WIDEMAN V. COLVIN

Filing 12

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 10/18/2016; that the Commissioner's decision finding no disability be AFFIRMED, that Plaintiff's Motion to Reverse the Decision of the Commissioner [Doc. # 8 ] be DENIED, that Defendant's Motion for Judgment on the Pleadings [Doc. # 10 ] be GRANTED, and that this action be DISMISSED with prejudice. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CARLOS BERNARD WIDEMAN,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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1:15CV273

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Carlos Wideman (“Plaintiff”) brought this action pursuant to Sections 205(g)
and 1631(c)(3) of the Social Security Act (the “Act”), as amended (42 U.S.C. §§ 405(g) and
1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security
denying his claims for Disability Insurance Benefits and Supplemental Security Income under,
respectively, Titles II and XVI of the Act. The parties have filed cross-motions for judgment,
and the administrative record has been certified to the Court for review.
I.

PROCEDURAL HISTORY
Plaintiff protectively filed his applications for Disability Insurance Benefits (“DIB”)

and Supplemental Security Income Benefits (“SSI”) on August 24, 2011 and March 29, 2011,
respectively, alleging a disability onset date of August 9, 2010 in both applications. (Tr. at 192,
196.) 1 Plaintiff, through his attorney, later amended the alleged onset date to May 17, 2011

1

Transcript citations refer to the Administrative Record [Doc. #6].

(Tr. at 295.)

His applications were denied initially (Tr. 96-109, 132-45) and upon

reconsideration (Tr. at 110-31, 153-70). Thereafter, Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”) (Tr. at 175-77), which he attended on August 26, 2013,
along with his attorney (Tr. at 14). The ALJ ultimately issued a decision finding that Plaintiff
was not disabled under the meaning of the Act (Tr. at 14-22), and on January 29, 2015, the
Appeals Council denied Plaintiff’s request for review, thereby making the ALJ’s conclusion
the Commissioner’s final decision for purposes of judicial review (Tr. at 1-5).
II.

LEGAL STANDARD
Federal law “authorizes judicial review of the Social Security Commissioner’s denial of

social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, “the
scope of [the] review of [such an administrative] decision . . . is extremely limited.” Frady v.
Harris, 646 F.2d 143, 144 (4th Cir. 1981). “The courts are not to try the case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). 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.”
Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal brackets omitted).
“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. 1993)
(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 citations and quotation marks omitted). “If there is

2

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 court should not undertake to re-weigh
conflicting evidence, make credibility determinations, or substitute its judgment for that of the
[ALJ].” 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 ALJ.” Hancock, 667 F.3d at 472 (internal brackets
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.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
In undertaking this limited review, the Court notes that in administrative proceedings,
“[a] claimant for disability benefits bears the burden of proving a disability.” Hall v. Harris,
658 F.2d 260, 264 (4th Cir. 1981). 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)). 2

“The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance
Program . . . provides benefits to disabled persons who have contributed to the program while employed. The
Supplemental Security Income Program . . . 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).
2

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“The Commissioner uses a five-step process to evaluate disability claims.” Hancock,
667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the
Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period
of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the
requirements of a listed impairment; (4) could return to her past relevant work; and (5) if not,
could perform any other work in the national economy.” Id.
A finding adverse to the claimant at any of several points in this five-step sequence
forecloses a disability designation 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 two steps,
and establishes at step three that the impairment “equals or exceeds in severity one or more
of the impairments listed in Appendix I of the regulations,” then “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 function[al] capacity (‘RFC’).” Id. at
179. 3 Step four then requires the ALJ to assess whether, based on that RFC, the claimant can

“RFC is a measurement of the most a claimant can do despite [the claimant’s] limitations.” Hines, 453 F.3d
at 562 (noting that pursuant to the administrative regulations, the “RFC is an assessment of an individual’s
ability to do sustained work-related 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 work,” as well as
“nonexertional limitations (mental, sensory, or skin impairments).” Hall, 658 F.2d at 265. “RFC is to be
3

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“perform past relevant work”; 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, which “requires the Commissioner to prove that a significant number of jobs
exist which the claimant could perform, despite [the claimant’s] impairments.” Hines, 453
F.3d at 563. In making this determination, 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 in the community,” the claimant
qualifies as disabled. Hines, 453 F.3d at 567.
III.

