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Keefer v. Saul

United States District Court, D. South Carolina

August 5, 2019

Gregory Wayne Keefer, Plaintiff,
v.
Andrew M. Saul, [1]Commissioner of Social Security Administration, Defendant.

          ORDER

          SHIVA V. HODGES UNITED STATES MAGISTRATE JUDGE

         This appeal from a denial of social security benefits is before the court for a final order pursuant to 28 U.S.C. § 636(c), Local Civ. Rule 73.01(B) (D.S.C.), and the order of the Honorable Timothy M. Cain, United States District Judge, dated August 17, 2018, referring this matter for disposition. [ECF No. 15]. The parties consented to the undersigned United States Magistrate Judge's disposition of this case, with any appeal directly to the Fourth Circuit Court of Appeals (“Fourth Circuit”). [ECF No. 14].

         Plaintiff files this appeal pursuant to 42 U.S.C. § 405(g) of the Social Security Act (“the Act”) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying his claim for disability insurance benefits (“DIB”). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether he applied the proper legal standards. For the reasons that follow, the court reverses and remands the Commissioner's decision for an award of benefits as set forth herein.

         I. Relevant Background

         A. Procedural History

         On February 22, 2010, Plaintiff filed an application for DIB in which he alleged his disability began on August 10, 2009. Tr. at 117-18. His application was denied initially and upon reconsideration. Tr. at 57-60, 65- 66. On March 10, 2011, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Thomas G. Henderson. Tr. at 25-52 (Hr'g Tr.). The ALJ issued an unfavorable decision on March 21, 2011, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 8-20. 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 1-3. Plaintiff brought an action seeking judicial review of the Commissioner's decision in a complaint filed on October 4, 2011. Tr. at 435- 36. On March 13, 2013, the undersigned issued an order reversing the Commissioner's decision and remanding the matter for further administrative proceedings pursuant to 42 U.S.C. § 405(g). Tr. at 439-65. On April 24, 2013, the Appeals Council issued an order remanding the case to an ALJ. Tr. at 466-69.

         On September 26, 2013, Plaintiff had a second hearing before ALJ Henderson. Tr. at 406-14 (Hr'g Tr.). The ALJ issued an unfavorable decision on November 7, 2013, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 396-405. Plaintiff brought an action seeking judicial review of the Commissioner's decision in a complaint filed on January 27, 2014. Keefer v. Commissioner of Social Security Administration, No. 1:14-236-SVH, ECF No. 1. On January 5, 2015, the court issued an order reversing the Commissioner's decision and remanding the case to an ALJ. Tr. at 610-43. On February 7, 2015, the Appeals Council issued an order vacating the final decision of the Commissioner, remanding the case to an ALJ for further proceedings, and directing that the case be assigned to a different ALJ. Tr. at 644-47.

         On August 24, 2015, Plaintiff had a third hearing. Tr. at 582-99 (Hr'g Tr.). ALJ Ronald Sweeda issued an unfavorable decision on September 23, 2015, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 570-81. Plaintiff brought an action seeking judicial review of the Commissioner's decision in a complaint filed on November 24, 2015. Keefer v. Commissioner of Social Security Administration, No. 1:15-4738-SVH, ECF No. 1. On September 30, 2016, the court issued an order reversing the Commissioner's decision and remanding the case to an ALJ. Tr. at 775-806. On January 6, 2017, the Appeals Council issued an order vacating the final decision of the Commissioner and remanding the case to an ALJ for further proceedings. Tr. at 771-74.

         On June 23, 2017, Plaintiff had a fourth hearing. Tr. at 756-70 (Hr'g Tr.). ALJ Sweeda issued an unfavorable decision on October 30, 2017, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 729-49. The ALJ's decision provided Plaintiff with the option to either file exceptions with the Appeals Council within 30 days or to file an action in this court within 60 days of the date on which the ALJ's decision became final.[2] Tr. at 729-30. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on January 10, 2018. [ECF No. 1].

         B. Plaintiff's Background and Medical History

         1. Background

         Plaintiff was 53 years old on his date last insured (“DLI”).[3] Tr. at 117. He completed the eighth grade. Tr. at 135. His past relevant work (“PRW”) was as a boiler operator and truck driver. Tr. at 191. He alleges he has been unable to work since August 10, 2009. Tr. at 117.

