Jackson v. Commissioner of Social Security Administration
Filing
19
ORDER affirming the decision of the Commissioner. Signed by Magistrate Judge Shiva V. Hodges on 01/04/2019. (bshr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Juanita Jackson,
Plaintiff,
vs.
Nancy A. Berryhill, Acting
Commissioner of Social Security
Administration,
Defendant.
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C/A No.: 1:17-2721-SVH
ORDER
This appeal from a denial of social security benefits is before the court
for a final order pursuant to 28 U.S.C. § 636(c), Local Civ. Rule 73.01(B)
(D.S.C.), and the order of Honorable Timothy M. Cain, United States District
Judge, dated October 10, 2017, referring this matter for disposition. [ECF No.
8]. The parties consented to the undersigned United States Magistrate
Judge’s disposition of this case, with any appeal directly to the Fourth Circuit
Court of Appeals. [ECF No. 4].
Plaintiff files this appeal pursuant to 42 U.S.C. § 405(g) of the Social
Security Act (“the Act”) to obtain judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”) denying the 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 court affirms.
I.
Relevant Background
A.
Procedural History
On December 13, 2013, Plaintiff filed an application for DIB in which
she alleged her disability began on March 1, 2013. Tr. at 168–69. Her
application was denied initially and upon reconsideration. Tr. at 62–70 and
74–85. On October 11, 2016, Plaintiff had a video hearing before
Administrative Law Judge (“ALJ”) Carl B. Watson. Tr. at 35–61 (Hr’g Tr.).
The ALJ issued an unfavorable decision on March 2, 2017, finding that
Plaintiff was not disabled within the meaning of the Act. Tr. at 8–34.
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 1–5. Thereafter, Plaintiff brought this
action seeking judicial review of the Commissioner’s decision in a complaint
filed on October 9, 2017. [ECF No. 1].
B.
Plaintiff’s Background and Medical History
1.
Background
Plaintiff was 64 years old at the time of the hearing. Tr. at 38. She
completed high school and obtained a licensed practical nursing (“LPN”)
2
degree. Id. at 42. Her past relevant work (“PRW”) was as an insurance clerk
and a LPN. Tr. at 40. She alleges she has been unable to work since June
2013. Tr. at 39.
2.
Medical History
On March 1, 2013, Emergency Medical Services (“EMS”) took Plaintiff
to the emergency department at Carolinas Hospital System for treatment of a
scalp laceration. Tr. at 303–11. Plaintiff reported she was injured at work
when an angry patient pushed her into a door frame. Tr. at 303. The treating
physician, Dr. Scott Burns (“Dr. Burns”), noted the laceration was two
centimeters long, linear, extended through the dermis into the subcutaneous
tissue, and had sharp, clean margins and minimal bleeding. Id. He noted
there was no tendon or vascular involvement. Id. Dr. Burns closed the wound
with three staples and sutures. Id. He prescribed Vicodin and ibuprofen for
pain. Tr. at 304.
On March 1, 2013, Plaintiff also saw Dr. Maria Perez-Garcia (“Dr.
Perez-Garcia”) at Carolinas Urgent Care and Occupational Health Center.
Tr. at 334–36. Dr. Perez-Garcia noted a head contusion with laceration on the
left parietal area. Tr. at 334. Plaintiff reported losing consciousness for a few
seconds after the injury and complained of neck pain and headache. Id.
Plaintiff stated the pain from her headache was a 6 out of 10 and did not
3
radiate to her upper extremity. Id. She denied tingling, numbness, or
weakness in her upper and lower extremities. Id. On examination, Dr. PerezGarcia noted Plaintiff had tenderness to palpation (“TTP”) on the left side of
her neck and pain with range of motion (“ROM”) on the left side and posterior
neck. Id. Dr. Perez-Garcia indicated Plaintiff’s upper extremity, pupils, nose,
ears, throat, lungs, heart, abdomen, and neurologic exam were all normal. Id.
Plaintiff received a plain x-ray of her cervical spine. Tr. at 335. The
reviewing radiologist, Dr. Steven Creedman (“Dr. Creedman”), noted
moderate C5–6 interspace narrowing with small dorsal and bilateral
uncovertebral spurs and assessed C5–6 degenerative disc disease (“DDD”).
Id. Dr. Perez-Garcia stated Plaintiff’s x-ray was normal. Tr. at 334. She
assessed status post-fall with head contusion and laceration on the scalp
(that was repaired with three staples and neck pain). Id. She also noted loss
of consciousness was questionable. Id. Dr. Perez-Garcia opined Plaintiff could
return to work the following day, but should be restricted to desk work and
should not handle patients without assistance. Id. She referred her for a
brain computerized tomography (“CT”) scan. Id.
On March 6, 2013, Plaintiff received a head CT. Tr. at 396. Dr. Charles
Parke found mild frontal periventricular white matter low attenuation and a
small area of low attenuation in the right anterior limb internal capsule. Id.
4
He noted these findings were most suspicious for mild small vessel ischemic
disease and that demyelination seemed less likely. Id. He did not find
evidence of posttraumatic contusion, mass, or hemorrhage intracranially. Id.
He noted the left parietal scalp laceration with small staples were in place
and indicated he did not see any underlying hematoma or calvarial fracture.
Id.
On March 8, 2013, Plaintiff had a follow-up appointment with Dr.
Perez-Garcia. Tr. at 332–33. Plaintiff complained of headache in the area of
the laceration and pain in her right shoulder, posterior neck, and lumbar
area. Tr. at 332. She denied tingling, numbness, or weakness in her
extremities and denied vision problems. Id. Dr. Perez-Garcia indicated
Plaintiff’s head CT scan was normal. Id. On examination, Dr. Perez-Garcia
noted Plaintiff had mild TTP of the posterior neck and TTP on the top of the
shoulder and the trapezial muscle, but full ROM and very minimal pain with
ROM. Id. She assessed status post-fall, head contusion, laceration of the
scalp, neck pain, lumbar pain, and local reaction to a tetanus shot. Id. She
continued to restrict Plaintiff to desk work and no patient handling without
assistance. Id.
On March 11, 2013, Dr. Perez-Garcia continued Plaintiff’s work
restrictions and prescribed prednisone. Tr. at 331. She noted Plaintiff’s
5
diagnoses included status post-fall, head contusion and laceration, neck pain,
lumbar sprain, headache, and local reaction to tetanus shot. Id.
On March 18, 2013, Plaintiff returned to Dr. Perez-Garcia. Tr. at 329–
30. Plaintiff reported worsening lumbar pain radiating to the posterior right
leg with tingling sensation. Tr. at 329. She denied weakness. Id. She said the
prednisone helped, but the pain returned. Id. She also continued to complain
of neck pain rated 4 out of 10. Id. On examination, Dr. Perez-Garcia noted
Plaintiff had no TTP or pressure to her neck and she had full ROM and no
pain with ROM. Id. Plaintiff had no TTP to her lumbar area, but did have
pain with ROM. Id. Her reflexes, sensitivity, and muscle strength were
normal. Id. Dr. Perez-Garcia referred Plaintiff for an MRI of her lumbar
spine and continued to restrict her to desk work only. Id. She assessed status
post-fall with head contusion, neck sprain, lumbar sprain, and paresthesias
of the right leg. Id. She prescribed Motrin and Flexeril. Id.
On March 21, 2013, Plaintiff began seeing Dr. Jimena C. Burnett (“Dr.
Burnett”) at McLeod Physician Associates. See Tr. at 416–18. Plaintiff
reported her history of hypertension and low back pain. Tr. at 416. She
indicated she had been taking her hypertension medication as directed and
had been responding to them well. Id. She complained of pain in her lower
back on the right side and numbness in her right leg. Id. Plaintiff’s
6
medications included Synthroid, Aspir-81, Enalapril Maleate, and Ibuprofen.
Id. Plaintiff’s blood pressure was 164/84. Tr. at 417. Dr. Burnett assessed
essential hypertension, colon cancer screening, hypothyroid, annual physical
exam, lipid screening, neck pain, and back pain. Tr. at 418. She increased
Plaintiff’s Enalapril Maleate Tablet dosage and ordered a comprehensive
metabolic panel. Id.
On March 25, 2013, in another follow-up appointment with Dr. PerezGarcia, Plaintiff reported her headache had improved and was intermittent,
but she continued to experience tinnitus in both ears. Tr. at 327. Plaintiff also
reported continued posterior non-radiating neck pain rated 4 out of 10. Id.
She rated her lumbar pain 3 out of 10 and indicated it continued to radiate to
the lateral right thigh. Id. Dr. Perez-Garcia noted having ordered an MRI,
but it was still pending. Id. She noted Plaintiff appeared uncomfortable, but
not in acute distress. Id. On examination of Plaintiff’s neck, Plaintiff
experienced TTP posteriorly and at the base of her neck, but only on the soft
tissue. Id. Plaintiff had full ROM and no pain with ROM. Id. Plaintiff had no
TTP on her lumbar spine, but had pain with flexion, extension, and lateral
movement radiating to her right leg. Id. Dr. Perez-Garcia’s assessment did
not change. Id. She continued to restrict Plaintiff to desk work and prescribed
diclofenac. Id.
7
On March 27, 2013, Plaintiff received an MRI of her lumbar spine. Tr.
at 397. Dr. Charles Parke (“Dr. Parke”) noted very mild convex curvature in
the upper lumbar spine apex at the L1 level; moderate marked disc
degeneration and moderate disc narrowing at T11–12 with circumferential
disc bulging, greatest anteriorly; posterior disc bulging causing mild thecal
sac effacement and mild right foraminal stenosis, but no focal cord
compression; minor left sided annular bulging extending to the foramen and
mild facet arthrosis at L4–5; mild disc degeneration peripherally, left
anterior and left lateral annular bulging with mild left foraminal narrowing
due to disc bulge at L2–3 and L3–4; and a small annular fissure on the left
side at L2–3. Id. His impression included no evident fractures or lumbar
compressive discopathy; moderate to advanced T11–12 disc degeneration
with chronic circumferential annular bulging, but no defined cord
compression and mild right foraminal narrowing due to asymmetric disc
bulging and spondylosis; and left-sided mild disc degeneration and annular
bulging at L2–3 and L3–4. Id.
On April 1, 2013, Plaintiff returned to Dr. Perez-Garcia. Tr. at 324.
Plaintiff rated her neck pain 4 out of 10, but only to touch, and Dr. PerezGarcia noted Plaintiff had full ROM in her neck and no pain with ROM. Id.
Plaintiff continued to report a posttraumatic headache. Id. She indicated her
8
lumbar pain as 4 out of 10 and radiating to the right leg with numbness. Id.
Dr. Perez-Garcia stated a lumbar spine MRI revealed DDD, but no herniated
disc or other acute injury. Id. She noted Plaintiff had lumbar pain with ROM
on flexion, extension, and lateral movement. Id. Her assessment did not
change. Id. She continued to restrict Plaintiff to desk work and referred her
to four weeks of physical therapy. Id.
On April 8, 2013, Dr. Perez-Garcia noted Plaintiff was improving. Tr. at
321. Plaintiff reported her neck pain had improved with Flexeril and
Voltaren. Id. She described her head pain as a frontal headache that started
on the right side and went to the left side and denied neurological symptoms.
Id. Dr. Perez-Garcia noted Plaintiff’s uncontrolled blood pressure may be
contributing to her headaches. Id. Plaintiff indicated her right leg pain was
worse when sitting and reported stiffness after long periods of immobility. Id.
She also complained of constant numbness in her first two toes and low back
pain that worsened with movement. Id. An examination of Plaintiff’s neck
showed point tenderness over C7 and no ROM restrictions. Id. A lumbar
examination revealed pain with movement around L1–L2. Id. Dr. PerezGarcia continued to restrict Plaintiff to desk work, recommended she not take
Voltaren on a daily basis, and recommended she follow up with her primary
9
care physician about her blood pressure, as it may be contributing to her
headache. Id.
On April 9, 2013, Plaintiff attended her first physical therapy session
at Progressive Physical Therapy. Tr. at 339. On her medical history form,
Plaintiff indicated her pain was aching and constant. Tr. at 353. She stated
leaning, sitting, and laying down made her pain feel worse. Id. She rated her
pain as 8 out of 10, noted her worst pain over the past 30 days had been 10
out of 10, and indicated the least pain she had experienced over the prior 30
days was 4 out of 10. Id. The therapist noted Plaintiff had symptoms
consistent with a differential diagnosis of low back strain and cervicogenic
headaches and recommended she continue physical therapy two to three
times a week for four weeks. Tr. at 339.
On April 11, 2013, Plaintiff returned to physical therapy. Tr. at 340.
Plaintiff reported a little extended relief after her last session. Id.
On April 15, 2013, Plaintiff followed up with Dr. Perez-Garcia. Tr. at
319. She reported continued sharp, intermittent headache pain in the left
temporal area and shooting to the right frontal area. Id. She rated her
headache pain 4 out of 10. Id. Plaintiff continued to complain of pain across
her lumbar area, with numbness and pain in her right leg and right toe. Id.
She rated this pain 4 out of 10. Id. She reported continued neck pain with
10
flexion and rated that pain 3 out of 10. Id. She complained that flexing her
neck caused headaches. Id. Dr. Perez-Garcia noted Plaintiff’s blood pressure
was still elevated, but her family doctor was working on changing her
medication. Id. Plaintiff reported her two physical therapy sessions had
helped a little, especially with her right leg pain. Id. On examination, Dr.
Perez-Garcia found Plaintiff had mild tenderness on the posterior right side
of her neck, full ROM, and some pain with flexion. Id. Plaintiff had mild
tenderness on the mid and upper lumbar area and across the lumbar spine;
normal muscle sprain, reflexes, and sensitivity; and pain with ROM. Id. Dr.
Perez-Garcia continued to restrict Plaintiff to desk work only. Tr. at 320. She
assessed status post-fall with head and brain contusion, neck sprain, lumbar
sprain, and posttraumatic headache. Tr. at 319.
On April 16, 2013, Plaintiff told her physical therapist she had done
her exercises at home, but not every day, and indicated the Voltaren seemed
to numb the pain. Tr. at 341.
On April 18, 2013, Plaintiff returned to physical therapy and reported
experiencing a lot of pressure in her neck. Tr. at 342. She indicated a
decrease in her headache pain at the end of her session. Id.
On April 22, 2013, Plaintiff told Dr. Perez-Garcia she was feeling about
the same. Tr. at 316. She stated physical therapy had been helping. Id. She
11
reported intermittent pain behind her eyes, alternating from the left to the
right eye. Id. Plaintiff’s current medications included Enalapril, which Dr.
