SHIVA V. HODGES, 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) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his claim for Disability Insurance Benefits ("DIB"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she 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.
On or about August 26, 2013,
Plaintiff was 44 years old at the time of the hearing. Tr. at 80. He graduated high school and obtained a Bachelor of Arts in Social Sciences. Tr. at 82. His past relevant work ("PRW") was as a sheriff's deputy, sales associate, and archery repair technician. Tr. at 83-86. He alleges he has been unable to work since November 1, 2007. Tr. at 83.
On January 22, 2007, Plaintiff presented to Alberto Lopez, M.D. ("Dr. Lopez"), at Simpsonville Family Medicine. Tr. at 466-69. Dr. Lopez assessed mixed hyperlipidemia, stable hypertension, unspecified insomnia, and obesity, prescribed medications, and ordered tests. Id.; Tr. at 550-552 (reflecting laboratory results).
On February 28, 2007, Plaintiff presented to Dr. Lopez with complaints of back pain that had persisted for six days. Tr. at 464-65. Plaintiff appeared uncomfortable, had painful movements and tenderness in his spine, and preferred to stand. Id. Dr. Lopez noted Plaintiff had several episodes of debilitating back pain, ordered a magnetic resonance image ("MRI"), prescribed Prednisone and Skelaxin, and referred him to a neurosurgeon. Id.
On March 2, 2007, a lumbar spine MRI revealed a prominent broadbased disc bulge at L4-L5 with a superimposed protrusion resulting in mild central canal stenosis, bilateral neural foraminal encroachment, and degenerative disc disease ("DDD") throughout the remainder of the lumbar spine. Tr. at 355-56, 485-86.
On March 8, 2007, Plaintiff presented to Alfred T. Nelson, Jr., M.D. ("Dr. Nelson"), at the Southeastern Neurosurgical and Spine Institute ("Southeastern"), with complaints of low back pain. Tr. at 329-31, 665-67. Plaintiff reported pain in the lumbar region that was aching, shock-like, and stabbing, caused severe functional impairment "with most, but not all, daily activities," and ranged from 5 to 10/10. Tr. at 329. Dr. Nelson noted prior treatment did not provide adequate relief, as Prednisone had no effect, Skelaxin provided only fair relief, and physical therapy provided initial relief, but the improvement did not last. Id. Plaintiff's examination revealed normal muscle strength, gait, station, and hip range of motion ("ROM"), but restricted lumbar spine flexion and extension. Id. Dr. Nelson reviewed the prior MRI, ordered a lumbar spine x-ray, and referred Plaintiff to Robert E. LeBlond, M.D. ("Dr. LeBlond"), for a lumbar injection. Id.
On March 23, 2007, Dr. LeBlond, at Upstate Medical Rehabilitation, administered an epidural steroid injection. Tr. at 651.
On March 27, 2007, Plaintiff presented to Dr. Nelson with continued low back pain. Tr. at 327-28, 663-64. Plaintiff reported the injection provided relief for one day and the pain remained unchanged since his prior visit. Id. The lumbar spine x-ray did not reveal any issues, and Plaintiff's examination was normal. Id. Dr. Nelson assessed lumbar pain, noted Plaintiff was unable to work for one month, and ordered physical therapy for three weeks. Id.
On April 9, 2007, Dr. LeBlond performed a facet nerve and joint block. Tr. at 650.
On April 26, 2007, Plaintiff presented to Dr. Nelson with complaints of continued low back pain. Tr. at 325-26, 661-62. Plaintiff reported physical therapy improved his posture, not his pain. Id. Plaintiff's examination was normal. Tr. at 326. Dr. Nelson assessed lumbar pain, instructed Plaintiff to continue physical therapy, and noted Plaintiff could continue on a light-duty work status until his functional capacity evaluation ("FCE"). Id. Dr. Nelson also noted "[p]hysical therapy and injections ha[d] not really helped," but "there [wa]s nothing surgical [he could] offer." Tr. at 326.
On or about May 12, 2007, Plaintiff presented to an emergency room and was diagnosed with back strain. Tr. at 561-64.
On May 29, 2007, Plaintiff presented to Dr. Nelson and reported he went to the emergency room due to his low back pain that had changed to "somewhat more severe" and caused his left foot to tingle. Tr. at 322-24, 658-60. Plaintiff's examination was normal. Tr. at 323. Dr. Nelson ordered a lumbar spine computed tomography ("CT") scan and lumbar myelogram. Id. Dr. Nelson assessed lumbar and limb pain with numbness and instructed Plaintiff to return after his tests were completed. Id.
On June 7, 2007, Plaintiff presented to Dr. Nelson with complaints of continued low back pain causing numbness and tingling in his left foot. Tr. at 318-21, 652-57. Plaintiff reported no change in his pain and symptoms since his prior visit. Id. Plaintiff's examination reflected a mildly antalgic gait, but normal station, orientation, memory, attention span, and concentration. Id. Dr. Nelson reviewed the diagnostic results and noted the myelogram showed a left L4-L5 herniation of the nucleus pulposus ("HNP"). Id. He also noted Plaintiff understood surgery would help his leg pain, but may not relieve his back pain, and he wished to "watch things for now." Id. Dr. Nelson concluded, "[w]e don't see a surgical solution that will make him pain free, because of the stress and physicality of his job he is considering medical retirement and I think that is reasonable." Tr. at 320.
On June 18, 2007, Christie B. Mina, M.D. ("Dr. Mina"), at Piedmont Spine and Neurosurgical Group, notified Dr. Lopez of her consultation with Plaintiff. Tr. at 342-45, 362-64. Dr. Mina noted Plaintiff's back pain had occurred for ten years "off and on," but his symptoms clearly worsened in February 2007 and were now severe enough that he was "unable to interact normally with his small children and [was] unable to work." Id. Dr. Mina also noted Plaintiff spent "a lot of time lying down because that [was] where he [felt] the best" and his pain worsened throughout the day. Id. Plaintiff had been "through a trial of conservative treatment including physical therapy, multiple medications, and [] injections," but had not found "significant lasting relief." Id. Dr. Mina stated,
Tr. at 343. However, she noted a lumbar spine MRI revealed "evidence of [DDD] primarily involving L4-L5 and L5-S1" and "a central disk herniation [that produced] some crowing of both L5 nerve roots." Id. Dr. Mina discussed Plaintiff's options, opined he had exhausted conservative treatment, and noted he wished to proceed with surgical intervention. Id. Dr. Mina stated she would proceed with the initial step of performing a diagnostic diskogram to obtain information for surgery. Id.
On June 20, 2007, Dr. Mina performed an L2-L3, L3-L4, and L4-L5 diskogram and made multiple failed attempts, due to facet hypertrophy and the presence of a symptomatic L5 nerve root, to perform an L5-S1 diskogram. Tr. at 346-50. Dr. Mina found concordant pain at L2-L3 and L4-L5 with a negative control level at L3-L4, but noted an inability to access L5-S1. Tr. at 350.
On July 11, 2007, Dr. Mina notified Dr. Lopez that Plaintiff returned for a follow-up visit and continued to have axial and mechanical low back pain. Tr. at 361, 381. Dr. Mina noted she performed a diskogram that revealed evidence of concordant pain at L2-L3 and L4-L5, but L5-S1 was inaccessible. Id. Dr. Mina also noted Plaintiff suffered from three-level symptomatic DDD and he was not a candidate for a lumbar fusion, but would benefit from a three-level artificial disc placement. Id. However, she explained Plaintiff would have to travel overseas due to the United States Food and Drug Administration's ("FDA's") limitations. Id. Dr. Mina concluded she did "not think that [Plaintiff had] any other viable treatment options apart from what he [was] already doing." Id.
On July 13, 2007, a dual-energy x-ray absorptiometry ("DEXA") bone mineral density study revealed distinct osteopenia throughout the lumbar spine with minimally decreased density within the hips. Tr. at 470-77.
On July 16, 2007, Plaintiff presented to Dr. Lopez to discuss his bone scan results. Tr. at 462-63. Dr. Lopez noted Plaintiff had a diskogram that revealed three issues and required a special surgery in Germany. Id. Dr. Lopez assessed lumbago, noted an abnormal bone density scan, and encouraged Plaintiff to submit the report to the surgeons in Germany for further evaluation. Id.
On September 13, 2007, Plaintiff presented to Dr. Lopez and requested pain medication. Tr. at 457-58. Plaintiff reported he would be traveling to Germany in November for surgery due to his constant pain and had to pay $50,000.00 for it. Id. Dr. Lopez noted Plaintiff was not in acute distress, but appeared uncomfortable with decreased ROM, painful movements, tenderness in his spine, and a preference to stand. Id. Dr. Lopez prescribed Lortab. Id.