         2. Medical History

         a. Records Prior to Plaintiff's DLI

         On January 16, 2008, Plaintiff complained of fatigue to a physician at Doctors Care, where an assessment included fatigue and joint pain. Tr. at 301. Lab results dated January 21, 2008, indicated hypothyroidism, and Plaintiff was started on Levothyroxine. Tr. at 292. Notes from follow up visits on January 21, 2008, and February 18, 2008, showed diagnoses of hypothyroidism, hyperlipidemia, and depression/anxiety. Tr. at 288, 291. In May 2008, Plaintiff's prescriptions included Levothyroxine for hypothyroidism, Celexa for depression, and Pravastatin for elevated cholesterol. Tr. at 286.

         On May 3, 2009, Plaintiff presented to the emergency room (“ER”) at Roper Hospital with complaints of lower abdominal pain and difficulty urinating. Tr. at 194. He reported a history of kidney stones, prostatic stones, anxiety, and hemorrhoids. Id. Discharge diagnoses included chest pain of unknown cause and epididymitis (inflammation of the organ just behind the testicle, often caused by heavy lifting/exercise). Tr. at 206. The attending physician recommended Plaintiff follow up with cardiac stress testing and an ultrasound. Tr. at 206-07.

         Plaintiff followed up with Francis Tunney, M.D. (“Dr. Tunney”), at Patient One on May 5, 2009. Tr. at 218. He complained of snoring and daytime fatigue and reported a history of depression. Id. On examination, Plaintiff exhibited normal gait, stance, musculoskeletal posture, balance, mood, and memory. Tr. at 220. Dr. Tunney noted that Plaintiff's scrotal pain was of unclear etiology and advised him to follow up with his primary care physician. Id.

         b. Records After Plaintiff's DLI

         Plaintiff initiated care with David Castellone, M.D. (“Dr. Castellone”), of Palmetto Primary Care on November 13, 2009. Tr. at 368. He reported pain in his hips, legs, and back and swelling in his right leg. Id. He stated he had been diagnosed with hypertension, anxiety, and depression years prior and indicated he had been experiencing back ache and pain for months. Id. Dr. Castellone diagnosed new anxiety, hypertension, degenerative disc disease (“DDD”), and paresthesia/weakness in the legs. Id. He also ordered magnetic resonance imaging (“MRI”) and nerve conduction studies (“NCS”) and prescribed Celexa and Lortab. Tr. at 369. An MRI of Plaintiff's lumbar spine dated November 19, 2009, revealed mild degenerative facet arthropathy at ¶ 5-S1, but no compromise of the exiting L5 nerve root. Tr. at 222.

         Dr. Ruth Hoover conducted NCS on November 24, 2009. Tr. at 365. She noted that the results were difficult to interpret due to a lot of cramping during the test. Id. She noted signs of acute (rather than chronic) nerve root irritation at ¶ 1 bilaterally. Id. Dr. Hoover opined that Plaintiff's description of his pain was a bit confusing in that it seemed variable. Id. She stated the MRI was not impressive, but that she was “impressed by the clinical picture and the appearance of S1 irritation despite the MRI.” Id. She ultimately noted the NCS were within normal limits, but that some of Plaintiff's muscles showed moderately increased spontaneous activity. Id.

         Plaintiff returned to Dr. Castellone on December 1, 2009, with constipation, back pain, depression, and anxiety. Tr. at 359. He described his back pain, depression, and anxiety as severe and indicated the back pain began months prior. Id. Dr. Castellone diagnosed Plaintiff with worsening DDD and worsening radiculopathy, as well as stable anxiety and hypertension. Tr. at 361. He referred Plaintiff to a pain clinic and gastroenterologist. Id.

         Plaintiff presented to Summar C. Phillips, M.D. (“Dr. Phillips”), of Pain Care Physicians of Charleston on December 3, 2009, with lower back pain. Tr. at 225. He reported pain in his lower back that had begun years prior. Id. He stated the pain radiated into his hips, buttocks, legs, and feet bilaterally and was sustained at five to six on a 10-point scale most days. Id. He described it as being worse in the evening and sometimes associated with weakness, tingling, and numbness. Id. He stated Lortab worked best to alleviate his pain, but only “t[ook] the edge off.” Id. Plaintiff reported his daily activities included working as a truck driver and general house maintenance, but said that he was unable to perform those tasks without pain. Id. Dr. Phillips administered an epidural steroid injection (“ESI”) at ¶ 5-S1. Tr. at 226. Following the injection, Plaintiff reported that his pain was reduced to a four. Id.

         Plaintiff underwent nuclear stress testing on December 8, 2009. Tr. at 305. He was assessed as having fair exercise tolerance. Id. The physician who administered the test noted a mild defect, but the results were otherwise normal. Id.

