United States District Court, D. South Carolina, Florence Division
REPORT AND RECOMMENDATION
E. Rogers, III, United States Magistrate Judge.
an action brought pursuant to Section 205(g) of the Social
Security Act, as amended, 42 U.S.C. Section 405(g), to obtain
judicial review of a “final decision” of the
Commissioner of Social Security, denying Plaintiff's
claim for disability insurance benefits (DIB) and
supplemental security income (SSI). The only issues before
the Court are whether the findings of fact are supported by
substantial evidence and whether proper legal standards have
filed her application for DIB and SSI on May 15, 2014,
alleging inability to work since May 24, 2009. (Tr. 22). Her
claims were denied initially and upon reconsideration.
Thereafter, Plaintiff filed a request for a hearing. A
hearing was held on July 22, 2016, at which time Plaintiff
and a vocational expert (VE) testified. The Administrative
Law Judge (ALJ) issued an unfavorable decision on September
23, 2016, finding that Plaintiff was not disabled within the
meaning of the Act. (Tr. 22-31). Plaintiff filed a request
for review of the ALJ's decision, which the Appeals
Council denied on June 26, 2017, making the ALJ's
decision the Commissioner's final decision. (Tr. 1-4).
Plaintiff filed this action on July 27, 2017. (ECF No. 1).
Plaintiff's Introductory Facts
was born on February 23, 1974, and was approximately
thirty-five years old at the time of the alleged onset. (Tr.
131, 29). Plaintiff completed her education through at least
high school and has past work experience as a loan clerk and
teller. (Tr. 29). Plaintiff alleges disability due to
fibromyalgia(FM), depression, vertigo, anxiety, and
migraines. (Tr. 131).
Medical Records and Opinions
were no pertinent documents in the record for 2009.
February 1, 2010, Plaintiff was seen by Gulzar Merchant. (Tr.
109). Plaintiff was not doing well and was still having joint
pain. Plaintiff had not been seen since 2008; she had been
seeing Dr. Waddell who was managing her FM. Higher doses of
Savella made her fall; she wanted to stop taking Effexor to
stay on Savella. Plaintiff also took Lortab. Pain level was
6. (Tr. 109). Upon examination, Plaintiff had tender points
on the epicondyles, chest, back, and neck. (Tr. 109).
Plaintiff had paraspinal muscle spasm in the upper back.
Assessments were: FM, neck pain, depression, insomnia,
paresthesia, and polyarthralgia. (Tr. 110). Plan was to stop
Norflex, stop Elavil, and continue Ultram ER, Zanaflex, and
Savella. A Lortab refill was declined. Effexor was to be
tapered because she was doing well on Savella; she could not
tolerate Cymbalta/Lyrica. (Tr. 110). Trazodone and Restoril
were no pertinent documents in the record for 2011.
April 17, 2012, Plaintiff was seen by Dr. Wiley. (Tr. 364).
Chief complaints were depression and anxiety. Plaintiff
complained of poor sleep/appetite. Mood was depressed with
some irritable mood swings. Plaintiff complained of panic
attacks and shortness of breath. (Tr. 364). Plaintiff denied
alcohol/substance abuse. Plaintiff was on probation for DUI
in November 2011. (Tr. 364). Upon exam, Plaintiff had normal
behavior and mildly depressed mood. (Tr. 365). Diagnosis was
major depression, recurrent. Plaintiff had a GAF of 50. Plan
was Effexor, Klonopin, and doxepin. (Tr. 365).
16, 2012, Plaintiff was seen by Dr. Wiley. (Tr. 363).
Plaintiff stated she was arrested for DUI and had a prior
2011 DUI. Mood was more euthymic, but she had some anxiety
regarding pending legal issues. Plaintiff was prescribed
Effexor for depression.
12, 2012, Plaintiff was seen by Dr. Wiley. (Tr. 362).
Plaintiff “discussed personal/financial issues.”
Plaintiff complained of chronic diffuse pain, possibly from
FM. Plaintiff felt mood and sleep were improved. (Tr. 362).
Upon exam, Plaintiff had intact memory, good concentration,
euthymic mood, appropriate affect, and good insight. Plan was
to refer to pain specialist and refill Klonopin and doxepin.
September 25, 2012, Plaintiff was seen by Dr. Wiley. (Tr.