DISCUSSION
In the present case, the ALJ found that Plaintiff had not engaged in “substantial gainful

activity” since his alleged onset date. Plaintiff therefore met his burden at step one of the
sequential analysis. At step two, the ALJ further determined that Plaintiff suffered from a
“remote history of bilateral ankle reconstruction surgery with residuals [and] degenerative joint
disease.” (Tr. at 16.) The ALJ found at step three that these impairments failed to meet or
equal a disability listing. Therefore, the ALJ assessed Plaintiff’s RFC and determined that he
could “perform light work . . . except that he should have a sit/stand option and should sit 6
hours and stand/walk 2 hours total in an 8-hour workday.” (Tr. at 17.) Based on that
determination, the ALJ found under step four of the analysis that Plaintiff was capable of

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.
5

returning to his past relevant work as a rehabilitation technician. As a result of these findings,
the ALJ concluded that Plaintiff was not under a disability as defined in the Social Security
Act, from May 17, 2011, through the date of the ALJ decision. (Tr. at 22.)
Plaintiff now argues that the ALJ (1) failed to properly assess Plaintiff’s residual
functional capacity based on substantial evidence in the record, (2) erred by assigning improper
weight to Plaintiff’s treating physician, and (3) improperly relied on Plaintiff’s work history,
on gaps in Plaintiff’s treatment, and on a lack of treating source opinions. (See Pl.’s Br. [Doc.
#9] at 2.) Ultimately, none of Plaintiff’s contentions merit remand.
A. Residual Functional Capacity Assessment
Plaintiff first contends that the ALJ’s RFC determination is not based on substantial
evidence. Plaintiff notes that he was born with a foot deformity which required corrective
surgery at the age of six months old. (Tr. at 302.) Though his surgery made it possible for
him to walk, Plaintiff reports pain and weakness in his ankles as a result of his condition and
contends that he can no longer work. (Id.) The ALJ reviewed Plaintiff’s contentions and the
evidence in the record, and concluded that Plaintiff was able to perform light work (lifting and
carrying 20 pounds occasionally and 10 pounds frequently), with a sit/stand option, sitting 6
hours and standing or walking for 2 hours in an 8-hour workday. (Tr. at 17.) 4 The ALJ
The ALJ noted that Plaintiff “worked at several physically demanding jobs despite his impairments over the
years. In 2006, he worked briefly as an insulation technician carrying 25 pounds frequently and 50 pounds
occasionally while walking 5 hours, standing 3 hours, climbing 5 hours, and kneeling, crouching, crawling,
reaching, and handling large objects 5 hours a day. He worked as a carpenter technician/assistant from 1999
to 2000, where he walked 5 hours a day, stood 7 hours a day, and kneeled/crouched 1 hour a day. He also
reported lifting 50 pounds or more, and lifting 25 pounds on a frequent basis. Prior to that, he worked as a
cook in 1997 where he was standing 8 hours a day. Prior to that, he worked in ground maintenance from 1997
to 1999 carrying 25 pounds frequently and 50 pounds occasionally while walking 8 hours, standing 6 hours, and
kneeling, crouching, and crawling 2 to 3 hours a day. In sum, although his job as a rehabilitation technician
was approximately sedentary/light as performed, he actually has worked at many other jobs that were more
physically demanding with essentially the same physical impairments.” (Tr. at 21 (citation omitted).) The ALJ

