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Holmes v. Berryhill

United States District Court, D. South Carolina

October 30, 2018

Roger Lee Holmes, 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 his 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 the Commissioner's decision be reversed and remanded for further proceedings as set forth herein.

         I. Relevant Background

         A. Procedural History

         On or about May 5, 2015, Plaintiff protectively filed applications for DIB and SSI in which he alleged his disability began on November 30, 2014, after he broke his leg on January 31, 2012, and it did not heal properly.[1] Tr. at 363-75. His applications were denied initially and upon reconsideration. Tr. at 191-92, 228, 231, 237-41, 255-58. On December 8, 2016, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Henry H. Chambers. Tr. at 36-141 (Hr'g Tr.). The ALJ issued an unfavorable decision on February 1, 2017, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 8-35. 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 360, 1-5. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on June 16, 2017. [ECF No. 1].

         B. Plaintiff's Background and Medical History

         1. Background

         Plaintiff was 42 years old at the time of the hearing. Tr. at 46. He completed the eighth grade before he dropped out of school. Tr. at 52-53. His past relevant work (“PRW”) was as a painter for approximately 20 years, chicken dresser, welder, upholstery measurer, and textile machine operator. Tr. at 44, 47, 98-107. He alleges he has been unable to work since November 30, 2014. Tr. at 363, 369.

         2. Medical History

         On May 28, 2014, Susan J. Tankersley, M.D. (“Dr. Tankersley”), a state agency consultant, performed an examination of Plaintiff. Tr. at 517-521. Plaintiff reported he suffered a right longitudinal femur fracture two years prior that was treated with open reduction and internal fixation surgery and insertion of hardware. Tr. at 517. Plaintiff indicated he began to develop knee pain laterally in the superior joint after the surgery and could only stand for an hour before the pain forced him to sit. Id. Plaintiff also complained of hip pain, but only after sitting for too long, and he indicated that the hip pain was less severe than the knee pain. Id. Plaintiff denied any lower extremity sensory changes or lower back pain, but reported his right leg was weaker than his left. Id. He reported severe, instantaneous headaches when he coughed. Tr. at 518. Plaintiff stated these coughing spells had caused him to pass out approximately ten times over the prior two years. Id.

         Dr. Tankersley examined Plaintiff and noted his right leg appeared to have length inequality with some angulation at the knee. Tr. at 519. Dr. Tankersley also noted Plaintiff had effusion of the knee that was somewhat fusiform and had mild muscle wasting of his right quadriceps. Id. Plaintiff's strength was somewhat pain limited with 4-/5 proximally and distally. Id. Plaintiff's hip range of motion (“ROM”) remained mostly good with flexion to eighty or ninety degrees, abduction around twenty-five degrees, adduction around five to ten degrees, internal rotation around thirty degrees, and external rotation from forty to fifty degrees. Id. Dr. Tankersley performed a flexion, abduction, and external rotation test that was negative. Id. However, a McMurray's test was “very positive” and resulted in pain superiorly and laterally. Id. Dr. Tankersley also noted some rotational instability and a reduction in ROM of three degrees on extension with full flexion. Id.

         Dr. Tankersley assessed history of right longitudinal femur fracture, status post open reduction and internal fixation; probable internal derangement, right knee; possible onset post-traumatic osteoarthritis; chronic knee pain with instability; syncope and near syncope of uncertain etiology; and illiteracy. Tr. at 520. She recommended an x-ray of Plaintiff's hip and knee and a psychological certification exam with neuropsychic testing to further evaluate his illiteracy. Id. Dr. Tankersley opined Plaintiff's knee problems, if left untreated, would “limit his job selection to light to medium duty positions at best, ” his illiteracy may further limit his job selection, and his syncope may preclude employment where it would result in harm to himself or others. Id. She suspected a definitive diagnosis of his knee pathology would require magnetic resonance imaging (“MRI”). Id.

         On May 28, 2014, Plaintiff presented to Innervision Medical Imaging Grove for x-rays of his right femur, tibia, and fibula. Tr. at 514-15. According to Dr. William Perry Edenfield, the x-rays showed a medullary rod fixation with distal interlocking screws across a heavily callused, well-healed fracture of the femur at the junction of its mid and distal thirds, no acute fracture, and no definitive hip or knee pathology. Id. They also showed normal mineralization, no fracture, and no dislocation at the knee or ankle. Id. There was a negative right lower leg impression with no acute findings. Id.

