ECHOLS V. COLVIN

Filing 21

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 7/27/2015; that Plaintiff's Motion to Supplement the Transcript (Docket Entry 18 ) is DENIED. RECOMMENDED that Defendant's decision finding no disability be reversed and that the matter be remanded under sentence four of 42 U.S.C. § 405(g), for further administrative proceedings to evaluate (1) Dr. Fields's opinion regarding Plaintiff's lo wer back pain, (2) Dr. Davis's opinion, and (3) Plaintiff's alleged impairments of Hepatitis C and plantar fasciitis. As a result, Defendant's Motion for Judgment on the Pleadings (Docket Entry 16 ) should be denied and Plaintiff's Motion for Judgment Reversing the Commissioner (Docket Entry 13 ) should be granted in part. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

VERNON ECHOLS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

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1:13CV271

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Vernon Echols, brought this action pursuant to
Section 205(g) of the Social Security Act (the “Act”), as amended
(42 U.S.C. § 405(g)), to obtain judicial review of a final decision
of Defendant, the Acting Commissioner of Social Security, denying
Plaintiff’s claims for a period of disability and Disability
Insurance Benefits (“DIB”) under Title II of the Act, and for
Supplemental Security Income (“SSI”) under Title XVI of the Act.
(See Docket Entry 1.)

The Court has before it the certified

administrative record (cited herein as “Tr. __”) and the parties
have filed cross-motions for judgment (Docket Entries 13, 16).
Additionally, Plaintiff has filed a Motion to Supplement the
Transcript.
but

the

(Docket Entry 18.)

case

proceedings.

should

be

Supplementation will be denied,

remanded

for

further

administrative

PROCEDURAL HISTORY
Plaintiff

protectively

applied

for

DIB,

a

period

of

disability, and SSI on June 12, 2009, alleging a disability onset
date of September 18, 2008.

(Tr. 128-29, 130-32.)

After denial of

the applications initially (Tr. 54-55) and on reconsideration (Tr.
56-57),

Plaintiff

requested

a

hearing

de

Administrative Law Judge (“ALJ”) (Tr. 89-90).

novo

before

an

Plaintiff and his

attorney appeared at the hearing. (Tr. 30-53.) The ALJ thereafter
determined that Plaintiff did not qualify as disabled within the
meaning of the Act.

(Tr. 24.)

The Appeals Council subsequently

denied Plaintiff’s request for review, thereby making the ALJ’s
determination the Commissioner’s final decision for purposes of
judicial review.
In

rendering

(Tr. 1-3.)
that

disability

ruling,

the

ALJ

made

following findings later adopted by the Commissioner:
1.
[Plaintiff] meets the insured status requirements of
the Social Security Act through June 30, 2011.
2.
[Plaintiff] has not engaged in substantial gainful
activity since September 18, 2008, the alleged onset date
. . . .
3.
[Plaintiff] has the following severe impairments:
history of anterior and posterior fusions at C5, C6, and
C7; discogenic and degenerative disorder of the lumbar
spine; history of bilateral carpel tunnel releases;
diabetes mellitus; hypertension . . . .
. . .
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
2

the

one of the listed impairments in 20 CFR Part 404, Subpart
P, Appendix 1 . . . .
. . .
5.
. . .
capacity to
404.1567(b)
occasionally

[Plaintiff] has the residual functional
perform light work as defined in 20 CFR
and
416.967(b), except
that
he
can
stoop, kneel, crouch, and crawl.

(Tr. 18-21 (internal parenthetical citations removed).)
In

light

of

the

foregoing

findings

regarding

residual

functional capacity, the ALJ determined that jobs existed in
significant numbers in the national economy that Plaintiff could
perform. (Tr. 24.)

Accordingly, the ALJ ruled that Plaintiff did

not have a disability, as defined by the Act, at any time from
September 18, 2008, through the date of the decision.

(Tr. 24.)

DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).

Hines v.

However, “the scope

of . . . review of [such a] decision . . . is extremely limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
are not to try the case de novo.”
396, 397 (4th Cir. 1974).

“The courts

Oppenheim v. Finch, 495 F.2d

Instead, “a reviewing court must uphold

the factual findings of the ALJ [underlying the denial of benefits]
if they are supported by substantial evidence and were reached
through application of the correct legal standard.”