On September 26, 2007, Dr. Lopez recommended the advanced surgery proceed in Germany. Tr. at 480.
On October 15, 2007, Plaintiff presented to Simpsonville Family Medicine for a pre-operative examination. Tr. at 456, 540-49.
On November 30, 2007, a lumbar spine MRI reflected prosthetic discs at L4-L5 and L5-S1, with no evidence of segmental instability with flexion or extension, and apparent vertebral injections, possibly representing a form of vertebroplasty, at L4 and L5. Tr. at 354.
On December 12, 2007, Plaintiff presented to Dr. Mina due to neck pain and lumbar DDD. Tr. at 359-60, 379-80. Dr. Mina noted Plaintiff had returned from his surgery in Germany and "done very well," with a "dramatically improved" back that allowed him to walk and function "much better." Id. Dr. Mina noted Plaintiff had "some axial neck pain and paresthesias in the left C8 distribution" that caused a "tightening feeling" and may have been "present previously, but probably was being overwhelmed by the severity of his lumbar problems." Id. Plaintiff's examination was "essentially normal" and he moved much better and appeared more comfortable than prior to surgery. Id. Dr. Mina assessed stable artificial disc placement at L4-L5 and L5-S1 and opined Plaintiff appeared "beautifully healed" and could "resume normal activity without restrictions." Id. Dr. Mina opined Plaintiff's neck symptoms "warrant[ed] further investigation" and ordered a cervical spine MRI to be completed prior to his appointment in six months. Id.
On April 15, 2008, Plaintiff presented to Dr. Lopez for follow up of his hypertension. Tr. at 453-55. Plaintiff reported his surgery "went well," but he was medically retired from law enforcement. Id. Plaintiff's examination was normal, with some ankle swelling. Id. Dr. Lopez assessed hypertension, mixed hyperlipidemia, stable anxiety, and chronic insomnia, continued Prinivil and Lexapro, and prescribed Lunesta. Id.
On May 15, 2008, a cervical spine MRI revealed mild C3-C4, C5-C6, and C6-C7 disc degeneration and disc bulges, but no evidence of compressive discopathy, cervical cord lesions, or acute or chronic fracture, with unremarkable bony alignment. Tr. at 353.
On June 2, 2008, Plaintiff presented to Dr. Lopez with complaints of premature ventricular contractions ("PVCs"). Tr. at 451-52. Plaintiff's examination was normal. Id. Dr. Lopez assessed palpitations that were "likely benign," as Plaintiff was "working out a lot and getting in shape," and he did "not think that [it] merit[ed] further work up." Id. Dr. Lopez instructed Plaintiff to avoid caffeine and drink water. Id.
Also on June 2, 2008, a lumbar spine x-ray reflected post-operative changes at L4-L5 and L5-S1 that did not appear significantly different from November 30, 2007. Tr. at 352.
On June 4, 2008, Dr. Mina notified Dr. Lopez that Plaintiff continued "to do extremely well" with his two-level artificial discs at L4-L5 and L5-S1. Tr. at 357, 378. Dr. Mina noted Plaintiff was "not completely pain free, but [his back had] dramatically improved" and he was "functioning extremely well." Id. Plaintiff had lost weight and was exercising regularly. Id. A cervical spine MRI revealed "some loss of the normal cervical lordosis with very early mild degenerative change," but films showed the artificial discs were in the appropriate position. Id. Dr. Mina assessed Plaintiff's neck pain as "overwhelmingly arthritic in nature with a myofascial component," saw no concerning structural problem that required surgical intervention, and recommended treatment with exercises, stretches, heat, ice, antiinflammatories, and muscle relaxers. Id. Dr. Mina assessed Plaintiff's artificial disc placement at L4-L5 and L5-S1 as stable, noted he remained "beautifully healed" and could continue normal activity without restrictions, and recommended long-term follow up due to the new technology used in his surgery. Id.
On January 14, 2009, Plaintiff presented to Dr. Lopez with complaints of a cough. Tr. at 449-50. Dr. Lopez assessed an upper respiratory infection, noted good blood pressure, and continued Lexapro for depression. Id.
On April 23, 2009, Plaintiff presented to Dr. Lopez with right elbow pain that had persisted for one year, was moderate, aggravated by activity, and caused difficulty holding a glass of water. Tr. at 446-47. Dr. Lopez found tenderness and painful movement, but normal ROM. Id. Dr. Lopez prescribed Relafen and referred Plaintiff to an orthopedist for surgery. Id.
On April 29, 2009, Plaintiff presented to John R. Vann, M.D. ("Dr. Vann"), at Piedmont Orthopaedic Associates, with complaints of sharp, right elbow pain that was aggravated by lifting and gripping. Tr. at 478-79, 686-87. Plaintiff had full ROM in his elbows and shoulders, but pain with resisted extension on his wrist and over the lateral epicondyle. Id. Dr. Vann assessed lateral epicondylitis, administered an injection, and noted no limitations. Id.
On June 17, 2009, a lumbar spine x-ray was unremarkable, with no evidence of segmental instability or subluxation. Tr. at 365.
Also on June 17, 2009, Plaintiff presented to Dr. Mina for follow up. Tr. at 366-67, 376-77. Dr. Mina noted Plaintiff continued "to do very well with very little [low back pain]. He [was] functioning normally and actually still ha[d] more neck problems than back problems." Id. Dr. Mina assessed lumbar DDD and noted films showed Plaintiff's prostheses in good position, with better motion at L4-L5 than L5-S1. Id. She also noted Plaintiff continued "to do very well," could perform "normal activity without restrictions," and should continue "neck exercises and [non-steroidal anti-inflammatory drugs ("NSAIDs")], as there [were] no surgical options for his neck." Id. Dr. Mina scheduled a follow up appointment in two years with new films. Id.
On June 23, 2009, Plaintiff presented to Dr. Lopez with complaints of PVC. Tr. at 442-45. Plaintiff reported he slept "pretty good," approximately 7-8 hours a night. Id. Plaintiff's examination was normal, but he had trace edema in his lower extremity. Id. Dr. Lopez noted the PVCs were "likely benign," as Plaintiff was "working out a lot," but he ordered laboratory tests and modified his blood pressure medication to see if his PVCs improved. Id.; Tr. at 536-39.
On July 2, 2009, Dr. Vann administered an injection in Plaintiff's elbow and noted good relief, but recurring pain. Tr. at 685.
On July 28, 2009, Plaintiff presented to Dr. Lopez for his hyperlipidemia. Tr. at 439-41. Plaintiff's examination was normal. Id. Dr. Lopez assessed mixed hyperlipidemia, hypertension, and depression. Id. Dr. Lopez noted Norvasc worked well for Plaintiff's hypertension, substituted Celexa for Lexapro because it was too expensive, and ordered laboratory tests. Id.; Tr. at 534-35.
On December 30, 2009, Dr. Vann administered an injection in Plaintiff's elbow and discussed surgical options. Tr. at 684.
On January 7, 2010, Plaintiff presented to Dr. Lopez with complaints of an irregular heartbeat. Tr. at 435-38. Plaintiff reported it occurred intermittingly and most recently when he left the gym after performing 30 minutes of cardio and 30 minutes of lifting. Id. Plaintiff also reported he did not think his hypertension medication was working. Id. Plaintiff's examination was normal. Id. Dr. Lopez noted palpitations could be related to hypertension, restarted Prinivil, increased Norvasc, and added an angiotensin-converting enzyme ("ACE"). Id. Dr. Lopez referred Plaintiff to a cardiologist and recommended a diet with increased cardio. Id.; Tr. at 531-33.
On January 21, 2010, Plaintiff presented to John Cebe, M.D. ("Dr. Cebe"), at Upstate Cardiology, for further evaluation of his palpitations. Tr. at 338-40. Dr. Cebe assessed palpitations and stable hypertension, scheduled an echocardiogram ("echo") and 24-hour halter monitor, and continued Plaintiff's medications. Tr. at 339.
On January 22, 2010, Plaintiff underwent an echo that reflected normal ventricles, a dilated left atrium, and mild regurgitation. Tr. at 481-82, 668.
On January 28, 2010, Plaintiff presented to Dr. Cebe, who noted the echo did not reveal any major abnormalities and he had improved. Tr. at 334-37. Dr. Cebe suggested switching Amlodipine to Atenolol to control the symptoms of palpitations and noted Plaintiff would return on an as-needed basis. Id.
