United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
BRISTOW MARCHANT, UNITED STATES MAGISTRATE JUDGE
Plaintiff filed the complaint in this action pursuant to 42
U.S.C. § 405(g), seeking judicial review of the final
decision of the Commissioner wherein she was denied
disability benefits. This case was referred to the
undersigned for a report and recommendation pursuant to Local
Civil Rule 73.02(B)(2)(a)(D.S.C.).
applied for Disability Insurance Benefits (DIB) in September
2012, alleging disability beginning October 5, 2011, because
of aback injury, avascular necrosis of her left shoulder,
fibromyalgia, and chronic pain. (R.pp. 17, 282, 337).
Plaintiff s claim was denied both initially and upon
reconsideration. Plaintiff then requested a hearing before an
Administrative Law Judge (ALJ), which was held on August 27,
2014. (R.pp. 59-83). On November 3, 2014, the ALJ issued
apartially favorable decision awarding a closed period of
benefits from October 5, 2011 through August 23, 2013, but
finding that Plaintiff medically improved as of August 24,
2013 such that she was no longer disabled. (R.pp. 120-131).
On May 2, 2016, the Appeals Council granted Plaintiffs
request for review, vacated the entire hearing decision
(including the favorable portion), and remanded the case with
instructions to give further consideration to the
claimant's maximum residual functional capacity (RFC)
during the entire period at issue, to provide a rationale
with specific references to evidence of record in support of
the assessed limitations, and in doing so to evaluate the
treating and nontreating source opinions and explain the
weight given to the opinion evidence. The Appeals Counsel
also directed the ALJ, if warranted by the expanded record,
to obtain evidence from a vocational expert to clarify the
effect of the assessed limitations on Plaintiffs occupational
base. (R.pp. 138-140).
second hearing before the ALJ was then held on July 28, 2016.
(R.pp. 37-58). The ALJ thereafter issued a decision on March
15, 2017 finding that Plaintiff was disabled for a closed
period from October 5, 2011 through August 23, 2013; that
medical improvement occurred as of August 24, 2013; and that
Plaintiffs disability ended as of August 23, 2013. (R.pp.
17-30). This time, the Appeals Council denied Plaintiffs
request for a review of the ALJ's decision, thereby
making this second determination of the ALJ the final
decision of the Commissioner. (R.pp. 1-6).
then filed this action in United States District Court.
Plaintiff asserts that there is not substantial evidence to
support the ALJ's decision, and that the decision should
be reversed and remanded for entry of a decision fully
favorable to her, or in the alternative, be remanded for
further administrative proceedings. The Commissioner contends
that the decision to deny benefits for the period beginning
on August 24, 2013 is supported by substantial evidence.
42 U.S.C. § 405(g), the Court's scope of review is
limited to (1) whether the Commissioner's decision is
supported by substantial evidence, and (2) whether the
ultimate conclusions reached by the Commissioner are legally
correct under controlling law. Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990); Richardson v.
Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers
v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If
the record contains substantial evidence to support the
Commissioner's decision, it is the court's duty to
affirm the decision. Substantial evidence has been defined
evidence which a reasoning mind would accept as sufficient to
support a particular conclusion. It consists of more than a
mere scintilla of evidence but may be somewhat less than a
preponderance. If there is evidence to justify
refusal to direct a verdict were the case before a jury, then
there is "substantial evidence." [emphasis
Hays, 907 F.2d at 1456 (citing Laws v.
Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also
Hepp v. Astrue, 511 F.3d 798, 806 (8tli Cir.
2008)[Nothing that the substantial evidence standard is even
"less demanding than the preponderance of the evidence
Court lacks the authority to substitute its own judgment for
that of the Commissioner. Laws, 368 F.2d at 642.
"[T]he language of [405(g)] precludes a de novo
judicial proceeding and requires that the court uphold the
[Commissioner's] decision even should the court disagree
with such decision as long as it is supported by
'substantial evidence.'" Blalock v.
Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
record reflects that Plaintiff, who had previously undergone
a lumbar laminectomy in 1994, suffered a back injury in
August 2011 while working as a school nurse (the injury
occurred when Plaintiff picked up a special needs child). On
October 10, 2011, Dr. Mike Tyler, a neuro surgeon, examined
Plaintiff and reviewed a lumbar MRI (performed October 5,
2011, the alleged onset of disability date), which showed a
recurrent disc injury contacting the S1 nerve root on the
left side which he thought accounted for her symptoms. He
discussed treatment options, including surgery. (R.pp. 595,
601). Plaintiff thereafter underwent surgery on October 26,
2011. at which time Dr. Tyler removed a recurrent fragment of
disc at ¶ 5-S1 and decompressed the nerve. (R.pp.
November 23, 2011, Plaintiff tripped over her dog and
sustained a distal right tibia fracture for which she
underwent a closed reduction at Trident ER. On November
30.2011, Dr. Seth P. Kupferman, an orthopaedic surgeon at
South Carolina Sports Medicine & Orthopaedic Center, saw
Plaintiff for complaints of right leg pain. (R.pp. 623-624).
During her January 4, 2012 followup for her right leg
fracture, Plaintiff also complained to Dr. Kupferman about
soreness in her left shoulder. Examination tow days later
revealed anterior shoulder tenderness with marked limited
range of motion. A left shoulder x-ray showed an apparent
abnormality to the shape of the humeral head which might
represent an early avascular necrosis. (R.pp. 626-627).
February 1, 2012, Dr. Kupferman noted that although Plaintiff
initially experienced gradual healing of her leg injury,
there was still no evidence of full union of her fracture. He
also reported that a left shoulder MRI revealed evidence of
subchondral collapse of Plaintiff s left humeral head
suggestive of avascular necrosis, advised that she eventually
might be a candidate for semi or total shoulder replacement,
and thought that in the meantime she should undergo
arthroscopic debridement and removal of loose bodies which
might provide some relief. (R.pp. 627-628). Plaintiff then
underwent left shoulder arthroscopic debridement on February
21, 2012, (R.p. 628). On March 30, 2012, Dr. Kupferman noted
that Plaintiff was still symptomatic with weight bearing
nearly four months after her right leg injury, and
recommended additional surgery. (R.p. 629). Plaintiff
underwent right tibia IM nailing surgery with iliac autograft
on April 20, 2012. (R.p. 630). On May 4, 2012, Plaintiff
reported that her pain was improving. Dr. Kupferman noted
that there was good clinic alignment of Plaintiff s right
lower leg, only mild swelling, and no calf or thigh
tenderness. He stated that he was pleased with Plaintiffs
progress. (R.p. 632).
August 7, 2012, Plaintiff reported to Dr. Tyler that she was
experiencing neck and right arm pain with paresthesia
radiating down into the second and third fingers of her right
hand. It was noted that an MRI of her cervical spine
(performed at the Navy hospital) showed a disc abnormality at
C5-6 on the right side consistent with her symptoms. Dr.
Tyler recommended physical therapy and a cervical epidural
injection. (R.p. 584).
began treatment with Dr. J. Edward Nolan, a pain management
specialist at Trident Pain Center, in Augusl2Ol2. Cervical
and lumbar facet injections were administered. (R.pp.
442-448). Through August 23, 2013. Plaintiff had appointments
generally once or twice a month for her complaints of neck,
shoulder, and low back pain, which she rated as ranging from
3 to 9 on a scale of 1 to 10. (R.pp. 442, 445, 658, 662, 665,
669, 672, 679, 709, 712, 716, 719, 722, 724, 727, 730). She
complained of mild to moderate pain in her right cervical
paraspinous musculature; lumbar paraspinous musculature, her
sacro-iliac joint bilaterally, her left groin, and in the
left posterior femoral cutaneous nerve distribution. (R.pp.