Hines, 453

F.3d at 561 (internal brackets and quotation marks omitted).
3

“Substantial evidence means ‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’”
Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (quoting
Richardson v. Perales, 402 U.S. 389, 390 (1971)).

“It consists of

more than a mere scintilla of evidence but may be somewhat less
than a preponderance.”

Mastro v. Apfel, 270 F.3d 171, 176 (4th

Cir. 2001) (internal brackets and quotation marks omitted).

“If

there is evidence to justify a refusal to direct a verdict were the
case before a jury, then there is substantial evidence.”

Hunter,

993 F.2d at 34 (internal quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake

to

re-weigh

conflicting

evidence,

make

credibility

determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Social Security Commissioner].” Mastro, 270 F.3d at
176 (internal brackets and quotation marks omitted).

“Where

conflicting evidence allows reasonable minds to differ as to
whether

a

claimant

is

disabled,

the

responsibility

for

that

decision falls on the [Social Security Commissioner] (or the ALJ).”
Id. at 179 (internal quotation marks omitted).

“The issue before

[the reviewing court], therefore, is not whether [the claimant] is
disabled, but whether the ALJ’s finding that [the claimant] is not
disabled is supported by substantial evidence and was reached based
upon a correct application of the relevant law.”
76 F.3d 585, 589 (4th Cir. 1996).
4

Craig v. Chater,

In confronting that issue, the Court must note that “[a]
claimant for disability benefits bears the burden of proving a
disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981), and
that, in this context, “disability” means the “‘inability to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months,’” id. (quoting 42
U.S.C. § 423(d)(1)(A)).1

“To regularize the adjudicative process,

the Social Security Administration has . . . promulgated . . .
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a claimant’s age,
education, and work experience in addition to [the claimant’s]
medical

condition.”

Id.

“These

regulations

establish

a

‘sequential evaluation process’ to determine whether a claimant is
disabled.”

Id. (internal citations omitted).

This sequential evaluation process (“SEP”) has up to five
steps:

“The claimant (1) must not be engaged in ‘substantial

gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of

1

The Act “comprises two disability benefits programs. [DIB] . . . provides
benefits to disabled persons who have contributed to the program while employed.
[SSI] . . . provides benefits to indigent disabled persons. The statutory
definitions and the regulations . . . for determining disability governing these
two programs are, in all aspects relevant here, substantively identical.” Craig,
76 F.3d at 589 n.1 (internal citations omitted).

5

specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity
to (4) perform [the claimant’s] past work or (5) any other work.”
Albright v. Commissioner of Soc. Sec. Admin., 174 F.3d 473, 475 n.2
(4th Cir. 1999).2

A finding adverse to a claimant at any of

several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.

The second step determines if the

claimant is ‘severely’ disabled.

If not, benefits are denied.”

Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”

Id. at 179.3

Step four then requires the ALJ to assess

2

“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
3

“RFC is a measurement of the most a claimant can do despite [the
claimant’s] limitations.” Hines, 453 F.3d at 562 (noting that administrative
regulations require RFC to reflect claimant’s “ability to do sustained workrelated physical and mental activities in a work setting on a regular and
continuing basis . . . [which] means 8 hours a day, for 5 days a week, or an
equivalent work schedule” (internal emphasis and quotation marks omitted)). The
RFC includes both a “physical exertional or strength limitation” that assesses
the claimant’s “ability to do sedentary, light, medium, heavy, or very heavy

6

whether, based on that RFC, the claimant can perform “past relevant
work” (“PRW”); if so, the claimant does not qualify as disabled.
Id. at 179-80.

However, if the claimant establishes an inability

to return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
experience) to adjust to a new job.”

Hall, 658 F.2d at 264-65.

If, at this step, the government cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs

available

disabled.

in

the

community,”

the

claimant

qualifies

as

Hines, 453 F.3d at 567.4
Motion to Supplement5

At the outset, the Court must address Plaintiff’s Motion to
Supplement the Transcript.

(See Docket Entry 18.)

Plaintiff’s

instant Motion seeks to add several medical records from Carolina

work,” as well as “nonexertional limitations (mental, sensory, or skin
impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only
after [the ALJ] considers all relevant evidence of a claimant’s impairments and
any related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.
4
A claimant thus can qualify as disabled via two paths through the SEP.
The first path requires resolution of the questions at steps one, two, and three
in the claimant’s favor, whereas, on the second path, the claimant must prevail
at steps one, two, four, and five. Some short-hand judicial characterizations
of the SEP appear to gloss over the fact that an adverse finding against a
claimant on step three does not terminate the analysis. See, e.g., Hunter, 993
F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any step of the
process, review does not proceed to the next step.”).
5

Plaintiff has not moved for remand under sentence six of 42 U.S.C.
§ 405(g), only to supplement the record. (See Docket Entry 18.)