On February 18, 2010, Plaintiff presented to Dr. Lopez. Tr. at 432-34. Plaintiff reported he went to a cardiologist regarding his PVCs, had started Atenolol, and felt better with fewer palpitations. Id. Plaintiff's examination was normal. Id. Dr. Lopez noted Plaintiff's blood pressure was "fantastic," his PVCs were "much better," and he looked "pretty fit these days," but needed a better diet for his hyperglycemia and Relafen refilled for his arthralgias. Id.
On March 16, 2010, Plaintiff presented to Dr. Vann with complaints of continued right elbow and new left shoulder pain. Tr. at 682-83. Dr. Vann noted Plaintiff did well with the injection, but still had some pain when lifting or doing pushups and other activities. Id. Plaintiff had mild acromioclavicular ("AC") joint pain with an impingement test and pain over the right lateral epicondyle. Id. Dr. Vann assessed impingement of the left shoulder and right lateral epicondylitis, recommended NSAIDs and exercises, scheduled a left shoulder MRI, and discussed injection and surgical options. Id.
On March 26, 2010, a left shoulder MRI reflected a "tiny" footplate and posterior lateral tear with an associated paralabral cyst and some minimal cystic change of the subchondral bone. Tr. at 593-94, 688-91.
On March 30, 2010, Plaintiff presented to Dr. Vann with complaints of right elbow and left shoulder pain. Tr. at 681. Dr. Vann discussed Plaintiff's MRI that showed he had "some rotator cuff pathology and possibly a small full thickness tear." Id. Dr. Vann discussed options, and Plaintiff elected to proceed with surgery. Id.
On or about May 7, 2010, Dr. Vann performed an arthroscopic subacromial decompression and resection of the distal clavicle for the left shoulder and a right epicondyle release for tennis elbow. Tr. at 694-97.
On May 20, 2010, Plaintiff presented to Dr. Vann and reported his elbow was "much better" and he was "very pleased." Tr. at 680. Dr. Vann noted the incision looked "fine" and instructed Plaintiff to avoid overhead or heavy lifting for 3-4 weeks. Id.
On June 22, 2010, Plaintiff presented to Dr. Lopez for bloodwork. Tr at 669-73.
On July 5, 2010, Plaintiff presented to Dr. Lopez for follow up. Tr. at 429-31. Plaintiff reported he was "doing ok, except [he] always hurt" and did not exercise. Id. He also reported he was recovering from left shoulder and right elbow surgery, but "everything [he] own[ed] hurt." Id. Plaintiff's examination was normal. Id. Dr. Lopez assessed controlled hypertension and palpitations, ordered a lipid panel for mixed hyperlipidemia, restarted Daypro for arthralgias, recommended a workout routine for obesity, and noted Plaintiff still had panic attacks associated with his depression, but he did not desire a prescription at that time. Id.; Tr. at 526-30.
On September 2, 2010, Plaintiff presented to Dr. Lopez with complaints of neck pain. Tr. at 426-28. Plaintiff reported he could not turn his neck, it hurt all the time, and recently felt "like someone drove a railroad spike in the back of [his] neck and left it." Tr. at 426. Dr. Lopez found decreased ROM, painful movements, tenderness, and restricted flexion, extension, and rotation in the cervical spine. Id. Dr. Lopez assessed neck pain, restarted Skelaxin and Lortab, and prescribed Medrol. Id.
On December 13, 2010, Plaintiff presented to Dr. Lopez for follow up. Tr. at 422-25. Plaintiff reported he was "doing alright" and his left shoulder and right elbow were better, but his back pain was "brutal" that time of year. Id. Plaintiff also reported he had heart palpitations "all the time" with daily panic attacks and wanted to restart Lexapro, but believed he just had anxiety, not depression. Id. Plaintiff's examination was normal. Id. Dr. Lopez assessed controlled mixed hyperlipidemia and hypertension, recommended weight loss for his obesity, prescribed Lortab for his back pain, and noted Lexapro worked well for his anxiety, but was expensive, and substituted Celexa. Id.; Tr. at 520-25.
On June 13, 2011, Plaintiff presented to Dr. Lopez for follow up and reported he was "doing pretty good," drank gallons of water daily, exercised 4-5 days a week, and lifted weights. Tr. at 419-21. Plaintiff also reported he still suffered from anxiety, Celexa "zombied [him] out," so he stopped taking it, and "[a] lot of [his] anxiety [was] situational. Like driving on the Interstate and in big crowds. Though, it c[ould] pop up any time." Id. Plaintiff's back pain had "[s]ome days better than others." Id. Plaintiff's examination was normal. Id. Dr. Lopez assessed hypertension, controlled mixed hyperlipidemia, stable hyperglycemia, and obesity, adjusted Plaintiff's medications, and encouraged weight loss. Id.; Tr. at 516-19.
On August 10, 2011, a lumbar spine x-ray showed stable post-operative changes and an L1 compression fracture. Tr. at 368.
Also on August 10, 2011, Plaintiff presented to Dr. Mina for follow up. Tr. at 369-70. Dr. Mina noted Plaintiff continued "to do well, although he has had a flareup of axial [low back pain] over the last month." Id. Plaintiff's examination was normal, including, gait, station, and muscle strength. Id. Dr. Mina assessed low back pain and noted the x-ray showed no change. Id. Dr. Mina prescribed Skelaxin and Mobic to help Plaintiff's low back pain flareup and noted she would see him in two years with updated x-rays. Id.
On December 13, 2011, Plaintiff presented to Dr. Lopez for follow up and reported he was "doing pretty good," drank gallons of water daily, exercised 4-5 days a week, and lifted weights, but did not do cardio. Tr. at 415-18. Plaintiff also reported back pain and he "got 5 good hours and then [his] back [started] hurtin[g] and [he had] to take a pill. (Lortab)." Id. Plaintiff's examination was normal. Id. Dr. Lopez assessed controlled hypertension and mixed hyperlipidemia with normal hyperglycemia, but encouraged weight loss for his obesity and prescribed Skelaxin for his back pain. Id.; Tr. at 512-15.
On June 14, 2012, Plaintiff presented to Dr. Lopez for follow up. Tr. at 405-08. Plaintiff reported he was tired, but had fished the prior day. Id. Plaintiff reported he drank gallons of water daily, exercised 4-5 days a week, and lifted weights or swam. Id. Dr. Lopez noted Plaintiff's back pain had been persistent for years in the lumbosacral area, was affected by prolonged standing, associated with back stiffness, and occurred "everyday," causing him to lie down on a heating pad at 2:30 p.m. because it was "painful" and "uncomfortable." Id. Plaintiff's examination was normal. Id. Dr. Lopez assessed hypertension, mixed hyperlipidemia, hyperglycemia that were at goal, controlled, or improved and encouraged Plaintiff to pursue a swimming program for his obesity, noting he was "overweight but a fit active muscular tall man." Id.; Tr. at 506-11.
On October 9, 2012, Plaintiff presented to Dr. Lopez with complaints of abdominal pain. Tr. at 401-04. Dr. Lopez ordered laboratory tests. Id.; Tr. at 503-05.
On November 16, 2012, Plaintiff presented to Dr. Lopez for follow up. Tr. at 397-400. Plaintiff reported he was "doing okay," drank gallons of water daily, and exercised 4-5 days a week, lifting and swimming. Id. Dr. Lopez noted Plaintiff's back pain had been persistent for years, was dull and stabbing in the lumbosacral area, affected by prolonged standing, and associated with back stiffness. Id. Plaintiff's examination was normal. Id. Dr. Lopez assessed controlled hypertension and hyperlipidemia and stable back pain. Id. Dr. Lopez prescribed Atenolol, Lisinopril, and Lortab. Id.; Tr. at 500-02.
On May 24, 2013, Plaintiff presented to Dr. Lopez for a recheck of his hypertension, hyperlipidemia, hyperglycemia, and back pain. Tr. at 393-96. Plaintiff reported he was "doing good" and continued his diet and exercise regimen. Id. Dr. Lopez noted Plaintiff's back pain was affected by prolonged standing or sitting and relieved by lying down or using a heating pad with Lortab. Id. Dr. Lopez assessed controlled hypertension, hyperlipidemia, and hyperglycemia, and stable back pain. Id.; Tr. at 493-99.
