Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Isaacs v. Saul

United States District Court, D. South Carolina

August 29, 2019

Cathy Isaacs, 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”). 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.

         I. Relevant Background

         A. Procedural History

         On 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.

         On 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].

         B. Plaintiff's Background and Medical History

         1. Background

         Plaintiff 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. at 156.

         2. Medical History

         On July 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.

         Plaintiff 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 spine. Id.

         On 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. Id.

         A sleep 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.

         On 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. Id.

         Plaintiff 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. Id.

         On 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.

         Plaintiff 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. Id.

         On May 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.

         Dr. 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.

         On 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.

         On 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 behavior. Id.

         Plaintiff 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.

         On 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.

         Plaintiff 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. Id.

         On 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.

         On March 29, 2011, Plaintiff reported she unsuccessfully attempted to reduce her Avinza dosage. Tr. at 279.

         Plaintiff 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.

         On 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.

         Plaintiff 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.

         On June 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. Id.

         On July 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.

         Plaintiff 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”)[2] score to be 55.[3] 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.

         On 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. Id.

         On 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.

         On 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. Id.

         On 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.

         Plaintiff 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.

         On 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.

         On May 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.

         On September 13, 2012, Plaintiff reported suicidal thoughts, but denied having a suicide plan. Tr. at 255.

         On 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.

         Plaintiff 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 insurance. Id.

         On 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. Id.

         On 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.

         Dr. 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. Id.

         In 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.

         Plaintiff 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 functional assessment:

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.

         State 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.

         On 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.

         Plaintiff 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.

         On 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. Id.

         Plaintiff 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.