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considered the medical evidence from several physicians when making his assessment of
Plaintiff’s RFC, including consultative examiner Dr. Gish, as well as Drs. Nagy, Wilson,
Comadoll, and Allison. As to each of these physicians, Plaintiff contends that the evidence
supports a finding of disability. The Court therefore considers the ALJ’s analysis of the
evidence provided by each of these physicians in turn.
The ALJ gave significant weight to Dr. Gish’s consultative examination. (Tr. at 20.)
In particular, the ALJ noted that
Dr. Gish observed the [Plaintiff] get off the exam table and walk around the
room, but he could not stand on his heels or toes because of his ankles. He had
slight difficulty walking in tandem fashion because he stated his ankles were
stiff. He walked to his car, which was probably a quarter of a block away, and
he walked “at a fairly fast rate.” He did not have an assistive device with him
the day of the examination. He had a slight antalgic gait secondary to his ankles.
(Tr. at 18, 304.) Although Dr. Gish could not elicit “ankle jerks” from him, Plaintiff had
otherwise normal reflexes in the knees, ankles, triceps, and brachial radialis. (Id.) Dr. Gish
concluded that Plaintiff’s condition made it difficult for him to walk for long distances, but
noted that Plaintiff did not have a cane or other assistive device with him the day of the
consultative examination and was able to “walk to his car which was about a quarter of a block
at a fairly swift rate.” (Tr. at 305.) Based on these findings and the results of the examination,
the ALJ concluded that Dr. Gish’s consultative examination “shows that the [Plaintiff] had
little difficulty with ambulation despite his longstanding feet/ankle congenital abnormalities.”
(Tr. at 20.) The ALJ relied on Dr. Gish’s determination in concluding that Plaintiff could

accepted evidence to establish that Plaintiff could no longer perform “labor-type work” but concluded that he
“remained capable of other physically less demanding job[s].” (Tr. at 21.)
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perform light work with a sit/stand option, with an additional limitation of 6 hours sitting and
only 2 hours standing or walking in an 8-hour day.
The ALJ also considered the findings of Dr. Christopher Nagy, who saw Plaintiff in
May 2012 and assessed Plaintiff’s foot pain stemming from his previously-corrected clubbed
feet. Dr. Nagy recommended arch supports, a Medrol Dosepak, and Ultram, but refused to
start a narcotics regimen because, in his opinion, Plaintiff’s feet were not in “that bad a shape
that he should require narcotics.” (Tr. 19, 354.) Dr. Nagy instructed Plaintiff to continue
mobilization and stated that Plaintiff could be up and about as tolerated. As to Plaintiff’s
functional capabilities, Dr. Nagy thought that Plaintiff would “have to spend most of his time
in a sedentary type position in order to function in an acceptable fashion.” (Id.) The ALJ
considered this opinion and concluded that an RFC that allowed Plaintiff to sit 6 of 8 hours
and stand 2 of 8 hours was generally consistent with Dr. Nagy’s conclusion that “most” of
Plaintiff’s time would need to be spent in a seated or sedentary position. (Tr. at 19.)
The ALJ also considered treatment records from Dr. Wilson and Physician’s Assistant
James Watson at Piedmont Interventional. The ALJ noted that after Dr. Nagy refused to
prescribe pain medication, Plaintiff went to Piedmont Interventional for a single visit in June
2012 and was prescribed hydrocodone. The ALJ noted, however, that Plaintiff did not return
for further pain management, and subsequent records from other providers indicated that
Plaintiff was not taking any pain medication through the rest of 2012 and 2013. (Tr. at 1920.)
The ALJ also considered the records from Plaintiff’s treating physician, Dr. Allison.
The ALJ noted that Plaintiff received treatment from Dr. Allison in August 2012, but the
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musculoskeletal abnormalities in his feet were not the primary purpose for his visit. (Tr. at
19.) Plaintiff complained of cluster headaches and allergic rhinitis and was prescribed
medication for those conditions. Eight months later, in April 2013, Plaintiff followed up with
Dr. Allison concerning hypertension, nausea, and anxiety. He did not mention pain as a result
of his foot condition and was not on any pain medication at the time. (Tr. at 19.) On August
21, 2013 Plaintiff again saw Dr. Allison, this time complaining of pedal edema. (Tr. at 20.)
Dr. Allison’s examination, however, did not indicate the presence of edema or difficulty in
ambulating. Dr. Allison did not make any notations of musculoskeletal abnormalities in his
list of diagnoses, and did not treat Plaintiff for pain, as Plaintiff did not make any complaints
of pain. (Id.)
Finally, the ALJ also considered the findings of the state agency medical consultant to
inform his RFC assessment. In March 2012, Stephen Levin, M.D. reviewed the medical
evidence from this case, ordered x-rays and reviewed those reports, and ultimately found that
Plaintiff was capable of performing light work (lifting and carrying 20 pounds occasionally and
10 pounds frequently), while sitting for 6 hours and standing for 2 hours. (Tr. at 21.)
In challenging the ALJ’s decision, Plaintiff cites to an opinion by Dr. Comadoll, who
provided a one-time examination in July 2013 at the request of Plaintiff’s counsel for disability
determination purposes. Dr. Comadoll concluded that Plaintiff “obviously has a severe
disability” and that he “would support [Plaintiff] with his disability.” (Tr. at 358.) The ALJ
considered the information from Dr. Comadoll, and noted that based on the notes of the
examination, Plaintiff
was not taking any pain medication, over-the-counter or prescribed. Dr.
Comadoll made absolutely no abnormal findings about the claimant on physical
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examination (extremities with no clubbing, cyanosis, or joint deformity;
ambulatory with/without assistance), yet he reiterated and relied upon the
claimant’s subjective complaints regarding his history of having clubfeet as a
child and him feeling “miserable.”
(Tr. at 20.) In considering the weight to give Dr. Comadoll’s conclusion, the ALJ noted that
conclusions as to whether an individual is “disabled” are administrative findings reserved to
the Commissioner.