7

Neurosurgery (Docket Entry 19) to the administrative transcript
(see Docket Entry 18 at 1).
provided the

medical

Plaintiff alleges that he previously

records

to

the

Appeals

Council

when

he

requested review of the ALJ’s decision, and the Appeals Council
failed to include these documents in the administrative transcript.
(Id.) Plaintiff cites no authority to justify granting the instant
Motion.

(Id.)

Defendant opposes Plaintiff’s instant Motion and argues that
Plaintiff never submitted the medical records to the Appeals
Council.

(Docket Entry 20.)

In that regard, Defendant points out

that, in Plaintiff’s request for the Appeals Council to review the
ALJ’s decision, Plaintiff neither stated that he submitted the
medical records, nor included an enclosure line. (Id. at 1 (citing
Tr. 8-11).)

Defendant further notes that the Appeals Council did

not mention the medical records in its Order listing additional
evidence, which listed as received Plaintiff’s brief but no other
documents.

(Id. (citing Tr. 5).)

Finally, Defendant obtained a

declaration from an employee of the Appeals Council that affirms
Defendant’s arguments. (Docket Entry 20-1, ¶ 3(c).) Plaintiff did
not reply.

(See Docket Entries dated Sept. 16, 2013, to present.)

In McHugh v. Astrue, No. 09-104-BW, 2009 WL 5218059 (D. Me.
Dec. 30, 2009) (unpublished), a district court addressed whether a
plaintiff may supplement the record.

In McHugh, the plaintiff

claimed she submitted a medical opinion to the Social Security
8

Administration (“SSA”) in connection with her benefits application;
however, the SSA apparently never received the medical opinion.
Id. at *1.

While appealing the ALJ’s decision denying benefits,

the plaintiff moved the district court to supplement the record
with the medical opinion.

Id.

The defendant opposed the motion

and argued that the plaintiff should have known that the SSA did
not receive the document.

Id. at *2.

The district court agreed

with the defendant, and, in doing so, noted that, “[a]s a general
proposition, it is the duty of a litigant, not a court, judge, or
fact-finder, to ensure that evidence meant to be tendered has in
fact been offered into evidence.”

Id. (citing Foster v. Halter,

279 F.3d 348, 357 (6th Cir. 2001)).

Further, the district court

found that the plaintiff had an opportunity and a duty to ensure
that the document had been received and admitted and the plaintiff
failed in doing so.

Id.

Accordingly, the district court denied

the motion and refused to supplement the record.

Id.

Similarly, here, Plaintiff had the obligation to ensure that
the SSA received any and all evidence he wished to present.

After

receiving the Order from the SSA noting receipt of Plaintiff’s
brief, but not the medical records, Plaintiff should have taken
further steps to confirm its receipt.

Under these circumstances,

the Court cannot rely on the newly submitted medical records in
evaluating the ALJ’s determination of no disability.

9

See id.

Assignments of Error
Plaintiff lodges three assignments of error. First, Plaintiff
contends that, in formulating his RFC, the ALJ improperly evaluated
Plaintiff’s credibility regarding pain.

(Docket Entry 14 at 4-7.)

Second, Plaintiff argues that (again, in connection with the RFC)
the ALJ erroneously assessed the medical opinions of Dr. Fields and
Dr. Davis.

(Id. at 7-9.)

Finally, Plaintiff asserts that the ALJ

failed to consider Plaintiff’s Hepatitis C or plantar fasciitis.
(Id. at 9.)

Defendant disagrees and urges the Court to affirm the

ALJ’s finding of no disability.
A.

(Docket Entry 17 at 15.)

Plaintiff’s Credibility
Plaintiff

argues

that

the

ALJ

improperly

credibility of Plaintiff’s reported pain.
7.)

evaluated

the

(Docket Entry 14 at 4-

In that regard, Plaintiff presents a series of objections to

the ALJ’s analysis and alleges several instances where the ALJ
misinterpreted evidence and mischaracterized the record.

(Id.)

