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”). 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 undersigned
recommends the Commissioner's decision be reversed and
remanded for further proceedings as set forth herein.
November 26, 2012, Plaintiff protectively filed an
application for DIB in which she alleged her disability began
on August 1, 2007. Tr. at 76 and 156- 57. Her application was
denied initially and upon reconsideration. Tr. at 97- 100 and
101-05. On July 31, 2014, Plaintiff had a hearing before
Administrative Law Judge (“ALJ”) Edward T.
Morriss. Tr. at 27-61 (Hr'g Tr.). The ALJ issued an
unfavorable decision on October 29, 2014, finding Plaintiff
was not disabled within the meaning of the Act. Tr. at 11-26.
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 1-7. Thereafter, Plaintiff brought an action seeking
judicial review of the Commissioner's decision, which was
reversed and remanded by the United States District Court on
October 12, 2016. Tr. at 638-76, 677-78, 679.
April 13, 2017, the Appeals Council remanded the case for
further evaluation by an ALJ. Tr. at 682-85. On March 15,
2018, Plaintiff had a second hearing. Tr. at 599-614
(Hr'g Tr.). The ALJ issued an unfavorable decision on
July 20, 2018, finding Plaintiff was not disabled within the
meaning of the Act. Tr. at 582-98. Thereafter, Plaintiff
brought this action seeking judicial review of the
Commissioner's decision in a complaint filed on September
24, 2018. [ECF No. 1].
Plaintiff's Background and Medical History
was 57 years old on her date last insured of December 31,
2012. Tr. at 76. She completed high school and obtained an
associate's degree in administrative office technology.
Tr. at 30. Her past relevant work (“PRW”) was as
a human resources clerk and a secretary. Tr. at 73-74. She
alleges she has been unable to work since August 1, 2007. Tr.
10, 2007, Plaintiff presented to Brian D. Forbus, PA-C
(“P.A. Forbus”), in the office of Jeffrey C.
Wilkins, M.D. (“Dr. Wilkins”), for an initial
pain management evaluation. Tr. at 282-84. She reported pain
in her low back and pain and numbness in her right knee. Tr.
at 282. She endorsed increased stress because of problems
with family and work. Id. She complained of bladder
incontinence and decreased sleep. Id. P.A. Forbus
observed Plaintiff to “hop on and off the table without
difficulty” and “without an assistive
device.” Tr. at 283. He indicated Plaintiff was tender
to palpation in her right gluteus region, but noted no other
abnormalities. Tr. at 283-84. Dr. Wilkins prescribed Zonegran
and Avinza 30 mg and indicated he would gradually increase
Plaintiff's dosage. Tr. at 284.
indicated Avinza was working fairly well on August 14, 2007.
Tr. at 350. She reported sleep disturbance and pain in her
right lower extremity and stated her knee was giving out.
Id. P.A. Forbus referred her for a sleep study and
magnetic resonance imaging (“MRI”) of her lumbar
September 24, 2007, Plaintiff complained of severe low back
pain. Tr. at 349. P.A. Forbus indicated the MRI of
Plaintiff's lumbar spine showed significant multilevel
degenerative disc disease with significant foraminal stenosis
at L3-4 and L4-5. Id. He noted rotatory scoliosis of
the entire lumbar spine. Id. He referred Plaintiff
for physical therapy with emphasis on lumbar traction.
study showed Plaintiff to have moderate obstructive sleep
apnea hypopnea syndrome. Tr. at 357. On October 22, 2007, Dr.
Wilkins referred Plaintiff for a Continuous Positive Airway
Pressure (“CPAP”) titration study. Tr. at 348. He
provided a work note addressing Plaintiff's standing and
sitting intolerance. Id.
March 24, 2008, Plaintiff indicated she was slowly increasing
her activity and was happy with her improvement. Tr. at 343.
