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 pro se
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”) and Supplemental Security Income
(“SSI”). 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.
about January 24, 2013, Plaintiff protectively filed
applications for DIB and SSI in which she alleged her
disability began on December 26, 2012. Tr. at 61-62, 192-201.
Her applications were denied initially and upon
reconsideration. Tr. at 99-104, 111-18. On May 11, 2016,
Plaintiff had a hearing before Administrative Law Judge
(“ALJ”) Arthur L. Conover. Tr. at 35-60 (Hr'g
Tr.). The ALJ issued an unfavorable decision on July 12,
2016, finding that Plaintiff was not disabled within the
meaning of the Act. Tr. at 8-26. 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 September
13, 2017. [ECF No. 1].
Plaintiff's Background and Medical History
was thirty-five years old at the time of the hearing. Tr. at
39. She weighed 214 pounds and was five feet and eight inches
tall. Tr. at 40. She completed the tenth grade and obtained
certification as a nurse's aide. Tr. at 42. Her past
relevant work (“PRW”) was as a deli worker, a
cashier, and a certified nursing assistant. Tr. at 57. She
alleges she has been unable to work since July 1,
2013. Tr. at 45.
reported to the emergency room (“ER”) at Palmetto
Health Baptist (“PHB”) on March 3, 2009, with a
complaint of pain in the right rhomboid area of her back. Tr.
at 289. She indicated a client had hit her in the back with a
trophy during a home visit. Id. The attending
physician assessed a “very minor soft tissue
contusion” and administered Motrin. Id.
November 10, 2009, Plaintiff underwent arthroscopic
synovectomy of the radiocapitellar joint and posterior
lateral recess of the left elbow. Tr. at 361-62.
April 15, 2010, Coleman Fowble, M.D. (“Dr.
Fowble”), reviewed magnetic resonance imaging
(“MRI”) of Plaintiff's cervical spine. Tr. at
292- 93. He indicated it showed an area of increased signal
in the left area of the brainstem, just as the cord entered
the foramen magnum. Id. He assessed neck pain with
soft radicular signs and referred Plaintiff to a neurologist
due to the discovered brainstem lesion. Id.
January 24, 2011, Dr. Fowble noted Plaintiff had not been
examined by a neurologist. Tr. at 296. Plaintiff complained
of frequent headaches and muscle spasms in her neck that she
rated as a seven on a 10-point scale. Id. Dr. Fowble
assessed cervical spine pain without radicular symptoms and
gliosis with possible multiple sclerosis. Tr. at 297.
presented to neurologist Brett C. Gunter, M.D. (“Dr.
Gunter”), for an evaluation of neck pain on March 9,
2011. Tr. at 300. Dr. Gunter noted severe limited range of
motion (“ROM”) of Plaintiff's neck,
particularly with extension. Id. He assessed
cervical spondylosis and referred Plaintiff to a physical
therapist. Tr. at 302.
participated in physical therapy in March and April 2011 and
met eighty-three percent of her goals. Tr. at 303. She
demonstrated ability to lift twenty pounds from floor to
waist, but still demonstrated slight limitations in her ROM
and strength. Id.
14, 2011, the South Carolina Workers' Compensation
Commission approved Plaintiff's workers' compensation
settlement agreement. Tr. at 179. Plaintiff accepted a sum of
$19, 900 in compensation for “an approximate 15%
permanent partial disability to the [left] upper extremit[y]
and 10% permanent partial disability to the spine.” Tr.
presented to Stephen A. Schacher, M.D. (“Dr.
Schacher”), for a consultative examination on May 24,
2013. Tr. at 304-06. She reported she was unable to work
because of frequent headaches and neck and back spasms. Tr.
at 305. Dr. Schacher observed Plaintiff to have normal
cranial nerves, gait, motor strength, sensation, and balance.
Tr. at 306. He stated Plaintiff demonstrated normal mood and
cognition. Id. He indicated Plaintiff had reduced
cervical extension and bilateral rotation. Tr. at 307. ROM
testing was otherwise normal in her cervical spine, lumbar
spine, shoulders, elbows, wrists, knees, hips, and ankles.
Id. A straight-leg raising (“SLR”) test
was normal. Id. X-rays of Plaintiff's lumbar and
cervical spine were normal. Tr. at 310-11. Dr. Schacher noted
no abnormalities in Plaintiff's hands or in her abilities
to perform tandem and heel/toe walking and squatting. Tr. at
308. He assessed a history of assault with resultant neck and
left elbow injuries. Tr. at 306. He noted Plaintiff had
indicated an MRI of her brain showed an abnormality, but he
had not received a copy of the MRI. Id. He assessed
“neck and back pain after an assault while at
work” and stated Plaintiff was capable of handling her
own finances. Id.