Perez-Garcia noted was not effectively controlling Plaintiff’s blood pressure,
Synthroid, aspirin, Motrin, and Flexeril. Id. On examination, Dr. PerezGarcia indicated Plaintiff seemed pleasant and comfortable; had TTP on the
left and posterior neck; had full ROM in her neck, but complained of pain
with ROM; and complained of severe pain to palpation of her lumbar area
and numbness of the right leg. Id. Plaintiff had normal ambulation and
normal reflexes and sensitivity of the lower extremity. Id. Dr. Perez-Garcia
continued to restrict Plaintiff to desk work only. Id. She assessed
posttraumatic
headache,
neck
sprain,
and
lumbar
sprain.
Id. She
recommended discontinuing non-steroid anti-inflammatory drugs due to
Plaintiff’s hypertension. She prescribed Lortab and instructed Plaintiff to
continue taking Tylenol and Flexeril and referred her to a neurologist for her
headaches. Id.
On April 23, 2013, Plaintiff reported her pain returned about two hours
after her last physical therapy session. Tr. at 343.
On April 26, 2013, in physical therapy, Plaintiff stated she experienced
increased pain with increased pressure on her right lower extremity. Tr. at
344. She again reported decreased headache pain after therapy. Id.
12
On April 29, 2013, Plaintiff returned to Dr. Perez-Garcia. Tr. at 314.
Plaintiff continued to report head pain, describing it as piercing and
intermittent and rating it a 6 out of 10. Id. She also reported a headache
across the left side of her head, rated 4 out of 10. Id. She denied vision and
hearing problems. Id. Dr. Perez-Garcia noted having referred Plaintiff to a
neurologist for her posttraumatic headache. Id. Plaintiff complained of severe
posterior pain in her neck, not radiating to her upper extremities. Id. She
reported improved pain in her lumbar area and indicated the pain was
intermittent with movement and rated 4 out of 10. Id. She continued to
complain of pressure and numbness in her right leg that had not improved.
Id. Dr. Perez-Garcia noted Plaintiff had limited ROM in her lumbar spine. Id.
She assessed posttraumatic headache and neck and lumbar sprain and noted
Plaintiff’s high blood pressure remained uncontrolled. Id. She continued to
restrict Plaintiff to desk work only. Id.
On April 30, 2013, Plaintiff told the physical therapist she had been
really sore. Tr. at 345. She reported her headache decreased initially after
her last session, but then returned about one hour later and lasted longer. Id.
On May 3, 2013, Plaintiff’s physical therapist noted she experienced
increased headache pain throughout all of her cervical spine activities,
especially stretches. Tr. at 346.
13
On May 5, 2013, Plaintiff told her physical therapist she was not doing
well and felt like she had been hit. Tr. at 347. She reported decreased pain
following her session. Id.
On May 9, 2013, Plaintiff reported her back was feeling better, but her
neck had been really bothering her, and her leg still felt heavy. Tr. at 348.
She reported decreased headache and neck pain following her physical
therapy session. Id.
On May 13, 2013, Dr. Perez-Garcia continued Plaintiff’s work
restriction. Tr. at 313. She noted Plaintiff’s diagnoses included neck and
lumbar sprain and posttraumatic headache and indicated Plaintiff was to see
the neurologist that day. Id.
On May 14, 2013, a physical therapy assistant indicated Plaintiff’s
compliance with her home exercise plan was fair; her pain was aggravated
when she turned her head or walked more than ten feet; and Plaintiff could
complete 20 squats and could push and pull a sled with 45 pounds for three
minutes with some increased discomfort and headache pain. Tr. at 379. Her
report included an Oswestry low back pain questionnaire that Plaintiff
apparently completed. Tr. at 380. On the questionnaire, Plaintiff indicated
pain medication provided her with little relief from pain; she could take care
of herself normally without causing increased pain; she could lift only very
14
light weights; pain prevented her from walking more than a quarter mile,
sitting for more than 10 minutes, and standing for more than 30 minutes; she
could sleep well only by using pain medication; pain prevented her from going
out very often, restricted her travel to short, necessary journeys under 30
minutes, and prevented her from doing anything but light duties. Id.
The records from Progressive Physical Therapy also include an undated
Oswestry neck questionnaire, on which Plaintiff indicated her pain was mild
at the moment; she could look after herself normally without causing extra
pain; she could lift only very light weights; she could not read as much as she
wanted because of moderate pain in her neck; she had headaches almost all
the time; she had a lot of difficulty concentrating when she wanted to; she
could not do her usual work; she could not drive her car as long as she
wanted because of moderate pain in her neck; her sleep was moderately
disturbed; and she could hardly do any recreational activities because of pain
in her neck. Tr. at 377.
On May 17, 2013, Plaintiff returned to physical therapy. Tr. at 350. She
reported neck pain following her last session and expressed concern there
might be a more serious problem. Id. She complained of increased pulling and
tenderness in her cervical spine. Id.
15
On May 20, 2013, Dr. Perez-Garcia indicated Plaintiff’s work
restriction would continue until her neurologist indicated otherwise. Tr. at
312. She discharged Plaintiff with diagnoses of neck sprain, lumbar sprain,
right leg numbness, and posttraumatic headache. Id.
On June 3, 2013, Dr. George Sandoz (“Dr. Sandoz”) of Grand Strand
Spine and Neuro examined Plaintiff for complaints of headache, neck pain,
back pain, and loss of consciousness. Tr. at 558–60. Plaintiff indicated her
headaches were moderate to severe; had been occurring daily for three
months; we located in the frontal left, frontal right, and occipital, with
radiation to posterior. Tr. at 558. She reported debilitating pressure, mostly
during the daytime, aggravated by head position, noise, and stress. Id. She
reported associated blurred vision, memory loss, neurological symptoms,
performance changes, stiff neck, and visual aura, but denied dizziness. Id.
Plaintiff described her neck pain as daily moderate aching and burning and
located in the bilateral posterior neck with radiation to the bilateral head and
upper arm. Id. She indicated the pain was aggravated by flexion,
hyperextension, kneeling, walking, and working, and that she experienced
relief from massage. Id. She noted associated symptoms of trouble sleeping,
muscle spasm, and tenderness, and denied bladder retention. Id. Plaintiff
described her back pain as moderate to severe, persistent, worsening, located
16
in the lower back, and radiating to the dermatome anteriorly. Id. She noted
her symptoms were aggravated by daily activities and denied any relieving
factors. Id. Plaintiff reporting losing consciousness when she fell in March
and indicated associated symptoms of headache, memory loss, and
neurological symptoms and denied bladder incontinence. Id.
On examination, Dr. Sandoz noted Plaintiff experienced muscle spasms
in both her cervical and lumbar spine. Tr. at 559. He assessed headache, neck
pain, back pain, and syncope. Id. He ordered a brain MRI to evaluate the
possibility of a stroke and recommended Plaintiff continue with light duty
work and tramadol for her pain. Tr. at 559–60.
On June 4, 2013, Plaintiff canceled her physical therapy appointment,
stating she wanted to have additional tests done by a doctor before
continuing physical therapy. Tr. at 351.
On June 19, 2013, Plaintiff’s physical therapist discharged her from
physical therapy because she had been referred to a specialist and was
undergoing testing. Tr. at 369.
On July 1, 2013, Dr. Stephen Gordin (“Dr. Gordin”) administered an
MRI of Plaintiff’s cervical spine. Tr. at 398. Dr. Gordin noted some
degenerative spurring off the anterior aspect of the C4 vertebral body; a
small central disc protrusion mildly attenuating the ventral subarachnoid
17
space, but not touching the spinal cord, and bilateral facet joint arthropathic
changes at C4–5; bilateral facet joint arthropathy, small disc bulge, and
bilateral arthropathic facet changes at C5–6; and small disc bulge and
bilateral facet joint arthropathy at C6–7. Id. His impression included
multilevel spondylitic changes, but no focal disc herniation or severe central
canal stenosis; only fat noted beneath Plaintiff’s marker, but a well-defined
lipoma not identified; and some heterogeneity to the left thyroid lobe. Id.
On July 9, 2013, Dr. Gordin administered an MRI of Plaintiff’s brain.
Tr. at 399. Dr. Gordin noted an area of low signal in the periventricular white
matter on the right adjacent to the anterior angle of the right lateral
ventricle that was of low signal on T1 sequence and bright on T2. Id. He
stated this suggested a small area of prior ischemia and noted this seemed to
correspond with Plaintiff’s March 6, 2013 CT scan. Id. Dr. Gordin noted some
foci on T2 hyperintensity in the left corona radiate and in the right centrum
semiovale that suggested gliosis from small vessel ischemia. Id. The scan was
otherwise unremarkable. Id. His impression included evidence of chronic
ischemic changes affecting the brain. Id. He did not find evidence of
pathologic enhancement. Id. He indicated white matter disease, which he
opined was most likely reflective of small vessel ischemia and was unlikely to
18
reflect
demyelination
because
there
were
no
associated
pathologic
enhancements or mass effect to suggest any were acute. Id.
On July 22, 2013, Plaintiff had a follow-up appointment with Dr.
Sandoz. Tr. at 555–57. Plaintiff indicated her neck pain had worsened and
was aggravated by driving, straining, Valsalva, and working. Tr. at 555. She
reported relief from narcotic analgesics. Id. She reported the pain in her
lower back had radiated to the right foot and indicated pain medications
relieved her symptoms. Id. Plaintiff reported associated symptoms of
clumsiness, confusion, memory difficulty, vomiting, and syncope. Id. On
examination, Dr. Sandoz indicated Plaintiff had muscle spasms in her
cervical and lumbar spine, mildly reduced ROM in her cervical spine, and
moderate pain with motion in her lumbar spine. Tr. at 556. He noted Plaintiff
had been compliant with her medication and was responding to current
treatment. Id. Dr. Sandoz assessed post-trauma headache, late effect of
intracranial
injury
without
mention,
cervical
spondylosis
without
myelopathy, and lower back pain. Id. He noted changes on her brain and neck
MRI; recommended neuropsychological testing, an EEG, a nerve conduction
study, and a lumbar spine MRI; and limited Plaintiff to light duty with a 10
pound weight restriction. Id.
19
On August 15, 2013, Plaintiff returned to Dr. Sandoz. Tr. at 552–54.
Dr. Sandoz continued to rate Plaintiff’s headache and back pain as moderate
to severe. Tr. at 552. Plaintiff reported experiencing headaches daily upon
awakening. Id. Dr. Sandoz noted muscle spasm in Plaintiff’s cervical and
lumbar spine. Tr. at 553. He assessed posttrauma headache, cervical disc
displacement without myelopathy, late effect of intracranial injury without
mention, and back pain. Id. He recommended Plaintiff continue taking
Ultram and noted results of an epidural steroid injection. Id. He continued to
limit Plaintiff to light duty. Id.
On September 26, 2013, Dr. David Scott (“Dr. Scott”) at Moore
Orthopedics began treating Plaintiff. Tr. at 540–41. Plaintiff reported back,
neck, and leg pain since her March 2013 injury. Tr. at 540. She also
complained of constant tinnitus and headaches. Id. Dr. Scott did not note any
abnormalities on physical examination. Id. He reviewed Plaintiff’s cervical
spine MRI and noted some areas of modest neuroforaminal stenosis, but
nothing that approached a severe level or that he would expect to manifest in
substantial symptoms. Tr. at 541. He took plain films of the cervical and
lumbar spine during the visit. Id. The cervical spine films showed some DDD
and anterior spurring with relative reversal of the normal cervical lordosis.
Id. The lumbar spine films showed some modest DDD and a little facet
20
arthrosis, but no impressive listhesis, fracture, DDD, or other impressive
pathology. Id. Dr. Scott recommended Plaintiff see an ENT for her headaches
and tinnitus. Id. He indicated he did not see anything overwhelming in her
cervical spine, but noted epidural injections may be indicated if her
symptoms did not resolve. Id.
On October 3, 2013, Plaintiff returned to Dr. Scott with her lumbar
spine MRI. Tr. at 539. Dr. Scott examined Plaintiff and noted good cervical
ROM and a little bit of pain in the soft tissues around the neck in the
paraspinal muscles. Id. Dr. Scott reviewed the cervical and lumbar MRIs and
did not see anything overly impressive concerning central canal or neural
foraminal stenosis. Id. He stated he did not see any reason why Plaintiff
could not return to work, but noted Plaintiff was adamant that she could not
work. Id. Plaintiff’s insistence that she could not work made Dr. Scott
uncomfortable returning her to a place where she was charged with caring for
people, so he indicated he would keep her out of work or at least impose
lifting, pulling, and pushing restrictions to keep her from having
responsibility for lifting or pushing patients. Id.
From October 11, 2013, to November 22, 2013, Plaintiff was treated by
Dr. Leah Hamoy (“Dr. Hamoy”) at Dynamic Physical Therapy of Florence. Tr.
at 338, 446, 451–54, 457, 459, 464, 466, 468, 470, 472, 477, 479, 480, 482,
21
483–85, 486–88.
Dr. Hamoy noted Plaintiff had made progress and reported
decreased pain following treatments, but her subjective complaints continued
to fluctuate, even without strenuous activities. Id.
On October 24, 2013, Plaintiff returned to Dr. Scott for an evaluation of
her right hip. Tr. at 537–38. Plaintiff noted her back still hurt and her neck
was causing her some discomfort, but she wanted Dr. Scott to pay closer
attention to her hip. Tr. at 537. Dr. Scott’s physical examination was
unremarkable. Id. He obtained plain films of the right hip and found no signs
of fracture, dislocation, or other bony abnormality; no evidence of femoral
head, neck, or shaft fracture; and no impressive overwhelming signs of
arthritis. Id. Dr. Scott noted Plaintiff seemed generally dissatisfied with her
progress and said he would seek another opinion regarding possible
interventional procedures. Tr. at 537–38.
On October 29, 2013, Plaintiff returned to Dr. Sandoz. Tr. at 549–51.
She rated her headaches as moderate to severe and her neck pain as
moderate and indicated that both problems had worsened. Tr. at 549.
Plaintiff continued to complain of back pain and memory loss and reported
moderate, persistent dizziness. Id. Plaintiff described the dizziness as an
unstable horizon, occurring spontaneously, aggravated by turning, and
relieved by changing position. Id. She reported experiencing associated
22
symptoms of headache and paresthesias, but denied diplopia. Id. On
examination, Dr. Sandoz indicated muscle spasm in Plaintiff’s cervical spine,
but found no lumbar spine tenderness and normal mobility and curvature.
Tr. at 550. He assessed posttrauma headache, dizziness, lumbar disc
displacement, cervical disc displacement without myelopathy, and late effect
of intracranial injury without mention. Id. He noted Plaintiff’s headache was
not responding to medication and prescribed Elavil and Imitrex. Id. He
indicated Plaintiff
had seen an
ENT, but they
were
awaiting
a
neuropsychological evaluation to determine if further treatment was
warranted for memory loss. Id.
