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 her 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.
filed an application for DIB on March 17, 2014, in which she
alleged her disability began on November 11, 2010. Tr. at
181-82. She added a claim for SSI on April 10, 2014. Tr. at
213. She subsequently amended her alleged onset date to
November 24, 2012. Tr. at 32, 198. Her applications were
denied initially and upon reconsideration. Tr. at 57-112,
116-23, 126- 30, 132-36. On January 19, 2017, Plaintiff had a
hearing before Administrative Law Judge (“ALJ”)
Thaddeus J. Hess. Tr. at 28-57 (Hr'g Tr.). The ALJ issued
an unfavorable decision on March 22, 2017, finding Plaintiff
was not disabled within the meaning of the Act. Tr. at 10-27.
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 1-6. Thereafter, Plaintiff brought this action seeking
judicial review of the Commissioner's decision in a
complaint filed on May 2, 2018. [ECF No. 1].
Plaintiff's Background and Medical History
was 54 years old at the time of the hearing and completed the
twelfth grade. Tr. at 34. Her past relevant work
(“PRW”) was as a screen printing plant manager
and a bookkeeper. Tr. at 33. She alleges she has been unable
to work since November 24, 2012. Tr. at 32, 198.
February 16, 2012, Plaintiff presented to Suzanne D. Kovacs,
M.D. (“Dr. Kovacs”), for various issues,
including concern that her foot was infected after bone spur
surgery. Tr. at 323. Dr. Kovacs found Plaintiff's right
Achilles was ulcerated with pus, warmth, and swelling.
Id. Dr. Kovacs assessed right Achilles cellulitis
and ulcer and instructed her to contact her surgeon.
Id. Dr. Kovacs noted Plaintiff's hypertension
was well-controlled on medication, recommended walking when
her Achilles healed, prescribed Lortab for her chronic pain,
and provided Nexium samples for her gastroesophageal reflux
disease (“GERD”). Id.
7, 2012, Dr. Kovacs prescribed Flexeril. Tr. at 323.
August 23, 2012, Plaintiff presented to Dr. Kovacs with
complaints of back and shoulder pain. Tr. at 322. Dr. Kovacs
assessed back pain and bilateral shoulder pain secondary to
arthritis and prescribed Lortab and Mobic. Id. Dr.
Kovacs also assessed well-controlled hypertension with
medication, noted Plaintiff did not have insurance,
recommended diet and exercise for obesity, and continued
Nexium for GERD. Id.
February 21, 2013, Plaintiff followed up with Dr. Kovacs for
chronic issues including pain, obesity, hypertension, and
GERD, complained of back and joint pain, and denied
dizziness, headaches, depression, anxiety, and fatigue. Tr.
at 309-12. Dr. Kovacs found Plaintiff had normal gait,
ambulation, mood, and affect and was active, alert, and
oriented, but she had tenderness, limited range of motion
(“ROM”), and back pain. Tr. at 311. Dr. Kovacs
noted Plaintiff's blood pressure was well-controlled with
medication, recommended diet and exercise with Phentermine
for her weight, and provided Nexium samples for her GERD to
assist financially, as she did not have insurance. Tr. at
312. Dr. Kovacs also noted Plaintiff's osteoarthritis was
“bothering her a lot” and she had chronic back
pain and prescribed Mobic and Lortab. Id.
September 4, 2013, Plaintiff presented to Dr. Kovacs with
complaints of insomnia, sinus problems, back and joint pain,
and occasional swelling in her feet, but denied dizziness,
headaches, depression, anxiety, and fatigue. Tr. at 313-316.
Dr. Kovacs found Plaintiff had normal gait, ambulation, mood,
and affect and was active, alert, and oriented, but she had
tenderness and limited ROM. Tr. at 315. Dr. Kovacs noted
Plaintiff's blood pressure was well-controlled with
medication, recommended diet and exercise for weight, and
continued Nexium for GERD. Tr. at 316. Dr. Kovacs also noted
Mobic worked well for Plaintiff's osteoarthritis and
provided six-month refills of Lortab and Mobic for her
chronic back pain. Id.
