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Gooden v. Berryhill

United States District Court, D. South Carolina

September 24, 2018

Darren Gooden, 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) 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 herein.

         I. Relevant Background

         A. Procedural History

         On or 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].

         B. Plaintiff's Background and Medical History

         1. Background

         Plaintiff 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.

         2. Medical History

         On 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. Id.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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.

         On December 7, 2012, Plaintiff received a lumbar epidural steroid injection at Midlands Orthopaedics. Tr. at 395-98.

         On 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.

         On January 7, 2013, Plaintiff received a second lumbar epidural steroid injection at Midlands Orthopaedics. Tr. at 385-92.

         On 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.

         On 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.

         On April 24, 2013, Plaintiff confirmed he desired surgery, and Dr. Gunter indicated Plaintiff should remain out of work. Tr. at 411, 470-71.

         On May 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.

         On June 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.

         On July 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.

         On 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[1] of 45.[2] 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.

         On 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. Id.

         On 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 Valium. Id.

         On 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 therapist).

         On 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. Id.

         On 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.

         On 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 good. Id.

         On 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.

         On 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.

         On 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. at 564.

         On 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.

         On 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.

         On 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 medical certainty.

Id. Dr. Gunter temporarily restricted Plaintiff from work until a pain management specialist could achieve better pain control for him. Tr. at 465.

         On 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[3] for his abdominal pain, and prescribed medications. Tr. at 501, 533.

         On 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.

         On 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, 530-32.

         On 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. Id.

         On 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 depressive symptoms.
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 leg raises].
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 antidepressants.
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.

         On 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.

         On 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.

         On February 25, 2014, Plaintiff presented to Dr. Deal, who attempted to diagnose the source of his gastrointestinal symptoms. Tr. at 547.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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.

         On May 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.

         On June 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 ...


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