On November 25, 2013, Dr. Amit Sanghi (“Dr. Sanghi”) at South
Carolina Diagnostic Imaging administered a brain MRI. Tr. at 435–36. He
noted Plaintiff continued to experience headaches on the right side of her
head, hearing loss in her right ear, blurred vision, and changes in her speech.
Tr. at 435. The MRI showed mild diffuse cerebral atrophy, which Dr. Sanghi
noted
may
be
age-related,
and
multiple
punctate
FLAIR1
signal
abnormalities within the deep white matter of the brain in the basal ganglia
and distribution on T2 FLAIR sequences. Id. He found no evidence of mass at
Fluid-attenuated inversion recovery (“FLAIR”) imaging is a technique that
forms image contrast based on T1 and T2 relaxation times.
1
23
the costophrenic (“CP”) angle, specifically the seventh and eighth cranial
nerves. Id.
On November 27, 2013, Plaintiff saw Dr. John Clavet (“Dr. Clavet”) at
Moore Orthopedics for a second opinion regarding her neck and lower back
pain. Tr. at 533–36. Plaintiff described her neck pain as located on the left
side of the neck at the base of the neck, left upper trap area, 5/10 in severity,
aching and throbbing in characteristic. Tr. at 533. She indicated she did not
have pain radiating down the arms and the pain was aggravated with flexion,
particularly with looking down to read. Id. She reported topical heat,
massage, and a TENS unit provided relief and that physical therapy had
been helpful. Id. Plaintiff described her lower back pain as right-sided
lumbosacral back pain with a radiating component down the back of the leg
to the foot, sharp pain, 4/10 in severity, aggravated with lying in bed, and
alleviated with massage and a TENS unit. Id. She reported she returned to
work on light duty from April 1st through June 8th, but was subsequently
told no further light duties were available. Id.
Dr. Clavet reviewed Plaintiff’s radiographs. Tr. at 533–34. He noted
Plaintiff’s October 21, 2013 hip films showed enthesopathic changes at
bilateral ASIS; minimal inferior changes with preservation of joint spaces at
the SI joints; unremarkable bilateral hips with intact femoral acetabular
24
joint spacing; and unremarkable frog-leg view of the right hip. Id. Her lumbar
spine films from September 2013 did not show any traumatic changes or
evidence of spondylolisthesis or spondylolysis, and intervertebral disc heights
were well maintained. Tr. at 534. Her lumbar spine MRI from March 2013
showed intact intervertebral disc heights and minimal degenerative disc
changes; patent canal at all levels; mild to moderate left neuroforaminal
narrowing; and no indication of any high-grade stenosis at any level. Id.
Plaintiff’s September 2013 plain films of the cervical spine showed
straightening of the cervical spine with loss of normal cervical lordosis, mild
to moderate spondylitic changes centered at C5–6, and narrowing at the right
C5–6 foramen due to bony osteophytic changes. Id. Her July 2013 cervical
MRI showed mild to moderate degenerative changes centered at C5–6 and
mild to moderate right neuroforaminal narrowing. Id.
On physical examination of Plaintiff’s cervical spine, Dr. Clavet
indicated Plaintiff experienced moderate tenderness at the base of the neck
extending to the left upper trapezius and achieved chin-to-chest with good
extension and full lateral rotation without significant discomfort. Tr. at 534.
Regarding Plaintiff’s lumbar spine, Dr. Clavet noted palpation of the
thoracolumbar
and
lumbosacral
spine
was
unremarkable;
Plaintiff
experienced a little bit of discomfort with flexion and extension; flexion to 60
25
degrees and extension to 10 degrees beyond neutral. Id. In addition, Dr.
Clavet noted Plaintiff’s right hip ranged well without pain and FABER
(flexion, abduction, and external rotation) testing was negative on the right.
Id.
Dr. Clavet assessed cervical sprain/strain and lumbar sprain/strain. Tr.
at 535. He reported no acute traumatic changes he would attribute to her
March 2013 injury. Id. Dr. Clavet agreed with Dr. Scott’s treatment plan and
did not recommend any more aggressive neuraxial procedures. Id.
On December 17, 2013, Plaintiff was seen by Dr. Hopla. Tr. at 492. Dr.
Hopla noted Plaintiff’s head MRI was normal and Plaintiff should probably
see a neurologist about her headaches. Id.
On January 21, 2014, Plaintiff followed up with Dr. Scott. Tr. at 531–
32. Plaintiff reported her neck and back were feeling a little bit better, but
had persistent radiating pain in her right leg and hip. Tr. at 531. Dr. Scott
performed a physical examination and found negative straight leg raise
bilaterally, good functional knee flexion-extension and hip flexion bilaterally,
mild to modest discomfort with internal and external rotation of the right
hip, and intact sensation to light touch and pressure in her upper and lower
extremities. Id. After examining Plaintiff on multiple occasions, Dr. Scott
could not identify any impressive substantial pathology and said he did not
26
have anything else to offer her for her neck and back. Id. Dr. Scott noted he
offered Plaintiff a therapeutic intra-articular hip injection, which she
declined, and offered a referral to a surgical hip specialist for another
opinion. Id. Dr. Scott stated he felt Plaintiff’s neck and back should not keep
her from working and that she could work without restrictions. Tr. at 531–32.
On January 24, 2014, Plaintiff followed up with Dr. Sandoz about her
head
injury.
Tr.
at
546–48.
Plaintiff
described
her
symptoms
as
incapacitating. Tr. at 546. She indicated the pain was aggravated by sitting
up
and
sound
and
associated
symptoms
included
clumsiness,
gait
disturbance, headache, irritability, and visual disturbance. Id. Dr. Sandoz
also noted her associated tinnitus and back pain and that she was taking
medication on a daily basis to control her headache and pain. Id. Dr. Sandoz
indicated Plaintiff had muscle spasm in her cervical and lumbar spine,
experienced mild pain with motion in her cervical spine, and experienced
moderate pain with motion in her lumbar spine. Tr. at 547. He assessed
posttrauma headache, lumbar disc displacement, other and unspecified disc
disorder of cervical radiculopathy, and dizziness. Id. He prescribed Imitrex,
Tramadol, and Elavil for her pain and noted she needed to take the Tramadol
on a daily. Id. Dr. Sandoz stated Plaintiff had achieved maximum medical
improvement for her headache and lumbar and cervical disc disease. Id. He
27
said one other option for her headache might be Botox and indicated she
needed a functional capacity evaluation (“FCE”). He noted awaiting a
neuropsychological exam. Id.
On February 17, 2014, Tracy Hill (“Ms. Hill”), a physical therapist at
Columbia Rehabilitation Clinic, performed an FCE. Tr. at 573–594. Plaintiff
reported an initial pain level of 5/10. Tr. at 573. Her highest pain level during
the exam was an 8/10 with lifting. Id. Ms. Hill found Plaintiff could meet the
demands of limited sedentary to limited light work. Id. Plaintiff tolerated
occasional walking, stairclimbing, kneeling, bending, and reaching. Id. She
did not tolerate occasional squatting or twisting. Id. Plaintiff could lift 9 to 14
pounds at various heights on an occasional basis, carry 13 pounds with two
hands; carry 9 pounds in each hand, and push and pull 10 pounds loaded in a
sled. Id. Plaintiff reported a sitting tolerance of 45 minutes, a standing
tolerance of at least 15 minutes, and a standing/walking tolerance of at least
30 minutes. Id. Ms. Hill observed Plaintiff to sit for a maximal time of 15
minutes, stand for a maximal time of 13 minutes, and stand/walk for a
maximal time of 17 minutes. Id. Plaintiff’s cervical and lumbar ROM were
limited. Id. The results of Plaintiff’s treadmill test placed her in the fair
classification of aerobic capacity and her functional aerobic capacity qualified
her for light work. Id. Ms. Hill noted Plaintiff put forth a consistent effort
28
during the evaluation and she had taken one Ultram two hours prior to
testing and took an Ultram one hour and 40 minutes into testing. Id.
On May 9, 2014, Plaintiff underwent a neuropsychological evaluation,
performed by Dr. Nicholas Lind (“Dr. Lind”). Tr. at 596–615. Plaintiff
reported experiencing headaches since her March 2013 injury with an
intensity of 8/10 without medication and 3/10 with medication. Tr. at 608.
She also reported decreased sleep, ability to engage in previously enjoyed
activities, energy, and concentration, but denied feelings of guilt or changes
in appetite, irritability, or sex drive. Tr. at 609. Plaintiff acknowledged
apprehension about returning to work, but denied any PTSD symptoms. Id.
She noted a change in her speech pattern after her injury and reported
forgetfulness and eye fatigue when reading. Id. Plaintiff reported injuring her
neck and lower back in an automobile accident approximately 30 years prior
to the evaluation, but denied any dizziness, headaches, or difficulty thinking
associated with it or any other accident. Id. She stated she was diagnosed
with high blood pressure three or four years prior to her injury and indicated
her high blood pressure was controlled with medication. Id. She denied a
history of seizures, but reported involuntary facial twitches since the injury.
Id. Dr. Lind indicated Plaintiff’s mental status appeared normal. Id.
29
Psychological tests revealed Plaintiff experienced mild levels of
depression,
moderate
levels
of
anxiety,
had
borderline
intellectual
functioning with a full scale IQ of 77, and demonstrated impaired attention
and impulse control and impaired motor coordination. Tr. at 609–10.
Dr. Lind diagnosed adjustment disorder with mixed anxiety and
depressed mood. Tr. at 611. He stated the results of the testing suggested
mild depression and moderate anxiety. Id. The estimate of premorbid
functioning suggested borderline abilities, but that measure was limited due
to Plaintiff’s poor academic performance and opportunities. Id. He noted
Plaintiff’s borderline memory for visual information may be due to her head
injury, but opined it was not significantly disabling. Id. Dr. Lind found
Plaintiff had met maximum medical improvement for any psychological
symptoms associated with her injury and recommended she continue to use
Elavil for as long as her pain persisted. Id. He concluded there were no
mental health contraindications for Plaintiff to work in any capacity for
which she was otherwise qualified. Id.
On June 24, 2014, Plaintiff returned to Dr. Sandoz for an evaluation of
her back pain, headache, neck pain, and memory loss. Tr. at 626–29. Plaintiff
reported persistent moderate to severe pain in her lower back, radiating to
the right calf and foot. Tr. at 629. She said her symptoms were aggravated by
30
daily activities and relieved by pain medication. Id. Plaintiff described her
headaches as constant, moderate to severe pressure and throbbing. Id. She
indicated occipital pain radiating anteriorly aggravated by anxiety, head
position, and noise and relieved by prescription drugs. Id. She reported
associated symptoms of dizziness, memory impairment, neck stiffness,
neurological symptoms, and vertigo. Id. Plaintiff indicated her neck pain had
improved and described it as moderate, constant aching and burning in her
bilateral posterior neck and radiating to her upper arms. Id. Plaintiff stated
her symptoms were aggravated by flexion, hyperextension, pushing, walking,
and working and were relieved by narcotic analgesics. Id. She reported
associated symptoms of difficulty sleeping, muscle spasm, numbness, and
tenderness, but denied bladder retention. Id. Plaintiff also complained of
moderate memory loss, with associated symptoms of behavioral changes,
dizziness, headache, neck stiffness, paresthesia, sleep disturbances, speech
difficulty, and tingling. Id. Dr. Sandoz assessed post-trauma headache,
displacement of cervical intervertebral disc without myelopathy, late effect of
intracranial injury without mention of skull fracture, and sciatica due to
displacement of lumbar disc. Tr. at 627–28. He instructed Plaintiff to
continue taking tramadol and amitriptyline for her headaches and stressed
compliance with taking the medication. Tr. at 627.
31
For her cervical disc
displacement, Dr. Sandoz noted Plaintiff should continue with her medication
and conservative therapy. Id. He noted Plaintiff was not a candidate for an
epidural steroid injection because of her diabetes and instructed her to
continue using Lidoderm patches. Id. Dr. Sandoz noted there was no surgical
pathology for Plaintiff’s sciatica, that she was not a candidate for an epidural
steroid injection, and that he had ruled out medications. Id. Dr. Sandoz
indicated Plaintiff had reached maximum medical improvement for her
headache, neck pain, and lower back pain. Tr. at 627–28. He referred
Plaintiff to counseling for her intracranial injury and resulting depressive
symptoms. Tr. at 628.
On August 24, 2014, Plaintiff participated in an employability analysis
by Cassandra L. Townsend (“Ms. Townsend”), a Vocational Rehabilitation
Consultant. Tr. at 630–48. Plaintiff stated her last day on the payroll at her
previous job was June 20, 2013, and she was terminated on November 1,
2013. Tr. at 630. Plaintiff reported taking Tramadol, Elavil, Imitrex,
Lidocaine
patches,
Synthroid,
Benazepril/HCTZ,
Albuterol
inhaler,
Symbicort, baby aspirin, and Metformin. Tr. at 635. She complained of a
constant right frontal headache somewhat decreased by pain medication. Id.
At the beginning of the assessment, Plaintiff rated her headache pain 4/10
and a 6/10 at the end. Id. Plaintiff reported a constant ringing in her right
32
ear and indicated ENT testing had demonstrated right ear hearing loss. Id.
Plaintiff complained of pain in the back of her right hip and thigh, running
down to the second toe, which was numb. Tr. at 636. She rated that pain a
6/10 toward the beginning of the assessment and a 7/10 toward the end of the
assessment and reported experiencing a gait change. Id. Plaintiff complained
of a shooting pain starting at the center of her back and radiating to the right
side that progressively worsened with sitting. Id. She rated this pain 3/10
toward the beginning of the assessment and 4/10 toward the end of the
assessment. Id. Plaintiff complained of a pressure-like pain, strain, and
constant tightness in her neck that she rated an 8/10 and 6/10. Id. She
reported aching in both shoulders, rated 3/10 toward the beginning of the
assessment and 4/10 toward the end. Id. She stated she had developed a
facial twitch on both sides of her face. Id. She reported experiencing blurry
vision, dizziness, leg weakness, fatigue, and ringing in her right ear. Id.
Plaintiff reported difficulty maintaining concentration, lack of motivation,
slowed mental processing, difficulty remembering little and important things,
losing track of time, being easily distracted, and communicating more slowly,
as well as grasping for words. Id. Plaintiff also reported changes in her
emotions and behaviors, including writing notes to herself, but then losing
them, losing track of conversations, being easily annoyed by others, forgetting
33
to turn off the stove, being short-tempered, experiencing impaired sleep,
feeling more angry than usual, feeling down and depressed, feeling irritable
and anxious, feeling impatient, experiencing a lower libido, and feeling easily
overwhelmed. Id.