         Plaintiff returned to Dr. Phillips on December 23, 2009. Tr. at 229. He reported his response to the prior injection was “real good” for two weeks, but he still had weakness and his pain gradually returned to a five. Id. Dr. Phillips administered another ESI at ¶ 5-S1, which he indicated reduced his pain to a two. Tr. at 230, 231.

         Plaintiff underwent a cervical MRI on December 31, 2009. Tr. at 307. It revealed mostly mild diffuse spondylosis and the presence of a disc osteophyte complex at ¶ 6-7 that extended intraforaminally on both sides and could contact the exiting C7 nerve roots. Id. The MRI also demonstrated a focal central superior and inferior extrusion that caused moderate central stenosis and mild anterior cord flattening. Id.

         On January 6, 2010, Plaintiff reported to Dr. Phillips that the last lumbar ESI had provided no relief, necessitating his daily use of Lortab and Flexeril. Tr. at 233. Dr. Phillips noted Plaintiff's leg pain had improved significantly, but he continued to experience persistent pain in his lower back and buttocks. Id. Plaintiff reported his medications helped as long as he sat still. Id. He stated he had been limiting his daily activity to just resting and taking it easy due to the pain. Id. On examination, Plaintiff exhibited tenderness in the area of the sacroiliac (“SI”) joint on the right, tenderness over the sacrum midline, and pain upon flexion and extension of the lumbar spine. Id. However, he maintained full range of motion (“ROM”) of the lumbar spine. Id. Dr. Phillips diagnosed low back pain, radicular symptoms of the lower limbs, neck pain, cervical radiculopathy, sacroiliitis, and facet arthropathy syndrome. Id. She opined Plaintiff's pain could be caused by either the facet arthropathy shown on the MRI or by SI joint arthropathy. Tr. at 234. Dr. Phillips noted that Plaintiff's leg pain, which had previously prevented him from walking, improved greatly with the two lumbar injections. Id. However, Plaintiff continued to report leg pain in a bilateral S1 pattern while lying flat. Id. She further noted that given Plaintiff's good response to lumbar ESI, Plaintiff most likely had simple lumbar radiculopathy. Id. Dr. Phillips recommended Plaintiff start Celebrex and undergo another ESI in one week. Id.

         Plaintiff returned to Dr. Phillips on January 13, 2010, complaining of severe pain in his neck for several days. Tr. at 235. Dr. Phillips started to administer a cervical ESI, but did not complete after Plaintiff reported lightheadedness and dizziness. Id. Plaintiff returned the following day, and Dr. Phillips performed a successful cervical ESI at ¶ 5-6. Tr. at 241.

         On January 28, 2010, Plaintiff reported the cervical ESI had helped the pain and stiffness in his neck and some of the radiating pain down his arms. Tr. at 243. He complained of weakness in his legs and pain between his shoulder blades and in his low back. Id. On examination, Dr. Phillips found thoracic and lumbar paraspinal tenderness and assessed Plaintiff's progress as “moderate at best.” Tr. at 243-44. She noted that Plaintiff would be a great candidate for a spinal cord stimulator. Tr. at 244. She suspected Plaintiff's upper back pain was muscular in nature and prescribed a transcutaneous electrical nerve stimulation (“TENS”) unit, ice therapy, and lidoderm patches. Tr. at 244.

         Plaintiff received another lumbar ESI on February 16, 2010. Tr. at 245. On March 9, 2010, Plaintiff reported relief from that injection, but stated that all the injections wore off after a while. Tr. at 249. He complained of shooting pain and muscle spasms in his hip, legs, and back. Id. He reported his pain was aggravated by bending or twisting and was improved by taking hot baths and using medication. Id. Although still in pain, he agreed that his quality of life had improved with the injections and that he was able to perform his normal activities in less pain. Id.

         On April 8, 2010, Plaintiff sought an opinion regarding leg weakness, discomfort, and refractory pain from neurologist John Plyler, M.D. (“Dr. Plyler”). Tr. at 317. He complained of leg weakness and discomfort in his hips and legs, episodic arm jerking, dizziness, and numbness in his feet. Id. He reported a history of multiple ESIs with only marginal response over time. Id. On examination, Plaintiff had decreased, but symmetric reflexes, patchy sensory spots distally, and some spasm in his neck and lumbar muscles. Id. Dr. Plyler noted he was “significantly overweight.” Id. He assessed chronic neck/back pain, paresthesia and dysthesia, possible myofascial fibromyalgia pain syndrome, tinnitus, anxiety, and depression. Tr. at 317-18. He recommended an electrophysiology evaluation, brain imaging, and baseline labs. Tr. at 318. A nerve study was normal. Tr. at 319-21. An MRI of Plaintiff's thoracic spine showed left central disk protrusion at ¶ 9-T10 that effaced the left ventral aspect of the thoracic cord; however, the thoracic cord demonstrated normal signal. Tr. at 316. An MRI of Plaintiff's brain was unremarkable. Tr. at 313, 315.