Plaintiff, however, fails to demonstrate any harm by the ALJ’s
alleged errors, i.e., even if the Court agreed with Plaintiff, he
has failed to establish a basis for remand, see Dydra v. Colvin, 47
F. Supp. 3d 318, 326 (M.D.N.C. 2014) (“[I]f an ALJ erroneously
considered or failed to consider some evidence, remand is not
appropriate unless the claimant was prejudiced.”); see also Turner
v. Colvin, No. 1:13CV761, 2015 WL 502082, at *11 (M.D.N.C. Feb. 5,
2015) (finding harmless error where the plaintiff did not explain
10

how proper analysis would have resulted in a more restrictive RFC),
recommendation

adopted,

slip

op.

(M.D.N.C.

Mar.

6,

2015).

Regardless, Plaintiff’s arguments lack merit.
“[T]he determination of whether a person is disabled by pain
or other symptoms is a two-step process.”

Craig, 76 F.3d at 594.

A claimant must first proffer “objective medical evidence showing
‘the existence of a medical impairment(s) which . . . could
reasonably be expected to produce the pain or other symptoms
alleged.’”

Id. (quoting 20 C.F.R. §§ 404.1529(b) & 416.929(b))

(emphasis removed).

Second, the ALJ must evaluate “the intensity

and persistence of the claimant’s pain, and the extent to which it
affects [his] ability to work . . . .”

Id. at 595.

Contrary to

Plaintiff’s assertion (see Docket Entry 14 at 5 (arguing that by
meeting the first step, a claimant “is entitled to substantial
credibility regarding the experienced intensity of the pain and
it[s] effects”)), success at the first step does not entitle the
claimant to substantial credibility, or give their testimony great
weight, Mascio v. Colvin, 780 F.3d 632, 640 (4th Cir. 2015).
Instead,

“‘under

the

regulations,

.

.

.

evaluation

[of

the

claimant’s pain] must take into account not only the claimant’s
statements about h[is] pain, but also all the available evidence,
including

the

claimant’s

laboratory findings.’”

medical

history,

medical

signs,

and

Felton-Miller v. Astrue, 459 F. App’x 226,

229 (4th Cir. 2011) (quoting Craig, 76 F.3d at 595).
11

Plaintiff first asserts that the ALJ mistakenly evaluated
Plaintiff’s back pain on the basis of a CT scan on April 7, 2010.
(Docket Entry 14 at 4 (citing Tr. 22).)

In that regard, in

reviewing the CT scan, the ALJ noted that, although Plaintiff
continued to complain of chronic neck and low-back pain, the CT
scan revealed progressive fusion.

(Tr. 22.)

However, Plaintiff

faults the ALJ’s analysis for not noting the other abnormalities on
various

vertebrae

and,

Plaintiff’s credibility.

thus,

inappropriately

(Docket Entry 14 at 4.)

discounting
As Defendant

points out, an ALJ has no obligation to discuss every piece of
medical evidence.

(Docket Entry 17 at 4 (citing Pike v. Astrue,

No. 1:09CV448, 2011 WL 9300, at *5 (M.D.N.C. Jan. 3, 2011)).)
Additionally, the ALJ appears to have taken the abnormalities into
account as he found that Plaintiff still suffered back and neck
pain, but not at levels that precluded employment.

(Tr. 23.)

This

aspect of Plaintiff’s argument does not entitle him to relief.6
Next, Plaintiff contends that the ALJ mistakenly found that
his carpal tunnel surgeries successfully resolved his arm pain and
numbness.

(Docket Entry 14 at 5.)

Plaintiff argues that, despite

those surgeries, he still displayed ulnar nerve symptoms.

(Id.

6
Plaintiff also argues that the ALJ distorted the record by specifically
citing a March 2010 report (predating the CT scan) concluding that Plaintiff did
not suffer radicular pain. (Docket Entry 14 at 4 (citing Tr. 22).) However, as
Defendant points out (Docket Entry 17 at 4-5), the ALJ did not specifically cite
the March 2010 report (see Tr. 22-23). Plaintiff did not file a response and
address Defendant’s point. (See Docket Entries dated Aug. 22, 2013 to present.)
Under these circumstances, the Court need not address the matter further.

12

(citing Tr. 896).)

However, the ALJ has the responsibility to

resolve conflicts in the evidence, Hays v. Sullivan, 907 F.2d 1453,
1456 (4th Cir. 1990), and the ALJ did so here.

