Downing v. Commissioner of Social Security Administration

Filing 24

ORDER RULING ON REPORT AND RECOMMENDATION declining to adopt 19 Report and Recommendation, reversing the decision of the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further evaluation and explanat ion of the evidence related to Plaintiff's need to use a cane while standing, and for the submissionof additional evidence to the extent necessary to evaluate the aforementioned issue. Signed by Honorable Bruce Howe Hendricks on 03/13/2018. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

Michael E. Downing,

)
)
Plaintiff,
)
)
v.
)
)
Nancy A. Berryhill, Acting
)
Commissioner of Social Security
)
Administration,
)
)
Defendant.
)
________________________________)

Civil Action No. 0:16-cv-3501-BHH

ORDER

This is an action brought pursuant to 42 U.S.C. §§ 405(g) seeking judicial review of
the Acting Commissioner of Social Security’s (“Commissioner”) final decision, which denied
Plaintiff Michael E. Downing’s (“Plaintiff”) claim for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”). The record includes the report and recommendation
(“Report”) of United States Magistrate Judge Paige J. Gossett, which was made in
accordance with 28 U.S.C. § 636 (b)(1)(B) and Local Civil Rule 73.02(B)(2)(a) (D.S.C.).
In her Report, which was filed on January 26, 2018, the Magistrate Judge
recommends that the Court affirm the Commissioner’s final decision denying benefits.
Plaintiff filed objections to the Report, and the Commissioner filed a response to those
objections. See 28 U.S.C. § 636(b)(1) (providing that a party may object, in writing, to a
Magistrate Judge’s Report within 14 days after being served a copy). For the reasons
stated below, the Court respectfully declines to adopt the Magistrate Judge’s Report and
instead remands this matter for further evaluation consistent with this order.
BACKGROUND
Plaintiff applied for DIB and SSI in August of 2009, alleging disability beginning on

November 1, 1998. His applications were denied initially and upon reconsideration, and
he requested a hearing before an administrative law judge (“ALJ”). A video hearing was
held on February 29, 2012, at which Plaintiff, who was represented by counsel, appeared
and testified.
After hearing testimony from a vocational expert (“VE”), the ALJ issued a decision
on April 6, 2012, finding that Plaintiff was not disabled. The Appeals Council denied
Plaintiff’s request for review, and Downing appealed to the United States District Court.
Upon motion of the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g), the
District Court reversed the ALJ’s decision and remanded Plaintiff’s case, specifically
directing the ALJ to: (1) further consider the severity and effects of Plaintiff’s mental
impairments; (2) further consider the opinions of the examining and nonexamining sources
in Exhibits 10F, 11F, and 23F; (3) further evaluate Plaintiff’s residual functional capacity
(“RFC”) taking into consideration all of Plaintiff’s medically determinable impairments; (4)
if necessary, obtain supplemental testimony from a VE; and (5) issue a new decision. The
Appeals Council issued an order on December 4, 2014, remanding the matter for further
proceedings consistent with the order of the District Court. A different ALJ held a
supplemental hearing on February 11, 2016, and Plaintiff, who was represented by the
same counsel, appeared again and testified. This ALJ also heard testimony from a VE and
issued a decision on June 29, 2016, finding that Plaintiff was not disabled. 1

1

The ALJ noted that Plaintiff had previously filed applications for DIB and SSI in October 1999, in
which he alleged disability beginning on November 1, 1998, and which resulted in a favorable determination.
The ALJ also noted, however, that on October 1, 2007, it was determined that Plaintiff’s disability ceased, and
disability benefits were terminated effective January 2008. Accordingly, although Plaintiff’s current
applications allege disability beginning on November 1, 1998, the ALJ found that the period before October
2, 2007, had been adjudicated, leaving the period in question for the current applications to be October 2,
2007 to the present. (Tr. 594-95.)

2

Plaintiff was born in 1976 and was 21 years old on his alleged disability onset date.
He has a ninth grade education and past relevant work experience as a sander and floor
finisher, a mover, a plumber’s helper, a mechanic, an electrician’s helper, and an assembly
worker. Downing alleged disability due to attention deficit disorder, bipolar disorder, severe
anxiety disorder, and back issues.
STANDARDS OF REVIEW
I.

The Magistrate Judge’s Report
The Court conducts a de novo review to those portions of the Report to which a

specific objection is made, and this Court may accept, reject, or modify, in whole or in part,
the recommendations contained in the Report. 28 U.S.C. § 636(b)(1). Any written
objection must specifically identify the portion of the Report to which the objection is made
and the basis for the objection. Id.
II.