On June 18, 2013, Plaintiff presented to Dr. Vann with complaints of left elbow pain that was relieved by inactivity and aggravated by lifting and gripping. Tr. at 678-79. Dr. Vann found pain with resisted wrist extension and over the lateral epicondyle. Id. Dr. Vann Assessed lateral epicondylitis, administered an injection, and recommended ice, NSAIDs, exercises, and air cast support with activities, but found no limitations. Id.
On September 5, 2013, Plaintiff presented to Dr. Vann with complaints of left elbow pain when performing activities of daily living ("ADLs"), specifically lifting or reaching. Tr. at 676-77. Dr. Vann found tenderness in Plaintiff's lateral epicondyle and weakness due to pain during resisted wrist extensions. Id. Dr. Vann assessed left lateral epicondylitis and administered an injection. Id.
On October 31, 2013, Plaintiff presented to Dr. Vann and confirmed he wished to proceed with left elbow surgery, as the injection provided little relief. Tr. at 675.
On November 15, 2013, Dr. Vann performed a tennis elbow release for the lateral epicondylitis of the left elbow and assessed left shoulder impingement with mild AC joint arthritis and partial rotator cuff tear, and lateral epicondylitis of the right elbow. Tr. at 483-84, 487-92, 692-95.
On November 20, 2013, a lumbar spine x-ray showed status-post intervertebral disc implant device placement at L4-L5 and L5-S1, without obvious complication. Tr. at 371.
Also on November 20, 2013, Plaintiff presented to Dr. Mina for long-term follow up of his artificial lumbar discs. Tr. at 372-75, 382-87. Dr. Mina noted, "[s]ince his last visit 2 years ago, he has developed progressive worsening of axial [low back pain] at the thoracolumbar junction. This pain has both a mechanical and nonmechanical component." Id. Plaintiff's examination was normal, with tenderness in his spine. Id. Dr. Mina noted recent x-rays revealed the artificial discs were in good position with no new abnormality. Id. Dr. Mina also noted,
Tr. at 373.
On November 21, 2013, Dr. Vann diagnosed lateral epicondylitis and noted Plaintiff had less pain, full ROM, and was "doing well." Tr. at 674.
On November 25, 2013, Plaintiff presented to Dr. Lopez for his laboratory results. Tr. at 389-92. Dr. Lopez noted Plaintiff saw Dr. Mina the prior week and his back had bothered him for the prior six months, but there was "[n]othing they [could] do pretty much to him. Perhaps an implant." Id. Dr. Lopez also noted Plaintiff saw an orthopedist for his elbow issues and his hypertension symptoms were relieved by medication, with good treatment compliance. Id. Plaintiff's examination was normal, but his gait was "slow and cautious" with decreased ROM and painful movements in his spine. Tr. at 391. Dr. Lopez noted Plaintiff's hypertension, hyperglycemia, and mixed hyperlipidemia were controlled, but his back pain had prevented him from exercising for several months. Id. Dr. Lopez recommended a swimming or casual walking program for Plaintiff's obesity and prescribed Ultram for Plaintiff's back pain that had lasted six months. Id.
On April 2, 2014, Plaintiff presented to Dr. Lopez for follow up. Tr. at 554-60, 590-92. Dr. Lopez noted Plaintiff's hypertension symptoms were relieved by medication. Id. Dr. Lopez found Plaintiff's gait was slow and cautious, with decreased ROM and painful movements in his spine. Id. Dr. Lopez assessed obesity, lumbago, controlled hypertension, excellent lipids, and reduced Alc. Id. Dr. Lopez noted, "[d]ue to his back pains [Plaintiff had] not been able to exercise lately for several months," and he encouraged him to attempt a swimming or casual walking program for his obesity. Id. Dr. Lopez also noted Plaintiff was unable to take Tramadol because it "teared up" his stomach and restarted Norco for his back pain. Id.
On June 20, 2014, Raman Gill Chahal, M.D. ("Dr. Chahal"), a state agency psychiatrist, reviewed the record and noted there was no medically-determinable mental impairment established for a psychiatric review technique ("PRT") assessment. Tr. at 120-21.
On June 26, 2014, Anselmo Mamaril, M.D. ("Dr. Mamaril"), a state agency physician, reviewed the record and completed a physical residual functional capacity ("RFC") assessment. Tr. at 122-24. Dr. Mamaril opined Plaintiff could lift, carry, push, or pull ten pounds frequently and twenty pounds occasionally; sit, stand, or walk for about six hours in an eight-hour workday; climb ramps and stairs, balance, kneel, or crouch frequently; stoop or crawl occasionally; never climb ladders, ropes, or scaffolds; and must avoid all exposure to hazards, such as machinery and heights. Id.
On July 1, 2014, Plaintiff presented to Christopher K. Broome, A.P.R.N. ("Nurse Broome"), at Piedmont Comprehensive Pain Management Group ("Piedmont") for an initial pain assessment. Tr. at 616-21. Plaintiff reported his constant pain ached, burned, and throbbed, increased in the evening, was aggravated by any activity, prevented him from exercising the prior year, and caused him to lie down and be angry or depressed. Id. Nurse Broome noted Plaintiff had thoracic pain and lower extremity pain from the lumbosacral area to the left buttock. Tr. at 625. Nurse Broome found diffuse lumbosacral tenderness, positive left-facet loading, and tenderness to palpation ("TTP") medially and bilaterally over the facet joints. Tr. at 626. Nurse Broome assessed lumbar disc disease and low back, thoracic spine, and hip pain. Id. Nurse Broome noted Dr. Mina referred Plaintiff for evaluation and treatment, including left thoracic facet joint injections. Id. Nurse Broome scheduled an injection with Michael T. Grier, M.D. ("Dr. Grier"). Id.
On July 23, 2014, William Hopkins, M.D. ("Dr. Hopkins"), a state agency physician, reconsidered the record. Tr. at 133-35. Dr. Hopkins opined Plaintiff could lift, carry, push, or pull ten pounds frequently and twenty pounds occasionally; sit, stand, or walk for about six hours in an eight-hour workday; climb ramps and stairs, balance, kneel, or crouch frequently; stoop or crawl occasionally; never climb ladders, ropes, or scaffolds; and must avoid even moderate exposure to hazards. Id. However, in his explanation, Dr. Hopkins noted, "[Medical record evidence] indicates worsening back pain over last year, called myofascial by neurosurgeon. . . . No significant pain management or upchange in medications. Statements remain partially credible. . . . While impairment is severe, overall [medical record evidence] is [consistent with] sedentary rating as able." Tr. at 135.
On July 24, 2014, Xanthia Harkness, Ph.D. ("Dr. Harkness"), a state agency psychologist, reconsidered the record and affirmed Dr. Chahal's opinion that Plaintiff did not have a medically-determinable mental impairment. Tr. at 132-33.
Also on July 24, 2014, Dr. Grier administered left thoracic facet joint injections at three levels due to Plaintiff's history of severe back pain with marked tenderness over the region. Tr. at 624, 639-40.
On August 26, 2014, Dr. Grier administered right lumbar facet joint injections at three levels due to Plaintiff's history of severe back pain with marked tenderness over the region. Tr. at 623, 637-38.
On September 16, 2014, Dr. Grier administered right thoracic facet joint injections at three levels due to marked tenderness over the region. Tr. at 615, 635-36.
On October 7, 2014, Dr. Grier administered left thoracic facet joint injections at three levels due to marked tenderness over the region. Tr. at 613-14, 633-34.
On October 9, 2014, Dr. Mina completed a physical RFC assessment. Tr. at 642-49. Dr. Mina opined Plaintiff could frequently lift or carry less than 10 pounds, stand less than 2 hours in an 8-hour workday, must periodically alternate between sitting and standing to relieve pain or discomfort, had limited ability to push or pull with his extremities, could occasionally climb ramps or stairs, stoop, or crouch, but never climb ladders, ropes, or scaffolds, balance, kneel, or crawl, and must avoid all exposure to hazards. Id. Dr. Mina opined Plaintiff had no manipulative, visual, or communicative limitations. Id. Dr. Mina explained, "[Plaintiff] has had extensive lumbar surgery for multilevel [DDD], which also involves the thoracic spine. He has limited [ROM] due to arthritis, scar tissues, and muscle spasms. He has chronic pain due to all [of] this which limits his physical activities severely." Tr. at 643. Dr. Mina further explained Plaintiff "should not operate machinery or be at heights due to his chronic back pain, stiffness, gait difficulty, and mobility limitations." Tr. at 646. Dr. Mina noted Plaintiff's symptoms were attributable to a medically-determinable impairment and the severity or duration were not disproportionate, but consistent with the total medical and nonmedical evidence. Tr. at 649.