March 6, 2014, Plaintiff presented to Dr. Kovacs to discuss
multiple chronic issues, including osteoarthritis, back pain,
and hypertension. Tr. at 317-21. Plaintiff also complained of
urinary frequency and nocturia. Tr. at 319. Plaintiff
requested medication refills and reported she would apply for
disability. Id. Dr. Kovacs found Plaintiff had
normal ambulation, mood, and affect and was active, alert,
and oriented, but she had an irregular gait, tenderness,
limited ROM, and back and leg pain. Tr. at 319. Dr. Kovacs
noted Plaintiff's blood pressure was well-controlled with
medication and recommended diet and exercise with Phentermine
for her weight. Tr. at 320. Dr. Kovacs also noted
Plaintiff's back pain was “getting worse” and
continued Mobic and Norco for six months with a nonsteroidal
anti-inflammatory drug (“NSAID”) for her
9, 2014, Lary R. Korn, D.O. (“Dr. Korn”),
performed a consultative examination for an orthopedic
assessment. Tr. at 336-41. Dr. Korn noted Plaintiff's
chief complaints were low back, left hip, shoulders, and foot
pain. Tr. at 336. Plaintiff indicated her low back pain
started three years prior and originally bothered her on
occasion, but now bothered her “more frequently and
with less significant amounts of activity” and was
provoked “with things like vacuuming, mopping or
sweeping.” Id. Dr. Korn noted Plaintiff had
not undergone magnetic resonance imaging (“MRI”)
of her back due to the lack of medical coverage. Id.
Plaintiff reported her left hip always hurt, but flared up
“from time to time, ” which increased with
sitting or lying down on that side. Id. Plaintiff
reported her bilateral shoulder pain tended “to flare
up from time to time.” Id. Plaintiff also
reported her left heel had bone spurs and she could only bear
weight for 5-10 minutes at a time due to her various issues.
Tr. at 336-37.
Korn found Plaintiff's “mood [was] good until near
the end where she seem[ed] to get a little emotional about
the process” and had teared up by the time she had
returned to the waiting room, which “appear[ed] to be a
combination of emotional lability along with some discomfort
provoked by her demonstrations, ” but she was alert and
oriented. Tr. at 337. Dr. Korn also found Plaintiff was
morbidly obese, her station was “antalgic with
discomfort getting up and down and with standing in place,
” she appeared more uncomfortable when sitting, and she
had a significant right limp. Id. Dr. Korn found
Plaintiff's ROM was normal in her elbow, wrist, knee,
hands, and shoulder, and she had normal spinal curvature and
negative Waddell's signs and straight leg raise
(“SLR”) tests, but there was limited ROM in her
cervical and lumbar spines and left hip, a Haglund's
deformity in her left ankle, surgical scars from surgery on
her right ankle, and she had limited ability to perform the
tandem walk, heel-toe walk, or squat. Tr. at 338-39. Dr. Korn
diagnosed possible degenerative joint disease of the left
hip, nonspecific low back pain, likely complicated by truncal
obesity, left foot pain, thought to be related to
Haglund's deformity, and obesity. Tr. at 339. Dr. Korn
X-rays of the low back and hip on the left would be useful in
her disability determination. If there is significant
arthritic changes in the left hip joint to corroborate her
stated difficulties and motion limitations, then I would be a
bit more adamant about some weightbearing limitations and
difficulties. I think the examinee's obesity complicates
most issues. She does not appear to be able to squat
normally, but is still able to bend at the knees competently
enough to lift with proper technique from floor level and
does not appear that she is going to be able to ambulate over
rough or uneven terrain to a useful degree. Apparently, the
ideal situation would be one where she get[s] off her feet or
move[s] from standing to [a] seated position as her
discomfort requires. If the left hip is fairly benign
appearing on x-ray, then I would only comment on any
limitations that might be attributable to her low back, which
should be the usual difficulties with prolonged bending,
leaning, and stooping due to a combination of probably a
degree of spondylosis and her truncal obesity.