Dr. Wilkins made no changes to Plaintiff's medications.
presented to P.A. Forbus with multiple complaints on October
28, 2008. Tr. at 339. She asked whether she should pursue
disability benefits, but P.A. Forbus stated she “could
provide an employer with vocational benefits” and
“would make a good employee on a limited basis if need
be.” Id. Plaintiff indicated she had worked 60
hours per week in the past. Id. P.A. Forbus
indicated he did not recommend she go back to her past work,
but felt she could perform a job that allowed for rest
breaks, an ability to alternate sitting and standing
frequently, and limited climbing of stairs, bending,
twisting, and kneeling. Id. He observed Plaintiff
was “significantly tearful” and seemed
“somewhat melancholy/worried.” Id. He
assessed depression/anxiety and chronic low back pain.
March 11, 2009, Plaintiff reported a recent flare-up of pain.
Tr. at 337. On December 22, 2009, she complained of pain in
her low back and left lower extremity. Tr. at 333. P.A.
Forbus referred her to physical therapy. Id.
reported poor sleep on January 26, 2010. Tr. at 332. Dr.
Wilkins indicated Plaintiff had “some primary insomnia
not evident of sleep study, ” and prescribed Restoril.
18, 2010, Plaintiff reported to Dr. Wilkins increased pain as
a result of extensive walking. Tr. at 330. Dr. Wilkins
advised her “not to do a lot of walking.”
Id. He indicated he would refer Plaintiff for a new
MRI to determine if she might qualify for any of the newer
treatment procedures. Id.
Wilkins discharged Plaintiff from his practice on November 2,
2010, after she attempted to avoid a urine drug screen and
subsequently failed it. Tr. at 329.
December 6, 2010, Plaintiff reported numbness in her legs and
swelling in her feet to James Vest, M.D. (“Dr.
Vest”). Tr. at 260. Dr. Vest referred her for an MRI of
her lumbar spine. Id.
January 6, 2011, Plaintiff presented to Gregory Kang, M.D.
(“Dr. Kang”), with chronic back pain. Tr. at 280.
She indicated Dr. Wilkins had discharged her for failing a
urine drug screen. Id. She indicated her pain was
worsened by bending, stooping, lifting, and standing.
Id. Dr. Kang indicated Plaintiff had normal shoulder
range of motion (“ROM”) to forward flexion and
abduction, positive back extension and facet loading
maneuvers, a loss of lordosis in her lumbar spine, acquired
thoracolumbar scoliosis, and negative straight-leg raising
(“SLR”) test. Id. A neurological
examination was normal. Id. Dr. Kang's
diagnostic impressions included lumbar degenerative disc
disease, thoracolumbar scoliosis, and aberrant drug-taking
underwent MRI of her lumbar spine on February 3, 2011. Tr. at
250-51. Richard C. Holgate, M.D., interpreted the MRI to show
multilevel moderately severe spondylosis occurring in the
context of moderate-to-severe scoliosis with probable root
compression at L3-4, L4-5, and L5-S1. Id.
February 10, 2011, Daniel R. Butler, PA-C (“P.A.
Butler”), reviewed the MRI results and recommended
Plaintiff undergo lumbar epidural steroid injection
(“LESI”) at the L5-S1 level. Tr. at 233. Leonard
E. Forrest, M.D. (“Dr. Forrest”), administered
the LESI on February 15, 2011. Tr. at 234.
reported relief on February 28, 2011. Tr. at 277. Dr. Kang
indicated he would consider reducing her Avinza dose if she
continued to report improvement at her next visit.
March 15, 2011, Plaintiff reported some immediate relief from
the LESI, but that her pain was slowly returning. Tr. at 235.
P.A. Butler indicated Plaintiff's diagnoses included
scoliosis and central and foraminal stenosis at L4-5 and
L5-S1. Id. They discussed possible surgery, but
Plaintiff indicated she was not ready for surgery.
Id. P.A. Butler recommended an LESI at L4-5, which
was administered by Dr. John F. Johnson, M.D. (“Dr. J.
Johnson”). Tr. at 235, 236.