361). It is noted Plaintiff was charged with DUI while
sitting in a parking lot. Plaintiff had no acute psychosis;
mood was more depressed. Upon exam, Plaintiff had intact
memory, good concentration, depressed mood, blunted affect,
and good insight. (Tr. 361). Plan was doxepin for insomnia,
increase Effexor, and refill Klonopin.
January 29, 2013, Plaintiff was seen by Dr. Wiley. (Tr. 360).
It was noted Plaintiff was recently released from house
arrest for DUI. Plaintiff stated she had a poor response to
something but had been on trazodone in the past. There was no
acute psychosis. Mood is less depressed. There were some side
effects from Effexor XR 300. Upon exam, Plaintiff had intact
memory, good concentration, depressed mood, appropriate
affect, and good insight. (Tr. 360). Plan was refill Klonopin
and trazodone and decrease effexor. (Tr. 360).
October 25, 2013, Plaintiff was seen at Powdersville Family
Practice for ear pain. (Tr. 370). There was no dizziness,
headache, or nausea. It is noted “going to bariatric
clinic, wants to take Fastin.” (Tr. 370). Medication
listed was Effexor.
January 23, 2014, Plaintiff was seen at Powdersville Family
Practice for sudden hearing loss. (Tr. 369).
February 4, 2014, Plaintiff was seen by Dr. Wiley. (Tr. 359).
Plaintiff discussed why she had not been seen since January
2013 and Plaintiff had received medications from her primary
doctor. (Tr. 359). Upon exam, Plaintiff had intact memory,
good concentration, euthymic mood, appropriate affect, and
good insight. Assessment was Effexor, Klonopin, and
appears Plaintiff was possibly seen for physical therapy
several times in April 2014 and November 2014. (Tr. 366-67,
March 2014, Plaintiff called Powdersville Family Practice and
asked for a rheumatologist referral to recheck FM. (Tr. 368).
5, 2014, Plaintiff was seen by Dr. Wiley. (Tr. 358).
Plaintiff discussed “personal/medical issues.”
“No acute psychosis or [suicidal/homicidal]
ideation.” (Tr. 358). Upon exam, Plaintiff had intact
memory, good concentration, euthymic mood, appropriate
affect, and good insight. Assessment/plan was Klonopin,
trazodone, and Effexor.
28, 2014, Plaintiff was seen by Gulzar Merchant of
Rheumatology Eastside. (Tr. 112, 401). Plaintiff had morning
stiffness, was not able to use her hands to grip, had pain so
intense she vomits, and had trouble sleeping due to pain.
(Tr. 112). Plaintiff had no insurance and that is why she did
had not been seen since 2010. Plaintiff reported worsening
pain all over. Plaintiff took Effexor and ibuprofen. (Tr.
112). Pain was a level 10. Upon examination, Plaintiff had
active tender points on the chest, back, and epicondyles.
(Tr. 113). Under treatment, it states her symptoms are
consistent with FM, but she needed a functional capacity
evaluation to see how much she can work or not. Plaintiff was
informed that Dr. Merchant did not perform such a test. (Tr.
114). Plaintiff had tried all medications available for FM,
like Lyrica, Neurontin, Cymbalta, and Savella. “I do
not have anything else to offer.” There was no clinical
evidence of arthritis. (Tr. 114). Under polyarthraligia, it
states no evidence of inflammation on exam. (Tr. 114,
reported that in June 2014, she had increased pain throughout
her body, difficulty walking and standing for prolonged
periods, cannot bend/stoop/squat, and experiences vertigo for
weeks at a time. Plaintiff reported she experienced panic
attacks and only slept 1-3 hours a night. Plaintiff reported
difficulty focusing and an increase in severity and frequency
of migraines. (Tr. 156).
2, 2014, Dr. Wiley completed a form. (Tr. 379). Diagnosis was
major depression. Medications were Klonopin, trazodone, and
Effexor. Medications helped her condition. For the question
if psychiatric care had been recommended, “n/a”
was written in. Plaintiff had a slowed thought process,
appropriate thought content, depressed mood/affect, and
adequate attention/concentration/memory. Due to recurrent
depression and anxiety, Plaintiff had poor ability to: relate
to others, complete simple, routine tasks, and complete
complex tasks. Plaintiff was capable of managing funds.