Judicial Review of a Final Decision
The federal judiciary plays a limited role in the administrative scheme as established

by the Social Security Act. Section 205(g) of the Act provides that “[t]he findings of the
Commissioner of Social Security, as to any fact, if supported by substantial evidence, shall
be conclusive . . . .” 42 U.S.C. § 405(g). “Consequently, judicial review . . . of a final
decision regarding disability benefits is limited to determining whether the findings are
supported by substantial evidence and whether the correct law was applied.” Walls v.
Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). “Substantial evidence” is defined as:
evidence which a reasoning mind would accept as sufficient to support a
particular conclusion. It consists of more than a mere scintilla of evidence
but may be somewhat less than a preponderance. If there is evidence to
justify a refusal to direct a verdict were the case before a jury, then there is
3

“substantial evidence.”
Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebreeze, 368
F.2d 640, 642 (4th Cir. 1966)). In assessing whether substantial evidence exists, the
reviewing court should not “undertake to re-weigh conflicting evidence, make credibility
determinations, or substitute [its] judgment for that of” the agency. Mastro v. Apfel, 270
F.3d 171, 176 (4th Cir. 2001) (alteration in original).
DISCUSSION
I.

The Commissioner’s Final Decision
The Commissioner is charged with determining the existence of a disability. The

Social Security Act, 42 U.S.C. §§ 301-1399, defines “disability” as 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 result in death or which has lasted or can expected to last for a continuous
period of not less than 12 months . . . .” 42 U.S.C. § 423(d)(1)(A). This determination
involves the following five-step inquiry:
[The first step is] whether the claimant engaged in substantial gainful
employment. 20 C.F.R. § 404.1520(b). If not, the analysis continues to
determine whether, based upon the medical evidence, the claimant has a
severe impairment. 20 C.F.R. § 404.1520(c) If the claimed impairment is
sufficiently severe, the third step considers whether the claimant has an
impairment that equals or exceeds in severity one or more of the
impairments listed in Appendix I of the regulations. 20 C.F.R. § 404.1520(d);
20 C.F.R. Part 404, subpart P, App. I. If so, the claimant is disabled. If not,
the next inquiry considers if the impairment prevents the claimant from
returning to past work. 20 C.F.R. § 404.1520(e); 20 C.F.R. § 404.1545(a)
If the answer is in the affirmative, the final consideration looks to whether the
impairment precludes that claimant from performing other work.
Mastro, 270 F.3d at 177 (citing 20 C.F.R. § 416.920).
4

If the claimant fails to establish any of the first four steps, review does not proceed
to the next step. Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1993). The burden of
production and proof remains with the claimant through the fourth step. However, if the
claimant successfully reaches step five, then the burden shifts to the Commissioner to
provide evidence of a significant number of jobs in the national economy that the claimant
could perform, taking into account the claimant’s medical condition, functional limitations,
education, age, and work experience. Walls, 296 F.3d at 290.
At step one, the ALJ found that Plaintiff did not engage in substantial gainful activity
since his alleged onset date of November 1, 1998. Next, the ALJ determined that Plaintiff’s
status-post cervical and lumbar spine; depressive disorder, not otherwise specified; and
generalized anxiety disorder, not otherwise specified, were severe impairments. However,
the ALJ found that Plaintiff did not have an impairment or combination of impairments that
met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1 (“the Listings”). With regard to residual functional capacity
(“RFC”), the ALJ found that Plaintiff could:
perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)
with the following additional limitations: the claimant can never climb
ladders/ropes/scaffolds, kneel crawl, or balance on slippery or moving
surfaces. He can occasionally climb ramps/steps, stoop and crouch. He can
never reach overhead with either arm. He must avoid all exposure to
extreme cold/heat, wetness, humidity, respiratory irritants and workplace
hazards such as operating moving machinery or unprotected heights. He
can perform simple, routine tasks in a low-stress work environment with no
fast-paced production requirements, only simple work related decisions, few,
if any workplace changes and occasional interaction with the public.
(Tr. 599-600; ECF No. 17-12 at 38-39.) The ALJ found that Plaintiff was unable to perform
his past relevant work, but that, considering his age, education, work experience, and RFC,
5

there were jobs that existed in significant numbers in the national economy that Downing
could perform. Therefore, the ALJ found that Plaintiff was not disabled from the alleged
onset date of November 1, 1998, through the date of the decision.
The Appeals Council denied Plaintiff’s request for review on June 29, 2016, making
the decision of the ALJ the final decision of the Commissioner. Plaintiff filed this action on
October 27, 2016, seeking judicial review.
II.