         On June 5, 2015, Plaintiff was treated at Baptist Easley Hospital for right knee pain. Tr. at 537. The treating physician noted Plaintiff's right knee was tender and his ROM was limited. Tr. at 539. The hospital performed an x-ray of Plaintiff's knee that did not show any joint effusion, fracture, or subluxation. Tr. at 541, 621. In addition, the distal femoral rod and locking screws in Plaintiff's knee were stable. Id. The treating physician diagnosed knee sprain and provided Plaintiff with pain medication and crutches. Tr. at 539-40.

         On June 16, 2015, Robin L. Moody, Ph.D. (“Dr. Moody”), an agency consultant, performed a clinical evaluation, including a clinical interview and the following tests: Mini-Mental State Examination, Second Edition (“MMSE-2”); Wechsler Adult Intelligence Scale, Fourth Edition (“WAIS-IV”); and Wide Range Achievement Test, Fourth Edition (“WRAT-4”). Tr. at 545-52. Plaintiff reported he had not experienced a fainting spell since he quit smoking six months prior, but he still had headaches. Tr. at 546. Plaintiff also reported repeating the third grade and dropping out of school in the ninth grade. Tr. at 547. Plaintiff had difficulty in school, especially with reading, but did not receive any special therapies. Id.

         Plaintiff stated he had worked as a painter for over 25 years, but that he was fired from his last position for poor performance because he could not climb ladders, carry large paint buckets, or get on his knees to paint. Tr. at 547. Plaintiff reported his activities of daily living (“ADLs”) to be watching television and occasionally attempting to walk in the yard. Id. He stated he could drive a car using his left leg to operate the brake pedal, prepare his own simple meals, make cash transactions, and bathe or dress himself without assistance. Id. However, Plaintiff reported he no longer performed chores or shopped for groceries due to his difficulty with standing and mobility. Id. He also reported difficulty putting on his shoes because he could not bend his leg. Id.

         Plaintiff scored a 22 out of 30 on the MMSE-2 exam. Tr. at 548. He could identify three out of three items for immediate recall, but could only identify one out of three items for delayed recall. Id. Plaintiff knew the year, season, month, day, date, state, county, city, building, and floor. Id. He correctly responded to one out of five serial 7s. Id. Plaintiff could identify two objects, repeat a grade, identify three geometric shapes, write a sentence, and copy conjoining pentagons. Id. Plaintiff could not read a proffered sentence, but could follow the verbal command. Id.

         The WAIS-IV revealed Plaintiff was deficient in verbal comprehension and very deficient in perceptual reasoning, working memory, processing speed, and full-scale intelligence quotient (“FSIQ”). Tr. at 548. On the WRAT-4, Plaintiff's scores indicated he was very deficient in reading composite; he had less than a kindergarten level ability in word reading, sentence comprehension, and spelling; and a kindergarten level ability in math computation. Tr. at 549. Dr. Moody noted Plaintiff's FSIQ was 57, his verbal score was 74, and his nonverbal score was 60. Id.

         Dr. Moody found Plaintiff's ability to maintain attention and concentration to be within the extremely low range and only better than one percent of individuals his same age. Tr. at 549-50. In addition, Plaintiff's ability to process routine visual information without making errors was extremely low and the lowest of all index scores. Tr. at 550. Dr. Moody indicated “[s]uch a weakness in mental control and visual tracking make comprehension and learning very time consuming and mentally exhausting for [Plaintiff].” Id. Dr. Moody noted data from this evaluation suggested Plaintiff's primary Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM-5”) diagnosis ruled out mild intellectual disability. Id.

         On June 26, 2015, Plaintiff received an MRI on his right knee. Tr. at 554. The MRI showed a small spur on the superior patella, but no evidence of significant degenerative disease, joint effusion, or fracture. Id.

         Also on June 26, 2015, Charles William Kelly Parke, M.D. (Dr. Parke”), an agency consultant, examined Plaintiff for complaints of severe right knee pain, history of syncope, eczema, and psoriasis. Tr. at 556. Plaintiff reported his right knee popped and hurt when he straightened it, walked for any length of time, or stood for more than ten minutes. Id. Plaintiff also complained of occasional right ankle pain. Id. Plaintiff denied having eczema or psoriasis. Id. Dr. Parke noted Plaintiff experienced pain with movements of his right knee, especially flexion (which was limited to 85 degrees), and there was moderate crepitus upon flexion. Tr. at 557. Plaintiff complained of right hip pain when flexing his right thigh and his right straight leg raising (“SLR”) test was limited to 60 degrees. Id. Dr. Parke assessed status post repair of the right femur and probable osteoarthritis in the right knee. Tr. at 558. Dr. Parke recommended an MRI or arthroscopy of Plaintiff's right knee, noting his symptoms indicated “he does have a problem with his right knee.” Id.

