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Taylor v. Berryhill

United States District Court, D. South Carolina

October 17, 2018

Sondra Michelle Taylor, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.



         This appeal from a denial of social security benefits is before the court for a Report and Recommendation (“Report”) pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her claim for 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 the Commissioner's decision be affirmed.

         I. Relevant Background

         A. Procedural History

         On October 1, 2012, [1] Plaintiff filed an application for SSI in which she alleged her disability began on February 1, 2006.[2] Tr. at 138-44. Her application was denied initially and upon reconsideration. Tr. at 53-84, 93- 94. On July 28, 2016, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Ann G. Paschall. Tr. at 33-52 (Hr'g Tr.). The ALJ issued an unfavorable decision on October 7, 2016, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 17-32. 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 1-5. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on November 22, 2017. [ECF No. 1].

         B. Plaintiff's Background and Medical History

         1. Background

         Plaintiff was 42 years old at the time of the hearing and had obtained a GED. Tr. at 36-37. Her past relevant work (“PRW”) was as a machine operator. Tr. at 38. She alleges she has been unable to work since October 1, 2012. Tr. at 38.

         2. Medical History

         From 2011 to 2014, Plaintiff was a patient of Asa Q. Hatfield, Jr., M.D. (“Dr. Hatfield”). Tr. at 315-21, 601-05. Dr. Hatfield's treatment notes were handwritten and terse, but indicated he prescribed Adderall, Lortab, Valium, and Lorcet for Plaintiff. Id.

         On February 12, 2012, Plaintiff presented to the emergency care center (“ECC”) of Self Regional Healthcare with a laceration to her finger. Tr. at 329-34.

         On March 12, 2012, Plaintiff presented to the ECC of Self Regional Healthcare with tooth pain and a headache. Tr. at 335-45.

         On April 19, 2012, Plaintiff presented to Sybil Reddick, M.D. (“Dr. Reddick”), at Pain Management Associates with complaints of back pain. Tr. at 229-42. Plaintiff reported her back pain began in 2006, but there was no precipitating event. Tr. at 231. Plaintiff described the pain as “achy, crampy, sharp, shooting, and throbbing” in the lower lumbar region, radiating into both legs. Id. Plaintiff described the pain as excruciating and indicated she had other associated symptoms, such as weakness, numbness, and tingling. Id. According to Plaintiff, her symptoms were worse with walking, sitting, standing, lying down, and changing positions. Id. Plaintiff reported anti-inflammatories, massage therapy, physical therapy, and chiropractor visits had not improved her symptoms. Id. She had undergone a lumbar laminectomy in 2010, but her pain had worsened since the surgery. Tr. at 233. Dr. Reddick's physical examination showed the following: mild tenderness in the midline lumbar area, the left lumbar paraspinal area, and the right paraspinal area; mild restriction of lumbar lateral flexion on the right; generalized lower leg edema in both legs; generalized crepitation in both knees; and restriction in side-bending to the right in the low back. Tr. at 232-33. Based on straight leg raise (“SLR”) tests, Plaintiff was positive for low back and leg pain on the right and positive for low back pain on the left. Tr. at 233. Dr. Reddick noted tenderness to palpation over the bilateral, lower lumbar paraspinals. Id. Although Plaintiff's posture was altered due to an elevated pelvis on her right, Dr. Reddick indicated Plaintiff's gait was intact and she did not use mobility aids. Id. Dr. Reddick desired to refer Plaintiff to therapy, but insurance precluded that option and she declined to visit Proaxis in Greenville due to finances. Id. Dr. Reddick indicated she would try Gabapentin at a follow-up appointment and consider a spinal cord stimulator. Id.

         On May 1, 2012, Plaintiff underwent a nerve conduction velocity (“NCV”) and electromyography (“EMG”) test upon referral by Dr. Reddick. Tr. at 243-49. The results were abnormal. Tr. at 245. There was a poor response for Plaintiff's right peroneal motor, as well as left and right peroneals. Tr. at 246. While there was no evidence to suggest an acute lumbar radiculopathy, there was a suggestion of chronic changes on the right at ¶ 4/5 and L5/S1. Tr. at 245; see also Tr. at 281-91, 417-20.

         On May 14, 2012, Plaintiff presented to the ECC at Self Regional Healthcare after slipping and falling in her bathroom, injuring herself. Tr. at 346-56. She complained of lower back pain that went to her toes. Tr. at 349, 351. An x-ray of Plaintiff's lumbar spine showed a posterior instrumented fusion at ¶ 5-S1, but no acute injury. Tr. at 353. Plaintiff was prescribed medications, including Norco, Toradol, and Prednisone. Tr. at 352, 355. Plaintiff was discharged after being directed to follow up with the Carolina Neurosurgery and Spine Center and take her medications as prescribed. Tr. at 355.