4, 2014, Plaintiff completed a function report. (Tr. 305-12).
Plaintiff reported her hands hurt and she cannot grip
anything. (Tr. 305). Plaintiff sleeps 1-2 hours every other
night and this keeps her from being able to concentrate.
Plaintiff has chronic migraines and nervousness all the time.
“Even getting out of bed is more than I can
manage.” (Tr. 305). Plaintiff takes care of one dog and
her mother helps. (Tr. 306). Plaintiff worries about
everything. Plaintiff's skin feels like it is on fire and
itches. Pain all over keeps her awake. (Tr. 306). Plaintiff
reported she had no problems with personal care. Plaintiff
does not cook because her hands hurt too bad and she cannot
stand long enough. (Tr. 307). Plaintiff can fold clothes one
hour weekly, dust 30 minutes monthly, and sweep 30 minutes to
an hour monthly. (Tr. 307). Plaintiff only cleans her
bedroom; her parents do the rest. (Tr. 307). Yard work is
“impossible” because her feet, back, legs,
shoulder, and neck hurt all the time. (Tr. 308). Plaintiff
goes outside once a week because she has no desire to and her
pain is too bad. (Tr. 308). Plaintiff reported that she had
not gone out alone since 2011 due to anxiety and panic
attacks. (Tr. 308). Plaintiff does not drive due to vertigo
and past wreck fears. (Tr. 308). Plaintiff only shops for
books online. Plaintiff is able to handle money. (Tr. 308).
Plaintiff reads one book every 3-6 months. Plaintiff talks
with people on social media every other day. (Tr. 309).
Plaintiff reported not being able to be around others more
than an hour or two due to pain and anxiety. (Tr. 310).
Plaintiff cannot go out in public without having an attack
and cannot be away from home more than 3 hours. (Tr. 310).
Plaintiff must rest after walking to the mailbox. Plaintiff
cannot concentrate. Plaintiff can pay attention for ten
minutes. Plaintiff can follow written instructions very well.
(Tr. 310). Plaintiff gets nauseous with changes in routine.
(Tr. 311). Plaintiff has attacks if in a crowd of four or
more people. Plaintiff reported medications of Effexor,
trazodone, and Klonopin. (Tr. 312). Plaintiff reported she
was “pretty much homebound since 2008.” Plaintiff
reported she quit her job in 2009 because she was unreliable.
Plaintiff reported when trying to go to the doctor she has
cancelled appointments because she could not get out of bed.
7, 2014, Plaintiff was examined by state agency consultant
Dr. Leporowski, Psy.D. (Tr. 380). Plaintiff was early and her
father drove her. Plaintiff did not have a valid license.
Plaintiff was adequately groomed and somewhat overweight.
Plaintiff did not exhibit any pain behaviors. Attention and
concentration were grossly intact. Plaintiff made good eye
contact and was polite and cooperative. Plaintiff reported
that she struggled to go to any kind of appointment and only
left the house “if somebody drags me out.” (Tr.
380). Plaintiff reported she was diagnosed with FM in 2003.
(Tr. 381). Plaintiff has seen a psychiatrist regularly since
2008. Plaintiff reported her car flipped on the interstate;
she denied any physical injuries but was out of work for
three months due to her emotional response. Plaintiff
reported she took a lot of pain medication but did not get
any relief and she stopped seeing a rheumatologist as a
result. Plaintiff reported she has taken Zoloft, Prozac,
Paxil, and Lexapro with no results; she felt Effexor works
best for her. Plaintiff reported she had taken Depakote and
Seroquel in the past. “Of note, she is currently
prescribed Klonopin, 2mg, tid.” (Tr. 381). Plaintiff
reported she was convicted of driving on a suspended license
in the fall of 2013 and is unable to get her license back for
18 months. (Tr. 381). Plaintiff reported living with her
parents the past three years was part of her problem.
Plaintiff generally stays in her bedroom by herself.
Plaintiff plays games on the computer a lot. Plaintiff does
not do any shopping. Plaintiff can do her own laundry.
Plaintiff has a boyfriend. Plaintiff participates in social
media groups for dog owners and participated on dating
websites. Plaintiff reported eating one meal a day. (Tr.