Although Plaintiff

presented with some lingering ulnar symptoms after the surgeries
(Tr. 896), Dr. Pool noted that, a week after the surgery on his
right wrist, his preoperative carpal tunnel symptoms had improved
and that his strength and sensation remained intact (Tr. 901).
Moreover,

during

a

February

2011

visit,

Dr.

Bartko

rated

Plaintiff’s strength as five out of five with generally intact
sensation and peripheral joint range of motion without crepitus or
tenderness.

(Tr. 906.)

Finally, over the course of three visits,

Plaintiff’s doctors noted that Plaintiff displayed negative Tinel
and Phalen’s signs.

(Tr. 917, 919, 921.)

In light of the record,

the ALJ reasonably found that the surgery successfully resolved
Plaintiff’s

carpal

tunnel

symptoms,

and

substantial

evidence

supports the ALJ’s decision.
Plaintiff also contends that the ALJ erred in evaluating
Plaintiff’s continued pain and numbness from lumbar spine stenosis.
(Docket Entry 14 at 5.)7

In that record, Plaintiff points to

evidence of his decreased range of motion and persistent pain.
(Id. (citing
evidence

Tr.

reveals

916-18).)

Defendant admits

that

Plaintiff’s

decreased

of

7

range

the

cited

motion,

but

In doing so, Plaintiff relies on information outside of the record that
the Court cannot consider in determining whether the ALJ erred.

13

Defendant counters that the ALJ appropriately limited Plaintiff to
light work.

(Docket Entry 17 at 7.)

Additionally, the ALJ limited

Plaintiff to only occasional stooping, kneeling, crouching, and
crawling. (Tr. 21.) Furthermore, as Defendant notes, the evidence
cited by Plaintiff does not demonstrate the necessity of greater
limitations.

(Docket Entry 17 at 7.) Accordingly, the ALJ did not

err in analyzing Plaintiff’s pain and his decreased range of motion
in connection with lumbar spine stenosis.
Plaintiff further disputes the ALJ’s treatment of his lower
disc degenerative disorder and its effect on his pain.
Entry 14 at 5.)
discounted

(Docket

In that regard, Plaintiff claims that the ALJ

Plaintiff’s

credibility

regarding

Plaintiff did not undergo corrective surgery.

his
(Id.)

pain

because

However, the

ALJ did not specifically find that Plaintiff’s failure to have
surgery provided a basis for discounting his credibility. (See Tr.
23.)

Regardless, the ALJ credited Plaintiff’s complaints of

chronic pain, but found that it did not rise to a level to preclude
work.

(Id.)

Plaintiff has shown no basis for relief on this

front.
Additionally, Plaintiff argues that he did experience pain
radiating from his lumbar spine to his legs.
6.)8

(Docket Entry 14 at

Plaintiff observes that his neurologist noted limited range

8

For part of this argument, Defendant relies on evidence outside the
record that the Court cannot consider.

14

of motion and positive straight leg tests demonstrating spinal
nerve irritation.

(Id. (citing Tr. 906).)

Moreover, Plaintiff

cites other evidence demonstrating previous straight leg tests and
problems with sitting and standing.

(Id.)

However, Plaintiff has

not identified how consideration of these matters reasonably would
have affected his RFC in a manner that precludes employment.
Accordingly, Plaintiff’s arguments lack merit.
Finally, Plaintiff contends that the ALJ erred in finding that
the record did not support Plaintiff’s allegations of the level of
his pain.

(Id. at 6-7.)

In that regard, the ALJ found that the

record did not support Plaintiff’s complaints of pain equaling nine
or ten out of ten without medication.

(Tr. 23.)

Plaintiff

interprets this finding as a determination that he had not reported
any such pain and cites to instances in the record where he rated
his pain as a nine or ten.

(Docket Entry 14 at 6.)

However, the

undersigned understands the ALJ’s comments to mean that the record
does not justify complaints of pain at a level of nine or ten
without medication (regardless of whether Plaintiff made such
reports).

On

that

basis,

Plaintiff

challenge the ALJ’s determination.

presents

no

grounds

to

(See id.)

In sum, Plaintiff has shown no entitlement to relief in
connection with the ALJ’s analysis of Plaintiff’s reports of pain.

15

B.

Medical Opinions
Plaintiff contends that, as part of the RFC formulation, the

ALJ erred in disregarding the opinion of Dr. Fields and by failing
to address the opinion of Dr. Davis.

