauma
center. Currently taking trazodone and diazepam to improve
sleep and reduce anxiety. He is not currently on any other
At this point I will start Ultram ER 200mg daily, consider
Cymbalta/Effexor XR for dual purpose pain improvement and
mood stabilization. It would be a goal to reduce his opioid
reliance over time, his likelyhood [sic] of functional
benefit has more to do with improvement in mood and his
perceived debilitation than organic pain relief.
Tr. at 655.
January 28, 2014, James Weston, M.D. (“Dr.
Weston”), completed a Physical Residual Functional
Capacity Assessment (“RFC”) as a non-examining
consultant for Plaintiff's Disability Determination
Explanation. Tr. at 93-94. Dr. Weston opined Plaintiff had
exertional limitations to occasionally lift or carry twenty
pounds, frequently lift or carry ten pounds, and stand or
walk for six out of eight hours. Tr. at 93. In addition, he
opined Plaintiff could occasionally climb ramps, stairs,
ladders, ropes, or scaffolds, and occasionally balance,
stoop, kneel, crouch, or crawl. Tr. at 93-94. Finally, he
found Plaintiff had no manipulative, visual, communicative,
environmental, and push or pull limitations. Id.
February 24, 2014, Plaintiff presented to Dr. Aldrich,
complaining of continued back pain with no relief from
Percocet. Tr. at 512-16. Dr. Aldrich noted Plaintiff had pain
in both of his hands and assessed hypertension, diabetes,
diarrhea, fatigue, hyperlipidemia, lumbar spine pain, and
hand pain. Tr. at 516.
February 25, 2014, Plaintiff presented to Dr. Deal, who
attempted to diagnose the source of his gastrointestinal
symptoms. Tr. at 547.
February 27, 2014, Plaintiff presented to Dr. Warrick,
reporting his pain continued and the Ultram ER was not
helping much. Tr. at 651-52. Dr. Warrick discussed objective
functional goals with Plaintiff and instructed that, by his
next visit, he was to walk a mile, spend 8:00 a.m. to 10:00
p.m. out of bed, and practice guitar for thirty minutes a
day. Tr. at 652. Dr. Warrick prescribed Abilify as an
adjunctive anti-depressant. Id.
March 12, 2014, Plaintiff saw Dr. Bergmann, who noted
Plaintiff cried hard during his appointment and was so upset
that the session had to be stopped a few times. Tr. at 542.
Plaintiff reported he was angry with his treatment, had lost
his workers' compensation case, and was not receiving
weekly benefits. Id. Plaintiff further reported
continued pain and physical limitations. Id. Dr.
Bergmann discussed Plaintiff's frustration and emphasized
having realistic expectations. Id. Plaintiff also
saw Dr. Deal, who noted Plaintiff's anxiety control had
improved with Valium, but his pain continued to be a major
issue. Tr. at 548.
March 17, 2014, Dr. Aldrich saw Plaintiff for a follow-up
appointment. Tr. at 512-13, 518-20. Plaintiff reported his
back pain had worsened and his stomach was upset.
Id. Dr. Aldrich noted Plaintiff saw Dr. Warrick for
his lumbar spine pain, and he evaluated Plaintiff for
gastrointestinal issues. Tr. at 520.
March 26, 2014, Plaintiff presented to Dr. Bergmann and
reported he remained depressed and concerned about his
future, finances, and legal issues. Tr. at 543. Plaintiff
also reported continued pain and physical limitations.
Id. Dr. Bergmann observed Plaintiff had to get up
and stretch during the session and listed his response to
interventions as fair. Id. Plaintiff also met with
Dr. Deal, who indicated Plaintiff's medications appeared
to be helping him. Tr. at 550. Plaintiff reported taking
Valium at night was helpful, although his pain continued to
wake him from his sleep. Id. Dr. Deal noted a modest
reduction in anxiety and sleep disturbance. Id.
March 27, 2014, Plaintiff presented to Dr. Warrick and
reported constant pain, inability to walk a mile (but ability
to walk to his mailbox and back), getting out of bed for
thirty-minute increments, and playing the guitar more often.
Tr. at 649-50. Plaintiff indicated Abilify did not agree with
his diabetes and Ultram gave him headaches. Id. A
review of his systems revealed back pain, numbness, tingling,
and difficulty walking, noting Plaintiff used a cane for
added support. Id. Dr. Warrick noted:
Overall poor response to treatment. Poor compliance with
functional goals discussed at previous visit. Perceived
disability grossly out of proportion to demonstrable
pathology on exam and imaging. I believe that his biggest
problem is psychological, and that he would benefit
substantially from a structured behavioral therapy program. I
discussed with him that until such time that he is mentally
prepared to comply with activity goals, I cannot do anything
more for him.
Tr. at 650.
