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Lewis v. Saul

United States District Court, D. South Carolina

December 3, 2019

Janice Denese Lewis, Plaintiff,
Andrew M. Saul,[1] Commissioner of Social Security Administration, Defendant.


         This appeal from a denial of social security benefits is before the court for a Report and Recommendation (“Report”) pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether he applied the proper legal standards. For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further proceedings as set forth herein.

         I. Relevant Background

         A. Procedural History

         On October 27, 2014, Plaintiff protectively filed applications for DIB and SSI in which she alleged her disability began on June 5, 2014. Tr. at 126, 127, 212-18, 219-27. Her applications were denied initially and upon reconsideration. Tr. at 157-61, 169-74. On March 28, 2017, Plaintiff had a hearing by video before Administrative Law Judge (“ALJ”) Alice Jordan. Tr. at 57-92 (Hr'g Tr.). The ALJ issued an unfavorable decision on August 11, 2017, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 30-49. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-6. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on September 5, 2018. [ECF No. 1].[2]

         B. Plaintiff's Background and Medical History

         1. Background

         Plaintiff was 45 years old at the time of the hearing. Tr. at 62. She completed an associate's degree in criminal justice. Tr. at 65. Her past relevant work (“PRW”) was as a correctional officer. Tr. at 87. She alleges she has been unable to work since June 5, 2014. Tr. at 212, 219.

         2. Medical History

         a. Records Reviewed by ALJ

         Plaintiff presented to Matthew Close, D.O. (“Dr. Close”), for treatment of left Achilles tendinitis on February 5, 2014. Tr. at 605. She reported a 10-year history of left heel pain that had worsened over the prior year. Tr. at 605-06. She described burning-type pain localized toward her heel. Id. Dr. Close observed Plaintiff to be tender to palpation at the insertion of the Achilles on the posterior calcaneus. Id. He also noted evidence of global heel cord tightness with the knee in full and 90-degree flexion. Id. He prescribed Diclofenac Sodium and physical therapy. Tr. at 605.

         Plaintiff participated in physical therapy for left Achilles tendinitis from February 27 to March 21, 2014. Tr. at 350-362. Upon discharge, she was able to run, ascend and descend stairs, and ambulate without pain. Tr. at 350.

         On March 12, 2014, x-rays of Plaintiff's spine showed lower cervical and mid-to-lower thoracic disc degeneration. Tr. at 435.

         Plaintiff reported relief of Achilles tendinitis on April 2, 2014. Tr. at 608. Dr. Close refilled Diclofenac Sodium and recommended Plaintiff continue to use heel lifts and engage in home exercises. Id.

         Plaintiff presented to her primary care physician Kimberly Russell, M.D. (“Dr. Russell”), for diabetes management on April 29, 2014. Tr. at 515. She reported weight gain and intermittent, bilateral lower extremity edema, but reported stable lower back pain and stiffness. Id. Dr. Russell noted mild pain to palpation of the left Achilles, but no other abnormalities on exam. Tr. at 517. She recorded Plaintiff's weight as 341 pounds, which represented an increase of 11 pounds from a visit on January 28, 2014. Tr. at 519. She encouraged Plaintiff to walk three times a day for 10 minutes each time to address weight and diabetes. Tr. at 517. She instructed Plaintiff to elevate her legs, avoid salt, increase fluid intake, and use Lasix for edema. Id. She stated weight loss would help Plaintiff's back pain. Id.

         Plaintiff presented to Self Regional Healthcare on June 7, 2014, after experiencing lower back pain, left leg numbness, and bowel incontinence. Tr. at 441. Felix Kuuseg, M.D. (“Dr. Kuuseg”), noted decreased sensation to light touch and pinprick from the toes to the groin along the left lateral thigh and buttock, but no abnormalities in the right lower extremity or in the upper extremities. Tr. at 447. He assessed radiculopathy of the left leg. Tr. at 448.

         Magnetic resonance imaging (“MRI”) of Plaintiff's thoracic spine showed a moderate-sized central disc herniation at ¶ 9-10 that produced cord compression resulting in anterior cord deformity, as well as moderate focal spinal canal stenosis. Tr. at 329. It further indicated small, inconsequential disc protrusions at ¶ 5-6, T8-9, and T11-12. Id. There was no level of appreciable neural foraminal stenosis or abnormal cord signal. Id. An MRI of Plaintiff's lumbar spine indicated mild broad-based disc bulging at ¶ 4-5, producing very mild left neural foraminal narrowing without right neural foraminal narrowing or spinal canal stenosis. Tr. at 331. It showed no level of frank disc protrusion or herniation. Id. It revealed a large mass in Plaintiff's left upper pelvis and a right ovarian cyst. Id. MRI of Plaintiff's cervical spine showed moderate broad-based disc bulging at ¶ 6-7 with leftward prominence producing mild spinal canal stenosis and moderate left neural foraminal narrowing, as well as mild, inconsequential posterior facet hypertrophy at ¶ 4-5 and C5-6. Tr. at 495. There was no evidence of frank disc herniation or abnormal cord signal. Id.