Plaintiff denied participating in any form of home exercise program,
but reported using the following self-help techniques: using a horseshoe neck
pillow for sleep; sleeping with a pillow between her knees; applying an ice
pack to her neck, head, and right hip; using her TENS unit twice a day on her
back, neck, and thigh; engaging in hot bath soaks and hot showers; and
stretching with bands. Id.
Plaintiff described her quality of sleep as poor and interrupted. Tr. at
637. She reported waking up an average of three times each night and denied
a history of obstructive sleep apnea. Id. Plaintiff indicated she mostly took
care of herself independently, but needed assistance with washing and
styling her hair. Id. She performed minimal household chores, including
making her bed, preparing meals, doing laundry, and changing her bed
linens. Id. She said she could drive approximately 30 minutes before
requiring a rest break, but could remain in a vehicle longer if riding as a
passenger. Id. Plaintiff reported no longer enjoying reading because she could
not find a comfortable position and had trouble concentrating, decreased
34
church attendance, and less frequent visits with friends and family. Id. She
indicated her typical day consists of getting up, taking a shower, eating cereal
for breakfast, sitting in a lounge chair, watching television, listening to the
radio, sitting on the porch, attending appointments, going to the market
occasionally for small items, resting, taking medications, applying her TENS
unit midday, and occasionally attending town meetings on her better days.
Id.
Plaintiff reported the need to wear trifocal lenses; significant
challenges with reading comprehension and concentration; deficiency in
hearing in her right ear; slowed and less articulate speech; discomfort lifting
a gallon of milk; ability to stand for 10 to 15 minutes; ability to walk for
approximately 20 minutes; ability to sit for approximately 30 minutes;
avoiding steps, stooping and squatting, bending and twisting, and reaching
up and out; not attempting kneeling; ability to comprehend general social
communication for short periods of time; and feeling off balance and if her her
right leg would give way. Tr. at 637–38.
Ms. Townsend administered the Wide Range Achievement Test
(“WRAT”). Tr. at 641. Plaintiff achieved below average to average scores in
word reading, sentence comprehension, math computation, and reading
composite. Id. She was able to pronounce five letter words and correctly
35
perform
mathematics
calculations,
including
addition,
subtraction,
sequencing, multiplication, division, rounding, and simple algebra. Id.
After
reviewing
medical
opinions
from
Plaintiff’s
doctors
and
conducting her clinical interview, Ms. Townsend concluded Plaintiff’s
physical capacity range fell within the sedentary to light physical demand
category. Tr. at 644. She also opined Plaintiff had experienced an extensive
degree of loss in transferable occupations as a result of her injuries. Tr. at
646. She noted Plaintiff demonstrated positive work placement features, such
as her high school diploma and education in nursing, ability to gain
employment throughout her adult years, reliable transportation, and her
academic achievement levels in the below average to average range. Id. Ms.
Townsend also noted Plaintiff’s negative placement features included her
residence in a county with an unemployment rate higher than the national
and state average, borderline tested intelligence, and her dependence on
Tramadol, Lidocaine patches, Elavil, and Imitrex. Tr. at 647. Ms. Townsend
also noted Plaintiff had been terminated from two positions and would have
to deal with the stigma attached to those terminations. She also noted
Plaintiff’s history of arrest and pending jury trial. Id.
Ms. Townsend opined Plaintiff’s injuries significantly jeopardized her
employability and that she should consider participating in services offered
36
by the South Carolina Vocational Rehabilitation Department. Id. She stated
if Plaintiff’s symptoms improved, she was deemed eligible for services, and if
she successfully addressed her chronic pain and stamina concerns, she may
become employable as a customer complaint clerk. Tr. at 648. Ms. Townsend
said Plaintiff would need to improve her ability to deal with stress and have
more cognitive clarity, which may require that she participate in
psychotherapy to help control the impact of stress on her pain. Id.
On November 18, 2014, Plaintiff returned to Dr. Sandoz with
complaints of headache and dizziness. Tr. at 680–82. She described her
headache pain as moderate to severe and her dizziness as moderate. Tr. at
680. Dr. Sandoz did not find any abnormalities in his physical exam. Tr. at
681.
He
assessed
posttrauma
headache,
displacement
of
cervical
intervertebral disc without myelopathy, dizziness, and late effect of
intracranial injury without mention of skull fracture. Id. Plaintiff reported no
significant improvement with Tramadol, but indicated she had been taking
codeine for a cough that was also improving her headache and neck pain. Id.
Dr. Sandoz prescribed Tylenol with codeine. Id. He attributed her dizziness to
inner ear damage and instructed Plaintiff to continue with meclizine and
exercises. Id. He noted awaiting input from psychiatry on Plaintiff’s
intracranial injury and resulting symptoms. Id.
37
On November 21, 2014, Dr. Sandoz gave sworn testimony regarding
Plaintiff’s medical treatment in connection with her workers compensation
claim. Tr. at 746–60. At some point during Plaintiff’s treatment, she reported
difficulty performing her activities of daily living (ADLs”), which prompted
Dr. Sandoz to recommend a psychiatric and neuropsychological evaluation to
assess the possibility of underlying depression, trauma, or traumatic brain
injury. Tr. at 748. He testified all of the conditions he was treating were
controlled with treatment or were at maximum medical improvement. Tr. at
748, 750. He opined Plaintiff had suffered a brain injury to the bilateral
frontal region, despite a lack of evidence on CT or MRI. Tr. at 752.
On December 8, 2014, Plaintiff followed up with Dr. Acaylar on her lab
results and hypertension and for a refill of Symbicort. Tr. at 726–29. He
noted her chronic headache was stable with her current medication, her
diabetes was controlled, her exudative pharyngitis was resolved, and her
hypertension was controlled. Id. He prescribed Janumet for diabetes, Exforge
for hypertension, Dexilant for GERD, and Flagyl for the H. pylori infection.
Id.
On February 27, 2015, Dr. Sandoz treated Plaintiff for headaches. Tr.
at 677–79. Plaintiff reported her headaches were worse, occurring daily, and
moderate to severe. Tr. at 677. She indicated her symptoms were aggravated
38
by exercise, head position, noise, and stress, and she denied any relieving
factors. Id. Plaintiff reported associated symptoms of blurred vision,
dizziness, memory impairment, neck stiffness, neurological symptoms,
performance changes, photophobia, visual aura, and paresthesia. Id. Dr.
Sandoz
assessed
posttrauma
headache,
displacement
of
cervical
intervertebral disc without myelopathy, late effect of intracranial injury
without mention of skull fracture, and sciatica due to displacement of lumbar
disc. Tr. at 678. He noted her therapy was not relieving her pain symptoms,
and he prescribed gabapentin. Id.
On April 13, 2015, Plaintiff followed-up with Dr. Acaylar regarding her
diabetes. Tr. at 716–18. Plaintiff complained of depression and numbness in
her right toes. Tr. at 716. She reported she had not been taking the Kazano
for her diabetes and did not want to take anything with metformin. Id. Dr.
Acaylar noted Plaintiff presented with depressed mood, difficulty falling and
staying asleep, excessive worry, and restlessness. Id. He also noted Plaintiff
had not taken her blood pressure medication that day. Tr. at 717. He
assessed uncontrolled hypertension, uncontrolled diabetes mellitus, and
GERD. Tr. at 716. He prescribed benazepril for hypertension and indicated
she should follow up again in two months. Id. He prescribed Actos and
Glipizide for diabetes. Id.
39
On May 18, 2015, Plaintiff returned to Dr. Sandoz regarding her
memory loss, neck pain, and headache. Tr. at 673–76. She described
experiencing behavioral changes, difficulty with ADLs, falling, headache,
neck stiffness, restlessness, and sleep disturbances. Tr. at 673. She denied
agitation, ataxia, bladder incontinence, bowel dysfunction, chorea, confusion,
dizziness, fever, gait disturbances, hallucinations, hyperacusis, mood swings,
paresthesia, personality change, speech difficulty, tingling, tremors, and
visual disturbances. Id. She also reported going into rooms and not knowing
why she went there and having gone to places she did not know how. Id.
Plaintiff reported her neck pain was moderate and had worsened. Id.
She described the pain as aching, occurring daily, located in the bilateral
posterior neck, and radiating to both upper arms. Id. She indicated the pain
was aggravated by driving, exertion, flexion, hyperextension, pushing,
rotation, walking, and working. Id. Plaintiff denied any relieving factors. Id.
She described experiencing difficulty sleeping, muscle spasm, numbness,
tenderness, tingling, and weakness in her neck. Id. She denied experiencing
bladder dysfunction not spinal related, bladder incontinence, bladder
retention, bowel dysfunction not spinal related, bowel incontinence, bowel
retention, decreased mobility, dermatomic rash, dysphagia, incoordination,
40
joint pain, loss of balance, muscle atrophy, rash, sexual dysfunction, and
weight loss. Id.
Plaintiff described her headache as pressure and squeezing on the
frontal left, frontal right, and occipital that was aggravated by head position
and could be relieved with prescription drugs. Id. She indicated that she
experienced daily, worsening headaches daily and the condition had
worsened. Id. She reported experiencing memory impairment and neck
stiffness associated with the headaches. Id. She denied experiencing
associated dizziness, fever, and personality change. Id.
Dr. Sandoz noted Plaintiff had a muscle spasm in her cervical spine
and was in moderate distress, but found no other abnormalities on physical
examination. Tr. at 675. He assessed post-trauma headache, other and
unspecified disc disorder of cervical region, sciatica due to displacement of
lumbar disc, and late effect of intracranial injury without mention of skull
fracture. Id. Plaintiff reported gabapentin had not helped, so Dr. Sandoz
indicated she should wean off of gabapentin and start diclofenac. Id. He
ordered an MRI of Plaintiff’s cervical spine and somatosensory testing of both
arms and legs. Id. He noted Plaintiff’s sciatica was causing left leg pain and
her hip pain had worsened. Id. He indicated he would set up an orthopedic
consultation. Id. Dr. Sandoz also noted he would review Plaintiff’s new
41
neuropsychological evaluation to adjust her medications or begin a
psychotherapy trial. Id.
On May 22, 2015, Dr. Lind testified regarding Plaintiff’s treatment in
connection with her workers’ compensation claim. Tr. at 761–92. He testified
people who experience chronic pain and anxiety are more likely to experience
inattention than people with organic brain injuries. Tr. at 764. He walked the
attorneys through his report and each test performed. Tr. at 765–775. Dr.
Lind stated he thought Plaintiff’s low intelligence score was attributable to
pain and anxiety. Tr. at 774.
On May 29, 2015, Dr. James Thesing (“Dr. Thesing”) administered an
MRI of Plaintiff’s cervical spine. Tr. at 671–72. Dr. Thesing found incidental
demonstration of mild to moderate mucosal thickening in the maxillary
sinuses; heterogeneous enlargement of the left thyroid lobe; mild modic
endplate changes with vertebral body marrow signal, which he noted was
normal for Plaintiff’s age; mild to moderate facet arthropathy throughout;
severe DDD at C5–6; and mild to moderate DDD at C4–5 and C6–7. Tr. at
671. He found a tiny central disc protrusion at C2–3 and no stenosis. Id. At
C3–4, he found a minimal disc bulge with no stenosis. Id. At C4–5, he found
the presence of a shallow central disc osteophyte complex and more
prominent left central endplate osteophytes that merged with uncovertebral
42
hypertrophy to produce severe left C5 neural foraminal stenosis. Id. He
indicated there was mild central canal and no right neural foraminal stenosis
at that level. Id. At C5–6, he found mild posterior discovertebral ridging,
predominantly bony with mild central canal stenosis asymmetric to the right.
Id. He indicated prominent uncovertebral hypertrophy resulted in moderate
right and mild left neural foraminal stenosis. At C6–7, he found a small
central disc protrusion and mild disc bulge. Id. He indicated there was no
central canal stenosis and mild left and no right neural foraminal stenosis at
that level. Id. At C7–T1, he found the disc was intact and no stenosis. Id.
Dr. Thesing’s impression included mild central canal and severe left
neural foraminal stenosis at C4–5; severe DDD at C5–6, with mild central
canal stenosis asymmetric to the right with moderate right and mild left
neural forminal stenosis; and small central disc protrusion at C6–7 without
central canal stenosis and with mild left C7 foraminal stenosis. Tr. at 671–72.
On October 8, 2015, Plaintiff followed up with Dr. Sandoz about her
headaches. Tr. at 668–70. Plaintiff described her headache pain as pressure,
squeezing, and throbbing located on the frontal right and ocular right with
posterior radiation. Tr. at 668. She indicated her symptoms were aggravated
by exercise, head position, noise, and stress and relieved by prescription
medication. Id. She reported experiencing associated neck stiffness and
43
photophobia and denied experiencing blurred vision, clear sinus drainage,
dizziness, double vision, fever, hemianopsia, loss of consciousness, memory
impairment,
nausea,
neurological
symptoms,
performance
changes,
personality change, phonophobia, scintillations, scotoma, upper respiratory
infection like symptoms, vertigo, vision loss, and vomiting. Id.
Dr. Sandoz found Plaintiff was moderately distressed, obese, had a
muscle spasm in her cervical spine, and seemed depressed. Tr. at 669–70. He
assessed chronic posttraumatic headache, not intractable, and noted Plaintiff
was doing fair with her medications, which included Imitrex, Lidoderm
patches, and diclofenac. Tr. at 670. He stressed compliance with taking
medicine, indicated Plaintiff should continue with therapy, and noted he may
consider an MRI if her symptoms persisted. Id.
On November 17, 2015, returned to Dr. Acaylar for a follow-up
appointment regarding her diabetes, hypertension, and joint pain. Tr. at 696–
700. Dr. Acaylar indicated Plaintiff’s diabetes was stable and she was
compliant with her medications and following up. Tr. at 697. He added
Plaintiff’s sedentary lifestyle to her list of diabetes risk factors. Id. Plaintiff
reported taking her hypertension medication, but stated she had not taken it
that day. Id. Dr. Acaylar indicated her hypertension was stable. Id. Plaintiff
reported a constant, fluctuating ache and dull pain in her neck and hips,
44
without radiation. Id. She stated her pain was aggravated by movement,
walking, and standing and not relieved by anything. Id. She reported
experiencing associated decreased mobility and limping and denied joint
instability, numbness, spasms, swelling, tingling in the arms or legs, and
weakness. Id.