         In a follow-up visit with Dr. Plyler on April 27, 2010, Plaintiff reported leg weakness and discomfort in his legs and throughout his spine. Tr. at 313. He indicated his legs gave out with any physical activity. Id. He reported tremors, shakes, and syncopal and blackout events, which he stated had been occurring for about five years. Id. Dr. Plyler recommended an additional thyroid panel, a vitamin D supplement, a possible rheumatological evaluation, a sleep evaluation, a neurosurgical evaluation for the thoracic disc, and a cardiology opinion with regard to syncope. Tr. at 313-14.

         State-agency consultant Olin Hamrick, Jr., Ph. D., completed a psychiatric review technique form (“PRTF”) on June 2, 2010. Tr. at 251-64. He found there was insufficient evidence upon which to make a medical disposition or assess Plaintiff's functional limitations. Id.

         On July 29, 2010, Plaintiff reported to Dr. Castellone's office that he had almost passed out, that the left side of his face was swollen, and that he was experiencing memory loss. Tr. at 357. On examination, Plaintiff exhibited decreased ROM and pain in his extremities. Tr. at 358. He was referred for a carotid Doppler flow study. Id.

         On August 3, 2010, Plaintiff consulted with Jason Highsmith, M.D. (“Dr. Highsmith”), a neurosurgeon. Tr. at 331. On examination, Dr. Highsmith noted that Plaintiff was in significant pain with motion and was “clearly uncomfortable.” Id. Plaintiff exhibited paraspinous tenderness throughout the craniocervical junction, as well as in the neck, mid-back, and low back. Id. He also had significant pain with palpation of his right hip and “actually wince[d] significantly.” Id. Dr. Highsmith concluded that because the thoracic MRI showed no focal lesion or other pathology of the thoracic spine, Plaintiff was not a surgical candidate. Tr. at 332. He recommended Plaintiff follow up with a rheumatologist. Id.

         Plaintiff returned to Dr. Castellone on August 12, 2010, and described his back pain as gnawing and severe. Tr. at 355. Plaintiff's memory and dizziness were noted to be better with medication. Id. Dr. Castellone noted that Plaintiff had “new” fibromyalgia and that his anxiety and hypertension were improving. Tr. at 356. He referred Plaintiff to a rheumatologist. Id.

         State-agency consultant Lisa Varner completed a PRTF on August 25, 2010. Tr. at 266-79. She determined the record provided insufficient evidence upon which to make a medical disposition or to assess Plaintiff's functional limitations. Id. She noted that a record from May 2009 showed a diagnosis of depression; however, examination showed normal orientation, affect, mood, memory, insight, and judgment. Tr. at 278.

         On November 1, 2010, Plaintiff was seen by Gregory Niemer, M.D. (“Dr. Niemer”), at Low Country Rheumatology. Tr. at 341. He reported daily neck and back pain and stated the ESIs and TENS unit had not helped. Id. His diagnoses included fibromyalgia with multiple trigger points and DDD of the lumbar and cervical spine. Tr. at 345, 347. Dr. Niemer recommended Plaintiff follow up with pain management for injections. Tr. at 345. Plaintiff followed up with Dr. Niemer on January 26, 2011. Tr. at 340. He reported having trouble getting to sleep and indicated his pain impacted his activities of daily living (“ADLs”). Id. Examination demonstrated 16 of 18 fibromyalgia tender points. Id. Dr. Niemer diagnosed fibromyalgia, DDD, and insomnia. Id.

         Plaintiff saw Dr. Castellone for an annual examination on February 4, 2011. Tr. at 352. Dr. Castellone noted that Plaintiff's DDD and fibromyalgia were worsening and that his anxiety was stable. Tr. at 354. He recommended diet, exercise, and stress management. Id.