         On July 31, 2015, Silvie Kendall, Ph.D. (“Dr. Kendall”), a state agency consultant completed a Psychiatric Review Technique (“PRT”) assessment. Tr. at 166-67, 182-83. Dr. Kendall opined Plaintiff had moderate restrictions of ADLs, difficulties in maintaining social functioning, and difficulties in maintaining concentration, persistence, or pace, but no repeated episodes of decompensation. Tr. at 166. Dr. Kendall also opined Plaintiff “would be capable of performing simple routine tasks in a setting without the added demands of public contact.” Tr. at 167. In addition, Dr. Kendall completed a Mental Residual Functional Capacity (“RFC”) assessment and opined Plaintiff was moderately limited in his ability to understand, remember, and carry out detailed instructions; maintain concentration for extended periods; perform activities within a schedule, maintain regular attendance, and be punctual; and appropriately interact with the general public or respond to changes in the work setting. Tr. at 171-72, 186-89. However, Plaintiff was not significantly limited in his other abilities. Id.

         On August 3, 2015, Frank Ferrell, M.D. (“Dr. Ferrell”), a state agency consultant completed a Physical RFC assessment. Tr. at 168-70, 184-86. He indicated Plaintiff had the following limitations: occasionally lift, carry, push or pull twenty pounds; frequently lift, carry, push, or pull ten pounds; stand, walk, or sit with normal breaks for about six hours; frequently balance and stoop; occasionally climb ramps, stairs, ladders, ropes, or scaffolds; and occasionally kneel, crouch, or crawl. Tr. at 168-69. In addition, he opined Plaintiff should avoid concentrated exposure to hazards. Tr. at 170.

         On September 9, 2015, Plaintiff saw George Sutter, M.D. (“Dr. Sutter”), at Samaritan Health Clinic of Pickens County for complaints of shortness of breath. Tr. at 579. Plaintiff reported smoking two packs of cigarettes a day and having a chronic cough with green sputum. Id. Dr. Sutter advised Plaintiff to stop smoking and noted his lungs were clear. Id. Dr. Sutter also noted Plaintiff was using a cane to walk and stated he would x-ray Plaintiff's right knee. Id. Dr. Sutter diagnosed smoker, knee pain, and obesity. Id. He prescribed Nitrostat, Ventolin, Chantix, and Naproxen. Id.

         On September 10, 2015, Plaintiff received x-rays for his chest and right knee that were normal and showed no acute abnormalities, Tr. at 582-83, 599-600.[2]

         On September 16, 2015, Plaintiff returned to Dr. Sutter for blood work. Tr. at 577. Dr. Sutter noted he would refer Plaintiff to an orthopedist for his knee pain. Id. Plaintiff also complained of dizziness, for which Dr. Sutter recommended Meclizine. Id.

         On September 17, 2015, Plaintiff's blood work was tested at Baptist Easley Hospital. Tr. at 581, 595. Plaintiff's A1C level was diagnostic of diabetes. Id.

         On September 24, 2015, Plaintiff returned to Dr. Sutter for his lab results. Tr. at 576. Dr. Sutter diagnosed Plaintiff with diabetes mellitus. Id. He prescribed Metformin. Id.

         On September 30, 2015, Plaintiff saw Jason Looper, a physician's assistant at Upstate Bone and Joint, upon referral by Dr. Sutter. Tr. at 589, 619-20. Plaintiff reported persistent and moderate anterior and lateral knee pain. Tr. at 619. Plaintiff denied mechanical symptoms, such as locking up or giving way, and denied right hip or thigh pain. Id. Looper noted Plaintiff's ROM was painful, but he was able to reach full extension and flex to 120 degrees. Tr. at 620. Looper noted mild patellofemoral crepitus throughout the arc of motion, tenderness to palpation over the lateral femoral condyle, and mild peripatellar tenderness. Id. Looper performed a varus and valgus stress test, McMurray's test, and Lachman's test, all of which were negative. Id. Looper diagnosed right knee pain, thought Plaintiff's symptoms were “primarily attributed to painful hardware” in his right knee, and recommended surgery to remove the hardware. Id. Plaintiff “stated he would like to think about it” and would call back if he elected to have the surgery. Id. Looper prescribed Plaintiff a walking cane “to use for ambulation assistance, per his request.” Id. In addition, William Roberson, M.D. (“Dr. Roberson”), signed the treatment note. Id.