March 29, 2011, Plaintiff reported she unsuccessfully
attempted to reduce her Avinza dosage. Tr. at 279.
again reported improvement on April 12, 2011. Tr. at 237.
P.A. Butler recommended she engage in six to eight weeks of
physical therapy for core lumbar stabilization. Id.
Dr. Forrest administered an LESI at L5-S1. Tr. at 238.
April 14, 2011, Dr. Kang observed Plaintiff to ambulate with
a brisk and steady pace, but to have bilateral lumbar
paraspinal tenderness and a slightly kyphotic/scoliotic
posture. Id. He refilled Plaintiff's
prescriptions for Avinza, Celebrex, and Zonegran and
scheduled her for core strengthening therapy. Id.
presented to Dr. J. Johnson for a consultation on June 7,
2011. Tr. at 239. Dr. J. Johnson noted the MRI showed
“fairly severe scoliosis as well as significant
stenosis at 4-5 and 5-1.” Id. He noted
Plaintiff had “been on an enormous amount of pain
medicine, 120 mg of Avinza in the daytime and 30 mg at
nighttime” and recommended she follow up with a chronic
pain medicine expert. Id. He also indicated
Plaintiff might be a candidate for rhizotomy and a spinal
cord stimulator (“SCS”). Id.
28, 2011, Plaintiff presented to pain medicine specialist
William Blane Richardson, M.D. (“Dr.
Richardson”), for an evaluation. Tr. at 240-42.
Plaintiff reported constant pain exacerbated by ambulating 10
to 15 steps and relieved by sitting. Tr. at 240. She reported
her pain affected her sleep, appetite, concentration,
physical activity, emotional lability, and social
relationships. Id. She denied bowel and bladder
dysfunction and lower extremity weakness. Id. Dr.
Richardson observed Plaintiff to have 1 deep tendon reflexes
(“DTR”) at the patella and Achilles, 4/5 strength
at the quadriceps/hamstrings and with plantar flexion and
extension, decreased ROM with hip flexion and extension,
positive facet loading bilaterally in the lumbar region, mild
tenderness to palpation in the lumbar region, grossly intact
sensation in the calf and foot, decreased sensation in the
thigh, negative SLR test, negative Patrick's test, and
grossly intact cranial nerves. Tr. at 242. He recommended
Plaintiff detox from her pain medications with Suboxone
therapy and follow up for possible interventional therapy.
11, 2011, Plaintiff reported her medications continued to
work well and she had no desire to change them. Tr. at 273.
She informed Dr. Kang that Dr. Richardson had recommended
narcotics detox. Id.
presented to E. Nicole Cogdell-Quick, LPC (“Counselor
Cogdell-Quick”), for a psychiatric diagnostic interview
examination on September 8, 2011. Tr. at 420-22. Counselor
Cogdell-Quick's diagnostic impressions included opioid
dependence, pain disorder associated with psychological
factors and medical condition, dysthymic disorder,
posttraumatic stress disorder (“PTSD”),
personality disorder, not otherwise specified
(“NOS”), and rule out obsessive compulsive
personality disorder. Tr. at 420. She estimated
Plaintiff's Global Assessment of Functioning
(“GAF”) score to be 55. Id. She indicated
Plaintiff was well-oriented in all spheres, appeared alert,
demonstrated an appropriate affect, had a euphoric mood,
maintained eye contact, used logical and coherent speech, had
normal recent and remote memory, demonstrated normal
movements and psychomotor activity, exhibited a moderate
degree of conceptual disorganization, had no significant
preoccupations, denied hallucinations, demonstrated an open
and cooperative attitude, was partially aware of her
problems, showed fair judgment, was able to attend and
maintain focus, was reflective, and was able to resist urges.
Tr. at 421.
September 9, 2011, Plaintiff reported no longer taking Avinza
and feeling much better without the Morphine in her system.
Tr. at 272. She continued to complain of back pain, but noted
it was “quite tolerable.” Id. Dr. Kang
observed bilateral lumbar paraspinal tenderness and a
slightly kyphotic/scoliotic posture, but no new deficits.