On October 10, 2014, Plaintiff presented to Dr. Lopez for follow up. Tr. at 585-89. Dr. Lopez noted Plaintiff's gait was slow and cautious. Id. Dr. Lopez assessed hyperglycemia, obesity, lumbago, and well-controlled hypertension and mixed hyperlipidemia. Id. Dr. Lopez noted Plaintiff's back pain prevented exercise and he was unable to "even swim." Id. Dr. Lopez acknowledged Plaintiff received shots from pain management, but prescribed Norco for his pain. Id.
On November 4, 2014, Dr. Grier administered left lumbar facet joint injections at four levels to further delineate pain. Tr. at 611-12, 631-32.
On November 18, 2014, Plaintiff presented to Nurse Broome for follow up. Tr. at 609-10. Plaintiff reported decreased pain by 50% following the recent injection that allowed him to "control his pain well enough to engage in some enjoyable avocational activities such as hunting and spending time outdoors with his family." Id. Nurse Broome suggested a medial branch block with subsequent cooled radiofrequency lesioning of the medial nerves for a "more enduring interval of pain relief," but Plaintiff was unable to undergo such procedures at that time. Id. Nurse Broome found diffuse thoracic and lumbar tenderness, predominantly over the facet joints, with appropriate affect. Id. Nurse Broome assessed thoracic and lumbar facet joint arthropathy and degenerative joint disease ("DJD") and prescribed Duloxetine and Hydrocodone. Id.
On February 24, 2015, Plaintiff presented to Nurse Broome for follow up. Tr. at 607-08. Plaintiff reported continued relief in his left thoracic region, but continued thoracic and lumbar axial spine and hip pain that ranged from 4 to 8/10 and was exacerbated by physical activity, such as bending or standing, and, when standing, the pain radiated into his lumbar region, buttocks, and posterior left thigh. Id. Nurse Broome assessed moderately controlled thoracic and lumbar facet joint arthropathy and uncontrolled sacroiliac ("SI") joint pain and DJD. Id. Nurse Broome scheduled Plaintiff for a bilateral SI joint injection that would be pursued if financially feasible and continued Cymbalta and Hydrocodone. Id.
On March 19, 2015, Dr. Grier noted marked tenderness over the left SI joint, administered an injection, and assessed SI osteoarthritis and pain. Tr. at 605-06, 629-30.
On April 13, 2015, Plaintiff presented to Dr. Lopez for follow up. Tr. at 578-84. Dr. Lopez found Plaintiff's gait was slow and cautious. Id. Dr. Lopez assessed hypertension, mixed hyperlipidemia, obesity, impaired fasting glucose, abnormal blood chemistry, and low back pain. Id. Dr. Lopez noted Plaintiff was limited due to chronic back pain and he was unable to exercise. Id. Dr. Lopez encouraged Plaintiff to "stay busy with house chores and simpl[e] activities" and focus on his diet. Id. Dr. Lopez noted Plaintiff received injections from pain management and prescribed Norco for his pain. Id.
On August 14, 2015, Plaintiff presented to Dr. Lopez for follow up. Tr. at 572-77. Dr. Lopez noted Plaintiff's gait was slow and cautious. Id. Dr. Lopez assessed mixed hyperlipidemia, obesity, abnormal blood chemistry, impaired fasting glucose, depression, low back pain, and well-controlled hypertension. Id. Dr. Lopez noted more than simple walks caused back pain and Plaintiff received injections from pain management in conjunction with Norco from his office, but Plaintiff's pain management doctor had also suggested Cymbalta for his depression, which he tolerated well. Id.
On August 20, 2015, Plaintiff presented to Nurse Broome for follow up. Tr. at 604. Nurse Broome noted Plaintiff had received a left SI joint injection and continued to "enjoy sustained relief of left hip [SI] joint related pain. Id. However, [Plaintiff's] lower thoracic and lumbar axial spine pain [was] increasing significantly." Id. Plaintiff reported the pain ranged from 5 to 9/10 and was exacerbated by standing or walking more than a short distance. Id. Nurse Broome found provocative maneuvers indicated lumbar facet arthropathy and evoked pain at L1-L2 through L5-S1, left greater than right, and palpation of the lumbar facet joints reproduced discomfort. Id. Nurse Broome assessed well-controlled SI joint pain secondary to SI joint DJD and uncontrolled diffuse thoracic and lumbar axial spine pain secondary to facet arthropathy. Id. Nurse Broome noted Plaintiff's insurance would not pay for the facet joint injections, and, "in the hope of obtaining an adequate degree and adequate interval of pain relief," he scheduled Plaintiff for a diagnostic lumbar medial branch block at left L2-L3 through L5-S1. Id.
On September 8, 2015, Dr. Grier performed a left lumbar medial branch nerve block at three levels and noted, if successful, a radiofrequency lesion would be performed in the future. Tr. at 602-03, 627-28.
On September 22, 2015, Plaintiff presented to Nurse Broome for his lumbar spondylosis. Tr. at 599-601. Plaintiff reported "excellent relief of low back pain" that reduced his pain to 3/10 for several hours and allowed him to vacuum, "a physical activity he had not been able to complete prior to the block." Id. Nurse Broome noted the degree of pain relief lasted for several hours after the block and it was considered successful. Id. Nurse Broome found Plaintiff had diffuse lumbosacral tenderness, positive left facet loading, and TTP immediately over facet joints at T3-T4, T4-T5, and T5-T6, left greater than the right. Id. Nurse Broome assessed uncontrolled lumbar disc disease, lumbar facet joint arthropathy, and lumbar spondylosis, but stable thoracic spine pain secondary to thoracic facet arthropathy and thoracic DJD. Id. Nurse Broome scheduled Plaintiff for a left lumbar medial branch nerve radiofrequency ablation. Id.
On October 22, 2015, Plaintiff presented to Nurse Broome, who noted he underwent a left lumbar medial branch radiofrequency lesioning. Tr. at 597-98. Plaintiff reported 60 to 70% sustained relief following the procedure. Id. Plaintiff also reported he was "able to ride three to four hours without severe pain, whereas previously, he had to `crawl out of the car,'" he could "sit without excessive low back pain and engage in light exercise and modest physical activity such as fishing." Id. However, Plaintiff complained of midthoracic back pain, predominantly on the left, that ranged from 6 to 10/10, waxed and waned, and was unrelieved by his treatment regimen. Id. Plaintiff requested a cooled radiofrequency lesioning of the levels because it was similar to the pain that was successfully relieved with lumbar-cooled radiofrequency. Id. Nurse Broome found Plaintiff's back had decreased tenderness over the lumbar facet joints bilaterally, but TTP from T6-T7 through T11-T12, with more left-sided tenderness. Id. Nurse Broome assessed improved lumbar disc disease, facet joint arthropathy, and spondylosis, but unstable thoracic spine pain secondary to thoracic facet arthropathy and thoracic spondylosis. Id. Nurse Broome scheduled Plaintiff for a left thoracic T7-T8 through T10-T11 medial branch nerve block with Dr. Grier "at the next available opportunity" and a possible cooled radiofrequency lesioning of the same nerves to follow. Id.
On November 19, 2015, Plaintiff presented to Dr. Grier for a left thoracic facet medial branch nerve block at three levels. Tr. at 595-96, 641. Dr. Grier noted Plaintiff had a history of severe back pain with marked tenderness over the left thoracic facet joint region and the nerve blocks would be administered "to further delineate the generator of the pain and determine if [radiofrequency] lesioning [was] indicated." Id. Dr. Grier performed the procedure, diagnosed thoracic spondylosis, and instructed Plaintiff to contact him with an update that week. Id. Dr. Grier noted Plaintiff would return for radiofrequency lesions, if the blocks were successful. Id.
On November 23, 2015, a lumbar spine x-ray reflected stable lumbar spine status-post L4-L5 and L5-S1 interbody disc placement. Tr. at 706.
Also on November 23, 2015, Plaintiff presented to Dr. Mina and reported no change in his thoracolumbar junction pain. Tr. at 704-05. Plaintiff's examination was normal overall. Id. Dr. Mina found tenderness at the lumbosacral spine, assessed lumbago and intervertebral disc degeneration, and noted, "[Plaintiff] remains stable, both clinically and radiographically. I will see him back in 2 years with new L-spine films to be done at that time." Id.
On December 10, 2015, Plaintiff presented to Dr. Lopez for various tests. Tr. at 571.
