Michael B. v. Saul
| Decision Date | 12 March 2021 |
| Docket Number | C/A No.: 1:20-1999-SVH |
| Parties | Michael B., Plaintiff, v. Andrew M. Saul, Commissioner of Social Security Administration, Defendant. |
| Court | U.S. District Court — District of South Carolina |
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 the Honorable R. Brian Harwell, United States District Judge, dated July 6, 2020, referring this matter for disposition. [ECF No. 6]. 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. 5].
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 arewhether the Commissioner's findings of fact are supported by substantial evidence and whether he applied the proper legal standards. For the reasons that follow, the court reverses and remands the Commissioner's decision for an award of benefits pursuant to sentence four of 42 U.S.C. § 405(g).
On November 20, 2013, Plaintiff protectively filed an application for DIB in which he alleged his disability began on April 13, 2012. Tr. at 47, 150-53. His application was denied in a Notice of Disapproved Claim dated March 13, 2014. Tr. at 58-69. On February 10, 2016, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Carl B. Watson. Tr. at 33-46 (Hr'g Tr.). The ALJ issued an unfavorable decision on March 23, 2016, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 16-32. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-6.
Thereafter, Plaintiff brought an action seeking judicial review of the Commissioner's decision. On July 23, 2018, the undersigned issued an order granting the Commissioner's motion to remand the case for further administrative proceedings. Tr. at 482-86. The Appeals Council subsequently issued an order remanding the case to the ALJ on September 21, 2018. Tr. at487-91. On December 3, 2019, Plaintiff appeared for a second hearing before the ALJ. Tr. at 436-58 (Hr'g Tr.). The ALJ issued a second unfavorable decision on February 10, 2020, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 418-35. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on May 26, 2020. [ECF No. 1].
Plaintiff was 58 years old at the time of the first hearing and 61 years old at the time of the second. Tr. at 37, 436. He completed high school. Tr. at 37. His past relevant work ("PRW") was as a garbage truck driver. Id. He alleges he has been unable to work since January 5, 2013.2 Tr. at 440.
Plaintiff presented to Scott M. Levin, M.D. ("Dr. Levin"), for evaluation of low back pain on April 23, 2012. Tr. at 260. He indicated he had been experiencing the pain for about a year and that his job as a truck driver aggravated his symptoms. Id. Dr. Levin noted forward bending of the lumbar spine to about 80 degrees with mild discomfort involving the left side of the lower back. Tr. at 261. He stated Plaintiff had lumbar extension to 10 degrees with no significant pain. Id. Plaintiff demonstrated 5/5 lower extremitystrength and equal and intact bilateral reflexes. Id. A straight-leg raising ("SLR") test was negative bilaterally. Id. X-rays showed some degenerative disc disease ("DDD") with grade I L5 on S1 spondylolisthesis. Id. Dr. Levin referred Plaintiff to physical therapy ("PT"), ordered an MRI scan of the lumbar spine, and indicated he should remain out of work pending the results. Tr. at 262.
On May 21, 2012, Plaintiff endorsed improvement from PT, but complained of occasional shooting pain down his left leg. Tr. at 255. Dr. Levin noted negative SLR test, 5/5 lower extremity strength, normal sensation in the lower extremities, and tenderness only in the left paraspinal lumbar muscles. Id. He reviewed the MRI report that showed DDD, a left lateral disc protrusion at L2-3 that abutted the exiting left L2 nerve root, a broad-based right lateral disc/osteophyte complex that abutted the right L4 nerve root, and a broad-based right lateral/paracentral disc protrusion at L5-S1 that abutted the central right S1 nerve root. Id. Dr. Levin referred Plaintiff for four additional weeks of PT. Id. He discussed a pain management referral, but Plaintiff indicated he did not need it. Tr. at 256.
On June 25, 2012, Plaintiff reported some improvement from PT, but continued to endorse non-radicular pain in his left lower back. Tr. at 254. Dr. Levin observed tenderness in the left paraspinal lumbar muscles, but 5/5 strength of the lower extremities, equal and intact bilateral sensation, and notenderness of the midline or right paraspinal lumbar muscles. Id. He indicated Plaintiff should complete PT and transition to a home exercise program, but that he did not require pain management treatment. Id. He wrote: "He will continue to remain out of work as the vibrations of the truck and the lifting and carrying activities that he has to do will likely not be very well tolerated by the patient." Id. He provided Plaintiff with an elastic lumbar corset for support and instructed him follow up if his pain worsened such that he required a referral to a pain management specialist. Id.