Tr. at 340.
11, 2014, Plaintiff presented to Dr. Kovacs with complaints
of fatigue, insomnia, poor balance, stiffness, muscle aches,
and joint, shoulder, feet, back, and hip pain. Tr. at 366-70.
Plaintiff reported Norco was no longer “helping enough
for her pain” and she had applied for disability. Tr.
at 366. Dr. Kovacs found Plaintiff walked hunched over and
appeared to be in pain, but was alert and oriented. Tr. at
368. Dr. Kovacs discontinued Norco and started Percocet
10/325 mg every six hours for Plaintiff's back pain. Tr.
at 368-69. Dr. Kovacs noted Plaintiff's hip pain
“ha[d] become worse. She really need[ed] to see an
orthopedist” and to obtain “an MRI but
unfortunately, she d[id] not have insurance.” Tr. at
369. Dr. Kovacs also noted, “[o]nce she does have
insurance, then we will order the appropriate test” and
Percocet and Meloxicam should help Plaintiff's shoulder
and heel pain. Id. Dr. Kovacs explained
Plaintiff's pain affected her blood pressure and ability
to sleep and prescribed Lisinopril, Phentermine, and Nexium
to address her hypertension, obesity, and GERD. Tr. at 370.
Dr. Kovacs completed a disability form and handicap placard
and advised Plaintiff to follow up in six months.
Id.; Tr at 433.
October 20, 2014, a lumbar spine x-ray reflected probable
mild multilevel degenerative disc disease and atherosclerosis
of the abdominal aorta. Tr. at 344.
November 25, 2014, Leslie Burke, Ph.D. (“Dr.
Burke”), a state agency psychologist reviewed the
record and completed a psychiatric review technique
(“PRT”) assessment. Tr. at 62-63, 74-75. Dr.
Burke opined there was no medically-determinable mental
December 8, 2014, Dale Van Slooten, M.D. (“Dr. Van
Slooten”), a state agency physician reviewed the record
and provided a physical residual functional capacity
(“RFC”) assessment. Tr. at 63-65, 75-77. Dr. Van
Slooten opined Plaintiff could lift, carry, push, or pull 20
pounds occasionally and 10 pounds frequently; stand, walk, or
sit for about 6 hours of an 8-hour workday; occasionally
climb stairs, ramps, ladders, ropes, and scaffolds, balance,
stoop, kneel, crouch, or crawl; and must avoid concentrated
exposure to hazards. Id.
January 30, 2015, Plaintiff presented to Dr. Kovacs with
various complaints. Tr. at 360-65. Dr. Kovacs found Plaintiff
appeared well and was alert and oriented, but complained of
chronic back and leg pain. Tr. at 362. Dr. Kovacs assessed
insomnia, back pain, general osteoarthrosis, GERD,
hypertension, and obesity. Tr. at 363. Dr. Kovacs believed
Plaintiff's insomnia was secondary to pain at night and
advised her to take pain medication before bed. Id.
Dr. Kovacs prescribed Percocet and Meloxicam for
Plaintiff's back pain and osteoarthritis, continued
Nexium and Lisinopril for her controlled GERD and
hypertension, and recommended diet, exercise, and
Phentermine. Id.; Tr. at 374-80. Dr. Kovacs noted
Plaintiff did not have insurance and would follow up in six
months. Tr. at 363-64.
February 11, 2015, Michael Hammonds, Ph.D. (“Dr.
Hammonds”), a state agency psychologist, reconsidered
the record, completed a PRT assessment, and affirmed Dr.
Burke's opinion that Plaintiff did not have a
medically-determinable mental impairment. Tr. at 91-92,
about March 2, 2015,  Marcia Turner, M.D. (“Dr.