Dr. Acaylar examined Plaintiff and found her cervical spine was tender
and she had mild pain with motion. Tr. at 699. Plaintiff experienced mild
tenderness in her lumbar spine and had mildly-reduced ROM. Id. Plaintiff
had weak left hip muscles, no tenderness on the right, moderately reduced
ROM on the left, and mildly reduced ROM on the right. Id. Dr. Acaylar
assessed uncomplicated type 2 diabetes mellitus, uncontrolled hypertension,
cervicalgia, and chronic hip pain. Tr. at 696. He noted Plaintiff was receiving
bloodwork that day, counseled Plaintiff on diet and exercise, recommended
physical therapy for Plaintiff’s neck pain, and increased Plaintiff’s tramadol
dosage for her hip pain. Id.
On January 18, 2016, Plaintiff returned to Dr. Sandoz for evaluation of
her back pain and headaches. Tr. at 806–09. She reported worsening sharp,
tingling pain in her back radiating to her buttocks. Tr. at 807. She indicated
her pain was aggravated by movement, positioning, twisting, flexing, and
extending and relieved by rest, changing position, and medication. Id. She
45
reported experiencing associated symptoms of numbness of the legs and feet
and tingling. Id. Plaintiff reported experiencing the following symptoms
associated with her head injury: loss of consciousness, headache, dizziness,
blurred vision, balance problems, sensitivity to noise, feeling slowed down,
difficulty concentrating, difficulty remembering, confusion, irritability, and
feeling more emotional. Id. Plaintiff reported muscle aches, muscle weakness,
arthralgia and joint pain, back pain, depression, and sleep disturbance. Id.
Dr. Sandoz
noted
Plaintiff
was
obese,
depressed,
experienced
tenderness and decreased ROM in her cervical spine, expressed pain with
flexion and extension, and had decreased ROM in her low back. Tr. at 807–
08. Dr. Sandoz assessed chronic posttraumatic headache, traumatic brain
injury, late effect of traumatic injury to brain, and lumbar spondylosis. Tr. at
808. He instructed Plaintiff to continue her medications, and encouraged her
to exercise more. Id. He noted he made Plaintiff aware that noncompliance
with therapy would result in discharge and not providing any further
treatment with medication. Id. He placed her on light duty restrictions with
no prolonged bending, reaching, stooping, twisting, or sitting more than 30
minutes to one hour. Id. He also included a weight restriction of 20 pounds.
Id.
46
On February 4, 2016, Plaintiff followed up with Dr. Acaylar regarding
her diabetes, hypertension, chronic hip pain, and neck pain. Tr. at 692–95.
Dr. Acaylar noted Plaintiff’s hypertension and diabetes were stable and she
was not experiencing any new problems associated with her chronic hip pain.
Tr. at 693. Plaintiff reported moderate sharp, throbbing pain in the bilateral
posterior neck. Id. She also complained of some hearing loss with tinnitus in
the right ear and asked to see an ENT. Id. Dr. Acaylar examined Plaintiff
and found mildly reduced ROM in her cervical spine, tenderness and
moderately reduced ROM in her lumbar spine, and weak hip muscles
bilaterally. Tr. at 694. He assessed tinnitus, hearing loss, cervicalgia,
uncomplicated type 2 diabetes mellitus, and uncontrolled hypertension. Tr. at
692. He referred Plaintiff to an ENT and to Otolaryngology for the tinnitus
and hearing loss. Id. Plaintiff did not want to use Actos for her diabetes, so
Dr. Acaylar stopped Actos and increased her Glipizide. Id. He noted if her
diabetes was still not controlled, he would add Januvia. Id.
On April 18, 2016, Plaintiff returned to Dr. Sandoz, who evaluated her
for back pain, head injury, headache, and neck pain. Tr. at 802–04. Plaintiff
reported the symptoms from her head injury increased with physical and
mental activity. Tr. at 803. She reported her headache pain was 8/10,
throbbing, pounding, sharp, and stabbing and indicated associated symptoms
47
of nausea and sensitivity to light. Id. She noted she was under stress. Id.
Plaintiff reported burning, sharp pain in her neck with numbness, tingling,
pain, and weakness in the arms. Id. Dr. Sandoz found Plaintiff was obese,
depressed, had tenderness and decreased ROM in her cervical spine, and had
pain with extension and flexion and decreased ROM in her low back. Id. He
continued to assess chromic post-traumatic headache, traumatic brain injury,
late effect of traumatic injury to brain, and lumbar spondylosis. Tr. at 804.
He noted her low back pain was not being controlled with Tramadol,
prescribed Nucynta, and instructed Plaintiff to continue taking Meloxicam.
Id.
On May 18, 2016, Plaintiff had a follow-up appointment with Dr.
Acaylar regarding her diabetes, hypertension, headaches, neck pain, and
hyperlipidemia. Tr. at 819–23. Dr. Acaylar noted Plaintiff’s diabetes was
stable and her hypertension was worsening. Tr. at 820. Plaintiff reported
moderate headaches and denied aggravating or relieving factors. Id. She
described her neck pain as moderate and unchanged. Id. Dr. Acaylar
indicated Plaintiff was adhering to her medication and follow-up instructions
for her hyperlipidemia and diabetes, but not adhering to diet and exercise
instructions for either. Id. On examination, he found Plaintiff appeared
anxious and had mild pain with motion in her cervical spine. Tr. at 822. Dr.
48
Acaylar assessed uncomplicated type 2 diabetes mellitus, uncontrolled
hypertension, cervicalgia, intractable migraine without status migrainosus,
and unspecified hyperlipidemia. Tr. at 819. He indicated he suspected
Plaintiff’s neck pain was anxiety-related. Id. He prescribed Zecuity for her
headaches, noted she was receiving bloodwork that day, and continued
Plaintiff on her medications. Id.
On August 12, 2015, December 16, 2015, May 19, 2016, and June 21,
2016, Plaintiff underwent a neuropsychological evaluation by Dr. Alexandr
Sasha Federer (“Dr. Federer”). Tr. at 793–98. Plaintiff reported experiencing
a half a minute of retrograde amnesia and two minutes of anterograde
amnesia directly after her injury. Tr. at 793. She reported ongoing
posttraumatic headaches, which she rated 8/10; constant pain in her back,
leg, and neck; ringing in her ear; blurry vision; insomnia; and problems with
her short-term memory, concentration, and ability to focus. Id. Subjectively,
Plaintiff stated she felt she was 40% of her previous self. Id. She reported
experiencing anhedonia, depression, increased irritation, fatigue, and social
isolation. Id. Dr. Federer described Plaintiff’s mood as low-grade depression
and stated her main preoccupation and limitation was her high pain level. Id.
Dr. Federer stated Plaintiff had difficulty with pain limitations and had
to cancel appointments because of her level of pain that day. Tr. at 794. He
49
noted Plaintiff’s ability to sustain attention for longer periods of time was
limited due to the pain she was experiencing. Id. Plaintiff frequently had to
get out of the chair and walk to regulate her pain. Id. Also, Plaintiff’s neck
pain increased when she had to sustain focus on paper and pencil tasks. Id.
Plaintiff presented with an adequate effort and did not show signs of
malingering. Id. During the evaluation, Plaintiff did not present with any
thought disorder, her sensorium was clear, her speech was fluent and goal
oriented, and her mood was somewhat depressed, but she did not present
with heightened anxiety. Id. Plaintiff was pessimistic and anxious about her
future and her ability to return to a more functional status. Id. She expressed
frustration with the lack of treatment she had received and her difficulties
working with the workman’s compensation program. Id.
Dr. Federer administered the Weschler Adult Intelligence Scale –
Edition IV (“WAIS-IV”). Tr. at 795–96. He noted that this is the same test Dr.
Lind administered one year prior during his evaluation and compared the
results. Tr. at 796. Dr. Federer found Plaintiff’s IQ to be in the low to average
range, whereas Dr. Lind found her to be in the borderline range. Id. Dr.
Federer stated the discrepancy could have resulted from Dr. Lind’s
administration of all his testing in one day and Plaintiff’s consequent fatigue,
pain, and difficulty sustaining her efforts. Id. The greatest difference in the
50
results was in Plaintiff’s processing speed, where Plaintiff scored low to
average. Id. Dr. Federer noted processing speed is influenced by depression,
experiencing pain, and medication, but also, is known to be the most sensitive
indicator of brain injury. Id. He indicated the most telling and realistic sign
of Plaintiff’s intellectual functioning prior to her accident were the jobs she
maintained in her adult years. Id. He found it quite likely that Plaintiff
would have gained one more point, bumping her up to average intelligence, if
she had experienced less stress and pain on the day of her testing. Tr. at 797.
To assess Plaintiff’s memory, Dr. Federer administered the California
Verbal Learning Test – Second Edition. Id. Plaintiff’s memory performance
was lower than when it was tested by Dr. Lind. Id. Plaintiff demonstrated
poor auditory attention span, which Dr. Federer suggested could be the result
of her head injury and/ or depression. Id. Plaintiff had a good learning curve,
even though it was in the low or below average range. Id. Plaintiff’s long
recall was within the normal range. Id. However, Plaintiff did not
demonstrate semantic clustering, which usually assists with the quality of
recall. Id. She had good effort in learning the task, and there were no
indications of malingering on her memory performance. Id. Plaintiff’s
memory self-rating scale results were worse than her actual performance. Id.
Plaintiff perceived that her memory on the whole is much worse than it ever
51
has been, and she had very serious concerns about her memory performance.
Id. Dr. Federer indicated this was likely a reflection of her depression and
negative self-evaluation resulting from her injury. Id.
Dr. Federer used the Personality Assessment Inventory, Beck
Depression
Inventory,
and
Structured
Inventory
of
Malingered
Symptomatology (“SIMS”) to evaluate Plaintiff’s psychological functioning.
Id. These instruments indicated Plaintiff was experiencing significant
distress and was particularly concerned about her physical functioning. Id.
She saw her life as severely disrupted by a variety of physical problems and
reported a number of difficulties, consistent with significant depressive
experience. Id. Plaintiff’s depression seemed to manifest itself in affective and
physiological signs of depression. Id. Plaintiff admitted to feelings of sadness,
loss of interest in normal activities, and loss of sense of pleasure in things
that she previously enjoyed. Id. Plaintiff also showed disturbance in her sleep
patterns, decreased energy level and sexual interest, and loss of appetite. Id.
The tests indicated psychomotor slowing. Id. The data obtained from SIMS
did not indicate malingering or exaggeration of psychiatric symptoms. Tr. at
797–98. Plaintiff had a higher elevation of symptoms of amnestic disorder,
correlating with her own perception that her memory difficulties are greater
than objective measurements suggest. Tr. at 798.
52
Dr. Federer concluded the intellectual testing indicated there had been
some mild recovery in Plaintiff’s cognitive status. However, he stated
Plaintiff’s IQ was lower than one would expect given her previous academic
and
vocational
accomplishments.
Id.
Dr.
Federer
stated
Plaintiff’s
psychological status had deteriorated with the prolonged coping with pain
and resulting depression. Id. It was not possible for him to discern which of
the cognitive difficulties in her functioning resulted from the head injury and
which resulted from pain and depression. Id. He noted one would expect
recovery within a year from a mild head injury and would not expect
persistent cognitive deficits. Id. Dr. Federer opined Plaintiff’s status had
clearly changed since her injury and she would not be able to sustain workrelated activities for any long period of time. Id. He stated Plaintiff’s low
processing speed would be detrimental in functioning in such a high demand
profession as nursing, where physical and mental dexterity is required to
perform the profession safely. Id. He recommended pain management and
individual psychotherapy for her depression. Id.
On July 13, 2016, Plaintiff returned to Dr. Sandoz for a follow-up
appointment regarding her back pain, head injury, headache, and neck pain.
Tr. at 799–801. Plaintiff reported the right side of her back seemed to be
getting worse and that her neck was still hurting. Tr. at 800. Plaintiff’s blood
53
pressure was 159/87 and her weight was 230 pounds. Id. Dr. Sandoz
continued his assessment of traumatic brain injury, chronic posttraumatic
brain injury, lumbar spondylosis, and cervical spondylosis. Tr. at 800–01. He
noted he was awaiting a cervical spine MRI and instructed Plaintiff to
continue her current medications. Tr. at 801.
On August 25, 2016, Dr. Acaylar followed up on Plaintiff’s diabetes and
hypertension and evaluated Plaintiff for complaints of chest discomfort and
asthma. Tr. at 810–14. He noted Plaintiff’s diabetes and hypertension were
stable. Tr. at 811. Plaintiff described her chest discomfort as minimal and
stated her symptoms had improved. Id. She did not complain of any pain and
reported the discomfort was associated with headache and myalgia. Id. Dr.
Acaylar stated Plaintiff’s asthma was allergic and seasonal and her
symptoms had stabilized. Id. Dr. Acaylar assessed uncontrolled hypertension,
unspecified hyperlipidemia, GERD without esophagitis, unspecified chest
pain, uncomplicated asthma, uncontrolled type 2 diabetes mellitus without
complication, and myalgia. Tr. at 810. He switched Plaintiff to amlodipine
with valsartan for hypertension; prescribed omeprazole for GERD; performed
an ECG and stress test and stated the chest pain was likely GERD; switched
her back to Symbicort for asthma, per her request; and referred her to
Ophthalmology for diabetic eye care. Id.
54
C.
The Administrative Proceedings
1.
The Administrative Hearing
a.
Plaintiff’s Testimony
At the hearing on October 11, 2016, Plaintiff testified she last worked
answering the telephone. Tr. at 39–40. She said she worked as an LPN at
the PD Center for Disability, Bayada Nurse, and Nurse Finders. Tr. at 40. At
GEICO, she was an insurance claims representative, processing medical
claims in a sedentary setting. Id. She said she would carry at the most a
couple of files and spent a lot of time on the phone and the computer
analyzing claims. Tr. at 41. Plaintiff stated she is being treated by Dr. Sandoz
and goes to HopeHealth. Id. Plaintiff testified she took a few liberal arts
courses, but did not obtain a degree other than an LPN. Tr. at 42.
Plaintiff said that she has her driver’s license, but can only drive for
short distances and time because she is fearful of being someplace and not
remembering where she was, as well as having discomfort from pain in her
left shoulder, legs, thigh, back, and neck. Id.
She testified that she had a workplace injury on March 1, 2013, where
she was attacked by a patient to whom she was dispensing medication. Tr. at
43. She testified she had staples placed in her head, her neck and back hurt,
and she had a hematoma for a long time. Tr. at 43–44. She testified that
55
three years later, she still has neck and back pain. Tr. at 44. She said she can
never get rid of her pain, but obtains short-term relief from lying down and
taking medication. Id. Plaintiff said she sleeps a lot to reduce the pain. Id.