On December 17, 2015, Plaintiff presented to Dr. Lopez for follow up. Tr. at 567-70. Plaintiff's examination was normal. Id. Dr. Lopez assessed well-controlled hypertension, mixed hyperlipidemia, abnormal blood chemistry, impaired fasting glucose, and obesity. Id. Dr. Lopez continued Lisinopril, warned Plaintiff that bloodwork results reflected an elevated Alc and he could be classified as a diabetic, noted he could not exercise due to his back pain, and encouraged him to attempt to "be more busy about the house" and take 10-15 minute casual walks throughout the day. Id.
On February 20, 2016, Dr. Mina provided a medical assessment of Plaintiff's ability to do work-related activities. Tr. at 698-703. Dr. Mina opined Plaintiff could lift or carry ten pounds occasionally and five pounds frequently, stand or walk for less than two hours and sit for one hour at a time for a total of six hours during an eight-hour workday, could climb ramps or stairs, stoop, and crouch occasionally, but never climb ladders, ropes, or scaffolds, balance, kneel, or crawl, and must avoid all exposure to vibrations and hazards. Id. Dr. Mina opined Plaintiff had no manipulative or communicative limitations. Id. Dr. Mina explained the limitations were due to Plaintiff's DD. his thoracic and lumbar spines and "[h]e should not operate heavy machinery or work at heights due to chronic [low back pain], [decreased] ROM, gait difficulty, [and] mobility limitations." Id. Dr. Mina also completed a clinical assessment of pain and opined Plaintiff's pain was "present to such an extent as to be distracting to adequate performance of daily activities or work" and greatly increased by physical activity "to such a degree as to cause distraction from the task or even total abandonment of the task." Id. Dr. Mina also opined Plaintiff's medications could be expected to cause significant side effects that "limit the effectiveness of work duties or the performance of such everyday tasks" due to distraction, inattentiveness, or drowsiness. Id. Dr. Mina noted there was likely to be little long-term pain improvement and, "in fact, the pain is likely to increase with time," but some treatment for pain, such as nerve stimulation or injections, had been successful in similar cases. Id. Dr. Mina explained her diagnosis was thoracolumbar spine DDD and the objective evidence, such as Plaintiff's tenderness, lack of ROM, and changes since his prior lumbar spine surgery, supported it. Id. Dr. Mina opined Plaintiff's limitations were normal for his diagnosis, they existed on or before June 18, 2007, and his complaints were credible, and her opinion was based upon objective findings, diagnostic testing, and subjective complaints. Id.
At the hearing on February 12, 2016, Plaintiff testified he was 6'2", 280 lbs., and lived with his wife and three children ages 11 and 14. Tr. at 81-82. He testified he had a driver's license and drove, attended Garden Red University on an athletic scholarship, and graduated with a Bachelor of Arts in social sciences with a minor in psychology and history. Tr. at 82. Plaintiff stated he held numerous certifications when he was in law enforcement. Tr. at 82-83. He testified he worked as a sheriff's deputy in Greenville, South Carolina, from 2000 to November 1, 2007, and received state disability retirement, but the retirement limited the amount he could earn from other sources. Tr. at 83-84. Plaintiff testified he worked part time at a Dick's Sporting Goods store ("Dick's") and at Ruthie's pawn shop repairing hunting bows 10-20 hours a week, depending on the customers, until 2013. Tr. at 84-85.
Plaintiff had surgery in Germany for a multilevel disc repair and testified the most trouble was from inability to sit due to brutal pain. Tr. at 86. He testified he could stand for a period of time, but due to his implants, when he stood, he had severe thoracic pain in the center of his back. Id. He stated he was advised by Dr. Mina that he had two options: surgery to open his chest, move his heart, and feed him through the center, or a vat surgery in which his lung is deflated with a scope, then fuse his back, and innovate again. Tr. at 86-87. Due to the risks associated with each surgery, he stated neither was viable for him. Tr. at 87. He stated his low back pain existed since 2007, but the thoracic pain manifested itself in 2013 and caused him to stop all work because he became bedridden, as he was in 2007 before his back surgery. Tr. at 87-88.
Plaintiff testified, during the period between 2007 and 2013, he could walk for longer than after 2013, but he still could not sit. Tr. at 88. He stated he could make it until 2:00 p.m. Tr. at 89. He then was able to work morning shifts of four or five hours at Dick's, but he could not sit for more than 15 minutes or sit through a church service. Id. He testified that, since 2007, he had not been able to sit due to bad burns and nerves in his low back, and he was not able to afford the $1,000 it cost each time for his pain management doctor to treat him. Tr. at 90. Since 2013, he spent the time after lunch lying down or reclining. Id.
Plaintiff testified, since 2007, he was unable to lift or carry things by bending down because of his back. Tr. at 90-91. He stated he could lift ten or possibly twenty pounds one time, but not repetitively. Tr. at 92. He explained he originally ruptured his left humeral ligament in his right shoulder playing college football and it was repaired, but limited his ROM. Id. He stated he had surgeries for tendonitis and bone spurs in both elbows and for a bone spur and rotator cuff tear in his left shoulder in 2010, after which he developed bilateral numbness in his hands that he noticed when performing repetitive small movements. Tr. at 93. He listed his medications as Lisinopril, Atenolol, Cymbalta, Hydrocodone, Nabumetone, and indicated his medications caused forgetfulness. Tr. at 93-94.
Plaintiff described his typical day as preparing his children's breakfast, helping them to the bus, dropping his daughter off, running an errand or doing a little housework, having lunch, taking a bath, sleeping until the children got home, helping with homework, starting supper, resting on the couch, and sometimes deploying to Cub Scouts, soccer, basketball, or church. Tr. at 94-95. He testified he could not vacuum well because of the required pushing and pivoting. Tr. at 95. He described himself as a tinkerer of things like old fish rigs and said he would sometimes play a video game. Tr. at 96. He testified he started bow hunting when he was 16, but had not shot a bow except once or twice the prior summer. Tr. at 96-97. He described himself as an avid swimmer, but had not been swimming in three and a half years. Tr. at 97. He also stated he had not done much fishing recently, either. Id.
Plaintiff testified his surgery in Germany was experimental such that the long-term prognosis was unknown. Tr. at 97. He stated he had hoped to eventually return to full-time work, but that never came to fruition. Tr. at 97-98.
In response to questions by his counsel, Plaintiff testified he had a stiff neck that cracked and popped like arthritis. Tr. at 98. He stated, because of stiffness and pain, he was unable to pivot his neck or head, his center back pain was as if someone drove a spike in it and left it, and his low back pain was a different, throbbing nerve pain. Tr. at 98-99. He testified, on bad days, he stayed in bed on a heating pad. Tr. at 99-100. He also testified he would be unable to repeatedly reach, lift, or carry a ten-pound bag for 6 hours a workday. Tr. at 100. He identified himself as right-handed and indicated his right shoulder would freeze and become inoperable. Tr. at 101. He denied the ability to reach and lift or push and pull objects repeatedly or reach overhead or behind with his upper extremities, with right worse than left. Tr. at 101-103. He acknowledged taking Cymbalta for depression after contemplating suicide. Tr. at 103-04. He testified he was formerly outgoing, but he stayed home most of the time. Tr. at 104.
Plaintiff also noted he had surgery for a severed tendon in his left wrist. Tr. at 105. Finally, Plaintiff stated his last A1c was 6.4, putting him in the diabetic range. Id.
Vocational Expert ("VE") Carey
The ALJ described a hypothetical individual of Plaintiff's vocational profile as a deputy sheriff who was limited to light work, could frequently climb ramps and stairs, balance, kneel, or crouch and occasionally stoop or crawl, but never climb ladders, ropes or scaffolds and could not be exposed to hazards, such as unprotected heights or moving mechanical parts. Tr. at 107. The VE testified the hypothetical individual could not return to Plaintiff's PRW as a deputy sheriff. Id. The ALJ asked whether there were any other jobs in the national economy the hypothetical person could perform. Id. The VE identified three positions, classified as light, unskilled work: (1) a ticket seller, DOT No. 344.667-010, with 125,000 positions; (2) ticket taker, DOT No. 211.467-030, with 100,000 positions; and (3) office helper, DOT No. 239.567-010, with 100,000 positions. Tr. at 107-08.
The ALJ modified the first hypothetical to one limited to the sedentary exertional level, who could occasionally climb ramps and stairs, reach overhead, balance, stoop, or crouch and frequently handle or finger, but never kneel or crawl. Tr. at 108. The ALJ asked whether there were any jobs in the national economy the hypothetical person could perform. Id. The VE identified (1) quotation clerk, DOT No. 237.367-046, with 100,000 positions; (2) addresser, DOT No. 209.587-010, with 125,000 positions; and (3) weight tester, DOT No. 539.485-010, with 150,000 positions, all classified as sedentary, unskilled work, with an SVP of 2. Tr. at 108-09.