November 28, 2011, Plaintiff presented to Dr. Vest for
medication refills. Tr. at 257. She endorsed stress following
a death in her family. Id. Dr. Vest refilled
Plaintiff's medications. Id.
February 7, 2012, Plaintiff reported back pain for the first
time since stopping Avinza. Tr. at 271. Dr. Kang observed
Plaintiff to be ambulating at a steady pace, to show no signs
of cognitive impairment, to have intact cranial nerves, to
demonstrate bilateral lumbar paraspinal tenderness, and to
have a slightly kyphotic/scoliotic posture. Id. She
refilled Plaintiff's prescriptions for Zonegran and
Celebrex and instructed her to follow up in six months.
March 6, 2012, Plaintiff followed up with Dr. Richardson. Tr.
at 244. Dr. Richardson indicated Plaintiff had completed
detox therapy in November 2011 and was only taking Tylenol as
needed for pain. Id. Plaintiff indicated she was
much more alert and was doing remarkably well, aside from
depression resulting from “family issues.”
Id. She rated her pain as a four out of 10, but
stated it had worsened. Id. She indicated she had
been able to rake leaves and perform yard work. Id.
Dr. Richardson noted the following findings on examination:
1 DTR at the patella and Achilles; 4/5 strength in the
quadriceps/hamstrings and on plantar flexion and extension;
negative SLR test; negative Patrick's test; positive
facet loading in the lumbar region; slightly decreased
sensation in the thigh, buttock, calf, and toes, particularly
on the right compared to the left; and grossly intact cranial
nerves. Tr. at 244. He administered an LESI at
Plaintiff's L5-S1 level and referred her to a
psychologist for coping skills and biofeedback techniques.
Tr. at 243, 244.
reported no significant relief from LESI on April 3, 2012.
Tr. at 246. She endorsed a need to prop up her legs while
sitting or lying down to reduce pain on her right hip.
Id. She indicated her pain was at its worst during
standing or ambulating, but was also present while sitting
for prolonged periods. Id. Dr. Richardson indicated
the following findings on examination: 1 DTR at the patella
and Achilles; 4/5 strength in the quadriceps/hamstrings and
on plantar flexion and extension; negative SLR test; negative
Patrick's test; slightly decreased sensation in the thigh
and buttock; intact sensation in the right lower extremity at
all levels; and grossly intact cranial nerves. Id.
He recommended a medial branch block at Plaintiff's right
L4-5 and L5-S1 levels, which he administered on April 17,
2012. Tr. at 245, 246.
April 23, 2012, Plaintiff indicated Venlafaxine was
ineffective and complained of facet joint pain. Tr. at 256.
Dr. Vest referred her to a psychiatrist. Id.
29, 2012, Plaintiff reported no change following the medial
branch block. Tr. at 247. She complained of a dull, achy pain
she rated as a three out of 10. Id. Dr. Richardson
noted the following findings on examination: 1 DTR at the
patella and Achilles; 4/5 strength in the
quadriceps/hamstrings and on plantar flexion and extension;
antalgic gait with use of a cane for ambulation; slightly
decreased sensation in the thigh, buttock, and calf; intact
sensation in the foot; and grossly intact cranial nerves.
Id. Dr. Richardson gave Plaintiff a SCS to test for
two weeks. Id.
September 13, 2012, Plaintiff reported suicidal thoughts, but
denied having a suicide plan. Tr. at 255.
October 16, 2012, Plaintiff indicated she was not interested
in obtaining an implantable SCS because it would prevent her
from having MRIs in the future. Tr. at 248. She endorsed
bilateral lower extremity pain worsened by standing and
walking. Id. She described a cold sensation in her
legs while sitting, but stated her pain was better in the
sitting position. Id. Virginia G. Blease, PA-C
(“P.A. Blease”), observed Plaintiff to have 5/5
strength in her lower extremities, to demonstrate intact
dorsi and plantar flexion, to have negative SLR bilaterally,
to demonstrate 1 reflexes in the lower extremities, to show
normal muscle tone, to ambulate with an antalgic gait, to
appear alert and oriented times three, and to have grossly
intact cranial nerves. Id. She recommended Plaintiff
proceed with a SCS, and Plaintiff agreed to do so.