The Court’s Review2
In his brief, Plaintiff first asserts that the ALJ did not explain her RFC findings in

accordance with Social Security Ruling 96-8p. (ECF No. 10 at 23.) Specifically, Plaintiff
asserts that the ALJ’s decision fails to properly consider the evidence regarding Plaintiff’s
lumbar spine and resulting limitations including his need to use a cane for support. Next,
Plaintiff asserts that the ALJ did not perform the analysis of treating and evaluating
physician opinions as required by 20 C.F.R. § 404.1527(d)(1)-(6), S.S.R. 96-2p and S.S.R.
96-5p.

(Id. at 28.)

Lastly, Plaintiff asserts that the ALJ provided no meaningful

assessment of Plaintiff’s credibility. (Id. at 34.)
In her responsive brief, the Commissioner asserts that substantial evidence
supports the ALJ’s RFC finding. (ECF No. 15 at 9-10.) In addition, the Commissioner
asserts that the ALJ appropriately weighed the opinions of Plaintiff’s treating and evaluating
medical sources and that substantial evidence supports the ALJ’s evaluation of Plaintiff’s
credibility. (Id. at 10-15.)
2

As the Magistrate Judge noted in her Report, numerous Social Security regulations and Social
Security Rulings have changed effective March 27, 2017. However, these changes specifically state that they
apply to claims filed on or after March 27, 2017. See, e.g., 20 C.F.R. §§ 404.1513, 404.1527. Because these
claims were filed before March 27, 2017, all references are to the prior versions of the regulations in effect
when Plaintiff filed his application for benefits, unless otherwise specified.

6

In her Report, the Magistrate Judge considered the issues raised by Plaintiff and
rejected all of Plaintiff’s arguments, first finding no error in the ALJ’s analysis of Plaintiff’s
RFC. (ECF No. 19 at 6-12.) Specifically, the Magistrate Judge found that the ALJ properly
considered the evidence of record related to Plaintiff’s lumbar spine impairment and its
effect on Plaintiff’s RFC. In addition, the Magistrate Judge rejected Plaintiff’s argument
that the ALJ failed to properly account for Plaintiff’s need to use a cane for support. Next,
the Magistrate Judge found that the ALJ applied the relevant factors in evaluating all of Dr.
Davis’s opinions, and found that Plaintiff failed to demonstrate that the ALJ’s decision to
afford little weight to Dr. Davis’s opinions is unsupported by substantial evidence or based
on an incorrect application of the law. (Id. at 12-23.) Likewise, the Magistrate Judge found
that Plaintiff failed to demonstrate that the ALJ’s evaluation of Plaintiff’s credibility is
unsupported by substantial evidence or based on an incorrect application of the law. (Id. at
18-23.) Plaintiff filed written objections to the Magistrate Judge’s Report, and the Court will
consider each of Plaintiff’s objections below.
A.

The ALJ’s RFC Finding

As the Magistrate Judge noted, an individual’s RFC is an assessment of her “ability
to do sustained work-related physical and mental activities in a work setting on a regular
and continuing basis.” S.S.R. 96-8p at *1. An ALJ assesses a claimant’s RFC “based on
all the relevant medical and other evidence.” 20 C.F.R. § 404.1520(a)(4).
The RFC assessment must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts (e.g.,
laboratory findings) and nonmedical evidence (e.g., daily activities,
observations). In assessing RFC, the adjudicator must discuss the
individual's ability to perform sustained work activities in an ordinary work
setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a
week, or an equivalent work schedule), and describe the maximum amount
7