She testified her pain limits her from doing her chores. Tr. at 44–45. She
cannot stand for a long time when she cooks, is unable to lift objects, or do
heavy chores. Tr. at 45. She said the heaviest object she can carry is a gallon
of milk, but she has to carry it close to her to make it more comfortable. Id.
She classified her pain in her neck most of the time as a 6 out of 10 and her
pain in her back as 4 out of 10 with pain medicine. Tr. at 45–46. Plaintiff said
her lower back hurts works when she sits, such that she can only sit for 15 to
20 minutes before it becomes more uncomfortable. Id. at 46. She testified that
her walking is very changed, and she has a limping gait. Id. She testified she
could only walk 20 minutes or so before she gets tired, has pain in her back
and neck, and has to sit to relax. Tr. at 46–47. She said she could only stand
in one place for 10 or 15 minutes. Tr. at 47. She stated she uses three
lidocaine patches once a day. Tr. at 47–48. She also stated that she uses
Nucynta once every eight hours, her TENS unit at least twice a day for 20
minutes on her lower back and her legs. Tr. at 48. She testified the Nucynta
makes her very groggy and she sleeps for a half an hour to an hour after a
Nucynta dose. Tr. at 48–49.
Plaintiff testified she takes Sumatriptan, a
56
medication for migraines, which she gets at least once or twice a week that
causes pounding across her forehead and nausea. Tr. at 49. She stated the
migraines require her to lie down for two hours. Tr. at 50. She also stated she
has had a constant headache since the injury, but it is not like the
intermittent migraines. Id. Plaintiff testified that her injury affected her
brain, including her memory, concentration, and focus. Id. She testified she is
no longer able to do a lot of book reading as before, but she reads small
newspaper and magazine articles, if at all. Id. She testified she was an avid
reader, but that since her injury, it is painful to read for long because she
cannot look down for more than a couple of minutes. Tr. at 50–51. She also
stated she does not watch television much because shows are lengthy and she
cannot get through a whole 30 to 60 minute show. Tr. at 51. She stated
movies are “out of the question” because of her problems with focus,
concentration, pain, and discomfort. Id.
Plaintiff testified she grows potted plants and can water them for about
ten to fifteen minutes before taking a break. Tr. at 52. She said she usually
falls asleep while taking a break. Id. She testified she can make light meals
like simple soups or eggs, and tries to dust, but keeps the bed unmade
because she is in and out of the bed. Tr. at 52–54. She said she lives alone
and her sister and children help her around the house. Tr. at 53. She testified
57
her sister drove her to the hearing. Id. She said she does small loads, but the
bigger pieces of laundry are done by her sister. Id.
Plaintiff testified she has asthma symptoms and uses two inhalers, one
for colds and a daily inhaler to prevent trouble breathing. Tr. at 54. She
stated she is not around smoke or heavy scent. Id. She estimated lying down
for pain relief at least three or four times a day for twenty minutes to an hour
each time. Id. She testified that she takes medication at night to sleep, but
that she is still up and down every three hours or so because of soreness in
her hip and legs. Tr. at 55. She is waiting for a referral to a specialist through
worker’s compensation. Id. She said her hip problem started on the left, but
subsequently, both hips became involved. Id. Plaintiff testified that she also
suffers from depression and feels worthless, unable to do the things that she
used to do, and lacking energy. Id.
Aside from seeing her sister and doctor, Plaintiff testified that when
she has a good day, she attends a church service once or rarely twice a
month. Tr. at 55–56. She testified that she has ringing in her right ear that is
a distracting nuisance and is not relieved with pain medication. Tr. at 56.
b.
Vocational Expert Testimony
Vocational Expert (“VE”) J. Adger Brown, Jr., reviewed the record and
testified at the hearing. Tr. at 57–60. The VE categorized Plaintiff’s PRW as a
58
practical nurse as semi-skilled, SVP of 4, medium, DOT number 354.374-010;
and an insurance clerk as skilled, SVP of 5, sedentary, DOT number
214.362.022. Tr. at 57. The ALJ described a hypothetical individual of
Plaintiff’s vocational profile who could perform medium work except no
climbing ladders, ropes, or scaffolds; must avoid working at unprotected
heights; must avoid concentrated exposure to smoke, fumes, odors, dust, gas,
and poor ventilation. Tr. at 57. The VE testified that the hypothetical
individual could perform Plaintiff’s PRW. Tr. at 57–58.
The ALJ described a second hypothetical individual that was identical
to the first hypothetical, except was limited to light work. The VE testified
that the hypothetical individual could perform Plaintiff’s PRW as an
insurance agent, even with a sedentary limitation. Tr. at 58. If the
hypothetical individual were off task for 20% of the eight-hour work day on a
consistent basis, the VE testified there would be no jobs available. Tr. at 59.
In response to questions by Plaintiff’s counsel, the VE testified that an
individual needing a sit-stand option (alternating every 15 or 20 minutes
with five minutes in between sitting and standing) would not be employable
because the VE assumes a five minute break every 20 minutes. Id.
59
2.
The ALJ’s Findings
In his decision dated March 2, 2017, the ALJ made the following
findings of fact and conclusions of law:
1.
2.
3.
4.
5.
6.
7.
The claimant meets the insured status requirements of the Social
Security Act through June 30, 2018.
The claimant has not engaged in substantial gainful activity
since March 1, 2013, the alleged onset date (20 CFR 404.1571 et
seq.).
The claimant has the following severe impairments: degenerative
disc disease (DDD), asthma, and insulin dependent diabetes
mellitus (IDDM) (20 CFR 404.1520(c)).
The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).
After careful consideration of the entire record, the undersigned
finds that the claimant had the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) except with
some limitations. Due to postural limitations, the claimant
cannot climb ladders, ropes, or scaffolds. Due to environmental
limitations, the claimant must avoid working at unprotected
heights. Additionally, the claimant must avoid concentrated
exposure to smoke, fumes, odors, dust, gases, and poor
ventilation.
The claimant is capable of performing past relevant work as a
practical nurse and insurance clerk. This work does not require
the performance of work-related activities precluded by the
claimant’s residual functional capacity. (20 CFR 404.1565).
The claimant has not been under a disability, as defined in the
Social Security Act, from March 1, 2013, through the date of this
decision (20 CFR 404.1520(g)).
Tr. at 13–27.
60
II.
Discussion
Plaintiff alleges the Commissioner erred for the following reasons:
1)
the ALJ did not correctly asses the severity of Plaintiff’s physical
and mental impairments or consider the combined effect of her
impairments;
2)
the ALJ erred in finding Plaintiff had the RFC to perform light
work because her physical and mental limitations and her
inability to sustain work activity made her unable to perform this
type of work;
3)
the ALJ erred in giving little weight to Plaintiff’s treating
medical providers;
4)
the ALJ’s step 4 finding was ambiguous and his hypothetical
question to the VE was insufficient; and
5)
the ALJ erred in not proceeding to step 5.
The Commissioner counters that substantial evidence supports the
ALJ’s findings and that the ALJ committed no legal error in his decision.
A.
Legal Framework
1.
The Commissioner’s Determination-of-Disability Process
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:
the inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
61
impairment which can be expected to result in death or which
has lasted or can be expected to last for at least 12 consecutive
months.
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, 460 (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 she has a severe impairment; (3) whether that
impairment meets or equals an impairment included in the Listings;2 (4)
The Commissioner’s regulations include an extensive list of impairments
(“the Listings” or “Listed impairments”) the Agency considers disabling
without the need to assess whether there are any jobs a claimant could do.
The Agency considers the Listed impairments, found at 20 C.F.R. part 404,
subpart P, Appendix 1, severe enough to prevent all gainful activity. 20
C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals
all criteria of any of the Listed impairments for at least one year, she will be
found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To
meet or equal one of these Listings, the claimant must establish that her
impairments match several specific criteria or are “at least equal in severity
and duration to [those] criteria.” 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493
U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting
the burden is on claimant to establish his impairment is disabling at Step 3).
2
62
whether such impairment prevents claimant from performing PRW;3 and (5)
whether the impairment prevents her from doing substantial gainful
employment. See 20 C.F.R. § 404.1520. These considerations are sometimes
referred to as the “five steps” of the Commissioner’s disability analysis. If a
decision regarding disability may be made at any step, no further inquiry is
necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can
find claimant disabled or not disabled at a step, Commissioner makes
determination and does not go on to the next step).
A claimant is not disabled within the meaning of the Act if she 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. Subpart P, §
404.1520(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant
bears the burden of establishing her 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
In the event the examiner does not find a claimant disabled at the third step
and does not have sufficient information about the claimant’s past relevant
work to make a finding at the fourth step, he may proceed to the fifth step of
the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h).
3
63
alternative work and that such work exists in the regional 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
she 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).
2.
The Court’s Standard of Review
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 narrowlytailored 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, 1157–58 (4th Cir.
64
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.
“Substantial evidence” is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson, 402 U.S. at 390,
401; 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).
B.
Analysis
1.
Severity and Combination of Impairments
Plaintiff argues the ALJ erred in failing to find her depression/anxiety,
memory problems, difficulties with concentration, and migraine headaches
were severe impairments. [ECF No. 15 at 22]. Plaintiff further argues the
ALJ failed to consider the combined effect of her impairments in determining
her ability to work. Id. at 20–21.
65
The Commissioner argues Plaintiff’s memory problems, headaches,
neck pain, back pain, and mental health impairments were not severe. [ECF
No. 16 at 22]. The Commissioner contends the ALJ considered all of
Plaintiff’s impairments in determining the RFC. Id.
A finding of a single severe impairment at step two of the sequential
evaluation process is enough to ensure that the factfinder will progress to
step three. See Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008)
(“[A]ny error here became harmless when the ALJ reached the proper
conclusion that [claimant] could not be denied benefits conclusively at step
two and proceeded to the next step of the evaluation sequence.”). Therefore,
this court has found no reversible error where the ALJ does not find an
impairment severe at step two provided that he considers that impairment in
subsequent steps. See Washington v. Astrue, 698 F. Supp. 2d 562, 580
(D.S.C. 2010) (collecting cases); Singleton v. Astrue, No. 9:08-1982-CMC,
2009 WL 1942191, at *3 (D.S.C. July 2, 2009).
When a claimant has multiple impairments, the statutory and
regulatory scheme for making disability determinations, as interpreted by
the Fourth Circuit, requires the ALJ to consider the combined effect of these
impairments in determining the claimant’s disability status. See Walker v.
Bowen, 889 F.2d 47, 50 (4th Cir. 1989); see also Saxon v. Astrue, 662 F. Supp.
66
2d 471, 479 (D.S.C. 2009) (collecting cases in which courts in this District
have reiterated the importance of the ALJ’s explaining how he evaluated the
combined effects of a claimant’s impairments). “As a corollary to this rule, the
ALJ must adequately explain his or her evaluation of the combined effects of
the impairments.” Id.
However, “the adequacy requirement of Walker is met if it is clear from
the decision as a whole that the Commissioner considered the combined effect
of a claimant’s impairments.” Brown v. Astrue, C/A No. 0:10-CV-1584-RBH,
2012 WL 3716792 (D.S.C. Aug. 28, 2012) citing Green v. Chater, 64 F.3d 657,
1995 WL 478032, at *3 (4th Cir. 1995).
The ALJ found Plaintiff’s severe impairments included DDD, asthma,
and insulin dependent diabetes mellitus. Tr. at
15. He specified that
hypothyroidism, migraine headaches, tinnitus, hypertension, and obesity
were non-severe impairments, explaining that none of the medical records
specified
that
these
impairments
caused
any
significant
functional
limitations, and the objective medical evidence indicated that these
impartments were well treated. Id. Although the ALJ did not explicitly
address whether Plaintiff’s traumatic brain injury was a severe or non-severe
impairment, he addressed this impairment in his decision, indicating
Plaintiff’s exanimation following her work injury and the diagnostic findings
67
from the MRI scans of her brain indicated normal, unremarkable, or mild
findings. Tr. at 20–21, 23–24.
In addressing Plaintiff’s depression and anxiety, her memory problems,
and difficulty concentrating, considered singly and in combination, the
ALJ found these impairments did
not
cause
more
than
minimal
limitations in the Plaintiff’s ability to perform basic mental work activities
and were therefore nonsevere. Tr. at 15. The ALJ found Plaintiff had no
limitations in understanding, remembering or applying information; social
functioning; concentration, persistence or pace; or ADLs explaining Plaintiff’s
medical records, function reports, and testimony did not support any
limitations. Tr. at 16–17. The ALJ concluded that Plaintiff’s mental
impairments were nonsevere because they caused no more than mild
limitations in any of the functional areas. Tr. at 17.
The ALJ found Plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed
impairments. Id. The ALJ noted none of Plaintiff’s treating or examining
physicians have mentioned findings equivalent in severity to the criteria of
any listed impairment, nor does the evidence show medical findings that are
the same or equivalent to any listing. Tr. at 17–18. The ALJ further
explained he “considered the
implied
68
assertion
from
the claimant’s
representative that the claimant has an intellectual disorder as contemplated
by the revised Listing 12.05 (Intellectual Disorder).”
Tr. at 18. The ALJ
found
there was no evidence that the claimant’s 77 FSIQ manifested in
childhood. Instead, her school records indicate higher functioning
(Exhibit 17E). Additionally, the claimant testified that she
worked as a licensed nurse for years, which also indicates higher
functioning. Finally, the newly revised Listing 12.05 does not
contemplate any FSIQ testing scores lower than 75, and even
that must be accompanied by other deficits in adaptive
functioning, which are not present here.
Id.
The undersigned finds the ALJ adequately assessed Plaintiff’s severe
and non-severe impairments. The ALJ provided a rational explanation for his
conclusions as to which impairments were severe and which were not,
explaining that some of Plaintiff’s alleged impairments were not supported by
documentary evidence and that others imposed no more than minimal
limitations. See Tr. at 14–17.
The undersigned further finds the ALJ properly considered the
combined effects of Plaintiff’s impairments. A review of the decision as a
whole indicates the ALJ considered all of Plaintiff’s impairments and
imposed restrictions based upon their individual and cumulative effects.
Because the ALJ cited adequate evidence to support his finding that
69
Plaintiff’s combination of impairments were not disabling, the undersigned
finds the ALJ did not err in assessing the combined effect of Plaintiff’s
physical and mental impairments. See Tr. at 14–18.
2.