13, 2013, state agency medical consultant Darla Mullaney,
M.D. (“Dr. Mullaney”), reviewed the record and
found Plaintiff had the following physical residual
functional capacity (“RFC”): 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
an eight-hour workday; and sit for about six hours in an
eight-hour workday. Tr. at 67-68, 74-75. A second state
agency medical consultant, Antoinette Thaxton-Brooks, M.D.
(“Dr. Thaxton- Brooks”), assessed the same
physical RFC on January 22, 2014. Tr. at 82-84, 92-94.
September 11, 2013, Plaintiff complained of neck and back
pain. Tr. at 335. She reported persistent, dull, aching, and
cramping pain, especially in her right shoulder and the right
side of her neck. Id. She indicated Flexeril made
her feel tired and endorsed abdominal pain. Id. She
denied weakness and radicular symptoms. Id. Tammi B.
Pavey, PA-C (“Ms. Pavey”), described Plaintiff as
anxious due to pain. Tr. at 336. She instructed Plaintiff on
methods for treating muscle spasms and instructed her to
follow up if her symptoms worsened or failed to improve.
September 13, 2013, Plaintiff reported to the ER at MCG
Health after having sustained an injury while working. Tr. at
313. She complained of pain in her right upper back and neck
areas. Id. The attending physician noted
reproducible spasms with tenderness in the right upper
back/trapezius area, but normal ROM and no midline spinal
tenderness. Tr. at 314. She assessed back strain and
prescribed Mobic and Robaxin. Tr. at 315.
October 3, 2013, Plaintiff complained of a headache, muscle
stiffness, and pain in her right shoulder and neck. Tr. at
332. Julie N. Buird, PA-C (“Ms. Buird”), observed
Plaintiff to have right cervical paraspinous and trapezium
tenderness to palpation and assessed muscle spasm of right
shoulder. Tr. at 333. Plaintiff demonstrated intact cervical
and shoulder ROM and normal upper and lower extremity muscle
strength. Id. Ms. Buird prescribed ibuprofen for
headaches and referred Plaintiff to a neurologist.
presented to Fredric Woriax, M.D. (“Dr. Woriax”),
to establish treatment on December 2, 2013. Tr. at 364. She
complained of problems with her blood pressure and a history
of two work-related injuries. Id. She endorsed back
pain and spasms. Tr. at 365. Dr. Woriax assessed lumbago,
arthralgias at multiple sites, muscle spasms, isolated
elevated blood pressure, gastroesophageal reflux disease
(“GERD”), family history of diabetes, and
obesity. Tr. at 366. He indicated Plaintiff would benefit
from physical therapy, but had no insurance. Id. He
instructed Plaintiff to continue to use muscle relaxers and
nonsteroidal anti-inflammatory drugs (“NSAIDs”),
to exercise, and to incorporate dietary changes for weight
loss. Id. He referred Plaintiff to a gynecologist.
reported hypertension and fluid retention on July 1, 2014,
and was aware she needed to schedule an appointment for all
other issues. Tr. at 363. Jeneaurey Melendez, FNP (“Ms.
Melendez”), noted no abnormalities on physical
examination. Tr. at 363-64.
25, 2014, Plaintiff presented to the ER at Lexington Medical
Center (“LMC”) for neck spasms and headache. Tr.
at 422. Paul Shahbahrami, M.D. (“Dr.
Shahbahrami”), observed paraspinous muscle spasms and
tenderness in Plaintiff's neck, but no other
abnormalities on physical examination. Tr. at 423. He
diagnosed chronic neck pain and prescribed Ultram, Valium,
and Zanaflex. Tr. at 423-24.
November 28, 2014, Plaintiff presented to the ER at LMC for a
panic attack, neck spasms, and constipation. Tr. at 432-33.
Aubrey Bryant, M.D. (“Dr. Bryant”), indicated
Plaintiff was nervous or anxious and assessed muscle spasm,
anxiety, and constipation. Tr. at 434-35.
December 11, 2014, Plaintiff presented to the ER at PHB,
complaining of neck pain and noting “Valium ha[d] not
helped her spasms at all.” Tr. at 403. She reported
sharp, stabbing neck pain, but denied weakness, numbness,
tingling, and fever. Id. She indicated she was
experiencing nausea and some pain in her upper abdomen.
