Tammy B. v. Kijakazi

Tammy B., ^[1] Plaintiff, v. Kilolo Kijakazi, ^[2] Acting Commissioner of Social Security Administration, Defendant.

C/A No. 1:21-814-SVH

United States District Court, D. South Carolina

October 26, 2021

ORDER

Shiva V. Hodges United States Magistrate Judge

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.), the order of the Honorable Joseph Dawson, III, United States District Judge dated April 8, 2021, referring this matter for disposition [ECF No. 11], and the Commissioner's motion to remand [ECF No. 16]. 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. 9].

Plaintiff filed 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”) and Supplemental Security Income (“SSI”). The Commissioner concedes Plaintiff's argument that the case should be reversed and remanded. [ECF No. 16]. The issue before the court is whether the case should be remanded for further administrative proceeding or an award of benefits. For the reasons that follow, the court grants the Commissioner's motion [ECF No. 16] and reverses and remands the case for further administrative proceedings.

I. Relevant Background

A. Procedural History

On October 19, 2016, Plaintiff protectively filed applications for DIB and SSI in which she alleged her disability began on July 18, 2013. Tr. at 118, 119, 164-72, 173-80. Her applications were denied initially and upon reconsideration. Tr. at 122-26, 129-34. On July 18, 2019, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Ethan A. Chase. Tr. at 42- 66 (Hr'g Tr.). The ALJ issued an unfavorable decision on October 9, 2019, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 24-41. 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 1-7. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on March 22, 2021. [ECF No. 1].

B. Plaintiff's Background and Medical History

1. Background

Plaintiff was 49 years old at the time of the hearing. Tr. at 46. She completed the General Educational Development (“GED”) tests, obtaining a high school equivalency certificate. Id. Her past relevant work (“PRW”) was as a waitress and a dining room manager. Tr. at 47. She alleges she has been unable to work since July 18, 2013. Tr. at 166, 173.

2. Medical History

On October 13, 2015, an MRI of Plaintiff's lumbar spine showed minimal degenerative changes at ¶ 4-5 and L5-S1. Tr. at 424.

Plaintiff followed up with Dr. Massey to review results of the MRI on October 20, 2015. Tr. at 410. Dr. Massey explained the MRI showed no evidence of significant degeneration, stenosis, herniation, or nerve compression. Id. He indicated he saw no explanation for Plaintiff's radiating leg pain and suspected it was muscular, as Plaintiff likely placed increased burden on her lower back to compensate for her neck problems. Id.

On November 12, 2015, Plaintiff complained of cramping and back pain that radiated through her right lower extremity and numbness and tingling in her bilateral arms. Tr. at 406. Dr. Massey referred Plaintiff for electromyography (“EMG”) and nerve conduction studies (“NCS”) of the bilateral upper extremities (“BUE”). Tr. at 407. He indicated he considered Plaintiff's back issues to be related to her cervical spine. Id.

On December 11, 2015, EMG and NCS showed evidence of moderate bilateral C6, C7, and C8 radiculopathy. Tr. at 419.

Dr. Massey reviewed the EMG and NCS findings with Plaintiff on January 5, 2016, noting they showed bilateral C6 to C8 nerve root irritation and radiculopathy. Tr. at 403. He recommended repeat MRI of the cervical spine to evaluate the disc at ¶ 4-5. Id.

On January 19, 2016, the MRI of Plaintiff's cervical spine showed postsurgical changes at ¶ 6-7 with degenerative disc disease (“DDD”) above greater than below the fusion; moderate narrowing of the spinal canal at ¶ 4- 5 and C5-6 with trace retrolisthesis at ¶ 5-6; most significant foraminal narrowing at ¶ 5-6 on the left with moderate-to-severe left foraminal narrowing and suspected compression of the existing left C6 nerve root; and less-pronounced narrowing at other levels. Tr. at 413.

Plaintiff followed up with Dr. Massey to discuss the MRI results on January 29, 2016. Tr. at 397. She reported numbness and tingling in her bilateral arms and back pain that radiated down her right leg with numbness and tingling in her toes. Tr. at 399. Dr. Massey noted the MRI showed worsening stenosis at ¶ 4-5 and C5-6. Tr. at 400. He explained the findings were consistent with Plaintiff's worsening symptoms. Id. He discussed conservative and surgical treatment options, but concluded surgery was necessary. Id. Plaintiff opted to proceed with surgery. Id.