Turner”), a state agency physician, reconsidered the
record and completed an RFC assessment. Tr. at 89-90, 92-95,
104-05, 107-10. Dr. Turner agreed with Dr. Van Slooten's
exertional and environmental limitations, but modified the
postural limitations to never climb ladders, ropes, or
scaffolds, occasionally climb ramps or stairs, crouch, or
crawl, and frequently balance, stoop, and kneel, and avoid
exposure to unprotected heights. Id.
March 16, 2015, Plaintiff contacted Dr. Kovacs's office
to obtain a referral for a back specialist. Tr. at 381-84.
March 19, 2015, a left hip x-ray reflected hypertrophy and
overhanging of the superolateral margin of the acetabulum
(creating a pincer-type effect on the femoral head), mild
lumbosacral spondylosis, and maintained joint space with no
post-traumatic changes. Tr. at 372. Mark Harshany, M.D.
(“Dr. Harshany”), noted the findings may
predispose to femoral acetabular impingement. Id. An
x-ray of Plaintiff's right knee showed normal results.
Tr. at 373.
April 2, 2015, Plaintiff received a Percocet refill from Dr.
Kovacs's office. Tr. at 385-86.
14, 2015, Plaintiff presented to Dr. Kovacs for follow up.
Tr. at 387-95. Plaintiff reported her GERD was well
controlled with Nexium, but complained of ankle swelling and
back, leg, and hip pain. Tr. at 389. Dr. Kovacs found
Plaintiff appeared well, was alert, had normal mood, affect,
attention span, and concentration, but had slight swelling in
her ankles. Tr. at 391. Dr. Kovacs assessed limb swelling,
stable GERD, back pain, general osteoarthrosis involving
multiple sites, hypertension, and obesity. Tr. at 392- 93.
Dr. Kovacs noted Plaintiff had chronic back pain that
Percocet and Meloxicam “helped, ” but she had
“a lot of arthritis in her hips.” Tr. at 392. Dr.
Kovacs also noted Plaintiff did not want laboratory tests
until the next visit, because she did not have insurance.
Id. Dr. Kovacs instructed Plaintiff to exercise
twice a week “as tolerated.” Tr. at
November 2, 2015, Plaintiff presented to Dr. Kovacs with
complaints of numbness, anxiety, fatigue, indigestion,
arthritis, and joint, back, and knee pain. Tr. at 403-08. Dr.
Kovacs found Plaintiff appeared well, was alert and oriented,
and had normal mood, attention span, and concentration, but
complained of back pain. Tr. at 405. Dr. Kovacs assessed
fatigue, GERD, back pain, general osteoarthrosis involving
multiple sites, stable hypertension, and anxiety disorder.
Tr. at 406-07. Dr. Kovacs noted Plaintiff did not have
insurance, such that she could not afford blood work
regarding her fatigue, and she prescribed Meloxicam,
Percocet, Lisinopril, and Phentermine, recommended diet and
exercise as tolerated, and noted Plaintiff was “just
real anxious about not getting her disability, ” so she
would continue to monitor her anxiety.
February 2, 2016, Plaintiff contacted Dr. Kovacs to report
her blood pressure was high, and Dr. Kovacs increased her
Lisinopril dosage. Tr. at 415-16.
2, 2016, Plaintiff presented to Dr. Kovacs with complaints of
arthritis and joint, left hip, right foot, and some back
pain. Tr. at 423-28. Plaintiff reported her foot was
“not bothering her that much, ” but “[i]t
was bothering her a lot more last week.” Tr. at 426.