         Computed tomography (“CT”) scans of Plaintiff's abdomen and pelvis showed a left adnexal large cystic-appearing mass. Tr. at 493.

         Dr. Kuuseg indicated Plaintiff's MRI findings “really [did] not match her physical exam findings.” Tr. at 448. He stated Plaintiff had “more of a cauda equina syndrome.” Id.

         On June 9, 2014, Anthony Eugene Holt, D.O. (“Dr. Holt”), performed physical and neurologic examinations. Tr. at 457. He noted Plaintiff had decreased strength throughout her entire left extremity that was most pronounced with dorsiflexion. Id. He observed increased reflexes in Plaintiff's left patellar and Achilles tendons. Id. He stated Plaintiff demonstrated decreased sensation to light touch in her left lower extremity. Id. He indicated needle electromyography (“EMG”) testing of the lower extremity revealed only mild polyneuropathy, which was likely caused by diabetes and would not explain the weakness in her left lower extremity. Id. Dr. Holt was concerned that the herniated disc at Plaintiff's T9-10 level with cord compression was the source of her symptoms. Id. He consulted with neurosurgeon Michael P. Kilburn, M.D. (“Dr. Kilburn”), who agreed to evaluate Plaintiff. Id.

         On June 10, 2014, Dr. Kilburn examined Plaintiff and noted diminished sensation at the left medial malleolus and over the kneecap. Tr. at 460. He stated Plaintiff's motor deficit had improved over the prior couple of days. Tr. at 461. He indicated Plaintiff had diminished sensation in her left foraminal nerve distribution. Id. He recommended mobilization with physical therapy and repeat EMG in three-to-four weeks, as the prior EMG results likely presented a false negative. Id.

         Plaintiff was discharged from Self Regional Healthcare on June 13, 2014, with diagnoses of weakness and numbness involving the left lower extremity, considered secondary to herniated disc at ¶ 9-10. Tr. at 462.

         On June 18, 2014, Plaintiff reported no pain and indicated she was not taking Flexeril or Ultram. Tr. at 524. Dr. Russell observed Plaintiff to ambulate using a walker and with a slow gait. Tr. at 522. She noted no abnormalities on neurologic exam and intact sensation to light touch. Tr. at 523. She indicated Plaintiff's mood and affect were agitated. Id. Dr. Russell assessed left leg weakness, herniated intervertebral disc, diabetes, low back pain, obesity, paresthesia of the left leg, and ovarian cyst. Id. She referred Plaintiff to a neurologist and physical therapist. Id.

         Plaintiff participated in physical therapy to address degenerative disc diease and lower extremity weakness from June 17 to July 25, 2014. Tr. at 333-49. On July 16, 2014, the physical therapist noted Plaintiff's strength and left lower extremity sensation had improved such that she no longer needed an assistive device for gait. Tr. at 333. On July 25, 2014, Plaintiff reported some sensory impairment, but had improved and met the physical therapy goals. Tr. at 334.

         On June 19, 2014, Plaintiff presented to Alfred T. Nelson, Jr. (“Dr. Nelson”), for evaluation of left leg numbness and review of MRI findings. Tr. at 573. Plaintiff endorsed low back pain with prolonged sitting, left leg pain wrapping around her knee to her calf, bowel and bladder urgency, and subjective weakness in her left leg. Tr. at 575. Dr. Nelson observed Plaintiff to be ambulating with a walker, to have 4 left lower extremity strength, 5/5 right lower extremity strength, diminished right ankle jerk, 2 left ankle jerk, negative Babinski sign bilaterally, 2 biceps and triceps reflexes bilaterally, and normal bilateral lower extremity sensation. Tr. at 574.