The ALJ asked if the hypothetical individual had two or more absences a month or two breaks in addition to normal breaks of at least 15 minutes whether he would be able to perform Plaintiff's PRW or any other competitive position. Tr. at 109. The VE stated he could not perform his PRW or any other work on a sustained basis, and either limitation individually would preclude competitive employment. Tr. at 109-10.
In response to questioning by Plaintiff's counsel, the VE testified there would not be any substantial work for an individual limited to sedentary work who would have to alternate positions every 15 minutes. Tr. at 110-11. Additionally, the VE testified there would not be available work for an individual who, due to pain, depression, and side effects of medication, would be off task or lose attention and concentration a minimum of one hour on average in a workday. Tr. at 111.
The VE clarified his opinions regarding reaching, absences, or additional breaks were premised on his experience and observations. Tr. at 109-10.
In its decision dated December 14, 2017, the Appeals Council adopted portions of the ALJ's decision dated May 12, 2016, and made the following findings of fact and conclusions of law:
Tr. at 4-7.
Plaintiff alleges the Commissioner erred for the following reasons:
The Commissioner counters that substantial evidence supports the Appeals Council and ALJ's findings and no legal error was committed in the final decision.
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:
42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether he has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings;
A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. § 404.1520(a), (b), (f); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the national economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner . . . made after a hearing to which he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to "try [these cases] de novo, or resolve mere conflicts in the evidence." Vitek v. Finch, 438 F.2d 1157, 1157 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. Richardson, 402 U.S. at 390. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (citations omitted); Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
Plaintiff argues the ALJ erred by failing to properly apply the factors required under 20 C.F.R. § 404.1527 and the treating physician rule to Dr. Mina's opinions. [ECF No. 18 at 14-19] (referencing Dr. Mina's opinions rendered in October 2014 and February 2016).
The Commissioner responds the ALJ did not need to assign a particular weight or deference to Dr. Mina's statements regarding reserved issues, such as Plaintiff's RFC, because they were legal conclusions, not medical opinions. [ECF No. 20 at 6-7] (citing SSR 96-5p).
Plaintiff replies the Commissioner's argument is inaccurate, as the regulations define medical opinions as "statements from acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions." [ECF No. 21 at 1-2] (quoting 20 C.F.R. § 404.1527(a)(1)). Plaintiff also asserts the Commissioner's citations to the record regarding his normal gait or station fail to consider the entire record and it was improper for the Commissioner to assert the non-examining state agency physicians were highly qualified experts without more support. Id. at 3-4.
The applicable regulations direct ALJs to accord controlling weight to treating physicians' opinions that are well supported by medically-acceptable clinical and laboratory diagnostic techniques and that are not inconsistent with the other substantial evidence of record. 20 C.F.R. § 404.1527(c)(2).
If a treating physician's opinion is not well supported by medically-acceptable clinical and laboratory diagnostic techniques or if it is inconsistent with the other substantial evidence of record, the ALJ may decline to give it controlling weight. SSR 96-2p, 1996 WL 374188, at *2 (1996). However, the ALJ's evaluation of the treating source's opinion does not end with the determination that it is not entitled to controlling weight. Johnson, 434 F.3d at 654; SSR 96-2p, 1996 WL 374188, at *4 (1996). The ALJ must proceed to weigh the treating physician's opinion, along with all the other medical opinions of record, based on the factors in 20 C.F.R. § 404.1527(c), which include "(1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist." Johnson, 434 F.3d at 654 (citing20 C.F.R. § 404.1527).
If the ALJ issues a decision that is not fully favorable, his decision "must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reason for that weight." SSR 96-2p, 1996 WL 374188, at *5 (1996). The ALJ must "always give good reasons" for the weight he accords to a treating physician's opinion. 20 C.F.R. § 404.1527(c)(2).
However, "the ALJ holds the discretion to give less weight to the testimony of a treating physician in the face of persuasive contrary evidence." Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2011) (citing Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992)). This court should not disturb an ALJ's determination as to the weight assigned "absent some indication that the ALJ has dredged up `specious inconsistencies,' Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992), or has not given good reason for the weight afforded a particular opinion." Craft v. Apfel, 164 F.3d 624 (Table), 1998 WL 702296, at *2 (4th Cir. 1998) (per curiam). In view of the foregoing authority, the undersigned considers Plaintiff's specific allegations of error.
Dr. Mina, who specializes in neurological surgery
In his decision, the ALJ only assigned partial weight to Dr. Mina's opinions and stated,
Tr. at 65-66.
Because Dr. Mina was Plaintiff's treating physician, her opinions were presumptively entitled to controlling weight. See 20 C.F.R. § 404.1527(c) and SSR 96-2p. In its review, the court focuses on whether the ALJ's opinion is supported by substantial evidence or there was legal error, because its role is not to "undertake to re-weigh conflicting evidence, make credibility determinations or substitute [its] judgment for that of the [Commissioner]." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (citation omitted). Nevertheless, the undersigned recommends the court find the ALJ did not adequately consider these opinions in accordance with the provisions of 20 C.F.R. § 404.1527 and SSR 96-2p. Although the ALJ provided a few reasons to support his decision to accord partial weight to Dr. Mina's opinions, the reasons provided do not adequately consider the entire record.
The ALJ noted he gave partial weight to Dr. Mina's opinions, "but to the extent they indicate further limitations than the [RFC], such further limitations are not supported by the record as a whole or Dr. Mina's own treating records." Tr. at 65. In his explanation, the ALJ focused upon Dr. Mina's 2016 opinion, specifically noting the alleged limitations did not extend back to 2007 because Plaintiff had worked part-time and his pain or medications did not cause him to be off task because Dr. Mina's recent treatment note indicated he had a normal attention span and "clinically and radiographically stable." Tr. at 65-66. In doing so, the ALJ ignored portions of the record that appear consistent with or to support, at least, Dr. Mina's 2014 opinion and, in light of the complete record, Plaintiff's ability to persevere in full-time employment is unclear.
On October 9, 2014, Dr. Mina opined Plaintiff had several limitations, such as he could frequently lift or carry less than 10 pounds, stand or walk less than 2 hours in an 8-hour workday, and must periodically alternate between sitting and standing to relieve pain or discomfort. Tr. at 642-49. Dr. Mina explained, "[Plaintiff] has had extensive lumbar surgery for multilevel [DDD], which also involves the thoracic spine. He has limited [ROM] due to arthritis, scar tissues, and muscle spasms. He has chronic pain due to all [of] this which limits his physical activities severely." Tr. at 643. Dr. Mina noted Plaintiff's symptoms were attributable to a medically-determinable impairment and their severity or duration were not disproportionate, but consistent with the total medical and nonmedical evidence. Tr. at 647.
"The more a medical source presents relevant evidence to support a medical opinion," "t he better an explanation a source provides," and " the more consistent a medical opinion is with the record as a whole, the more weight we will give to that medical opinion." 20 C.F.R. § 404.1527(c)(3)-(4). As explained by the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit"), consistency means "how consistent the `medical opinion is with the record as a whole,'" and supportability is found "in the form of the quality of the explanation provided for the medical opinion and the amount of relevant evidence—`particularly medical signs and laboratory findings'— substantiating it." Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 256 (4th Cir. 2017). "Additionally, any other factors `which tend to support or contradict the medical opinion' are to be considered." Id. (quoting 20 C.F.R. § 404.1527(c)(6)). "An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding." Lewis, 858 F.3d at 869 (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)).
Although many records and details are discussed in the ALJ's decision, a relevant portion of the evidence was omitted. The record reflects, while Plaintiff may have been able to perform certain activities until 2013, he ceased those activities due to increased pain by July 2013 through late 2015. Of note, the ALJ's decision references the records in support of finding Plaintiff was not disabled through 2013, then makes brief reference to a pain management treatment note in October 2015. Tr. at 63-64. However, the ALJ omits that Dr. Mina referred Plaintiff to Dr. Grier for pain management due to his increased pain by July 2014 and he received multiple injections, nerve blocks, and radiofrequency lesioning before reporting sustained improvement in October 2015, with subsequent treatment in November 2015.