of each work-related activity the individual can perform based on the
evidence available in the case record. The adjudicator must also explain
how any material inconsistencies or ambiguities in the evidence in the case
record were considered and resolved.
S.S.R. 96-8p. Thus, an ALJ can give weight to some medical evidence, while disregarding
other medical evidence, when determining a claimant's RFC. See Bacnik v. Colvin, No.
1:12-cv-801, 2014 WL 3547387, at *4 n. 7 (M.D.N.C. July 17, 2014). However, “‘a
necessary predicate to engaging in a substantial evidence review is a record of the basis
for the ALJ's ruling,’ including ‘a discussion of which evidence the ALJ found credible and
why, and specific application of the pertinent legal requirements to the record evidence.’”
Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Radford v. Colvin, 734 F.3d
288, 295 (4th Cir. 2013)). In other words, the ALJ must “‘build an accurate and logical
bridge from the evidence to his conclusion.’” Id. (quoting Clifford v. Apfel, 227 F.3d 863,
872 (7th Cir. 2000)).
Here, Plaintiff objects to the Magistrate Judge’s evaluation of the ALJ’s RFC finding
and again asserts that the ALJ failed to properly consider Plaintiff’s need to use a cane for
balance while standing (as opposed to walking). Plaintiff states:
The Magistrate Judge recommends the Commissioner’s decision be affirmed
because even though there are two prescriptions for canes, the prescriptions
did not indicate the circumstances for which it was needed. Initially, the
undersigned asserts that the Magistrate Judge has engaged in a post hoc
rationalization for dismissing prescriptions for a cane. The ALJ did not cite
the lack of specificity of the prescriptions as a reason for finding that a cane
was not necessary for standing.
...
Even if the ALJ had found fault with the specificity of the prescriptions, the
proper action would have been for the ALJ to contact the physician for
clarification, not to just dismiss the opinion. Furthermore, Downing submits
the objective evidence repeatedly documents the weakness in his right leg
8

and validates the need for a cane for support. When the ALJ cites two
records that document 5/5 strength in major muscle groups, both of those
records are from Emergency Room visits for an abscess. Downing notes
that Dr. Travis Davis, a treating physician who prescribed the cane,
repeatedly noted 4/5 muscle weakness of the lower right extremity. (Tr. 726,
723, 713, 735). The ALJ’s reference to records that document a normal gait
are not relevant to the issue at hand, which is whether or not Downing
need[s] a cane while standing, not walking.
(ECF No. 20 at 1-2.)
After consideration, the Court sustains Plaintiff’s objection. Social Security Ruling
96-9P provides guidance regarding the required showing for an ALJ to reach the
conclusion that a claimant's hand-held device is “medically required” where an individual
is capable of less than a full range of sedentary work. This standard requires “medical
documentation establishing the need for a hand-held assistive device to aid in walking or
standing, and describing the circumstances for which it is needed.” S.S.R. 96-9P, 1996
WL 374185, *7 (July 2, 1996) (emphasis added). Although the Magistrate Judge is correct
that courts in the Fourth Circuit have determined that even when a cane is prescribed by
a physician it may not be “medically necessary” under Social Security Ruling 96-9P,3
whether Plaintiff requires a cane in this case is crucial to determining what jobs he can
perform, and ultimately, it is not clear from the ALJ’s decision whether she considered
Plaintiff’s need for a cane while standing. See Foster v. Colvin, 2015 WL 4944980, *18,
n. 6 (S.D.W.Va. Aug. 19, 2015) (noting that courts in the Fourth Circuit have found that a
cane may not be medically necessary when prescribed by a physician but remanding the

3

See, e.g., Morgan v. Comm'r, Soc. Sec., No. JKB-13-2088, 2014 WL 1764922, at *1 (D. Md. Apr.
30, 2014); Timmons v. Colvin, No. 3:12CV609, 2013 WL 4775131, at *8 (W.D.N.C. Sept. 5, 2013); Wimbush
v. Astrue, No. 4:10CV00036, 2011 WL 1743153, at *3 (W.D. Va. May 6, 2011).

9

case for further consideration of the evidence where the question was critical to
determining what jobs the claimant could perform). Stated differently, in her decision, the
ALJ specifically refers to claimant’s allegation “that he requires a cane for ambulation,” and
she rejects this claim, finding that the record is “replete with references to claimant being
observed ambulating with a normal gait without an assistance device.” (Tr. 601; ECF No.
17-12 at 40 (emphasis added).) Importantly, missing from the ALJ’s analysis is any
discussion of Plaintiff’s alleged need to use a cane while standing, which is a critical
question because the ALJ asked the VE at the hearing whether a hypothetical individual
who could perform sedentary work with certain limitations would be unable to work if he
“was required to use a cane to either stand or walk or [ ] – he was standing, would have
to use one of the hands to hold onto a table to keep his balance,” to which the VE
responded that such a limitation “would preclude the work I’ve indicated or any sustained
work.”4 (Tr. 947; ECF No. 17-17 at 59.)
4

At a prior hearing on November 13, 2015, at which Plaintiff did not appear, another ALJ presented
a hypothetical situation to the VE involving a person who was required to use a cane to walk or stand, and the
following discussion followed:
Q
A
Q
A
Q

