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Cook v. Acting Commissioner of Social Security Administration

United States District Court, D. South Carolina, Anderson/Greenwood Division

March 26, 2019

Karen Cook, Plaintiff,
Acting Commissioner of the Social Security Administration, Defendant.



         Plaintiff Karen Cook (“Plaintiff”) seeks judicial review, pursuant to 42 U.S.C. § 405(g), of a final decision of the Commissioner of the Social Security Administration (the “Commissioner”) denying her claim for disability insurance benefits (“DIB”) under the Social Security Act (the “Act”). The matter is before the Court for review of the Report and Recommendation of United States Magistrate Judge Jacquelyn D. Austin, made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2) for the District of South Carolina. The Magistrate Judge recommends the Court affirm the Commissioner's decision. [ECF #21]. Plaintiff raises several objections to the Magistrate Judge's recommendation. [ECF #25]. Defendant responded to those objections. [ECF #28].

         Factual Findings and Procedural History

         On October 7, 2013, Plaintiff filed an application for DIB, alleging a disability onset date of March 23, 2013. Plaintiff alleges disability due to osteoporosis. Plaintiff was treated by her primary care doctor, Alfred Moss, M.D. on March 25, 2013 for severe left hip pain with a joint injection. [ECF #10-7, Ex 3F]. An x-ray of her left hip and spine showed degenerative disc changes at the L4-5 and L5-S1 level, as well as scoliosis. [ECF #10-7, Ex. 1F]. At a follow-up evaluation, Dr. Moss diagnosed Plaintiff as having degenerative disc issues of the lumbar spine, scoliosis, and persistent pain in the left inguinal area. Dr. Moss also suspected a ligament strain in addition to arthritis. [ECF #10-7, Ex 3F].

         In April of 2013, Plaintiff was evaluated by Frank F. Phillips, M.D. who noted an antalgic gait, and after reviewing her x-rays, diagnosed Plaintiff with left hip pain and probable tendinitis of the left hip, as well as chronic lower back pain. He encouraged her to use a cane and recommended physical therapy. [ECF #10-7, Ex 2F]. At an evaluation in May, Dr. Phillips ordered an MRI and felt that Plaintiff was unable to work at that time. [ECF #10-7, Ex 2F]. The MRI of her left hip showed superior and inferior showed fractures with surrounding edema, as well as multilevel lumbar spondylosis. [ECF #10-7, Ex 1F]. A bone density scan around this time period shows evidence of osteoporosis. [ECF #10-7, Ex 1F]. In June of 2013, Dr. Phillips again indicated that Plaintiff should remain out of work until mid-July. [ECF #10-7, Ex 2F]. On July 12, 2013, Dr. Phillips evaluated Plaintiff for continued left hip pain and indicated that she did not have the risk capacity to return to work at this point but could do any kind of sedentary work. [ECF #10-7, Ex 2F].

         On October 16, 2013, Plaintiff was evaluated by Mayte Sandrin, M.D. and was diagnosed with hypothyroidism, osteoporosis, and fatigue. Dr. Sandrin noted Plaintiff's severe hip pain and corresponding left pelvis fracture. Dr. Sandrin indicated Plaintiff continued to experience debilitating pain and impaired healing due to an inoperable fracture. [ECF #10-7, Ex 6F]. Plaintiff returned to Dr. Phillips in November. Dr. Phillips took a pelvic x-ray which revealed mild lumbar scoliosis, pelvic asymmetry, and a healing fracture on the left. He provided a statement indicating Plaintiff was “unable to work at this time due to severe pain from generalized osteoporosis” and stated she would be unlikely to work again due to her high risk for a fracture. [ECF #10-7, Ex 6F]. Plaintiff was seen in March of 2014 by James P. Behr, M.D. who ordered MRIs after noting that on Plaintiff's x-rays there appeared to be a widening of her “SI” (sacroiliac) joint. [ECF #10-8, Ex 11F]. Plaintiff's MRI showed scoliosis with degenerative changes at ¶ 4-5 and small bulging discs present at ¶ 3-4 and L5-S1 joint, as well as an MRI showing degenerative changes of the lower lumbar spine and probable uterine fibroids. ECF #10-8, Ex 11F].