         Plaintiff denied pain, but endorsed numbness to the buttocks and anterior and posterior surfaces of both legs on June 24, 2014. Tr. at 570. Dr. Nelson indicated no abnormalities on physical exam. Tr. at 571. He stated Plaintiff's lower extremity strength appeared better and she was not myelopathic. Id. He indicated Plaintiff appeared to be improving. Id. Dr. Nelson stated he had discussed Plaintiff's impairment with his partners and they had recommended he continue to monitor her condition. Tr. at 572. He indicated “[i]f she would need surgery, there would be a considerable risk of making her worse.” Id. He noted soft disc ruptures like Plaintiff's could dissolve and get better on their own. Id. He recommended Plaintiff limit her lifting to no more than 15 pounds and remain out of work until follow up. Id.

         On July 17, 2014, Plaintiff reported no pain, but endorsed numbness from the left leg to the foot. Tr. at 567. Dr. Nelson noted no abnormalities on physical exam. Tr. at 568. He instructed Plaintiff to complete physical therapy and to follow up in four-to-five weeks. Tr. at 569.

         Plaintiff underwent hysterectomy and left oophorectomy on July 30, 2014. Tr. at 411-13. A cyst within the left ovary was benign. Tr. at 365.

         Plaintiff reported no pain and Dr. Nelson noted no abnormalities on physical exam on August 28, 2014. Tr. at 564-65. Tr. at 565. He referred Plaintiff for an MRI of the thoracic spine. Tr. at 565.

         On September 9, 2014, an MRI of Plaintiff's thoracic spine showed abnormal cord signal, multilevel disc bulges and protrusions most severe and very prominent at ¶ 9-10, resultant canal stenosis and cord deformity at ¶ 9- 10, and multilevel chronic anterior wedging and degenerative changes with chronic foraminal encroachment on the right at ¶ 6-7. Tr. at 401-02, 509-10.

         On October 10, 2014, Plaintiff denied pain, but reported sensitivity from her bilateral buttocks to her left leg. Tr. at 560. She endorsed some bowel urgency and heaviness in her buttocks upon walking. Tr. at 562. Dr. Nelson reviewed the recent thoracic MRI and stated it showed no change in the mid-thoracic disc rupture. Tr. at 561. He noted no abnormalities on physical exam. Id. He stated he was “content with watching [Plaintiff's mid-thoracic disc rupture] since she [was not] having any symptoms.” Tr. at 562. He noted Plaintiff was not hyperreflexive. Id. He stated Plaintiff had mild scoliosis and mild arthritis and would have persistent numbness. Id. He did not feel the heaviness in Plaintiff's buttocks was related to the mid-thoracic disc rupture. Id. He indicated Plaintiff could lift 30-40 pounds, but would need to “cut back her weight” if she had symptoms. Id. Plaintiff reported her job required she be on her feet for 12 hours a day and her employer did not offer light duty. Id. Dr. Nelson indicated “[o]ne option [would be] to send her for a [functional capacity evaluation] to see what [type of work] she [was] capable of [performing].” Id. He stated Plaintiff had not been able to work since he first examined her on June 19, 2014. Id.

         On October 27, 2014, Plaintiff complained of hypersensitivity and occasional weakness in her left leg, a heavy feeling in the sacral area and buttocks upon prolonged sitting, pain in the bilateral Achilles upon standing or walking, and poor balance. Tr. at 525. She stated she was applying for disability because her employer had no desk job available. Id. She endorsed lower extremity edema and feeling tired. Tr. at 526. Dr. Russell noted mild pain to palpation of the left Achilles, but no other abnormalities on physical exam. Tr. at 527-28. Plaintiff's hemoglobin A1C was abnormally high at 8.0%, but Dr. Russell stated Plaintiff's diabetes had improved with the addition of Invokana. Tr. at 528. Dr. Russell indicated Plaintiff was “unable to work due to persistent problems with disc affecting her ambulation, balance” and had “abnormal sensation in her buttock area, left leg.” Id.

         On November 4, 2014, Plaintiff denied pain, but endorsed numbness in the left leg and buttocks. Tr. at 557. She stated she felt she was dragging her foot while walking. Tr. at 558. She also complained of hypersensitivity, a feeling of restriction around her knee, and pain in her buttocks and Achilles tendons while walking. Tr. at 559. Dr. Nelson stated most of the symptoms Plaintiff described correlated with the pressure on her spinal cord. Id. He observed Plaintiff to appear well-groomed, to demonstrate appropriate mood and affect, to have normal speech, to have grossly intact cranial nerves, to ambulate with normal gait, and to be alert and oriented to time, place, person, and situation. Tr. at 558.