RFC
A claimant’s RFC represents the most she can still do despite her
limitations. 20 C.F.R. § 404.1545(a). It must be based on all the relevant
evidence in the case record and should account for all of the claimant’s
medically-determinable impairments. Id. The RFC assessment must include
a narrative discussion describing how all the relevant evidence in the case
record supports each conclusion and must cite “specific medical facts (e.g.,
laboratory findings) and non-medical evidence (e.g., daily activities,
observations).” SSR 96-8p, 1996 WL 374184 at *7 (1996). The ALJ must
determine the claimant’s ability to perform work-related physical and mental
abilities on a regular and continuing basis. Id. at *2. He must explain how
any material inconsistencies or ambiguities in the record were resolved. Id. at
*7. “[R]emand may be appropriate . . . where an ALJ fails to assess a
claimant’s capacity to perform relevant functions, despite contradictory
evidence in the record, or where other inadequacies in the ALJ’s analysis
frustrate meaningful review.” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir.
2015), citing Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013).
70
a)
Ability to Perform Light Work
Plaintiff argues the ALJ erred in concluding she was capable of
performing light work. [ECF No. 15 at 22]. She maintains the ALJ did not
consider the medical and vocational evidence and testimony that her pain is
exacerbated by walking and standing. Id. at 22–23. Plaintiff further contends
the ALJ erred in failing to include any mental limitations in his RFC. Id. at
24. Plaintiff argues the side effects of her medication, such as drowsiness,
and her inability to focus and concentrate, together with her depression and
anxiety, make her unable to complete work tasks. Id. Plaintiff states these
limitations are supported by Drs. Sandoz, Lind, and Federer’s treatment
notes and Ms. Townsend and Mr. Brown’s vocational reports and
observations and should have been considered in her RFC. Id.
The Commissioner argues substantial evidence supports the ALJ’s
conclusion that Plaintiff had the ability to perform limited light work based
on multiple medical opinions and vocational evidence. [ECF No. 16 at 23–28].
The ALJ noted Plaintiff testified she is fearful, depressed, and does not
have much energy, and has difficulty remembering and concentrating due to
her head injury. Tr. at 15. Plaintiff testified she lives independently, is able
to drive short distances, perform light household chores, watch television,
take care of her plants, visit with her sister and children, and attend church
71
services once or twice a month. Tr. at 15, 19. Plaintiff stated she has pain
symptoms in her left shoulder, legs, thighs, back, and neck, and that she
obtains short term relief from her symptoms by laying down and taking her
medications, which make her groggy. Tr. at 19. Plaintiff further testified
“she is able to carry a half gallon of milk, she is able to sit for 15–20 minutes
before becoming uncomfortable, walk for 20 minutes with an unsteady gait,
and stand for only 10 to 15 minutes due to pain in her back.” Id.
The ALJ discussed the objective findings and medical opinions of
record. See Tr. at 20–26. In March to May 2013, Dr. Perez-Garcia noted very
minimal to no pain during Plaintiff’s ROM examinations and she stated
Plaintiff could return to desk work only. Tr. at 20.
On March 6, 2013, Dr.
Parke reviewed a CT scan of Plaintiff’s head and he assessed Plaintiff with a
left laceration fracture with no findings of posttraumatic contusion, mass,
or hemorrhages intracranially, and no underlying hematoma or calvarial
fracture. Id. On March 24, 2013, Dr. Burnett examined Plaintiff and found
her unremarkable with normal gait. Tr. at 21. On March 27, 2013, Dr. Parke
reviewed a MRI image of Plaintiff’s lumbar spine and assessed her with no
evidence of fracture or lumbar compressive discopathy, moderate thoracic
degeneration at Tll-12 with mild foraminal narrowing due to disc bulging and
spondylosis, and left sided mild disc degeneration and annular bulging at L272
3 and L3-4. Id. From June 3, 2013, to October 8, 2015, Dr. Sandoz examined
Plaintiff and noted she had normal and unremarkable physical examinations,
including normal lumbar spine findings, but noted cervical and lumber
muscle spasms, decreased deep tendon reflexes, displacement of cervical
intervertebral disc without myelopathy, cervical spine tenderness, decreased
range of motion, and lurching gait. Tr. at 22–23. On July 1, 2013, Dr. Gordin
reviewed Plaintiff’s MRI scans of her spine and assessed her with multilevel
spondylotic
changes, but without focal disc herniation or severe central
stenosis noted. Tr. at 21. On October 29, 2013, Dr. Sandoz opined Plaintiff
could return to work performing light work with no repetitive bending of the
neck and no lifting more than 10 pounds. Tr. at 22. On November 25, 2013,
Dr. Hoopla reviewed MRI scans of Plaintiff’s brain and assessed Plaintiff’s
diagnostic findings as unremarkable. Tr. at 21. On January 24, 2014, Dr.
Scott found Plaintiff’s examination was unremarkable except for hip findings
and noted she had improvement with physical therapy and other treatment.
Tr. at 21–22. Dr. Scott opined Plaintiff should be able to work without
restrictions. Tr. at 22. On May 9, 2014, Dr. Lind examined Plaintiff, noting
she had no obvious mental impairments, she was fully oriented, and her
affect was appropriate. Tr. at 15. He diagnosed Plaintiff with adjustment
disorder with mixed anxiety, depressed mood, and a Global Assessment of
73
Functioning (“GAF”) score of 60. Id. Dr. Lind noted Plaintiff’s testing only
indicated mild depression and moderate anxiety. Id. On September 2, 2014,
Ms. Townsend completed an employability analysis that noted Plaintiff was
independent in her self-care, able to drive, and performed light household
chores, despite some difficulty in concentrating. Tr. at 25–26. HopeHealth
records from November 17, 2014, to August 25, 2016, revealed normal
examinations, but noted bursitis, bilateral knee weakness with mildly
reduced ROM and limping gait. Tr. at 23. On December 17, 2015, Mr. Brown
opined Plaintiff would not be able “to perform any type of work on a
sustained basis, eight hours a day, five days a week, as is required in work
employment.” Tr. at 25. In 2016, Dr. Federer performed a neuropsychological
examination and he assessed Plaintiff with a composite FSIQ of 89, but
explained that Plaintiff’s IQ appeared to be lower “than one would expect”
given her accomplishments. Tr. at 16. Dr. Federer opined Plaintiff would
recover from her head injury without persistent cognitive deficits. Id. Dr.
Federer diagnosed Plaintiff with depression
manage
her
depression
with
pain
and recommended Plaintiff
management
and
individual
psychotherapy. Id.
The ALJ stated he assessed Plaintiff’s RFC based on her medical
records, the other evidence of record, her testimony, and the limitations
74
imposed by her impairments individually and in combination, the medical
opinions on file, the medical consultant opinion evidence and vocational
evidence. Tr. at 18–26. He found Plaintiff’s statements concerning the
intensity, persistence and limiting effects of her symptoms were not entirely
consistent with the medical evidence and other evidence in the record.
Tr.
at 23. He explained he found Plaintiff’s symptoms affect her ability to work
only to the extent they can reasonably be accepted as consistent with the
objective medical and other evidence. Id.
The ALJ gave great weight to medical consultants Drs. Boland and
Slooten’s opinions that Plaintiff did not have severe impairments and Dr.
Walker’s opinion that Plaintiff’s impairments limited her to the medium
exertional range of work. Tr. at 25. He found Drs. Boland and Wooten’s
opinions were based on specialized program knowledge, were supported by
Plaintiff’s treatment history, and consistent with the evidence as a whole. Id.
He gave partial weight to Dr. Scott’s opinion that Plaintiff could work
without restrictions, little weight to Dr. Sandoz’s opinion that Plaintiff could
perform light duty with some limitations, and no weight to Mr. Brown’s
opinion that Plaintiff could not perform any work, explaining Mr. Brown’s
opinion was on an issue reserved to the Commissioner. Tr. at 22, 25. The ALJ
found Plaintiff had an unremarkable treatment history and indicated
75
Plaintiff’s symptoms were improved when she was complaint with her
treatment regime. Tr. at 26.
He stated he considered all the available
evidence and adopted several accommodations and found Plaintiff had the
RFC to perform light work, with no climbing ladders, ropes, or scaffolds, no
working at unprotected heights, and no concentrated exposure to smoke,
fumes, odors, dust, gases, and poor ventilation. Tr. at 18, 26.
The undersigned finds the ALJ provided an extensive narrative
discussion, citing specific medical facts and opinions and non-medical
evidence, to support his RFC. Tr. at 18–26. The ALJ considered Plaintiff’s
allegations regarding her physical and mental limitations, but rejected them
as inconsistent with the objective evidence and medical opinions of record.
Therefore, he satisfied his burden under SSR 96-8p to explain how any
material inconsistencies or ambiguities in the record were resolved. Based on
the ALJ’s thorough explanation and the absence of any unresolved
inconsistencies in the record, the undersigned finds that substantial evidence
supports his finding that Plaintiff had the RFC to perform light work, with no
climbing ladders, ropes, or scaffolds, working at unprotected heights, and no
concentrated exposure to smoke, fumes, odors, dust, gases, and poor
ventilation.
76
b)
Ability to perform sustained work activities
Plaintiff argues her pain, medication side effects, inability to
concentrate, and her need for unscheduled breaks during the day limit her
ability to persist in the work setting and to have regular attendance. [ECF
No. 15 at 25].
The Commissioner argues the ALJ implicitly found Plaintiff had the
ability to work an eight hour day when he found Plaintiff could perform a
limited range of light work. [ECF No. 16 at 28–29].
“The RFC assessment must first identify the individual’s functional
limitations or restrictions and assess his or her work-related abilities on a
function-by-function basis, including the functions in paragraphs (b), (c), and
(d) of 20 C.F.R. 404.1545 and 416.945.”4 SSR 96-8p, 1996 WL 374184 at *7
(1996). “Only after that may RFC be expressed in terms of the exertional
levels of work, sedentary, light, medium, heavy, and very heavy.” Id. at *1.
Paragraph (b) addresses physical abilities, such as sitting, standing,
walking, lifting, carrying, pushing, pulling, reaching, handling, stooping, and
crouching. 20 C.F.R. § 404.1545(b) and § 416.945(b). Paragraph (c) addresses
mental abilities, such as understanding, remembering, and carrying out
instructions and responding appropriately to supervision, coworkers, and
work pressures in a work setting. Id. Paragraph (d) addresses other abilities
affected by impairments, such as skin impairments; epilepsy; impairments to
vision, hearing, or other senses; and impairments that impose environmental
restrictions. Id.
4
77
Despite this language in SSR 96-8p, the Fourth Circuit has declined to adopt
“a per se rule requiring remand when the ALJ does not perform an explicit
function-by-function analysis.” See Mascio, 780 F.3d at 636.
Addressing Plaintiff’s testimony, the ALJ noted Plaintiff stated she had
difficulty concentrating, was able to sit for 15–20 minutes before becoming
uncomfortable, could walk for 20 minutes with an unsteady gait, and stand
for 10 to 15 minutes due to pain in her back. Tr. at 15, 19. Plaintiff also
testified she lays down three times a day, for 20 minutes to one hour a day,
for pain relief, and stated her medication makes her groggy. Tr. at 19. In
rejecting Plaintiff’s allegations about how her pain symptoms, medication
side effects, and inability to concentrate affected her abilities to persist
during her ADLs, the ALJ determined the totality of the evidence suggested
her impairments limited her to light work. Tr. at 23, 26. However, he did not
individually address her ability to sustain work on a regular and continuing
basis.
This court has found that that a RFC determination may properly
contain implicit findings that Plaintiff was physically able to work an eighthour day. Holbrooks v. Colvin, No. 8:13-2220-RMG, 2015 WL 760021, at *19
(D.S.C. Feb. 20, 2015), citing Hines v. Barnhart, 453 F.3d 559, 563 (4th Cir.
2006) (“In light of SSR 96-8p, [the ALJ’s] conclusion [that Plaintiff could
78
perform a range of sedentary work] implicitly contained a finding that
[Plaintiff] physically is able to work an eight hour day.”); Depover v.
Barnhart, 349 F.3d 563, 567 (8th Cir. 2003) (holding that the ALJ implicitly
found claimant was not limited in the areas of sitting, standing, and walking
when he specifically addressed in the RFC the functions in which he found a
limitation); see also Robinson v. Astrue, No. 10-185-DCN-BHH, 2011 WL
4368416, at *8 (D.S.C. Feb. 18, 2011) (“To the extent the function-by-function
quality of the analysis leaves something to be desired in terms of
thoroughness, the Court would agree with the defendant that the limitation
to light work implicitly includes a finding that the plaintiff could stand or
walk off and on for a total of approximately six hours of an eight-hour
workday and a finding that the plaintiff could occasionally perform the
postural activities of climbing ramps/stairs, balancing, stooping, kneeling,
crouching, and crawling), adopted by 2011 WL 4368396 (D.S.C. Sept. 19,
2011).
A job falls in the “[l]ight work” category when it “involves lifting no
more than 20 pounds at a time with frequently lifting or carrying of objects
weighing up to 10 pounds” and “requires a good deal of walking or standing”
or “sitting most of the time with some pushing and pulling of arm or leg
controls.” 20 C.F.R. § 404.1567(b) and § 416.967(b). “Since frequent lifting or
79
carrying requires being on one’s feet up to two-thirds of a workday, the full
range of light work requires standing or walking, off and on, for a total of
approximately 6 hours of an 8-hour workday.” SSR 83-10. Thus, in limiting
Plaintiff to light work, the ALJ implicitly found that she was capable of
lifting and carrying up to 10 pounds frequently and up to 20 pounds
occasionally and standing and walking for up to six hours in an eight-hour
workday. See 20 C.F.R. § 404.1567(b) and § 416.967(b); SSR 83-10.
In rejecting Plaintiff’s specific allegations, the ALJ cited examination
findings, objective test results, medical opinions, Plaintiff’s ADLs and
included a narrative discussion describing how all the relevant evidence
supported his conclusions. See SSR 96-8p; See Supra. The undersigned finds
the ALJ cited substantial evidence to support his conclusion that Plaintiff’s
pain symptoms, medication side effects, and inability to concentrate would
not result in frequent unscheduled breaks and absenteeism as she alleged,
but would instead allow her to perform light work, with no climbing ladders,
ropes, or scaffolds, working at unprotected heights, and no concentrated
exposure to smoke, fumes, odors, dust, gases, and poor ventilation. In light of
the foregoing, the undersigned finds the ALJ adequately accounted for
Plaintiff’s pain symptoms and inability to concentrate in assessing her
abilities to perform sustained work activity.
80
3.