This treatment and other portions of the record appear to support and be consistent with Dr. Mina's opinions regarding Plaintiff's pain. For example, Plaintiff notified his employer that he would need to quit his part-time employment due to the severity of his pain in September 2013, and he stopped working on November 14, 2013. Tr. at 240-42, 251. On November 20, 2013, Dr. Mina noted Plaintiff had "developed progressive worsening of axial [low back pain] at the thoracolumbar junction" and his pain was "likely multifactorial in nature." Tr. at 372-75. A few days later, Dr. Lopez recorded Plaintiff's back had bothered him for the prior six months and prevented him from exercising. Tr. at 389-92. Dr. Lopez found Plaintiff's gait was "slow and cautious," with decreased ROM and painful movements in his spine, but it was believed there was "[n]othing they [could] do" for him. Id. On April 2, 2014, Dr. Lopez noted Plaintiff's back pain continued, such that he was unable to exercise, found his gait was slow and cautious with decreased ROM and painful movements in his spine, and prescribed Norco for his pain. Tr. at 590-92. On July 1, 2014, the record reflects Dr. Mina referred Plaintiff to pain management, where he reported his pain was constant and had prevented him from exercising for one year. Tr. at 616-21. Nurse Broome found lumbosacral tenderness, positive left facet loading, and TTP and recommended left thoracic facet joint injections. Id. Over the subsequent year, Plaintiff received medications and injections to alleviate his pain.
After one year of treatment, on August 20, 2015, Nurse Broome found Plaintiff's lower thoracic and lumbar axial spine pain had increased significantly and ranged from 5 to 9/10, maneuvers indicated lumbar facet arthropathy and evoked pain at L1-L2 through L5-S1, and palpation of the lumbar facet joints reproduced discomfort. Tr. at 604. Nurse Broome assessed uncontrolled diffuse thoracic and lumbar axial spine pain secondary to facet arthropathy. Id. Nurse Broome noted Plaintiff's insurance would not pay for the injections, but, "in the hope of obtaining an adequate degree and adequate interval of pain relief," he scheduled Plaintiff for a diagnostic lumbar medial branch nerve block at left L2-L3 through L5-S1. Id. Plaintiff pursued this treatment, underwent blocks and radiofrequency lesioning, and noticed some improvement after a few months.
Of note, the Appeals Council's decision only mentioned the October 2015 treatment note, when Plaintiff reported some improvement, and it failed to address Dr. Mina's referral or the prior year of treatment. See, e.g., Tr. at 64 ("Treatment notes from pain management show [Plaintiff] indicated he [was] able to ride 3 to 4 hours in the car without severe pain, sit without excessive low back pain, and engage in light exercise and modest physical activity, such as fishing. (Exhibit 12F/3)."). Moreover, the record reflects Plaintiff continued treatment for his pain, and Dr. Grier performed a left thoracic facet medial branch nerve block at three levels and assessed thoracic spondylosis on November 19, 2015. Tr. at 595-96. On November 23, 2015, Plaintiff presented to Dr. Mina and reported no change in his thoracolumbar junction pain. Tr. at 704-05. Likewise, Dr. Lopez noted Plaintiff could not exercise due to his back pain on December 17, 2015. Tr. at 567-70. Thus, the ALJ failed to discuss all of the relevant medical evidence or the scope of Plaintiff's improvement when evaluating the consistency or support for Dr. Mina's opinions. See Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2011) ("That a person . . . makes some improvement does not mean that the person's impairments no longer seriously affect her ability to function in a workplace." (citing Kellough v. Heckler, 785 F.2d 1147, 1153 (4th Cir. 1986)).
Although the ALJ noted Plaintiff worked part-time in retail positions during 2010 to 2013, the record shows he ceased working due to increased pain in late 2013. Tr. at 59, 63, 64, 240-42, 251, 415-18. Elsewhere in his decision, the ALJ noted Plaintiff reported "he was exercising 4 to 5 days a week, he was lifting weights, and swimming" in May 2013, but the record reflects Plaintiff's increased pain had prevented him from exercising for months by November 2013 and made him unable to "even swim" before receiving pain management treatment in 2014. See, e.g., Tr. at 389-92, 567-70, 585-89, 704-05. Plaintiff showed some improvement in late 2015 and Dr. Mina's treatment note, a few days after his left thoracic block, reflected Plaintiff had normal gait, station, muscle tone, strength, attention span, and ability to concentrate, but Plaintiff reported continued spine pain and inability to exercise in December 2015. Id.
While Dr. Mina noted, "[Plaintiff] remains stable, both clinically and radiographically" and she would "see him back in 2 years with new L-spine films" in November 2015, the focus was upon Plaintiff's lumbar spine where he had advanced surgery while in Germany, not his thoracolumbar junction, thoracic spine, or additional pain that developed in 2013. See, e.g., Tr. at 354, 358-61, 643, 704-05. Furthermore, Plaintiff testified that his thoracic spine pain manifested in 2013, and, during the hearing, the ALJ stated, "I mean — now it sounds like we need to talk about things sort of in two different periods. You know, the period after surgery, before 2013 and then the period after 2013." Tr. at 87-88, 372-75, 382-87, 389-92. However, the decision does not reflect this separation was followed in the analysis or acknowledge Dr. Mina's opinions noted Plaintiff's DDD in his thoracic and lumbar spines were the basis for his impairments. Tr. at 643, 698-99. The ALJ or Appeals Council "ha[ve] the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding." Lewis, 858 F.3d at 869 (quoting Denton, 596 F.3d at 425).
Even if Plaintiff's impairments were not as severe after his surgery in 2007 until 2013 or his impairments improved after his pain management treatment, such that he would be able to perform sedentary work, the period between 2013 and 2015 should have been addressed. See, e.g., Price v. Colvin, No. 1:13-cv-1064-JFA-SVH, 2014 WL 3798966, at *21 (D.S.C. July 31, 2014) ("It is the policy of the Social Security Administration to establish a closed period of disability when the evidence indicates that a claimant was disabled for a continuous period of 12 months, even if the claimant is no longer disabled by the time a disability determination is made." (citing Soc. Sec. Admin. Program Operations Manual Sys., § DI 25510.001.")); see also 20 C.F.R. § 404.320. In arguing substantial evidence supports the decision, the Commissioner likewise overlooks this section of the record and references treatment from 2007 through 2013 and after October 1, 2015. [ECF No. 20 at 4-5].
Moreover, the Commissioner's reliance on the state agency physicians' opinions is inappropriate. Id. at 6. The Fourth Circuit has recognized the rejection of "treating physicians in favor of the state medical examiners . . . raises red flags because the state medical opinions are issued by non-examining physicians and are typically afforded less weight than those by examining and treating physicians." Radford v. Colvin, 734 F.3d 288, 295-96 (4th Cir. 2013) (citing 20 C.F.R. § 404.1527(c)). The regulation provides, "[f]urthermore, because nonexamining sources have no examining or treating relationship with you, the weight we will give their medical opinions will depend on the degree to which they provide supporting explanations for their medical opinions" and "[w]e will evaluate the degree to which these medical opinions consider all of the pertinent evidence in your claim, including medical opinions of treating and other examining sources." 20 C.F.R. § 404.1527(c)(3).
Here, the ALJ noted that the state agency physicians found Plaintiff was capable of light work, not sedentary, as he determined. Tr. at 65 (providing the ALJ's notation that both state agency physicians found Plaintiff capable of light work, but he believed sedentary was appropriate due to the evidence submitted at the hearing).
In sum, the ALJ or Appeals Council failed to properly consider all of the pertinent factors in 20 C.F.R. § 404.1527(c) or the relevant evidence, and the undersigned recommends that the court find it is unable to determine whether substantial evidence supports the determination and remand this case. See Bilton v. Berryhill, No. 5:17-cv-2443-RMG-KDW, 2019 WL 288162, at *9 (D.S.C. Jan. 3, 2019), adopted by 2019 WL 286964 (D.S.C. Jan. 22, 2019).
Because the RFC assessment is to be based on all the relevant evidence in the case record (20 C.F.R. § 404.1545(a)(1)), and the undersigned has recommended the court find that some of the relevant evidence was not adequately considered, the undersigned declines to address Plaintiff's additional allegations of error.
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the undersigned recommends, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative proceedings.
IT IS SO RECOMMENDED.
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must `only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Likewise, medical records provided to the ALJ that were unrelated to the issues are not discussed in detail. See 459-61 (noting flu-like symptoms on July 25, 2007), 332-33 (noting treatment for bronchitis and sinusitis on October 30, 2009), 412-14 (noting treatment for an upper respiratory infection on January 30, 2012), 409-11 (same on February 20, 2012).