The ALJ ultimately gave no weight to Dr. Comadoll’s opinion

“[c]onsidering the lack of abnormal findings documented in his exam, Dr. Gish’s observations
regarding [Plaintiff’s] abilities despite his impairments, and Dr. Comadoll’s failure to give
[Plaintiff’s] residual functional capacity in quantitative terms.” (Id.)
As to all of this evidence, Plaintiff does not point to specific evidence that the ALJ
overlooked or failed to consider; instead, Plaintiff appears to disagree with the ALJ’s weighing
of the evidence. Plaintiff specifically contends that “[a]lthough there is some evidence to
support the ALJ’s conclusion, the substantial weight of the evidence . . . is in Plaintiff’s favor.”
(Pl.’s Br. at 3.) Plaintiff further submits that, although “the medical information is not robust,
the information contained in their records is sufficient and is consistent with a conclusion that
Plaintiff suffers from debilitating pain and swelling in his feet and ankles and is therefore
disabled.” (Id.) After discussing the evidence, Plaintiff concludes that “[t]he substantial
evidence directs a much more restricted set of limitations than that found by the ALJ.” Thus,
Plaintiff seems to suggest that the medical evidence in the record weighs in his favor and would
support a finding that he cannot work.
However, as noted above, this Court does not re-weigh the evidence to determine
whether substantial evidence would support a finding of disability.

Instead, “[w]here

conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the
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responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472 (internal brackets
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.”
Craig, 76 F.3d at 589. Here, much of the evidence in the record is conflicting as to what extent
these ailments affect Plaintiff’s ability to work. The ALJ considered all of the evidence and
made findings and determinations as noted above.

