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Waldo v. Saul

United States District Court, D. South Carolina

July 3, 2019

VANESSA MARIE WALDO, Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          BRISTOW MARCHANT, UNITED STATES MAGISTRATE JUDGE

         The 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.).

         Plaintiff 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).

         A 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).

         Plaintiff 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.

         Scope of review

         Under 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 as:

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 added].

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 standard"].

         The 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).

         Medical Record

         The 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. 602-607).

         On 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).

         On 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).

         On 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).

         Plaintiff 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).

         On 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).

         On 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).

         Plaintiff 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).

         On 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).

         Plaintiff 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. 723).

         On June 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. Tyler ...


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