         On March 24, 2014, a consultative examination by Larry R. Korn, D.O. resulted in a diagnosis of osteoporosis, status post recent pathological fracture of the left anterior pelvis, as well as a history of scoliosis and low back pain. While he indicated recent MRI reports would be important for a disability evaluation, he noted that he obtained very little useful information at this examination due to Plaintiff's subjective pain resulting in limited demonstration. [ECF #10-7, Ex 10F]. On April 30, 2014, a state medical consultant opined that Plaintiff was capable of performing light work with postural limitations. [ECF #10-3, Ex. 1A]. Another state medical consultant opined that Plaintiff was capable of performing sedentary work with postural and environmental limitations on July 11, 2014. [ECF #10-3, Ex. 4A].

         At a follow up visit with Dr. Phillips, he indicated that Plaintiff could engage in “at most” sedentary work and based that opinion off of Plainitff's radiologic evidence of stress fractures and osteoporosis diagnosed with a DEXA scan. [ECF #10-8, Ex. 14F]. A month later, Dr. Sandrin noted that Plaintiff was uninsured and had missed two months of medication. In late 2014 and early 2015, Dr. Behr also noted Plaintiff's issues with attempting to obtain insurance. Plaintiff's issues with hip pain, back pain and elevated blood pressure continued through 2015. In early 2016, Dr. Behr again noted in his evaluation of Plaintiff that she had been unable to obtain a recommended EMG due to costs. Dr. Behr noted that Plaintiff's hip examination was positive on the left, and that he would hold off on an EMG for further evaluation of Plaintiff's lower extremity weakness.

         On May 31, 2016, Dr. Behr provided a statement indicating that he had seen Plaintiff every 1-3 months since 2014 for treatment of back pain, and pain in the SI joint, pelvis, and shoulder. He observed post-laminectomy syndrome, as well as chronic pain due to several pelvic fractures. He indicated that despite treatment, Plaintiff continued to report significant bouts of pain and significant functional limitations. Dr. Behr reported his examination was consistent with those complaints. He opined Plaintiff was limited to no more than sedentary work, with that being defined as being able to stand or walk no more than 2 hours total out of an eight hour workday, that she could lift no more than ten pounds occasionally and nothing more than light objects frequently. He also explained that consistent with her condition, she would be uncomfortable in a seated position and have pain if she were to sit in excess of six hours out of an eight hour workday. He further opined that even with a sedentary job, Plaintiff could experience interruptions in concentration, sufficient to frequently interrupt tasks throughout the day. Dr. Behr limited his assessment to Plaintiff's back and hip problems and indicated he found her credible and compliant with treatment. [ECF #10-9, Ex. 20F].

         Plaintiff received an unfavorable decision from the ALJ on November 1, 2016, finding Plaintiff was not disabled as defined by the Act. The Appeals Council denied her request for review of that decision on September 1, 2017, making the ALJ's decision the final decision by the Commissioner. In requesting review, Plaintiff submitted additional evidence to the Appeals Council. The Appeals Council determined that the additional evidence was not relevant to the period in question and therefore did not affect the determination of disability. The medical evidence submitted to the Appeals Council included an evaluation by Dr. Alfred R. Moss on December 9, 2016, which included an EMG and nerve conduction study. Dr. Moss diagnosed Plaintiff with neuropathy, leg pain, and bilateral foot pain. Dr. Moss also completed a questionnaire on December 16, 2016, wherein he indicated that on a five day a week, 8 hour day, Plaintiff could not engage in anything more than sedentary work. Dr. Moss further noted that if Plaintiff attempted to work this type of weekly shift, it was most probable she would have to rest away from the work station for more than an hour during the work day.

         In the decision determining Plaintiff was not disabled, the ALJ's findings were as follows:

(1) The claimant last met the insured status requirements of the Social Security Act through June 30, 2018.
(2) The claimant has not engaged in substantial gainful activity since March 23, 2013, the alleged onset date (20 CFR 404.1571 et seq.).
(3) The claimant has the following severe impairments: hypothyroidism, osteoporosis, degenerative disc disease of the lumbar spine status post back surgery, and a left shoulder disorder (20 CFR 404.1520(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, ...

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