Based on those findings, the ALJ

determined Plaintiff RFC. That determination is supported by evidence that is “substantial”
under the standards set out in Hunter, 993 F.2d at 34, and Mastro, 270 F.3d at 176.
Accordingly, the Court finds no error in the ALJ’s RFC assessment.
B. Treating Physician Opinion
Plaintiff next contends that the ALJ failed to analyze Dr. Allison’s opinion in
accordance with Social Security Ruling (“SSR”) 96-2p and 20 C.F.R. § 404.1527(c), better
known as the “treating physician rule” (Pl.’s Br. [Doc. #9], at 5.). See also Hunter, 993 F.2d
at 35. The treating physician rule generally requires an ALJ to give controlling weight to the
well-supported opinion of a treating source as to the nature and severity of a claimant’s
impairment, based on the ability of treating sources to
provide a detailed, longitudinal picture of [the claimant’s] medical impairment(s)
[which] may bring a unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from reports of individual
examinations, such as consultative examinations or brief hospitalizations.
20 C.F.R. § 404.1527(c)(2). However, if a treating source’s opinion is not “well-supported by
medically acceptable clinical and laboratory diagnostic techniques or if it is inconsistent with
11

the other substantial evidence in the case record,” it is not entitled to controlling weight. See
Social Security Ruling (“SSR”) 96-2p, 1996 WL 374188, at *2; 20 C.F.R. §§ 404.1527(c)(2); see
also Craig, 76 F.3d at 590; Mastro, 270 F.3d at 178. Instead, the opinion must be evaluated
and weighed using all of the factors provided in 20 C.F.R. § 404.1527(c)(2)(i)-(c)(6), including
(1) the length of the treatment relationship, (2) the frequency of examination, (3) the nature
and extent of the treatment relationship, (4) the supportability of the opinion, (5) the
consistency of the opinion with the record, (6) whether the source is a specialist, and (7) any
other factors that may support or contradict the opinion. Moreover, opinions by physicians
regarding the ultimate issue of whether a plaintiff is disabled within the meaning of the Social
Security Act are never accorded controlling weight because the decision on that issue is
reserved for the Commissioner alone. 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1).
Where an ALJ declines to assign controlling weight to a medical opinion, she must
“‘explain in the decision the weight given’ thereto and ‘give good reasons in [his] . . . decision
for the weight.’” Chirico v. Astrue, No. 3:10CV689, 2011 WL 6371315, at *5 (E.D. Va. Nov.
21, 2011) (unpublished) (quoting 20 C.F.R. § 404.1527(c)(2); 416.927(c)(2)). “This requires
the ALJ to provide sufficient explanation for ‘meaningful review’ by the courts.” Thomas v.
Comm’r of Soc. Sec., No. Civ. WDQ-10-3070, 2012 WL 670522, at *7 (D. Md. Feb. 27, 2012)
(unpublished) (citing Blakely v. Comm’r of Soc. Sec., 581 F.3d 399, 409 (6th Cir. 2009);
Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 362 (3d Cir. 2011)).
In the present case, Dr. Allison provided a note that stated:
To Whom It May Concern:
The above patient [Carlos Bernard Wideman] must have his feet elevated to
avoid any swelling or edema.
If you have any questions or concerns, please don’t hesitate to call.
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(Tr. at 360.) The ALJ discussed Dr. Allison’s opinion in detail and concluded that this
statement “is completely unsupported by all of his treatment notes and objective
observations” of Plaintiff. (Tr. at 20.) The ALJ therefore gave “little weight” to this opinion.
In analyzing Dr. Allison’s treatment records, the ALJ noted in particular that Plaintiff went to
see Dr. Allison in August 2012 and in April 2013 for other purposes, including allergies and
headaches, but did not raise any musculoskeletal complaints and was not on pain medication.
The ALJ went on to note that:
The claimant saw Dr. Allison recently on August 21, 2013 complaining of pedal
edema for the first time. His allergic rhinitis and migraine headaches were both
stable on medication. Dr. Allison’s examination was normal, without any
notations of edema or difficulty ambulating. He did not include musculoskeletal
abnormalities in his list of diagnoses, and again, did not treat the claimant for
pain because he made no complaints of pain. No treatment was offered for the
edema complaints either. Thus, it appears that the claimant has managed even
without pain medication. . . .
In a letter dated August 21, 2013, Dr. Allison stated the claimant must elevate
his feet to avoid any swelling or edema. His statement is completely
unsupported by all of his treatment no[t]es and objective observations of the
claimant, as discussed above, and therefore the undersigned has given little
weight to his opinion.
(Tr. 20) (citation to exhibit omitted).
Plaintiff contends that, contrary to the ALJ’s finding, Dr. Allison’s opinion is supported
by earlier treatment notes, from September 23, 2011, documenting a visit in which Plaintiff
complained of right foot pain, ankle swelling, and pain with ambulation. (Tr. at 307.)
However, even as to that visit, the record reflects no medications (Tr. at 307), the examination
does not note any edema, tenderness, decreased range of motion, or decreased stability (Tr. at
308), and Dr. Allison’s assessment shows stable bilateral ankles/feet (Tr. at 308). Plaintiff also
13

