United States District Court, D. South Carolina
V. HODGES UNITED STATES MAGISTRATE JUDGE
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].
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.
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.
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.
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.
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. 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].
Plaintiff's Background and Medical History
was 53 years old on his date last insured
(“DLI”). 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.
Records Prior to Plaintiff's DLI
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
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.
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.
Records After Plaintiff's DLI
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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
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
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.
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.
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.
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.
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.
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