445-446, 659, 666, 669, 675-676, 680, 709, 713, 719,
722, 724, 727, 731). Dr. Nolan and his associates diagnosed
Plaintiff with lumbar facet arthropathy, cervical facet
arthropathy, cervical radiculopathy, lumbar disc
displacement, muscle spasms, sacro-iliac joint pain, and
lumbar post-laminectomy. (709-10, 713, 716, 719-720, 722,
724, 727, 731). Treatment included cervical and lumbar facet
injections, lumbar steroid injections, cervical steroid
injections, sacro-iliac injections, and trigger point
injections. (R.pp. 442-443, 446, 659-660, 662,
666-67, 669-670, 673, 676-677, 680-681, 709-710,
713, 716-717, 722, 724, 727-728, 731). Plaintiff reported 50%
to 90% relief from these injections. (R.pp. 658, 665, 675,
679, 712, 730). Additionally, Dr. Nolan and his associates
prescribed medications, including at various times, Lortab,
Flexeril, Cymbalta, Lyrica, Requip, and MS Contin. (R.pp.
446, 659, 663, 670, 676, 680, 710, 728, 731).
November 30, 2012, Plaintiff reported to a provider at South
Carolina Sports Medicine and Orthopaedic Center that she was
doing very well, had no complaints about her left lower leg,
and had only occasional complaints of about her left
shoulder. It was noted that an x-ray of her left tibia showed
that her fracture was was nicely healed, and she was
instructed to gradually progress as tolerated with her
activities, perform home exercises, and return on an
as-needed basis. (R.p. 783).
January 7, 2013, Dr. S. Farkas, a state agency physician,
opined after a review of Plaintiffs medical records that
Plaintiff could perform light work with postural limitations
of occasionally climbing ramps, stairs, ladders, ropes, and
scaffolds; frequently balancing; occasionally stooping,
kneeling, crouching, and crawling; and occasionally
performing overhead reaching on the left. Dr. Farkas also
opined that Plaintiff should avoid concentrated exposure to
hazards. (R.pp. 93-95).
saw Dr. Tyler again on January 14, 2013, at which time she
reported intermittent neck pain and that epidural steroid
injections in her lumbar spine had helped her back some. Dr.
Tyler noted that Plaintiff was going back to work and
indicated that she might require a lumbar decompression
and/or fusion in the future. (R.p. 644). Plaintiff returned
to Dr, Tyler on April 15, 2013. Plaintiff reported that she
had attempted to return to work, but only lasted two days
because of back and neck problems (with her neck more
bothersome than her back). Dr. Tyler thought that Plaintiff
was a good candidate for anterior cervical diskectomy and
fusion (ACDF) for her C5-C6 level problem that was causing
her pain and paresthesia into the C6 distribution of her
right arm. (R.p. 700).
April 30, 2013, state agency physician Dr. William Cain
affirmed Dr. Farkas' opinion, opining that Plaintiff
could perform a range of light work. (R.pp. 109-110).
had ACDF surgery at ¶ 5-6 performed on May 7, 2013.
(R.pp. 692-697). On May 21, 2013, Dr. Tyler noted that
Plaintiff had a hematoma in her neck that had resolved, and
that overall her radicular symptoms had improved. (R.p. 701).
On May 23, 2013, Plaintiff reported to Dr. Nolan that she was
feeling significantly better following her ACDF surgery and
an increase in the dosage of narcotics she was taking. (R.p.
17, 2013, Plaintiff reported to Dr. Tyler that she was making
good progress, although she still experienced pain in her
right shoulder with muscle spasms. Although she was primarily
being seen for neck surgery followup, Plaintiff also reported
back pain that was worse with standing. It was noted that she
was to return to Dr. Tyler in six to eight weeks. (R.p. 702).
However, there are no medical records of treatment with Dr.