Dr. Kovacs found Plaintiff was alert with normal mood,
attention span, and concentration and had no pain to
palpation (“PTP”) on the right foot, but PTP on
the left hip. Tr. at 425-26. Dr. Kovacs assessed stable GERD
and hypertension, chronic sinusitis, general osteoarthrosis
involving multiple sites, obesity, and chronic back, left
hip, or right foot pain. Tr. at 426-27. Dr. Kovacs prescribed
Meloxicam and Percocet for Plaintiff's back, hip, and
foot pain and osteoarthrosis. Id. Dr. Kovacs noted
possible bursitis and offered an injection for
Plaintiff's hip, but Plaintiff declined because she did
not have insurance. Tr. at 426. She also declined an x-ray
for her foot. Id. Dr. Kovacs noted Plaintiff needed
to diet and exercise with the goal to exercise 30-60 minutes
a day, two times a week, as tolerated. Tr. at 428.
November 3, 2016, Plaintiff presented to Dr. Kovacs with
complaints of anxiety, depression, fatigue and right foot and
chronic back pain. Tr. at 429-32. Dr. Kovacs found Plaintiff
had normal ROM, mood, affect, behavior, and thought content
and was oriented, but she exhibited tenderness in her right
foot and lower back. Tr. at 430. Dr. Kovacs assessed chronic
lower extremity and back pain, polyosteoarthritis, essential
hypertension, GERD, obesity, and generalized anxiety
disorder. Tr. at 430- 31. Dr. Kovacs continued
Plaintiff's pain medication and Mobic, recommend diet and
exercise, and instructed her to take both Lisinopril pills in
the morning. Id.
December 8, 2016, Dr. Kovacs completed a medical source
statement regarding Plaintiff's ability to do
work-related activities. Tr. at 434-36.
hearing on January 19, 2017, Plaintiff testified she lived by
herself in a small apartment, graduated high school, and
attended college for a few months before dropping out after
getting married and pregnant. Tr. at 33. She stated she last
worked for less than two weeks in 2011 before being fired for
not being fast enough. Id. Previously, she worked as
a cashier or bookkeeper for Piggly Wiggly in 2010 when she
was mostly on her feet, six or seven hours a day. Tr. at 34.
She stopped working when the store closed, and she received
unemployment for eight months. Id.
said she was unable to find a job that did not require her to
stand on her feet. Tr. at 35. She stated that before the
store closed, she had an accident in which she was run over
by a truck and could no longer stand on her feet.
Id. Prior to Piggly Wiggly, Plaintiff worked at
Abstract Printing and at Spartan Custom setting up automated
machines. Id. She stated it was a standup job where
she lifted 30-pound buckets of ink. Tr. at 35-36. She said
she was a plant manager at Abstract Printing, where she would
set up machines that other employees would run. Tr. at 36.
Plaintiff did not have authority to hire or fire employees.
explained that, although she stopped working in 2010, she
waited to apply for disability until 2014 because she had
foot surgery for pain and bone spurs in the interim. Tr. at
reported being 5'5”, 240 pounds, and being unable
to maintain gainful employment due to her back, shoulders,
arthritis in her knees and hips, and problems with one foot.
Tr. at 37. She indicated she was in pain daily and had been
receiving treatment from Dr. Kovacs. Tr. at 37-38. Plaintiff
testified that, due to a lack of insurance and funds, she had
been unable to obtain imaging or treat with a specialist, as
Dr. Kovacs had recommended. Tr. at 38.
described having problems with both shoulders, but mainly her
right shoulder, which impaired her ability to reach overhead.
Id. She estimated she could raise her right arm
about halfway, but had problems reaching in all other
directions. Id. She stated her reaching, bending,
and stooping difficulties led her to purchase a grabber to
pick up items from the floor. Tr. at 38, 40. Plaintiff
described her back pain as stemming mostly from her lower
back in the middle and radiating down both legs. Tr. at 39.
She characterized her left hip and foot as worse than the
right. Id. Plaintiff estimated being able to stand
for 15 minutes on a good day and able to sit comfortably for
about five minutes in a regular chair and longer on a couch.