Id. She also referred Plaintiff for an updated
lumbar MRI, which showed multilevel moderately severe
spondylosis occurring in the context of scoliosis with
probable nerve root compression at T12-L1, L2-3, L3-4, L4-5,
and L5- S1. Tr. at 252-53.
subsequently followed up with Dr. Richardson, who noted the
recent MRI showed “slightly worsening degenerative
disease and stenosis at L3-4 and 4-5 from her scan in
2011.” Tr. at 249. He observed Plaintiff to have
DTRs at the patella and Achilles, 4/5 strength at the
quadriceps/hamstrings and with plantar flexion and extension,
negative SLR test, negative Patrick's test, grossly
intact cranial nerves, and slightly decreased sensation in
her thigh, buttock, and calf. Tr. at 249. He noted Plaintiff
was still somewhat reluctant to undergo implantation of SCS
and indicated a minimally invasive lumbar decompression
(“MILD”) procedure may be helpful. However, he
deferred a decision on the course of treatment because of
anticipated changes in procedures covered by Plaintiff's
December 17, 2012, Dr. Richardson observed Plaintiff to have
DTRs at the patella and Achilles, 4/5 strength at the
quadriceps/hamstrings, and 4/5 plantar flexion and extension.
Tr. at 581. He noted slightly decreased sensation in
Plaintiff's thigh, buttock, and calf, but negative SLR
and Patrick's test and grossly intact cranial nerves.
Id. Dr. Richardson indicated they would defer a
treatment decision with the expectation that Plaintiff's
insurance might cover the MILD procedure in the future.
December 21, 2012, Lindsey Horton, LPC, NCC (“Counselor
Horton”), indicated Plaintiff began counseling
treatment on September 8, 2011, but did not engage in
“consistent, meaningful treatment” until
September 18, 2012, when she began attending weekly
individual sessions. Tr. at 316. She stated Plaintiff was
“plagued by chronic pain, anxiety, depression, marital
conflict, and limited support network.” Id.
She noted Plaintiff was “[e]xtremely preoccupied with
anger, chronic health problems and self-imposed
isolation.” Id. She indicated Plaintiff's
initial and most recent GAF scores to be 55. Id. The
record contains progress notes from weekly counseling
sessions from January 8, 2013, through March 26, 2013. Tr. at
374-96. Counselor Horton generally described Plaintiff's
affect as subdued and her prognosis as guarded. Id.
Plaintiff consistently had GAF scores of 55. Id.
Vest prescribed Cymbalta for depression and instructed
Plaintiff to wean off Effexor on January 16, 2013. Tr. at
368. On January 31, 2013, Dr. Vest indicated Plaintiff's
mental diagnoses included depression and anxiety. Tr. at 361.
He described Plaintiff's mental status as follows:
oriented to time, person, place, and situation; having intact
thought process; demonstrating appropriate thought content;
showing a worried/anxious and depressed mood/affect; having
good attention/concentration; having good memory; and
exhibiting a slight work-related limitation in function.
February and March 2013, Counselor Horton indicated Plaintiff
demonstrated poor motivation and moderate resistance, had
difficulty focusing on one topic, avoided pertinent issues,
and showed a minimal degree of compliance with treatment. Tr.
at 383, 385, 387, 389, 392, and 395.
presented to psychologist Kenneth Lux, Ph. D. (“Dr.
Lux”), for a consultative examination on March 5, 2013.
Tr. at 362-65. Dr. Lux indicated Plaintiff's main
problems were physical and her emotional problems were caused
by her physical problems and inability to work. Tr. at 364.