381). Plaintiff takes care of her own hygiene. (Tr. 382).
Plaintiff reported she was unaware of her prior dependence on
Xanax until she stopped taking it in March of 2010; she had
seizures and was hospitalized for a week. (Tr. 382).
Plaintiff did not exhibit any word-finding difficulty; memory
appeared grossly intact. Concentration and attention were
intact. Mood was euthymic; affect was full range. There was
no emotional lability. Thoughts were logical and goal
directed. She reported racing thoughts. “She did seem
somewhat somatically preoccupied.” When she reported
she only slept two hours a night, Plaintiff admitted she did
not take trazodone regularly. “Enegery level is
‘very low.'” (Tr. 382). Plaintiff could
manage own funds. Diagnosis was “other specific
personality disorder(dependent and avoidant), anxiolytic use
disorder, moderate.” Plaintiff exhibited good
relatedness during this evaluation with a full range of
affect and with pronounced dependency needs. (Tr. 382-83).
“I did not find any evidence of a depressive disorder.
There are no indications of an impairment in her ability to
concentrate and perform tasks at a reasonable pace due to a
mental disorder. No obvious cognitive deficits were noted
during the mental status items administered during this
evaluation.” (Tr. 383).
August 4, 2014, Plaintiff was seen by Dr. Wiley. (Tr. 357).
Plaintiff “discussed personal issues.” Plaintiff
complained of poor sleep; mood was “still mildly
depressed.” Upon exam, Plaintiff had good
concentration, depressed mood, blunted affect, intact memory,
and good insight. Plan was Effexor, Klonopin, trazodone, and
Wellbutrin. (Tr. 357).
August 13, 2014, Plaintiff's records were reviewed by
consultant Ms. Werden. (Tr. 135-39). Ms. Werden opined
Plaintiff's affective disorder was a severe impairment.
(Tr. 135). Ms. Werden opined Plaintiff was moderately limited
in the ability to: carry out detailed instructions, maintain
attention and concentration for extended periods, perform
activities within a schedule, maintain regular attendance,
and be punctual, work in coordination with others without
being distracted by them, complete a normal workday and work
week without interruptions from psychologically based
symptoms, and perform at a consistent pace without an
unreasonable number and length of rest periods. (Tr. 138).
Plaintiff was capable of performing simple unskilled tasks
for reasonable periods of time. (Tr. 138). Plaintiff was
moderately limited in her ability to interact appropriately
with the general public. (Tr. 139). FM was opined to be
non-severe by reviewing consultant Dr. Farrell, M.D. (Tr.
146, 152). On September 26, 2014, Dr. Horn, Ph.D. essentially
affirmed Ms. Werden's RFC, except found Plaintiff was not
significantly limited in the ability to complete a normal
workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent
pace without an unreasonable number and length of rest
periods. (Tr. 166-67).
August 27, 2014, Plaintiff was seen by Dr. Rogers, M.D. of
Oaktree Medical Centre, Department of Neurology. (Tr. 384,
408). An NCV/EMG of upper extremities was ordered. Assessment
was dizziness, vertigo, and muscle weakness. (Tr. 385).
Plaintiff reported she had episodes lasting two to five days
over six weeks where the room spins and she vomits. Plaintiff
reported Dr. Merchant diagnosed her with FM and said there
was nothing more that could be done. (Tr. 386). Records
showed Plaintiff received Klonopin and phentermine
consistently in the past year, but she filled prescriptions
with six different addresses. (Tr. 386). Plaintiff reported
she had been diagnosed with MS in 2006. Plaintiff reported
sleeping two hours at a time at night. Plaintiff reported
drinking three glasses of tea a day. Plaintiff's
Beck's depression inventory was a 22 and mood disorder
questionnaire was negative. (Tr. 387). Upon exam, Plaintiff
was in no apparent physical distress. There was no cervical
paramuscular tenderness to palpation. (Tr. 387). Plaintiff
had tenderness to palpation of bilateral sacroiliac joints.
“The patient is positive 12/18 fibromyalgia points but
also 3/5 control points.” (Tr. 387). Mood was euthymic
and affect was somewhat hypomaniac. “The patient would
talk extensively on physical symptomatology. There is no
overt pain behavior.” Plaintiff had inconsistent grip
strength on the left with questionable ...