(Docket Entry 14 at 7-9.)

An

ALJ has the obligation to review all of the medical opinions he or
she

receives

in

making

his

§§ 404.1527(b) & 416.927(b).

or

her

decision.

20

C.F.R.

“If [an] RFC assessment conflicts

with an opinion from a medical source, the adjudicator must explain
why the opinion was not adopted.”

Social Security Regulation

(“SSR”) 96-8p, 1996 WL 374184, at *7.
i.

Dr. Fields
Dr. Fields, a consultative examiner for the North Carolina

Department of Health and Human Services, examined Plaintiff in July
of 2009.

(Tr. 373-76.)

Plaintiff explains that Dr. Fields found,

among other things, that Plaintiff had cervical radiculopathy
affecting the use of his upper extremities and that his lower back
pain affected his ability to walk.
Tr. 373-76).)

(Docket Entry 14 at 7 (citing

Plaintiff further points to the tests and evidence

supporting Dr. Fields’s opinion.

(Id.)

The ALJ disregarded

Dr. Fields’s opinion because it predated many of Plaintiff’s
surgeries,

and

the

Plaintiff’s problems.

ALJ

found

that

the

surgeries

resolved

(Tr. 23.)

On appeal, Plaintiff relies on his previous assertions that
the surgeries did not resolve his underlying medical problems such
16

that the ALJ wrongly disregarded Dr. Fields’s opinion.

(Id.)

As

discussed in Part A, a conflict exists in the evidence regarding
the efficacy of Plaintiff’s surgeries in resolving Plaintiff’s
cervicular radiculopathy, the ALJ resolved that conflict in favor
of

finding

the

surgeries

effective,

and

substantial

evidence

supports that decision. Accordingly, the ALJ had a basis to afford
Dr. Fields’s opinion less weight and Plaintiff’s challenge on this
point has no merit.
However, as Plaintiff points out (Docket Entry 14 at 8),
Dr. Fields also noted that Plaintiff suffers from low back pain
that prevents him from “comfortable ambulation,” (Tr. 375).
ALJ

expressly

relied

on

Plaintiff’s

subsequent

surgeries

The
to

discount Dr. Fields’s opinion relative to Plaintiff’s cervicular
radiculopathy (see Tr. 23), but that logic does not apply to
Plaintiff’s lower back pain as Plaintiff has not undergone any
corrective

surgery

for

such

pain

(Docket

Entry

14

at

8).

Accordingly, substantial evidence does not exist to support the
ALJ’s treatment of Dr. Fields’s opinion relative to Plaintiff’s
lower back pain.9
further

Thus, the Court should remand this case for

consideration

of

Dr.

Fields’s

opinion

relative

to

Plaintiff’s lower back pain.
9

The Court cannot find that the ALJ’s failure to address this constitutes
harmless error because the ALJ found that Plaintiff could perform light work and
light work “requires a good deal of walking or standing,” 20 C.F.R.
§§ 404.1567(b) & 416.967(b). Thus, the ALJ must address Dr. Fields’s opinion
regarding Plaintiff’s lower back pain, which prevents “comfortable ambulation.”

17

ii.

Dr. Davis
According to Plaintiff, the ALJ erred in failing to consider

the opinion of Dr. Davis, Plaintiff’s treating physician.
Entry 14 at 8.)10

(Docket

In March of 2009, Dr. Davis prescribed that

Plaintiff not bend, stoop, twist, or lift more than 35 pounds.
(Tr. 238.) This opinion conflicts with the ALJ’s RFC determination
that allows for occasional bending and stooping but requires
Plaintiff to lift less weight.

(Tr. 21; see also 20 C.F.R.

§§ 404.1567(b) & 416.967(b) (describing light work as involving
lifting a maximum of 20 pounds or 10 pounds if frequently lifting
and carrying).) The ALJ did not acknowledge or address Dr. Davis’s
opinion.

(See Tr. 16-24.)

Defendant

concedes

that

the

ALJ

failed

to

consider

and

evaluate Dr. Davis’s opinion; however, Defendant argues that such
error qualifies as harmless.

(Docket Entry 17 at 11-12.)

First,

Defendant points out that Dr. Davis’s finding that Plaintiff could
lift 35 pounds exceeded the limitations in light work, which the
ALJ found appropriate.

(Id. at 11.)