contends that Dr. Allison’s opinion is supported by objective imaging of Plaintiff’s ankles and
feet showing degenerative changes. (Tr. at 338-41.) However, the ALJ considered those xrays in evaluating the evidence (Tr. at 19), and nothing in the record indicates that those x-rays
support the conclusion that Plaintiff must elevate his feet. Indeed, the x-rays were ordered by
the state agency consultant, Dr. Levin, who reviewed the x-rays and the medical evidence and
concluded that Plaintiff could perform light work with sitting 6 hours and standing or walking
2 hours in an 8-hour day. (Tr. at 115-116.) Ultimately, with respect to Dr. Allison’s statement
that Plaintiff should elevate his feet, the ALJ explained the weight that he gave to Dr. Allison’s
opinion, and explained why the opinion was not supported by other evidence in the record,
including Dr. Allison’s own treatment notes and observations, as provided in 20 C.F.R.
§ 404.1527(c)(3) and (c)(4). Accordingly, the Court finds that the ALJ did not err in deciding
not to give controlling weight to Dr. Allison’s opinion.
C. Reliance on Work History and Lack of Treating Source Opinion
Plaintiff next contends that the ALJ erred in noting that he left his last job because his
employer closed down, not because of his functional disabilities. (Pl.’s Br. at 6.) Plaintiff notes
that he testified regarding his gradual inability to perform the work and his decrease in hours
due to his physical inability to perform the job. (Id.) However, the ALJ simply noted
Plaintiff’s own representations in his application and in his consultative examination, that he
left his last position because it closed down. (Tr. at 22; Tr. at 268 (disability report/application
by Plaintiff stating that he stopped working “[b]ecause of other reasons” that is, because “[t]he
employer closed down,” and that his condition became severe enough to keep him from
working at the same time, on August 9, 2010); Tr. at 303 (stating in consultative examination
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that he “worked for a mental health clinic until they no longer had jobs in this area”).)
Likewise, in concluding that Plaintiff could return to his past work, the ALJ used Plaintiff’s
own description of his prior position in his Work History Report. (Tr. at 22, 257.)
Plaintiff also contends that in light of his inability to obtain health insurance and pay
the out-of-pocket costs associated with treatment, the ALJ improperly relied on his lack of
treatment. Plaintiff suggests that although he did not have the resources to receive consistent
medical treatment, the medical treatment and opinions that he did receive were sufficient to
establish that he was disabled (Pl.’s Br. at 6). A claimant may not be penalized for failing to
seek treatment he cannot afford. Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir. 1986). As
this Court has noted,
“[a] claimant may not be penalized for failing to seek treatment she cannot
afford; ‘[i]t flies in the face of the patent purposes of the Social Security Act to
deny benefits to someone because he is too poor to obtain medical treatment
that may help him.’” Lovejoy, 790 F.2d at 1117 (quoting Gordon v. Schweiker,
725 F.2d 231, 237 (4th Cir. 1984)). Social Security Ruling 96-7p, Titles II and
XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility
of an Individual’s Statements, 1996 WL 374186 (July 2, 1996) (“SSR 96-7p”)
provides that:
[T]he adjudicator must not draw any inferences about an
individual’s symptoms and their functional effects from a failure
to seek or pursue regular medical treatment without first
considering any explanations that the individual may provide . . .
that may explain infrequent or irregular medical visits or failure
to seek medical treatment. . . . For example:
...
The individual may be unable to afford treatment and may not
have access to free or low-cost medical services.
SSR 96-7p, 1996 WL 374186, at *7-8 (emphasis added). However, even if a
claimant cannot afford medical treatment, he must “show that he has exhausted
all free or subsidized sources of treatment and document his financial
circumstances before inability to pay will be considered good cause.” Gordon,
725 F.2d at 237.
15