Medical Opinions and Findings
In undertaking review of the ALJ’s treatment of a claimant’s treating
sources, the court focuses its review on whether the ALJ’s opinion is
supported by substantial evidence, because its role is not to “undertake to reweigh 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).
a)
Dr. Sandoz
Plaintiff argues the ALJ erred in giving little weight to the medical
opinions of her treating orthopedist Dr. Sandoz. [ECF No. 15 at 25]. Plaintiff
contends Dr. Sandoz indicated repeatedly in his notes that she had severe
neck, low back, and upper and lower extremity pain that was exacerbated by
prolonged standing, walking, and exertion. Id. at 26. Plaintiff argues the ALJ
dismissed Dr. Sandoz’s opinion “with the thin excuse that the opinions were
part of a worker’s compensation case that was several years old at the time of
the hearing.” Id.
ALJs must consider all medical opinions of record.
20 C.F.R. §
404.1527(b) and § 416.927(b). The regulations direct ALJs to accord
controlling weight to treating physicians’ medical opinions that are wellsupported
by
medically-acceptable
81
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) and § 416.927(c)(2).
However, “the rule does not require that the testimony be given
controlling weight.” Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (per
curiam). The ALJ has the discretion to give less weight to the opinion of a
treating physician when there is “persuasive contrary evidence.” Mastro v.
Apfel, 270 F.3d 171, 176 (4th Cir. 2001). Furthermore, “Opinions on some
issues . . . are not medical opinions . . . but are, instead, opinions on issues
reserved to the Commissioner because they are administrative findings that
are dispositive of a case; i.e., that would direct the determination or decision
of disability.” 20 C.F.R. § 404.1527(d). “Opinions that you are disabled” are
among those reserved to the Commissioner. 20 C.F.R. § 404.1527(d)(1). The
law does not give “any special significance to the source of an opinion on
issues reserved to the Commissioner.” 20 C.F.R. § 404.1527(d)(3).
“[A]
treating physician’s opinion is only entitled to such . . . deference when it is a
medical opinion.” Curler v. Comm’r of Soc. Sec., 561 F. App’x 464, 471 (6th
Cir. 2014) citing Turner v. Comm’r of Soc. Sec., 381 F. App’x 488, 492–93. “If
the treating physician instead submits an opinion on an issue reserved to the
Commissioner—such as whether the claimant is disabled, unable to work, the
claimant’s RFC, or the application of vocational factors—his decision need
82
only ‘explain the consideration given to the treating source’s opinion.’” Id.
citing Johnson v. Comm’r of Soc. Sec., 535 F. App’x 498, 505 (6th Cir. 2013)
(quoting SSR 96-5p).
If the treating physician’s opinion is not entitled to controlling weight,
“[c]ourts evaluate and weigh medical opinions pursuant to the following nonexclusive list: (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; see 20 C.F.R. § 404.1527(c).
In assigning little weight to Dr. Sandoz’s opinion, the ALJ discussed
the objective findings and medical opinions of Dr. Sandoz. See Tr. at 22–23.
On June 3, 2013, Dr. Sandoz examined Plaintiff with cervical and muscle
spasms, but also noted mostly normal findings including no motor weakness,
intact balance and gait, intact coordination, normal fine motor skills, and
preserved deep tendon reflexes. Tr. at 22. The ALJ noted that during her
follow up appointment, Plaintiff complained of difficulty ambulating and
requiring assistance with ADLs, however the ALJ found her examinations
remained normal except for decreased deep tendon reflexes. Id. The ALJ
explained that in subsequent examinations, Plaintiff’s deep tendon reflexes
83
were once again examined normally despite Plaintiff’s continued complaints
of problems. Id. The ALJ noted Dr. Sandoz’s October 29, 2013, opinion that
Plaintiff “could return to work performing light duty with no repetitive
bending of the neck and no lifting more than 10 pounds.” Id. The ALJ
explained he gave this opinion little weight because the opinion was over
three years old and was made in relation to Plaintiff’s worker’s compensation
claim and went to an issue reserved to the Commissioner. Id.
The ALJ
further explained he considered Dr. Sandoz’s examination findings in making
his RFC determination. Id. In 2014, Dr. Sandoz referred Plaintiff to physical
therapy and in a letter dated February 17, 2014, the physical therapist
opined Plaintiff could perform light to sedentary work with additional
postural limitations. Tr. at 23. The ALJ noted he gave this February 17,
2014 opinion no weight, as it was not from an approved medical source and
was tied to Plaintiff’s workers compensation claim, but he noted the opinion
was not entirely inconsistent with the accommodations defined at finding five
within his decision. Id. On June 24, 2014, Dr. Sandoz noted Plaintiff had no
surgical pathology. Tr. at 22. The ALJ observed Dr. Sandoz continued to treat
Plaintiff conservatively with medications after she continued to complain of
symptoms, including cervical and lumbar spine spasms. Id. On November 18,
2014, the ALJ noted Plaintiff was assessed with displacement of cervical
84
intervertebral disc
without myelopathy, however,
Plaintiff’s physical
examinations remained normal. Id. The ALJ noted Plaintiff’s examinations
by Dr. Sandoz continued to be unremarkable including normal lumbar spine
findings. Id. On May 29, 2015, Dr. Sandoz referred Plaintiff for an updated
MRI scan, and Plaintiff was assessed with mild central canal and severe left
neural foraminal stenosis at C4-5, severe DDD at C5-6 mild stenosis
bilaterally, and with a small central disc protrusion C6-7 without central
canal stenosis with mild left C7 foraminal stenosis. Id. The ALJ observed Dr.
Sandoz continued to treat Plaintiff in 2016, and his treatment notes indicate
he treated Plaintiff primarily with medication, including Lioderm patches.
Tr. at 23. The ALJ noted that although Plaintiff continued to complain of
severe pain symptoms, Dr. Sandoz’s physical examinations of Plaintiff
remained unremarkable, only indicating cervical spine tenderness, decreased
ROM, and lurching gait. Id. The ALJ explained he relied on the evidence in
the record, including treatment notes from Drs. Sandoz and Scott, in
determining Plaintiff’s severe impairments resulted in some limitations, but
the limitations were not as significant as Plaintiff alleged and would not
preclude all work. See generally Tr. at 18–26.
The undersigned finds that to the extent Plaintiff argues the ALJ
should have given controlling weight to Dr. Sandoz’s opinion concerning her
85
ability to work, Plaintiff is incorrect, as this opinion is on a matter that is
reserved to the Commissioner and is therefore not entitled to controlling
weight. See 20 C.F.R. § 404.1527(d)(3) and § 416.927(d)(3).
In light of evidence the ALJ considered Dr. Sandoz’s impressions at
multiple stages of the adjudicative process and credited them, in part, in
assessing Plaintiff’s severe impairments and RFC, the undersigned finds the
ALJ properly evaluated Dr. Sandoz’s medical opinion. The undersigned finds
the restrictions included in the RFC assessment and the ALJ’s finding that
Plaintiff was not disabled was not contrary to the medical opinions in the
record.
b)
Drs. Lind and Federer
Plaintiff also contends the ALJ sought to ignore the treating specialist
opinions of Drs. Lind and Federer because they were given many years before
her hearing. [ECF No. 15 at 27]. Plaintiff argues diagnostic findings and
neuropsychological testing support these doctors’ opinions and therefore their
opinions should have been given controlling weight. Id. at 28.
If a treating source’s medical opinion is “well-supported and not
inconsistent with the other substantial evidence in the case record, it must be
given controlling weight[.]” SSR 96-2p. However, “[a] non-treating source is
‘a physician, psychologist, or other acceptable medical source who has
86
examined you but does not have, or did not have, an ongoing treatment
relationship with you.’” Simila v. Astrue, 573 F.3d 503, 514 (7th Cir. 2009)
(citing 20 C.F.R. § 404.1502, finding that the ALJ properly determined that a
physician who examined claimant once at the behest of claimant’s attorney
was a non-treating source). Non-treating source opinions are not entitled to
controlling weight, but “the ALJ must follow SSA rules requiring
consideration of the background and expertise of the experts, the supporting
evidence in the record for the opinions and consistency of the opinions.”
Bryant ex rel. Bryant v. Barnhart, 63 F. App’x 90, 95 (4th Cir. 2003) (citing
SSR 96-6p).
The ALJ discussed Dr. Lind’s May 9, 2014 psychological evaluation of
Plaintiff, noting Dr. Lind found she had no obvious mental impairments. Tr.
at 15. The ALJ observed Dr. Lind assessed Plaintiff with a FSIQ of 77, but
noted Plaintiff did not have “evidence of dysfunction with the higher-level
skills.” Id. The ALJ explained he considered Plaintiff’s GAF score of 60 and
all of the relevant evidence and weighed them as required by §§ 20 CFR
404.1527(c), 416.927(c), and SSR 06-03p. Id. The ALJ also noted Dr. Lind
provided a deposition to the South Carolina Workers’ Compensation
Commission regarding Plaintiff’s worker’s compensation case in which he
opined Plaintiff had reached maximum medical improvement for her work
87
related injury and found she possessed at least “an average level of
intelligence.” Id.
The ALJ noted Dr. Federer’s neuropsychological evaluation of Plaintiff
in which he assessed Plaintiff with a FSIQ of 89, which was in the lowaverage range, opining her IQ appeared to be lower “than one would expect”
given her accomplishments. Tr. at 16. The ALJ also noted Dr. Federer’s
opinion that Plaintiff would recover from her mild head injury without
persistent cognitive deficits. Id. The ALJ found Dr. Federer’s opinions were
not entirely inconsistent with his conclusion that Plaintiff’s mental
impairments were nonsevere. Id.
The ALJ noted Dr. Lind diagnosed Plaintiff with mild depression and
moderate anxiety, and Dr. Federer diagnosed Plaintiff with depression and
recommended she manage her depression with pain management and
individual psychotherapy. Tr. at 15–16. The ALJ observed there was no
evidence in the record Plaintiff attended recurring psychotherapy or
counseling with a mental health professional. Id.
As an initial matter, the undersigned notes Drs. Lind and Federer
performed psychological evaluations of Plaintiff but did not have an ongoing
treatment relationship with her. Accordingly, their opinions were not entitled
to controlling weight. See Bryant ex rel. Bryant, 63 F. App’x at 95. A review
88
of the ALJ’s decision demonstrates he adequately considered Dr. Lind’s and
Federer’s opinions and explained his reasons for giving their opinions little
weight. See Tr. at 16–17 (discussing evidence that supported a finding that
Plaintiff had no restrictions in understanding, remembering or applying
information; no restrictions in social functioning; no restrictions in
concentrating, persisting, or maintaining pace; and no restrictions in ADLs);
Tr. at 15 (summarizing Plaintiff’s testimony); Tr. at 16 (discussing Plaintiff’s
lack of treatment history with a mental health professional); Tr. at 15–16
(noting Drs. Lind and Federer offered their opinions several years prior in
Plaintiff’s worker compensation claim where the issue was whether Plaintiff
could return to her work as a nurse). The undersigned finds Plaintiff’s
argument concerning deficiencies in the ALJ’s evaluation of Drs. Lind and
Federer’s opinions to be without merit.
4.
Improper Hypothetical
Plaintiff argues the ALJ asked the VE a legally insufficient
hypothetical because it did not accurately reflect all of her physical and
mental limitations. [ECF No. 15 at 29]. The Commissioner contends the
hypothetical question to the VE was sufficient. [ECF No. 16 at 29].
At step five of the sequential evaluation, the Commissioner bears the
burden to provide proof of a significant number of jobs in the national
89
economy that a claimant could perform. Walls, 296 F.3d at 290. The VE’s
testimony is offered to assist the ALJ in meeting this requirement. Walker v.
Bowen, 889 F.2d 47, 50 (4th Cir. 1989) (citation omitted). For a VE’s opinion
to be relevant, “it must be based upon a consideration of all other evidence in
the record . . . and it must be in response to proper hypothetical questions
which fairly set out all of claimant’s impairments.” Johnson, 434 F.3d at 659
(quoting Walker, 889 F.2d at 50); see also English v. Shalala, 10 F.3d 1080,
1085 (4th Cir. 1993). An ALJ has discretion in framing hypothetical questions
as long as they are supported by substantial evidence in the record, but the
VE’s testimony cannot constitute substantial evidence in support of the
Commissioner’s decision if the hypothesis fails to conform to the facts. See
Swaim v. Califano, 599 F.2d 1309, 1312 (4th Cir. 1979).
Although Plaintiff argues she had well-established limitations in
concentration, persistence and pace, the ALJ found Plaintiff did not have any
limitations in this area after evaluating the reports and opinions of Plaintiff’s
medical providers, see Tr. at 15–16, Plaintiff’s function report, in which she
indicated she is able to get along with authority figures, is “good” at handling
stress, and “good” at handling changes in her routine, see Tr. at 17, and
Plaintiff’s testimony that she is able to drive, do light household chores, visit
with family, watch television, and water her plants, see Tr. at 19. The
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undersigned finds the ALJ considered the evidence in the record, including
Plaintiff’s testimony and the opinions of her treating, examining, and
reviewing medical providers, and concluded Plaintiff could perform light
work, with no climbing ladders, ropes, or scaffolds, working at unprotected
heights, and no concentrated exposure to smoke, fumes, odors, dust, gases,
and poor ventilation. In light of the foregoing evidence, the undersigned finds
the record did not requirethe ALJ to include additional limitations in his
hypothetical questions to the VE.
Plaintiff also argues the ALJ’s step four finding was ambiguous
because the ALJ indicated in one of his findings of fact that Plaintiff could
return to her PRW as a practical nurse and insurance clerk, but in his
decision he indicated Plaintiff could only perform her PRW as an insurance
clerk. [ECF No. 15 at 29]. The undersigned finds that any ambiguity is
harmless because the ALJ discussed in his narrative the hypothetical given
to the VE and concluded Plaintiff was capable of performing her PRW as an
insurance clerk, but not as a practical nurse. Tr. at 26–27.5
See Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir. 1994) (applying harmless
error analysis in Social Security case); see also Ward v. Comm’r of Soc. Sec.,
5
211 F.3d 652, 656 (1st Cir. 2000) (holding that remand is not necessary if it
would “amount to no more than an empty exercise”); Austin v. Astrue, 2007
WL 3070601, *6 (W.D. Va. Oct. 18, 2007) (“Errors are harmless in Social
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5.
Error in not proceeding to Step 5
The undersigned finds the ALJ’s finding that Plaintiff can perform her
PRW as an insurance clerk is supported by substantial evidence. Accordingly,
the undersigned declines to find the ALJ erred in not proceeding to step 5.
III.
Conclusion
The court’s function is not to substitute its own judgment for that of the
Commissioner, but to determine whether her decision is supported as a
matter of fact and law. Based on the foregoing, the undersigned affirms the
Commissioner’s decision.
IT IS SO ORDERED.
January 4, 2019
Columbia, South Carolina
Shiva V. Hodges
United States Magistrate Judge
Security cases when it is inconceivable that a different administrative
conclusion would have been reached absent the error.”).
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