He diagnosed adjustment disorder with depressed mood and
anxiety, primary insomnia, and PTSD and assessed a GAF score
of 55. Id. Dr. Lux provided the following clinical
As indicated in the information above, Cathy's inability
to work, after a successful career, is a result of her
physical condition, centered around back and spinal problems.
Even though she has other traumatic life issues which result
in a low level PTSD profile, it is my estimation that these
would not have led to her inability to work. In fact she is
now beginning to deal with these, hopefully successfully, in
counseling. But even if these become emotionally resolved I
doubt that it will result in vocational capacity. Should
medical treatment moderate or ameliorate her physical
problems, then she may be able to resume working.
Tr. at 365.
agency medical consultant Cleve Hutson, M.D. (“Dr.
Hutson”), reviewed the record and completed a physical
residual functional capacity (“RFC”) assessment
on March 8, 2013. Tr. at 70-73. Dr. Hutson indicated
Plaintiff had the following RFC: occasionally lift and/or
carry 20 pounds; frequently lift and/or carry 10 pounds;
stand and/or walk for a total of two hours during an
eight-hour workday; sit for about six hours during an
eight-hour workday; occasionally climb ramps and stairs,
stoop, kneel, crouch, and crawl; never climb ladders, ropes,
or scaffolds; and no concentrated exposure to hazards.
Id. Lina B. Caldwell, M.D. (“Dr.
Caldwell”), assessed the same restrictions on July 3,
2013. Tr. at 86-89.
March 15, 2013, state agency consultant Judith Von, Ph. D.
(“Dr. Von”), reviewed the evidence and completed
a psychiatric review technique (“PRT”). She
considered Listings 12.04 for affective disorders, 12.06 for
anxiety-related disorders, 12.07 for somatoform disorders,
and 12.09 for substance addiction disorders. Tr. at 68-69.
She determined Plaintiff had no restriction of activities of
daily living (“ADLs”), mild difficulties in
maintaining social functioning, mild difficulties in
maintaining concentration, persistence, or pace, and no
episodes of decompensation of extended duration. Tr. at 69.
She concluded the medical evidence of record suggested
Plaintiff's mental impairments were non-severe.
Id. State agency consultant Ruth Ann Lyman, Ph.D.
(“Dr. Lyman”), completed a second PRT on June 23,
2013, and similarly determined Plaintiff's mental
impairments were non-severe. Tr. at 83-85.
began counseling sessions with Sarah Zovnic (“Ms.
Zovnic”), on April 1, 2013. Tr. at 397. Ms. Zovnic
initially indicated Plaintiff had excellent motivation,
negligible resistance, made constructive use of her sessions,
and was highly compliant with treatment, but she later
indicated Plaintiff's motivation had decreased, her
resistance had increased, she had difficulty focusing on one
topic, and her level of compliance with treatment had been
reduced. Tr. at 400-18, 469-80. Ms. Zovnic assessed GAF
scores of 58 and 59. Tr. at 397-418 and 469-511.
April 30, 2013, Plaintiff reported pain in her low back and
right lower extremity, but indicated she was not in constant
pain. Tr. at 437. She stated her pain was exacerbated by
walking and reduced by lying down and elevating her legs.
Id. P.A. Blease observed Plaintiff to have 5/5
strength in her bilateral lower extremities, intact dorsi and
plantar flexion, negative SLR test, 1 reflexes in her
bilateral lower extremities, normal muscle tone, antalgic
gait, and grossly intact cranial nerves. Id. She
stated Plaintiff wanted to go forward with the MILD
procedure, but her insurance policy explicitly stated the
procedure was not covered. Id. She indicated she
would discuss the matter with the finance department.
followed up with P.A. Blease on October 1, 2013. Tr. at
441-42. She reported constant pain in her right lower
extremity. Tr. at 441. She requested the opportunity to speak
with an advocate about a SCS. Id. P.A. Blease
indicated Plaintiff ambulated with an antalgic gait, but
demonstrated no other abnormalities on physical exam.
Id. She noted Plaintiff could not obtain insurance