Id. Sarah Broeker, D.O. (“Dr. Broeker”),
observed Plaintiff had some hypertonicity in her left
trapezius and sternocleidomastoid. Tr. at 403-04. X-rays were
unremarkable. Tr. at 404. A urinalysis was positive for
hematuria, pyuria, and bacteria consistent with cystitis.
Id. Dr. Broeker prescribed Flexeril and Macrobid and
advised Plaintiff to establish primary care treatment through
Richland Care. Id.
January 9, 2015, Plaintiff presented to the ER at PHB for
chest pain and neck spasms. Tr. at 410. She indicated she had
walked from West Columbia because she did not want to take an
ambulance. Id. She described spasms that radiated
down either side of her neck. Id. She stated the
left side was worse than the right. Id. Jennifer
Matzner-Abrams, D.O. (“Dr. Matzner- Abrams”),
observed no evidence of palpitations while Plaintiff was in
the ER. Tr. at 411. Id. She diagnosed palpitations,
neck spasms, history of gastritis, and history of
hypertension. Id. She prescribed Flexeril and a
Holter monitor. Id.
presented to the ER at PHB on January 26, 2015, for heart
palpitations. Tr. at 388. She complained of stress and
anxiety. Id. She indicated she had developed pain on
the left side of her chest after she lifted a window.
Id. Objective testing, such as lab x-rays and lab
tests, yielded unremarkable results. Tr. at 389. Dr. Broeker
assessed palpitations, left pectoralis muscle strain, and
anxiety. Id. In addition, she arranged
transportation for Plaintiff to obtain a Holter monitor.
March 25, 2015, Plaintiff complained of anemia, hypertension,
pain in her feet and joints, muscle spasms, possible hernia,
heart racing, and tooth pain. Tr. at 373. The attending
provider added prescriptions of Hydrochlorothiazide for
hypertension, Flexeril for muscle spasms, and Nexium for
April 16, 2015, Plaintiff complained of edema in her legs,
arthritis in her lower extremities, sinus congestion and
cough, constipation, heart palpations, and dental issues,
seeking a dental referral. Tr. at 374. Michael T. Crump, M.D.
(“Dr. Crump”), noted poor dentition and left
upper quadrant abdominal pain, but no edema, and 2 pulses.
Id. He instructed Plaintiff to stop smoking and use
Colace for constipation and Claritin for allergies.
Id. He prescribed an antibiotic for a dental
infection and referred Plaintiff for lab work and an
electrocardiogram (“EKG”). Id. On April
17, 2015, a chest x-ray showed no active pulmonary disease.
Tr. at 376.
practitioner examined Plaintiff and diagnosed microcytic
anemia on April 20, 2015. Tr. at 378. She prescribed an iron
supplement. Id. Plaintiff complained of a cyst,
rash, and fatigue on May 26, 2015. Tr. at 379. The attending
provider noted Plaintiff's blood pressure was good and
she was not taking the daily iron supplement. Id.
She encouraged Plaintiff to stop smoking and to be more
active and referred her to a dermatologist. Tr. at 379-80.
complained of pain on her right side on July 8, 2015. Tr. at
381. The attending provider refilled Plaintiff's
January 21, 2016, Plaintiff complained of a rash on her neck
and requested medication refills. Tr. at 382. The attending
provider instructed her to continue taking ibuprofen and
Flexeril for back spasms, Hydrochlorothiazide for
hypertension, an iron supplement and Colace for anemia, and
Zyrtec and Nasonex for allergies. Id. She switched
Plaintiff to Protonix for GERD. Id.
March 10, 2016, Plaintiff complained that Protonix was not
controlling her GERD symptoms. Tr. at 383. The attending
provider continued Protonix and instructed Plaintiff on
proper diet, exercise, and smoking cessation. Id.
She refilled Triamcinolone cream for eczema. Id.
March 22, 2016, Plaintiff returned to the Free Medical Clinic
to request a larger sample of Triamcinolone cream. Tr. at
385. She complained of increased pain and spasms in her neck
that caused headaches, but noted she had been sleeping on a
different pillow. Id. The attending provider noted
stiffness and paraspinal muscle tenderness to touch in
Plaintiff's neck, but stated she had full active ROM.
Id. She continued Plaintiff's medications and
instructed her to take two Flexeril tablets per day, if
necessary. Id. She also referred Plaintiff to
physical therapy for neck and back spasms. Tr. at 386.