         On January 15, 2015, state agency medical consultant Dale Van Slooten, M.D. (“Dr. Van Slooten”), reviewed the record and prepared a physical residual functional capacity (“RFC”) assessment. Tr. at 111-13, 120- 22. He indicated Plaintiff could occasionally lift and/or carry 20 pounds, frequently lift and/or carry 10 pounds, stand and/or walk for a total of two hours in an eight hour workday, sit for a total of about six hours in an eight-hour workday, frequently climb ramps/stairs and balance, and occasionally stoop, kneel, crouch, crawl, and climb ladders/ropes/scaffolds. Id. A second state agency medical consultant, George Walker, M.D. (“Dr. Walker”), assessed the same physical RFC on June 9, 2015. See Tr. at 136-38, 149-51.

         On January 26, 2015, Plaintiff reported she had discontinued Invokana secondary to side effects. Tr. at 579. She complained of persistent hypersensitivity in the left leg, occasionally left leg weakness, heaviness in the buttocks and sacral area with prolonged sitting, and impaired balance. Id. Dr. Russell noted no abnormalities on physical exam. Tr. at 581. She discontinued Combivent, Fluconazole, Tramadol, and Hydrocodone-Acetaminophen and prescribed Diclofenac Potassium 50 mg for low back pain and Furosemide 20 mg for edema. Tr. at 582. She instructed Plaintiff to remain off Invokana and to continue her other diabetes medications, but noted additional medication may be required. Id.

         On May 26, 2015, Plaintiff reported hypersensitivity and numbness in her buttocks and left leg and rated her pain as a three of 10. Tr. at 838. She denied episodes of weakness since her prior visit, but endorsed urinary urgency. Tr. at 840. Dr. Nelson noted no abnormalities on physical exam. Tr. at 839. He continued Plaintiff's medications and instructed her to follow up for an MRI of the thoracic spine in August. Tr. at 839-40.

         Plaintiff presented to Dr. Russell with abdominal pain on June 3, 2015. Tr. at 711. She continued to endorse hypersensitivity and occasional weakness in her left leg, a heavy feeling in her sacral area and buttocks upon prolonged sitting and walking, and impaired balance. Id. Dr. Russell observed slightly weak distal strength of Plaintiff's left leg, as compared to the right. Tr. at 715. She noted abnormal 3 reflexes at Plaintiff's left patella, diminished sensation to light touch, decreased temperature of the left foot, diminished tactile sensation in the left foot, and 1 pulse in the dorsalis pedis. Id. Plaintiff's hemoglobin A1C was elevated at 8.2%. Id. Dr. Russell indicated Plaintiff might require insulin if her diabetes continued to worsen. Tr. at 716. She referred Plaintiff for a colonoscopy. Id.

         On June 24, 2015, state agency consultant Douglas Robbins, Ph.D. (“Dr. Robbins”), reviewed the record and completed a psychiatric review technique. Tr. at 134-35, 147-48. He considered Listing 12.04 for affective disorders, assessing no restriction of activities of daily living (“ADLs”), no difficulties in maintaining social functioning, no repeated episodes of decompensation, and no difficulties in maintaining concentration, persistence, or pace. Id.

         Plaintiff reported dull, aching lower back pain on July 30, 2015. Tr. at 718. Dr. Russell noted tenderness to palpation at the right mid-lumbar, lower mid-lumbar, and right lower lumbar areas and increased warmth at the lower mid-lumbar area. Tr. at 721. She indicated Plaintiff had full range of motion (“ROM”) without difficulty. Id. She prescribed medication for dysuria, but noted Plaintiff's symptoms likely resulted from chronic lumbar disc disease. Tr. at 722.

         On August 6, 2015, Plaintiff complained of increased leg numbness, after standing for two hours to cook for a church function. Tr. at 828. She described her pain as “burning” and rated it as a seven of 10. Id. She felt her left foot dragging, urinary urgency, and thoracic and lumbar pain had worsened. Tr. at 830. Dr. Nelson indicated patellar and Achilles reflexes of 0 on the right and 4 on the left side. Tr. at 829. He ordered MRIs of Plaintiff's thoracic and lumbar spine Tr. at 830.

         On August 10, 2015, an MRI of Plaintiff's thoracic spine showed midline disc herniation at ¶ 9-10, causing a fairly severe stenosis with cord impingement; mild diffuse disc bulge without significant canal compromise at ¶ 5-6; and spondylosis without severe stenosis at ¶ 6-7. Tr. at 594-95. An MRI of Plaintiff's lumbar spine indicated degenerative disc and facet changes at ¶ 4-5. Tr. at 599-600. Stephen J. Reinarz, M.D. (“Dr. Reinarz”), opined there was likely a symmetric disc bulge, as opposed to a herniation into the inferior aspect of the left sided foramen. Tr. at 600. He stated the MRI did not demonstrate a discrete neural impingement associated with the disc bulge. Id.