Kirkland v. Colvin, No. 1:15CV00086, 2016 WL 126754, at *7 (M.D.N.C. Jan. 11, 2016).
In the instant case, the ALJ found that “[t]here is no evidence indicating that [Plaintiff]
exhausted all resources available to individuals who cannot afford medical treatment or
medication such as hospitals, clinics, or community agencies.” (Tr. at 21.) However, the ALJ
then focused again on the fact that Plaintiff had received treatment from Dr. Allison on
multiple occasions without complaining about his musculoskeletal impairments, suggesting
“that his condition has been manageable without treatment.” (Id.) In these circumstances,
this Court does not find that Plaintiff was improperly penalized for not seeking treatment
outside of his financial means.
Finally, Plaintiff contends that “the ALJ is incorrect in stating that there is no treating
source opinion.” (Pl.’s Br. at 6.) Plaintiff cites the opinions of Dr. Allison, Dr. Nagy, and Dr.
Comadoll as “provid[ing] evidence that Plaintiff’s abilities are more restrictive than those
found by the ALJ in his RFC.” (Id. at 7.) However, the ALJ did not state that there was no
treating source opinion. Instead, the ALJ stated that “no treating physician has opined that
the claimant is disabled.” (Tr. at 21.) As noted above, Dr. Nagy did not opine that Plaintiff
was disabled, and the ALJ found that Dr. Nagy’s opinion was consistent with the RFC. Dr.
Allison did not opine that Plaintiff was disabled; he did opine that Plaintiff should keep his
feet elevated, but the ALJ addressed that opinion and gave it little weight as discussed above.
Finally, Dr. Comadoll did make general statements that Plaintiff had a “severe disability,” but
the ALJ found that “no treating relationship was established” by Dr. Comadoll’s one-time
disability examination, and in any event, the ALJ gave no weight to Dr. Comadoll’s general

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determination because it was not supported by any abnormal findings on examination and it
failed to provide limitations in quantitative terms. (Tr. at 20.)
In sum, the ALJ’s determination was supported by substantial evidence. To the extent
Plaintiff attempts to point to substantial evidence supporting a finding of greater restrictions,
Plaintiff is essentially requesting this Court to re-weigh the evidence. However, given the
nature of this Court’s review, this Court will not undertake such a re-weighing of the evidence.
There is sufficient evidence in the record to support the ALJ’s determination, and the ALJ’s
determination should therefore be affirmed.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision finding
no disability be AFFIRMED, that Plaintiff’s Motion to Reverse the Decision of the
Commissioner [Doc. #8] be DENIED, that Defendant’s Motion for Judgment on the
Pleadings [Doc. #10] be GRANTED, and that this action be DISMISSED with prejudice.
This, the 18th day of October, 2016.
/s/ Joi Elizabeth Peake
United States Magistrate Judge

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