         On February 10, 2011, Plaintiff saw Barton Sachs, M.D. (“Dr. Sachs”), of the Medical University of South Carolina's (“MUSC's”) Orthopaedic Spine Surgery Center. Tr. at 386. Plaintiff described total body pain and discomfort and numbness throughout all four extremities. Id. He reported that he had stopped driving a truck over a year prior because of dizzy spells and passing out. Id. On examination, Plaintiff was in no apparent distress and appeared to have full ROM in all four extremities. Tr. at 386-87. Dr. Sachs noted that Plaintiff's x-rays showed some advanced DDD at ¶ 6-7 with some spurring, but did not indicate gross encroachment of the spinal canal. Tr. at 387. Plaintiff had no significant areas of tenderness at ¶ 7 and no gross instability on flexion or extension. Id. The radiologist interpreted the x-rays to show no alignment abnormalities and mild DDD. Tr. at 392. Dr. Sachs noted that Plaintiff moved well. Tr. at 387. His impression was that Plaintiff's primary condition was one of diffuse pain associated with dizziness and blackout spells, that the condition was primarily neurological, as opposed to spinal, and that Plaintiff did not require surgical intervention. Id. He recommended Plaintiff follow up with a neurologist. Id.

         On April 13, 2011, Plaintiff presented to TriCounty Radiology Associates for a thoracic MRI to assess his complaints of midback pain and chronic mid- and upper-back pain radiating down both arms and a cervical MRI to assess his complaints of neck and bilateral shoulder pain and numbness in his fingers. Tr. at 914, 916. Donald E. Olofsson, M.D. (“Dr. Olofsson”), interpreted the thoracic MRI as indicating mild-to-moderate DDD of the thoracic spine, most notable at ¶ 9-10 with a paracentral left thin disc extrusion. Tr. at 914. He noted contact of the ventral cord and possible contact of the left ventral nerve rootlet at ¶ 9-10, but no significant stenosis or frank impingement. Id. He interpreted the cervical MRI to show slight progression of the degenerative change since the 2009 MRI. Tr. at 916. He noted neural contact at multiple levels. Tr. at 916-17. Dr. Olofsson stated “[c]orrelation for symptoms in the distribution of the right C6, both C7 and the right C8 nerve may be helpful from contact at the right lateral recess at ¶ 5-6, both neural foramen at ¶ 6-7 and the right neural foramen at ¶ 7-T1.” Tr. at 917. He noted no significant stenosis or frank impingement, but stated there was “contact of the exiting right nerve roots at ¶ 3-4 and correlation for symptoms in the distribution of the right C4 may be helpful as well.” Id.

         On April 14, 2011, Plaintiff returned to TriCounty Radiology Associates for an MRI of his lumbar spine based on complaints of low back pain, right leg pain, and weakness. Tr. at 913. Troy Marlow, M.D. (“Dr. Marlow”), interpreted the MRI as showing mild caudal spondylosis with no severe stenosis or neural impingement. Id.

         On December 16, 2012, Plaintiff presented to Trident Regional Medical Center for a computed tomograph (“CT”) scan of his cervical spine to assess his severe neck pain. Tr. at 918. Joseph I. Gaglione, M.D. (“Dr. Gaglione”), found anatomic alignment with straightening, preserved vertebral heights, mild disc narrowing at ¶ 4-5 and C5-6, significant disc space narrowing at ¶ 6-7 and C7-T1, normal prevertebral soft tissues and cranial cervical junction, and anatomically aligned facet joints. Id. Dr. Gaglione assessed spondylosis and no acute fracture. Tr. at 918-19.

         On September 18, 2013, Plaintiff presented to Byron N. Bailey, M.D. (“Dr. Bailey”), with complaints of persisting mid-thoracic pain and muscle spasms. Tr. at 930. Dr. Bailey noted that Plaintiff had undergone surgery on his cervical spine on January 29, 2013, and transpedicular T9-10 discectomy with interbody fusion and posterolateral fusion on July 16, 2013. Id. On examination, Dr. Bailey found Plaintiff exhibited good strength in his lower extremities, including his iliopsoas hip flexors, quadriceps, and gastrocs anterior tibialis. Id. Dr. Bailey observed Plaintiff walked with a cane in his right hand. Id. He assessed acute cervical radiculopathy and herniated thoracic disc without myelopathy. Id. Dr. Bailey x-rayed Plaintiff's thoracic spine and found good alignment and no change in instrumentation. Id. He started Plaintiff on Flexeril for his spasms. Id.

         On September 30, 2013, Plaintiff presented to Dr. Keith D. Merrill with a right ankle fracture. Tr. at 932. Plaintiff reported hurting his ankle after falling off steps. Id. Dr. Merrill noted Plaintiff was partially able to bear weight and was in a wheelchair. Id. He noted a ...


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