         Plaintiff followed up with Dr. Nelson to discuss the MRI results on August 11, 2015. Tr. at 821. Dr. Nelson observed no abnormalities on exam, aside from 3 left patellar and left Achilles reflexes. Tr. at 821-22. Plaintiff reported her numbness and walking ability had slightly worsened. Tr. at 822. Dr. Nelson stated he had not compared Plaintiff's recent and prior MRIs. Id. He indicated he would present Plaintiff's films at a conference the following day and get back to her after receiving feedback. Id.

         Plaintiff complained of pain in her lower back and right hip and leg on November 19, 2015. Tr. at 624. She rated her pain as a five and described it as being associated with stabbing and numbness. Id. She felt as if her legs were becoming weaker. Id. Dr. Nelson noted right hip tenderness with palpation, 3 left knee jerk, 2 right knee jerk, 2 left ankle jerk, 1 right ankle jerk, and normal lower extremity strength and motor function. Tr. at 625. She reported her left knee occasionally gave out. Id. Dr. Nelson referred Plaintiff to Dr. Close for evaluation. Id.

         Plaintiff complained of intermittent episodes of severe right hip pain on November 30, 2015. Tr. at 726. Dr. Russell noted pain with movement of right hip during physical exam. Tr. at 729. She prescribed Oxycodone HCl 5 mg for pain. Id. Plaintiff's hemoglobin A1C was 7.3%, remaining elevated, but improved from prior testing. Tr. at 726.

         Plaintiff presented to Dr. Close with bilateral hip pain, right worse than left, on December 7, 2015. Tr. at 616-17. She rated her pain as a seven on a 10-point scale. Tr. at 617. Dr. Close observed Plaintiff to be nontender to palpation on the bilateral trochanteric bursa, but to demonstrate some tenderness in the right sacroiliac (“SI”) joint. Tr. at 620. He noted positive flexion, abduction, and external rotation (“FABER”) test on the right and negative FABER test on the left. Id. He indicated 4/5 strength in Plaintiff's lower extremities. Id. X-rays of the bilateral hips showed normal alignment and no acute osseous abnormalities. Id. Dr. Close assessed SI dysfunction and bilateral hip pain. Id. He suspected Plaintiff had developed SI joint dysfunction as a result of compensating for left lower extremity weakness and recommended a right SI joint injection. Id.

         On March 1, 2016, Plaintiff complained of a dull ache in her lower back that radiated to her left leg. Tr. at 804. Dr. Nelson noted no abnormalities on physical exam. Tr. at 805-06. He referred Plaintiff to Thomas W. Jarecky, M.D. (“Dr. Jarecky”), for a left SI joint injection and indicated he would consider ordering a new MRI if her pain continued. Tr. at 807.

         On March 2, 2016, Plaintiff reported improved blood glucose readings. Tr. at 733. She stated she was attempting to walk for exercise, but could only walk a block. Id. She indicated a recent SI joint injection had helped, but she continued to endorse hypersensitivity and weakness in the left leg, impaired balance, and a heavy feeling in the buttocks and sacral area with prolonged sitting and walking. Id. Plaintiff's hemoglobin A1C remained elevated at 6.3%, but was improved over prior testing. Tr. at 736. Dr. Russell indicated Plaintiff was doing well with weight loss and her diabetes had improved. Id. She noted Plaintiff was rarely taking Oxycodone. Id.

         Dr. Jarecky administered an SI joint injection on March 30, 2016. Tr. at 891.

         On April 12, 2016, Plaintiff complained of low back pressure with stabbing pain down her left leg that she rated as a three of 10. Tr. at 865. She also endorsed spasms in her right lower back and occasional burning pain in her lower back. Tr. at 866. Dr. Nelson indicated no abnormalities on physical or neurologic exam. Tr. at 865-66. He indicated he would continue to monitor Plaintiff's symptoms and instructed her to follow up in three months. Tr. at 866.

         On June 7, 2016, Plaintiff reported swelling in her legs when she visited the beach, but no other extremity edema. Tr. at 739. Dr. Russell noted no abnormalities on physical exam. Tr. at 741. She indicated Plaintiff's weight had increased and ...

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