On August 15, 2013, Plaintiff presented to Salvatore M. Buffa, M.D. ("Dr. Buffa"), for a preoperative exam in preparation for a screening colonoscopy. Tr. at 274. Dr. Buffa recorded normal findings on exam. Tr. at 275. He advised Plaintiff to increase fiber in his diet and recommended a colonoscopy. Id.
Plaintiff reported doing well and denied complaints on August 19, 2013. Tr. at 269. He requested medication refills. Id. Amy Jo Kelly, FNP ("NP Kelly"), noted normal findings on exam. Tr. at 269. She reviewed lab studies and prescribed Bisoprolol-Hydrochlorothiazide for hypertension, Simvastatin 80 mg for hyperlipidemia, and Ranitidine HCl 150 mg for gastroesophageal reflux disease ("GERD"). Tr. at 270-71.
On August 21, 2013, Dr. Buffa performed a screening colonoscopy that showed internal hemorrhoids and diverticulosis of the colon. Tr. at 277.
Plaintiff presented to Mark Foster, M.D. ("Dr. Foster"), for a flu shot on October 30, 2013. Tr. at 267. He weighed 245 pounds, which represented a 13-pound weight gain. Id. He reported doing well and denied concerns. Id.
Plaintiff presented to Gilbert Jenouri, M.D. ("Dr. Jenouri"), for an orthopedic consultative examination on March 3, 2014. Tr. at 279-81. He described dull, aching lower back pain that ranged from a two to a seven on a 10-point scale. Tr. at 279. He denied radiation of the pain and said it was increased by activity. Id. He reported cooking five to seven times a week, cleaning twice a week, doing laundry three to four times a week, and shopping twice a week. Id. He stated he showered and dressed daily and engaged in activities that included watching television, listening to the radio, reading, dining in restaurants, playing sports, and socializing with friends. Id. Dr. Jenouri observed Plaintiff to have normal gait, to walk on his heels and toes without difficulty, to rise and squat without difficulty, to have 5/5 grip strength, and to have full ROM of the cervical spine, shoulders, elbows, forearms, wrists, and fingers. Tr. at 280. He noted lumbosacral extension to 25 degrees, flexion to 80 degrees, and bilateral lateral flexion to 30 degrees. Id. He found no spasm, scoliosis, kyphosis, or spinal, paraspinal, sacroiliac joint, or sciatic notch tenderness. Id. He noted negative SLR test, except for in the seated position on the left. Id. He recorded the following ROM in Plaintiff's hip: bilateral flexion/extension to 90 degrees; bilateral backwardextension to 30 degrees; right abduction to 35 degrees; left abduction to 40 degrees; right adduction to 15 degrees; left adduction to 20 degrees; and normal bilateral interior and exterior rotation. Tr. at 280-81. He noted full ROM on flexion and extension of the bilateral knees and dorsiflexion and plantar flexion of the bilateral ankles. Tr. at 281. He stated plaintiff had 5/5 strength in his bilateral proximal and distal muscles and equal reflexes. Id. He appreciated no muscle atrophy, sensory abnormality, joint effusion, inflammation, or instability. Id. He diagnosed low back pain and hypertension and found "[n]o restrictions based upon the findings of today's evaluation." Id.
Plaintiff sought medication refills on March 4, 2014. Tr. at 302. He indicated he was doing well and denied complaints. Id. NP Kelly recorded normal findings on physical exam. Tr. at 303.
Plaintiff followed up with NP Kelly for medication refills on June 16, 2014. Tr. at 282. He reported doing well and denied complaints. Id. NP Kelly recorded normal findings on exam, aside from a cardiac arrhythmia. Tr. at 283. An electrocardiogram ("EKG") was benign. Id. NP Kelly prescribed Simvastatin 20 mg for hyperlipidemia and Bisoprolol-Hydrochlorothiazide 2.5-6.25 mg for hypertension and instructed Plaintiff to continue his other medications. Id. She noted Plaintiff was scheduled to follow up with a urologist for possible kidney stones. Id.
Plaintiff presented to Marylu Williams, FNP-C ("NP Williams"), for a urological evaluation on June 17, 2014. Tr. at 291. He complained of flank pain. Id. NP Williams noted normal findings on exam. Tr. at 292. She assessed a urinary tract infection ("UTI") and instructed Plaintiff to continue taking Cipro 500 mg twice...
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