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Johnson v. Saul

United States District Court, D. South Carolina

July 24, 2019

Kathren Louise Johnson, Plaintiff,
v.
Andrew M. Saul, [1] Commissioner of Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION

          SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE

         This 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.

         I. Relevant Background

         A. Procedural History

         Plaintiff 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].

         B. Plaintiff's Background and Medical History

         1. Background

         Plaintiff 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.

         2. Medical History[2]

         On 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.

         On May 7, 2012, Dr. Kovacs prescribed Flexeril. Tr. at 323.

         On 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.

         On 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.

         On 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.

         On 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 osteoarthritis. Id.

         On July 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.

         Dr. 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 noted:

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.

         On July 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.

         On October 20, 2014, a lumbar spine x-ray reflected probable mild multilevel degenerative disc disease and atherosclerosis of the abdominal aorta. Tr. at 344.

         On 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 impairment. Id.

         On 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.

         On 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.

         On 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, 106-07.

         On or about March 2, 2015, [3] 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.

         On March 16, 2015, Plaintiff contacted Dr. Kovacs's office to obtain a referral for a back specialist. Tr. at 381-84.

         On 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.

         On April 2, 2015, Plaintiff received a Percocet refill from Dr. Kovacs's office. Tr. at 385-86.

         On May 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 394.[4]

         On 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. Id.[5]

         On 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.[6]

         On May 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.

         On 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.

         On December 8, 2016, Dr. Kovacs completed a medical source statement regarding Plaintiff's ability to do work-related activities. Tr. at 434-36.

         C. The Administrative Proceedings

         1. The Administrative Hearing

         a. Plaintiff's Testimony

         At the 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.

         Plaintiff 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. Id.

         Plaintiff 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 36-37.

         She 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.

         She 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.

         Plaintiff 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 42.

         Plaintiff 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 underarms. Id.

         Plaintiff 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.

         b. Vocational Expert's Testimony

         Vocational 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.

         The ALJ 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.

         The ALJ 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, and ...


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