April 9, 2014, Dr. Deal filled out a questionnaire regarding
Plaintiff's mental health and its effect on his ability
to work. Tr. at 535. Dr. Deal indicated Plaintiff was
diagnosed with adjustment disorder with anxiety, depression,
and chronic pain. Id. Dr. Deal also indicated
Plaintiff was properly oriented and had appropriate thought
content, but he had slowed and distractible thought
processes, his mood was depressed, and his attention,
concentration, and memory were all poor. Id. Dr.
Deal noted he was Plaintiff's psychiatrist and Valium was
helping his condition. Id. According to Dr. Deal,
Plaintiff had obvious work-related limitations because he had
difficulty focusing due to pain. Id. Dr. Deal noted
Plaintiff was capable of managing his funds. Id.
April 15, 2014, Plaintiff was examined by Douglas R. Ritz,
Ph.D. (“Dr. Ritz”). Tr. at 536-39. Dr. Ritz noted
Plaintiff's gait was slow, and he used a cane. Tr. at
537. During the interview, Plaintiff was “up and down
out of his seat” because of his back discomfort.
Id. Dr. Ritz noted Plaintiff's eye contact was
intermittent and he appeared to be in a good bit of physical
discomfort based on his facial grimacing. Id.
Plaintiff appeared sad, and his affect was congruent.
Id. Plaintiff completed a Mini-Mental Status
examination and scored 23/30, which is in the mild range of
impairment. Tr. at 538. Dr. Ritz noted Plaintiff was able to
remember one of three words after a few minutes and made
three errors during the serial 7's, doing them quite
slowly. Tr. at 537. Dr. Ritz indicated Plaintiff's
cognitive skills likely fell in the average to low average
limits. Tr. at 538. Dr. Ritz concluded Plaintiff's main
problem was his chronic pain and he had “a mild level
of major depression that in and of itself would not prevent
him from performing in a work-related setting.”
Id. He added “[i]n fact, if he were able to
find a job that would be within his physical capabilities,
likely this would do a great deal in terms of alleviating
some of that depression.” Id. Dr. Ritz noted
Plaintiff took care of his personal grooming contingent on
his level of pain, did no household chores because of pain,
and did not socialize often. Id. “During the
interview, for the most part, he was able to maintain his
concentration, but not during some of the Mini-Mental Status,
again giving the reason as his pain intrusion.”
Id. Dr. Ritz diagnosed Plaintiff with major
depressive disorder (single episode, mild), diabetes, back
pain, stomach pain, and visual deficit. Id.
April 17, 2014, Kevin King, Ph.D. (“Dr. King”), a
non-examining consultant, completed a Psychiatric Review
Technique Assessment (“PRT”) and a Mental
Residual Functional Capacity Assessment (“MRFC”)
on Plaintiff. Tr. at 91-92, 94-95. Dr. King opined Plaintiff
had mild restrictions of activities of daily living
(“ADLs”), mild difficulties in maintaining social
functioning, and moderate difficulties in maintaining
concentration, persistence, and pace. Tr. at 91. Dr. King
opined Plaintiff was not significantly limited in his ability
to sustain concentration and persistence; carry out very
short and simple or detailed instructions; perform activities
within a schedule, maintain regular attendance, and be
punctual; be aware of normal hazards and take appropriate
precautions; travel in unfamiliar places or use public
transportation; sustain an ordinary routine without special
supervision; work in coordination with or in proximity to
others without being distract by them; make simple
work-related decisions; complete a normal workday and
workweek without interruptions from psychologically based
symptoms and perform at a consistent pace without an
unreasonable number and length of rest periods. Tr. at 94-95.
April 24, 2014, Plaintiff met with Dr. Deal, indicating his
pain level remained high and feeling something causing his
pain was being missed. Tr. at 551. Dr. Deal started Plaintiff
on a very low dose of Nortriptyline or Pamelor at bedtime to
help with depression and pain control, as he remained
impaired by chronic pain. Id.
29, 2014, Plaintiff presented to Dr. Bergmann and reported
his pain was worsening and he felt overwhelmed by daily
issues, finances, and social security. Tr. at 544. Dr.
Bergmann noted Plaintiff appeared in significant pain and
frustrated with his status, but his response to interventions
was good. Id.
13, 2014, Derek O'Brien, M.D. (“Dr.
O'Brien”), a non-examining consultant completed a
PRT and a MRFC on Plaintiff. Tr. at 106- 07, 110-12. For the
PRT, Dr. O'Brien opined Plaintiff had mild restrictions
of ADLs, mild difficulties in maintaining social functioning,
and moderate difficulties in maintaining concentration,
persistence, and pace. Tr. at 106- 07. Dr. O'Brien
concluded “[t]he totality of the evidence indicates
depression due to pain that would limit [Plaintiff] to simple
work tasks.” Id. For the MRFC, Dr.
O'Brien's opinion was similar to Dr. King's, but
he added Plaintiff was not significantly limited in his
ability to set realistic goals or make plans independently of
others. Tr. at 111. In addition, Dr. O'Brien opined
Plaintiff was moderately limited in his ability to maintain
attention and concentration for extended periods; complete a