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
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.
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. 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].
Plaintiff's Background and Medical History
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.
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
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
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
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.
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.
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.
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.
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
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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
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
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.
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.
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.
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.
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.
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.
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. ...