Tr. at 39-40. She estimated she could walk for no more than
100 feet before needing to stop. Tr. at 40. She stated she
could lift a five pound bag of groceries, but could not lift
a gallon of milk with one hand. Id.
testified Dr. Kovacs prescribed her pain medication, but they
had not helped as much and she did not want anything
stronger. Tr. at 40- 41. She described the side effects that
primarily caused a need to go to the bathroom, nausea,
fatigue, itchiness, dizziness, stiffness, and hourly
insomnia. Tr. at 41-42. She described taking 325 mg of
Percocet every six hours, as well as Meloxicam. Id.
She stated she could not return to her prior printing work
because her medications interrupted her concentration. Tr. at
described her activities on a regular day as intermittently
washing a few dishes and doing small loads of laundry to
avoid having to carry big loads. Tr. at 42-43. She indicated
her daughter helped with sweeping, mopping, and vacuuming.
Tr. at 43. She stated she did not have any yardwork and
prepared simple microwavable meals. Id. Plaintiff
indicated she had a driver's permit because she had lost
her license from not having car insurance, but did not drive
much other than to the grocery store or doctor's office.
Tr. at 43-44. She said her grocery shopping consisted of
picking up a few little things and she did not buy big
groceries. Tr. at 44. She denied socializing unless people
visited her home and she denied belonging to any clubs or
organizations. Id. She stated she had been to one
movie in the prior five years. Id. She denied having
any problems with drugs or alcohol, but admitted to having
issues with self-care, including trouble with putting on
socks, putting her hair in a ponytail, and shaving her
indicated her high blood pressure was controlled with daily
medication and she contracted sinus infections every few
months that exacerbated her breathing. Tr. at 45. She
acknowledged her weight contributed to her problems, but
indicated when she had felt well, she always had trouble with
her weight, although she denied eating abnormally.
Id. She stated she had a difficult time losing
weight, but admitted walking had kept her weight down when
she had been well. Id. She indicated being sedentary
had caused her weight to increase. Id.
Vocational Expert's Testimony
Expert (“VE”) Janette Clifford reviewed the
record and testified at the hearing. Tr. at 47-57. The VE
categorized Plaintiff's PRW as (1) a section leader as
Dictionary of Occupational Titles
(“DOT”) No. 652.260-010, medium,
specific vocational preparation (“SVP”) 7; (2) an
automatic screen printer/operator as DOT No.
652.682-018, light, SVP 4; and (3) a coordinator-cashier as
DOT No. 211.137-010, light, SVP 7, but 5 as
performed. Tr. at 50.
described a hypothetical individual of Plaintiff's
vocational profile who could perform light work, such that
she could lift or carry 20 pounds occasionally, 10 pounds
frequently; stand, walk, or sit 6 hours of an 8hour workday;
never climb ladders, ropes, or scaffolds or crawl, less than
occasionally crouch; occasionally climb ramps or stairs,
balance, stoop, kneel, or reach overhead; avoid concentrated
exposure to workplace hazards such as unprotected heights and
moving machinery; and needs to move about or stretch within
the work area for 5 minutes of every hour. Tr. at 51. The ALJ
inquired whether an individual could perform Plaintiff's
PRW. Tr. at 51-52. The VE testified the hypothetical
individual could perform the work of the coordinator-cashier,
but not the screen printer. Tr. at 52. The ALJ asked whether
there were any other jobs in the economy the hypothetical
person could perform. Id. The VE identified light
positions with SVP 2 of counter clerk, DOT No.
249.366-010, information clerk, DOT No. 237.367-018,
and furniture rental consultant, DOT No.
295.357-018, with 152, 739, 166, 532, and 106, 625 national
positions available, respectively. Id.
described a second hypothetical that modified the first to
stand or walk 2 hours of an 8-hour workday. Id. The
VE testified the hypothetical individual could not perform
any PRW. Tr. at 52-53. The ALJ asked whether there were any
other jobs in the economy the hypothetical person could
perform. Id. The VE identified light positions with
SVP of 2 of parking lot attendant, DOT No.
211.462-010, ticket seller, DOT No. 211.467- 030,