Although Defendant correctly

notes that Dr. Davis’s weight limit does exceed the requirements
necessary

for

light

work,

that

fact

does

not

resolve

the

fundamental differences between Dr. Davis’s opinion and the ALJ’s
findings on bending and stooping.

10

Defendant does not challenge Plaintiff’s characterization of Dr. Davis
as Plaintiff’s treating physician. (See Docket Entry 17 at 11-12.)

18

Second, Defendant points out that Dr. Davis’s opinion that
Plaintiff can lift 35 pounds but not bend or stoop conflicts with
Social Security Regulation 83-10, 1983 WL 31251, which generally
provides that in order for an individual to lift 20 pounds (for
light work) the individual must be able to occasionally bend and
stoop.

(Docket Entry 17 at 11 (citing SSR 83-10, 1983 WL 31251 at

*5-6).)
the

However, Defendant has not cited any authority to support

view

that

a

physician

cannot

adopt

more

restrictive

bending/stooping limitations than a claimant’s general weightlifting abilities would reflect under SSR 83-10.

(See id. at 11-

12.)

the

The

exertional

categories

provided

by

SSA

apply

generally, and nothing in the regulations appears to prevent a
physician from finding that a claimant can perform some but not all
of the required tasks in an exertional category.

As such, that

aspect of Defendant’s harmless error argument lacks merit.
Third, Defendant notes that Dr. Davis’s opinion conflicts with
the state agency physician who reviewed the record in February 2010
(id. (citing Tr. 883)), and that an ALJ may credit a non-examining
physician’s opinion over a treating physician (id. (citing Hunter
v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992)).

Defendant further

emphasizes that Dr. Davis’s opinion predates some of Plaintiff’s
later treatment and argues that, as a result, the ALJ’s failure to
evaluate the opinion qualifies as harmless. (Id. at 12.) However,
as a district court in South Carolina observed, “the ALJ, not the
19

Commissioner, must explain why a treating physician’s opinion is
discounted or rejected.”

Rivers v. Astrue,

2012 WL

(D.S.C. July

2590498,

Although

rational

at *5

reasons

may

exist

No. 4:11-01386-TER,

5,

2012)

for

the

(unpublished).
ALJ

to

assign

substantially less weight to Dr. Davis’s opinion, the ALJ must
explain

his

reasoning,

see

20

C.F.R.

416.927(c)(2), which he failed to do here.

§§

404.1527(c)(2)

&

Accordingly, the Court

should remand this case for further consideration of Dr. Davis’s
opinion.11
C.

Additional Impairments
As a final matter, Plaintiff contends that the ALJ failed to

analyze and address Plaintiff’s additional alleged impairments of
Hepatitis C and plantar fasciitis at step two in the formulation of
the RFC.

(Docket Entry 14 at 9-10.)

Because the undersigned has

recommended remand based on the ALJ’s failure to address Dr.
Fields’s opinion regarding Plaintiff’s lower back pain and the
opinion of Dr. Davis, those matters can be addressed on remand.

11
Notably this case does not present the situation where the ALJ failed
to address an opinion that qualified as substantially similar to another
physician’s. See, e.g., Caldwell v. Barnhart, 261 F. App’x 188, 191 (11th Cir.
2008). Here, Dr. Davis provided specific work limitations (see Tr. 238) that
Dr. Fields did not (see Tr. 373-76). Thus, the Court cannot rely on the ALJ’s
analysis of Dr. Fields to excuse the absence of discussion of the opinions of
Dr. Davis.

20

CONCLUSION
Plaintiff has not shown entitlement to expansion of the
record, but has established grounds for the Court to remand this
case for further administrative proceedings.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Supplement
the Transcript (Docket Entry 18) is DENIED.
IT IS THEREFORE RECOMMENDED that Defendant’s decision finding
no disability be reversed and that the matter be remanded under
sentence four of 42 U.S.C. § 405(g), for further administrative
proceedings

to

evaluate

(1)

Dr.

Fields’s

opinion

regarding

Plaintiff’s lower back pain, (2) Dr. Davis’s opinion, and (3)
Plaintiff’s
fasciitis.

alleged

impairments

of

Hepatitis

C

and

plantar

As a result, Defendant’s Motion for Judgment on the

Pleadings (Docket Entry 16) should be denied and Plaintiff’s Motion
for Judgment Reversing the Commissioner (Docket Entry 13) should be
granted in part.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
July 27, 2015

21