         On May 21, 2012, Plaintiff had a magnetic resonance imaging (“MRI”) scan of her lumbar spine. Tr. at 357-60. The recorded impressions of the MRI were as follows: posterior lumbar fusion at ¶ 5 and S1 intact; posterior surgical decompression at ¶ 4 and L5; and moderate-severe bilateral L4 foraminal stenosis. Id.

         In a letter to Dr. Hatfield on May 22, 2012, Gregory McLoughlin, M.D. (“Dr. McLoughlin”) with Carolina Neurosurgery and Spine Center, indicated Plaintiff's recent MRI had demonstrated some mild to moderate degenerative chances at ¶ 4-5 with some foraminal stenosis, but nothing that would require surgery. Tr. at 250-51; see also Tr. at 609-10. Dr. McLoughlin noted Plaintiff recently had an EMG and NCV study that demonstrated “some element of chronic radiculopathy, ” but he wanted to review the results for himself. Tr. at 250. Accordingly, Dr. McLoughlin recommended pursuing all conservative therapies, noting Plaintiff “may require spinal cord stimulator due to her neuropathic pain that never really responded to a neural decompressive procedure.” Tr. at 250; see also Tr. at 267-80, 293-94, 312-13.

         On May 29, 2012, Plaintiff saw Dr. Reddick for a follow-up appointment. Tr. at 252-56. Plaintiff reported the medications prescribed to her by Dr. Hatfield were not helping. Tr. at 252. Plaintiff stated her pain was worse, but she was able to manage activities of daily living (“ADLs”). Id. Dr. Reddick gave Plaintiff a trial of Gralise. Tr. at 254. Dr. Reddick also prescribed Oxycodone, noting that if it was not effective, then Methadone could be considered. Id.; Tr. at 295-99.

         On June 19, 2012, Plaintiff saw Dr. Reddick for a follow-up visit. Tr. at 257-62. Plaintiff wanted to discuss an increase of her Oxycodone. Tr. at 257. Plaintiff also reported Gralise had been effective, especially in combination with Oxycodone, and she had been able to return to work in a sedentary position. Tr. at 259. Dr. Reddick increased Gralise and refilled Oxycodone. Id.; Tr. at 300-307.

         On July 10, 2012, Dr. McLoughlin wrote a letter indicating Plaintiff was struggling with bilateral lower extremity pain, despite a relatively reassuring MRI scan. Tr. at 311; see also Tr. at 608. Based on Plaintiff's interest in a spinal cord stimulator trial, Dr. McLoughlin referred her to pain management. Id.; Tr. at 425. Dr. McLoughlin further indicated he was going to start Plaintiff on Gabapentin again because it had helped her in the past. Id.

         On August 17, 2012, Plaintiff presented to the ECC at Self Regional Healthcare with complaints of severe back pain. Tr. at 362-405. Plaintiff reported she had back surgery two years prior, and her pain had been getting worse. Tr. at 366. Plaintiff further reported numbness and tingling in her lower extremities. Tr. at 367. Plaintiff described shooting pain into both legs. Id. Plaintiff had difficulty walking without assistance. Tr. at 368. The physical exam revealed full range of motion (“ROM”) in all extremities, but some paraspinous muscle tenderness and mild muscle spasms in the lumbar spine. Id. Plaintiff was diagnosed with lumbosacral radiculitis, laminectomy, and chronic low back pain. Id. Plaintiff was medicated, received prescriptions for Prednisone, Hydromorphone, and Promethazine, and discharged. Tr. at 369, 371.

         On August 23, 2012, Plaintiff was seen by J. Kelby Hutcheson, M.D. (“Dr. Hutcheson”), in the Pain Management Center at Self Regional Healthcare, for complaints of back and bilateral leg pain. Tr. at 406-411. As part of his examination of Plaintiff's back, Dr. Hutcheson noted a decreased ROM. Tr. at 413. Plaintiff could flex to 30 degrees and extend to 10 degrees, causing pain in the L3-S1 region. Id. Dr. Hutcheson noted Plaintiff was tender over the L3-L4, L4-L5, L5-S1 facets and the right sacroiliac. Id. Plaintiff's Patrick exam was positive on the right. Id. Dr. Hutcheson noted Dr. McLoughlin had recommended Plaintiff for spinal cord stimulation, but it was not an option due to her insurance. Id. Dr. Hutcheson also noted Plaintiff had been on a variety of pain medications for her pain and had a history of over taking her medications with Dr. Reddick, which she was cautioned about. Id. Dr. Hutcheson planned to adjust Plaintiff's medications, schedule an epidural steroid injection, and consider spinal cord stimulation if her insurance status changed. Id.; Tr. at 416. Dr. Hutcheson indicated that if medications and injections were unsuccessful, “there may not be much we can do to the help this patient.” Tr. at 413.