         On October 30, 2015, Larry Clanton, Ph.D. (“Dr. Clanton”), a state agency consultant completed a PRT assessment, noting there were no new mental allegations and affirming the initial rating provided by Dr. Kendall. Tr. at 201-02. Dr. Clanton also completed a MRFC assessment, agreeing with Dr. Kendall's initial review. Tr. at 206-08.

         On October 30, 2015, Matthew Fox, M.D. (“Dr. Fox”), a state agency consultant completed a RFC assessment, affirming the initial rating provided by Dr. Ferrell. Tr. at 204-06.

         On February 22, 2016, Baptist Easley Hospital tested Plaintiff's blood. Tr. at 594. Plaintiff's A1C had dropped to 6.3, but still indicated an increased risk for diabetes. Id.

         On May 23, 2016, Plaintiff underwent an air contrast barium enema at Baptist Easley Hospital. Tr. at 603. The test showed minimal diverticulitis and a nine-millimeter left renal stone. Id.

         On June 20, 2016, Plaintiff presented to John H. Fulcher, M.D. (“Dr. Fulcher”), at Baptist Easley Hospital and received x-rays of his right femur and hip. Tr. at 593, 605-08. Regarding Plaintiff's right femur, Dr. Fulcher noted good bony union, no plain film evidence of osteomyelitis, and no acute processes. Tr. at 605. He found postoperative changes in the right femur (intramedullary rod and screws transfixing an old midshaft fracture), but noted an otherwise normal exam. Id. Regarding Plaintiff's right hip, Dr. Fulcher noted a normal right hip with no bony lesions or fractures, normal sacroiliac joints, and an unremarkable lower lumbar spine. Tr. at 607.

         On June 20, 2016, Plaintiff also underwent blood work at Baptist Easley Hospital. Tr. at 593. Plaintiff's A1C was 6.4, indicating an increased risk for diabetes. Id.

         On September 13, 2016, Janice Lee, a nurse practitioner at Foothills Orthopaedics, evaluated Plaintiff for right knee pain. Tr. at 609-14. Plaintiff reported his knee frequently locked up, and Lee noted he walked with a cane. Tr. at 612. Lee examined Plaintiff's right hip, noting the ROM was within functional limits, there was no pain throughout the arc of motion, no tenderness to palpation to the hip, and his leg lengths appeared grossly equal. Id. Lee examined Plaintiff's right knee, noting a prominent screw to the lateral aspect of the tibial condyle, which was not painful to palpation; no pain with flexion or extension; no effusion; no evidence of crepitus with knee flexion or extension; palpation revealed tenderness to medial and lateral joint lines; full ROM; stable to stressing in all planes; normal tracking; 5/5 muscle strength; peripheral pulses normal 2/2 lower extremities; and intact and symmetrical sensation in all dermatomes with good coordination. Tr. at 613. Lee assessed degenerative joint disease in Plaintiff's right knee and sequela hip fracture. Id. Lee also noted a chronic diagnosis of carpal tunnel syndrome in Plaintiff's left arm. Tr. at 610. Lee performed a cortisone injection for pain relief in Plaintiff's right knee with instructions to return to the Samaritan Health Clinic in Easley for injections. Tr. at 613; see also Tr. at 616-18. Daniel Lee, M.D. (“Dr. Lee”) signed the treatment note. Tr. at 609.

         C. The Administrative Proceedings

         1. The Administrative Hearing

         a. Plaintiff's Testimony

         At the hearing on December 8, 2016, Plaintiff stated he was 42 years old and had completed the eighth grade. Tr. at 46, 52-53. Plaintiff testified he requested disability benefits due to a broken leg that did not heal properly and prevented him from doing his normal activities or prior work. Tr. at 43- 44.

         Plaintiff testified he was unable to lift heavy items, climb ladders, or stand up and walk more than ten yards without a cane. Tr. at 44-46. Plaintiff also testified he attempted to return to work as a painter or venture into maintenance after his surgery and therapy on his right leg, but he was unsuccessful. Tr. at 46-47. He reported he was fired because he was unable to perform his job tasks due to his new limitations. Tr. at 47-48.

         Plaintiff testified he lived with his father, who cooked, cleaned, and shopped for him because he could not “get around good enough to do it” due to his leg. Tr. at 49. Plaintiff spent his days watching television, and explained he would elevate his leg to avoid cramping. Id. He suffered from carpal tunnel in his left hand. Id. ...

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