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Sapp v. Berryhill

United States District Court, D. South Carolina

September 28, 2018

Nicole Taneka Sapp, 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 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.

         I. Relevant Background

         A. Procedural History

         On or 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].

         B. Plaintiff's Background and Medical History

         1. Background

         Plaintiff 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.[1] Tr. at 45.

         2. Medical History

         Plaintiff 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.

         On November 10, 2009, Plaintiff underwent arthroscopic synovectomy of the radiocapitellar joint and posterior lateral recess of the left elbow. Tr. at 361-62.

         On 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.

         On 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.

         Plaintiff 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.

         Plaintiff 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.

         On July 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. at 180.

         Plaintiff 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.

         On June 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.

         On 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. Id.

         On 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.

         On 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. Id.

         Plaintiff 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. Id.

         Plaintiff 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.

         On July 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.

         On 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.

         On 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.

         On 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.

         Plaintiff 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. Id.

         On 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 GERD. Id.

         On 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.

         A nurse 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.

         Plaintiff complained of pain on her right side on July 8, 2015. Tr. at 381. The attending provider refilled Plaintiff's medications. Id.

         On 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.

         On 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.

         On 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.

         C. The Administrative Proceedings

         1. The ...


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