         On September 13, 2012, Plaintiff had an epidural steroid injection, and Dr. Hutcheson prescribed MS Contin. Tr. at 441-43, 426-28, 431, 435-37.

         On September 17, 2012, Plaintiff presented to Self Regional Healthcare with a fever. Tr. at 444-47. Plaintiff had an unremarkable chest x-ray. Tr. at 323. A lab report reflected her A1C as 5.5, which was a good level for Plaintiff. Tr. at 322; see also Tr. at 493-94.

         On September 26, 2012, Plaintiff presented to the ECC at Self Regional Healthcare with shortness of breath. Tr. at 448-84. She was prescribed Azithromycin and discharged. Tr. at 459.

         On October 17, 2012, Plaintiff saw Jill Gilchrist, N.P. (“Gilchrist”), in the Pain Management Center. Tr. at 485-91. Plaintiff reported moderate back pain, which she described as sharp and achy. Tr. at 489. Plaintiff reported the MS Contin and Neurontin provided to her through the pain clinic had significantly reduced her pain. Id. Plaintiff further reported the injection had made her more comfortable, providing 75% relief of her pain and lasting for about two weeks. Id. Plaintiff explained the relief she received from the injection had nearly worn off, and she expressed interest in having another injection. Id. Plaintiff reported the Baclofen had not reduced her muscle spasms. Id. She had not discontinued Diazepam as it had been provided to her for mood control, not for muscle spasms. Id. Gilchrist renewed Plaintiff's prescriptions for MS Contin and Neurontin, and scheduled Plaintiff for another injection. Tr. at 490.

         On November 8, 2012, Plaintiff had an epidural steroid injection. Tr. at 495-507.

         On December 20, 2012, Plaintiff saw Gilchrist at the Pain Management Center. Tr. at 508-21. Plaintiff reported severe back pain that radiated into her right leg. Tr. at 514. Plaintiff's injection on November 8, 2012, had provided some relief, reducing her back and leg pain on the left side by 50%. Id. Plaintiff reported she could walk, sit, stand, and perform all ADLs with greater ease. Id. Plaintiff reported continued right lower extremity pain and expressed interest in treatment to address the problem. Id. Plaintiff indicated short-term relief with the use of Neurontin and ongoing relief with the use of MS Contin. Id. Gilchrist noted Plaintiff was able to sit upright with slight distress. Tr. at 514-15. During the physical exam, Plaintiff's lumbar spine was nontender, and her SLR was positive on the right. Tr. at 515. Plaintiff's gait was normal. Id. Plaintiff's MS Contin prescription was renewed, and Gilchrist requested a selective nerve root block from the right to be directed at the right L3-4, 4-5, 5-S1 nerve roots. Id.[3]

         On January 10, 2013, Plaintiff reported to Self Regional Healthcare for backpain. Tr. at 522-23.[4]

         On February 18, 2013, Plaintiff was seen by Gilchrist at the Pain Management Center. Tr. at 524-38. Plaintiff reported moderate back pain that radiated into her right hip and leg. Tr. at 528. Plaintiff described her pain as sharp, achy, and burning. Id. Plaintiff reported MS Contin reduced her pain considerably. Id. She denied associated symptoms. Id. Plaintiff's MS Contin prescription was renewed. Tr. at 529.

         On April 18, 2013, Plaintiff saw Gilchrist at the Pain Management Center for a follow-up visit. Tr. at 540-54. Plaintiff reported moderate to severe back pain, which she described as sharp and achy. Tr. at 545. Plaintiff rated her pain as 0 out of 10 when she was sitting. Id. Plaintiff indicated MS Contin provided relief, but stated it was much too sedating and requested a change in medication. Id. Plaintiff indicated she had past success with Lortab. Id. Plaintiff's gait was normal. Tr. at 546. Gilchrist indicated Plaintiff had over utilized her medications, but Plaintiff denied such and stated she must have lost a few pills. Id. Gilchrist discussed Plaintiff's urine toxicology test performed in February that showed large amounts of Hydrocodone. Id. Plaintiff explained she had taken Hydrocodone provided by her dentist. Id. Plaintiff expressed interest in tapering off morphine altogether and promised to abide by all prescriptive guidelines in the future. Id. Gilchrist started Plaintiff on Lortab and planned to taper her medications. Id.