Plaintiff reported worsening back pain and radiating right leg pain in a sciatic distribution to the foot with associated cramping on February 25, 2016. Tr. at 395. She indicated intramuscular steroid injections had been ineffective. Tr. at 395-96. Dr. Massey noted the workers' compensation provider had authorized Plaintiff to proceed with neck surgery. Tr. at 396. He observed Plaintiff to be tender over the bilateral cervical paraspinals. Id. He indicated Plaintiff should participate in physical therapy pending neck surgery. Id.

Plaintiff presented to physical therapist Liesel M. Barker (“PT Barker”) for an initial evaluation on February 25, 2016. Tr. at 430. PT Barker noted Plaintiff's doctor had imposed a 10-pound lifting restriction. Id. She observed 4+/5 BUE strength on manual muscle testing and decreased range of motion (“ROM”) of the cervical spine. Tr. at 430-31. She recommended skilled physical therapy to decrease pain, improve function, and increase strength and ROM. Tr. at 431. Plaintiff subsequently participated in 12 physical therapy sessions. Tr. at 435-69.

On April 6, 2016, Gene M. Massey, M.D. (“Dr. Massey”), performed anterior cervical discectomy and fusion (“ACDF”) at Plaintiff's C4-5 and C5- 6 levels; removal of hardware and anterior cervical instrumentation at ¶ 6-7, anterior cervical interbody cage placement at ¶ 4-5 and C5-6; and anterior cervical instrumentation from C4 through C6. Tr. at 342-44.

Plaintiff presented to physician assistant Janelle A. Morgan (“PA Morgan”) for a postoperative visit on April 21, 2016. Tr. at 384. She reported numbness in her fingers, trapezial pain, and concern as to ROM of her neck. Tr. at 386. PA Morgan observed swelling, limited active and passive ROM, and noted Plaintiff was not neurovascularly intact. Id. She indicated Plaintiff's wound was clean, dry, and had no signs of drainage or infection. Tr. at 386-87. PA Morgan consulted with Dr. Massey, who recommended they give it more time. Tr. at 387.

Plaintiff reported arm pain on exertion, muscle weakness, back pain, swelling in the extremities, numbness, and migraines on May 31, 2016. Tr. at 383. Dr. Massey indicated Plaintiff was progressing well, despite some paresthesia in her hands. Id. He prescribed Norco 7.5-325 mg every six hours and Terocin patches for neck pain. Tr. at 384.

On July 12, 2016, Plaintiff reported increased pain following coughing spells due to an upper respiratory infection. Tr. at 380. She described pain in her neck that radiated to her right shoulder and caused numbness and tingling in her bilateral hands. Id.

Plaintiff presented to physical therapist Brenden M. Blaschke (“PT Blaschke”) for a physical therapy evaluation on August 16, 2016. Tr. at 473. PT Blaschke noted Plaintiff had a five-pound lifting restriction per her doctor's order. Id. He observed reduced cervical ROM and decreased sensation to light touch on the right from C5 to C8 and on the left at ¶ 4-5. Tr. at 474. He recommended physical therapy three times a week for six weeks to decrease pain, improve function, increase strength and ROM, return Plaintiff to her premorbid state, and allow her to return to work. Tr. at 474. Plaintiff followed up for 12 visits and demonstrated moderate improvement in active ROM and a mild decrease in guarding, although she continued to be weak and guarded with cervical movements. Tr. at 479-521.

Plaintiff endorsed numbness and tingling along the back of her neck, neck pain, and BUE symptoms on August 23, 2016. Tr. at 377. Dr. Massey noted examination of both upper extremities showed 5/5 strength in the deltoids, biceps, triceps, wrist extensors, wrist flexors, and intrinsics. Id. He indicated Plaintiff had intact sensation from C5 to T1, negative Hoffman's sign, and 2+ radial pulses. Id. He instructed Plaintiff to continue physical therapy and medications. Tr. at 378.

Plaintiff reported numbness and tingling along the back of her neck, neck pain, and numbness in her arms on September 27, 2016. Tr. at 374. Dr. Massey recommended a functional capacity evaluation, prescribed Mobic, and refilled Gabapentin and topical analgesic patches. Tr. at 375.

Plaintiff presented to Stephen E. Boatwright, M.D. (“Dr Boatwright”), for an initial consultation on January 30, 2017. Tr. at 597. She reported lower back pain and neck pain with limited ROM and frequent loss of feeling in her right arm. Tr. at 598. She indicated she performed minimal activities of daily living (“ADLs”) and often took breaks. Id. She noted her pain was increased by...