United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
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.
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].
Plaintiff's Background and Medical History
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.
Records Reviewed by ALJ
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.
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.
March 12, 2014, x-rays of Plaintiff's spine showed lower
cervical and mid-to-lower thoracic disc degeneration. Tr. at
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
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.
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.
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.
tomography (“CT”) scans of Plaintiff's
abdomen and pelvis showed a left adnexal large
cystic-appearing mass. Tr. at 493.
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
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
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.
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.
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.
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.
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.
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.
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.
underwent hysterectomy and left oophorectomy on July 30,
2014. Tr. at 411-13. A cyst within the left ovary was benign.
Tr. at 365.
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.
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.
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,
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
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.
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.
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.
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.
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
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
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.
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.
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.
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.
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.
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.
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
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.
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.
Jarecky administered an SI joint injection on March 30, 2016.
Tr. at 891.
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.
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