         On July 5, 2013, Plaintiff presented to the emergency department of Self Regional Healthcare for bug bites on her shoulder and reported a fall two weeks prior wherein she caught herself with her arms. Tr. at 555-84. Plaintiff was “able to ambulate with a steady gait without assistance and otherwise exhibit[ed] developmentally appropriate mobility.” Tr. at 566. Plaintiff had mild to moderate joint pain with movement of the right scapula and posterior shoulder, and the overall exam was consistent with a mild to moderate sprain or strain. Tr. at 568. Plaintiff received prescriptions for ibuprofen and neomycin sulfate. Tr. at 569.

         On July 23, 2013, Dr. Hatfield filled out a form regarding Plaintiff and her mental status. Tr. at 587. Dr. Hatfield indicated Plaintiff had been diagnosed with anxiety and she was being treated with Valium, which had helped her condition. Id. According to Dr. Hatfield, Plaintiff was oriented to time, person, place, and situation. Id. Her thought processes were intact, her thought content was appropriate, and her mood and affect were normal. Id. Her attention, concentration, and memory were all adequate. Id. Dr. Hatfield did not provide any work-related limitations due to Plaintiff's mental condition. Id. Dr. Hatfield further indicated Plaintiff was capable of managing her funds. Id.

         On November 7, 2013, David N. Holt, M.D. (“Dr. Holt”), examined Plaintiff to provide a report with regard to her claim for social security disability. Tr. at 588-97. Dr. Holt reviewed Plaintiff's medical history and discussed her functional status with her. Tr. at 591-94. He noted her restrictions to employment were pain and a limited ability to sit, stand, walk, and do normal tasks. Tr. at 593. Plaintiff reported her typical daily activities included self-care, reading, and watching a little television. Id.

         Dr. Holt performed a physical examination of Plaintiff. Tr. at 589-90, 594-95. Dr. Holt recorded Plaintiff's gait as mildly antalgic with more weight placed on the left, with a cane in her right hand, moving slow and careful. Tr. at 594. Plaintiff's posture was normal. Tr. at 595. She had 2 tenderness at ¶ 1-3, 4 from L4 down through the sacrum, and 2 at the left and right S-1 areas without transmission. Id. Plaintiff had normal range of motion in her elbows, wrists, knees, and hips. Tr. at 589-90. Dr. Holt's orthopedic examination of Plaintiff revealed the following limitations: 40/50 degrees for flexion, 30/45 degrees for lateral flexion, and 70/80 degrees for rotation in her cervical spine; 60/90 degrees for flexion, 20/25 degrees for extension, and 20/25 degrees for lateral flexion in her lumbar spine; 140/150 degrees for abduction, 140/150 degrees for forward elevation, 70/80 degrees for internal rotation, and 70/90 degrees for external rotation in her shoulders; a normal SLR while sitting, but 80/90 and 85/90 degrees for a supine SLR for the left and right legs, respectively; a normal examination for her left hand (except for fine manipulation), but a 4/5 grip strength and abnormal fine manipulation for her right hand; and 4/5 for tandem walk, heel/toe walk, squat, gait disturbance, and ambulation with an assistive device. Id.

         Dr. Holt also performed a neurological examination, noting Plaintiff

presented as a large and overweight woman with a sweet disposition and endless verbosity. [Review of symptoms] brought out myriad minor problems. This distracted from the allegation, the history of which was impressive in its effect on her abilities. Physical findings were less impressive, with most of her low back tenderness being sacral, possibly more related to her falls than to the [degenerative disc disease (“DDD”)]. Yet her symptoms do sound progressive, and there has been a neurosurgical attempt to improve them.

Id. Dr. Holt summarized his findings as follows:

[Plaintiff] cooperated and gave her best effort. She was talkative, and tended to have multiple minor complaints. She is nevertheless disabled by her allegation of DDD, which with her excessive weight has caused repeated falling in the tub.
Functionally, she needs help with bathing and dressing. She feels limited to standing for 15 minutes, walking for ¼ mile with cane and a standby wheelchair, sitting for 15 minutes, and lifting just a quart of liquid in the left hand, the right hand occupied by her cane. It can be carried for 6 feet. She drives local necessary trips, does minimal cooking and shopping, and in climbing 2 steps she will need her cane and the husband's help.
Grip was 4 of 5 on the right, and a strong 5 of 5 on the left. Gross manipulation was disrupted on the right by low back pain. Fine manipulation was worse on the right but with some problem on the left as well. Tinel's was normal, and Phalen's brought out mild pain in the wrist on the left. ROM loss was mild at the neck and at the lumbar spine. It was mild at both shoulders, and [within normal limits] at the hips. SLR was close to normal bilaterally. All three floor exercises and squatting were graded 4 of 5. Motor exam was normal. Sensory exam found deficits in right hand digits 1 and 2, and all the way down the right leg. Uncorrected vision was 20/30 [right eye] and 20/20 [left eye].

Tr. at 596-97.

         On November 25, 2013, a state agency medical consultant Adrian Corlette, M.D. (“Dr. Corlette”), reviewed the record and found Plaintiff had the following physical residual functional capacity (“RFC”) for sedentary work: frequently lift and/or carry 10 pounds; stand and/or walk (with normal breaks) for 2 hours and sit (with normal breaks) for about 6 hours in an eight-hour workday; and limited in pushing or pulling with her lower right extremity (i.e., occasional use of pedals or foot controls due to sensory deficits). Tr. at 61-64. In addition, Dr. Corlette opined Plaintiff had postural limitations (occasionally climbing ramps and stairs, balancing, stooping, kneeling, crouching, and crawling, but never climbing ladders, ropes, or scaffolds) and environmental limitations (avoiding all exposure to hazards such as machinery or heights). Id. Dr. Corlette explained the environmental limitation was due to “Medication SE from [chronic] narcotic use” and testing positive for illicit drugs. Tr. at 63. She provided additional explanation for the RFC by restating pertinent parts of the record and concluding a medically-determinable impairment exists, as Plaintiff “does exhibit limitations as demonstrated on exam, however, the objective medical evidence would suggest the above RFC would be appropriate with limitations and restrictions as noted.” Tr. at 63-64.

         On December 4, 2013, state agency consultant Jody Lenrow, Psy.D. (“Lenrow”), completed a Psychiatric Review Technique (“PRT”) Assessment, noting Plaintiff had mild restrictions of ADLs, difficulties in maintaining social functioning, and difficulties in maintaining concentration, persistence, or pace. Tr. at 59-61. A second state agency consultant, Craig Horn, Ph.D. (“Dr. Horn”) assessed the same PRT on March 26, 2014. Tr. at 75-76.

         On March 30, 2014, Plaintiff presented to the ECC at Self Regional Healthcare with complaints of left leg and eye pain. Tr. at 642-64. Plaintiff reported a swollen and painful left leg, but indicated she only felt pain in her leg when it was squeezed or pressed. Tr. at 652. It was suspected Plaintiff had deep venous thrombosis (“DVT”). Id. The clinician's history indicated Plaintiff was “reasonably active.” Id. The physical exam showed lower extremity edema and tenderness on the left. Tr. at 653. Plaintiff had a Vascular Lower Extremities DVT Study Procedure, which showed no evidence of acute DVT in her left extremity. Tr. at 680-83. The limited exam of her right extremity revealed patent distal iliac and common femoral veins with no evidence of acute DVT. Tr. at 682. Plaintiff was diagnosed with strain of the calf muscle and acute conjunctivitis. Id.; see also Tr. at 653. She was medicated and given prescriptions before being discharged. Tr. at 653, 656.

         On May 15, 2014, a state agency consultant physician Joseph Geer, M.D. (“Dr. Geer”), reviewed the updated record upon Plaintiff's request for reconsideration. Tr. at 77-79. Dr. Geer noted “[t]here [wa]s insufficient evidence to evaluate the claim, ” but the explanation of determination stated Plaintiff had failed to provide the additional evidence requested and other attempts to obtain the information requested were unsuccessful. Tr. at 77, 80. Dr. Geer opined Plaintiff was limited to sedentary work based on the seven strength factors of the physical RFC. Tr. at 77-78.

         On May 25, 2014, Plaintiff presented to the ECC at Self Regional Healthcare with complaints of shortness of breath, chest pain, diarrhea, and nausea. Tr. at 684-735. These problems began three days prior. Tr. at 693. A computed tomography (“CT”) scan of Plaintiff's abdomen and pelvis was negative for ureteral calculus or obstruction and showed normal appearance of her kidneys, ureters, and urinary bladder, but hepatic steatosis that had worsened from March 2013. Tr. at 735. Plaintiff was diagnosed with spasm of back ...

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