A
Q
A
Q
A

Dr. Hecker, On the first hypothetical before the pain considerations, if a person was
required to use a cane to ambulate or stand, would that change your opinion?
If the person cannot use a table for support, in other words he’s working at a bench
or a table, if he can’t use the table, but has to use a cane, then he’s not able to
perform those jobs because those jobs require bilateral upper extremity use.
Let me back up then and clarify that. A table would be support for him to stand.
Yes.
So, let’s assume that he either needed the cane or a table to be able to stand and
balance, and would have to have one hand or I guess he could be propped up
against it, but he had to have, if he’s standing, either had to have a table or a cane
or some assistive device to stand, would that change your opinion?
Well, again, if it’s just a table, he could work, if it’s the cane, he can’t work.
All right. So, if there is a table there, now if he had to actually put a hand on this
table to keep his balance standing up, one hand, would that change –
Then we’re dealing with one – he was only dealing with one extremity, then there is
no work.
All right. In these jobs he must use both hands and arms to work?
Yes.

10

Here, as Plaintiff points out, his neurologist prescribed a cane due to weakness, and
Dr. Davis, Plaintiff’s treating physician, whose records also document weakness at times,5
also prescribed a cane, although it is not clear the circumstances for which Dr. Davis
prescribed the cane. Ultimately, although substantial evidence may support a finding that
a cane was not medically necessary for either walking or standing, the Court finds that the
ALJ’s decision lacks sufficient discussion of Plaintiff’s need to use a cane while standing
for the Court to determine whether substantial evidence supports her RFC finding. This
is admittedly a close call, but because this issue is critical to the determination of Plaintiff’s
ability to work, the Court finds it necessary to remand the case to the Commissioner for
further consideration of whether Plaintiff has demonstrated that it was medically necessary
for him to use a cane while standing, and for the submission of additional evidence on this
issue if necessary.
B.

The ALJ’s Evaluation of Medical Opinion Evidence

In evaluating a claimant’s application for benefits, the Commissioner must evaluate
all medical opinions and determine the weight to be accorded to each opinion based on
the relationship between the physician and the claimant. See 20 C.F.R. §§ 404.1527 and
416.927 (2010). Under the regulations in effect at the time relevant to this action, the so-

Q
A

All right. Now, if he needed the cane to walk, which means he’s away from the table,
would that change your opinion?
No, sir. If he only needs a cane to walk to and from the parking lot to his work
station, but he’s able to sit the majority of the time, stand and use the table for
support with both hands free, then the jobs I’ve identified are doable.

(Tr. 911-912; ECF No. 17-17 at 23-24.)
5

The ALJ did not give controlling weight to Dr. Davis’s opinions and found Dr. Davis’s conclusion that
Plaintiff has extensive muscle weakness inconsistent with treatment notes from November 3, 2010; January
25, 2011; and August 19, 2011.

11

called “treating physician rule” directed the Commissioner to give a treating physician’s
opinion controlling weight if it is well-supported by medically acceptable clinical evidence
and not inconsistent with other substantial evidence of record.

20 C.F.R. §§

404.1527(d)(2) and 416.927(d)(2); Mastro, 270 F.3d at 178. However, “if a treating
physician’s opinion is not supported by clinical evidence or if it is inconsistent with other
substantial evidence, it should be accorded significantly less weight.” Craig v. Charter, 76
F.3d 585, 590 (4th Cir. 1996). If the Commissioner decides to give less than controlling
weight to the opinion of a treating physician, the Commissioner still must weigh the
opinions of the treating physician in light of a broad range of specifically identified factors,
including the examining relationship, the nature and extent of the treatment relationship,
the supportability of the opinions in the medical record, their consistency, and whether the
treating physician is a specialist. 20 C.F.R. § 404.1527(c)(1)-(5).
Here, Plaintiff asserts that the ALJ failed to properly consider the opinions of his
treating physician, Dr. Davis, and Plaintiff contends that the Magistrate Judge failed to
adequately address the heart of his argument. (ECF No. 20 at 4.) Specifically, Plaintiff
states:
Downing argues the ALJ failed to consider how a 2006 MRI supported the
opinion, the ALJ failed to consider a February 9, 2016 letter from Dr. Davis
that clarified his opinion, and the ALJ failed to show how the opinion was
inconsistent with the findings of Dr. Baxley (Dkt. 10 at 33-35). The
Magistrate Judge responds that Downing did not explain how the 2006 MRI
would have changed the ALJ’s conclusion that Dr. Davis’s opinion was
inconsistent with the other evidence cited (Dkt. 19 at 16). Downing
acknowledges that consistency between an opinion and the evidence is a
relevant factor in assessing the opinion evidence; however, when the ALJ
only considers a portion of the evidence it is not clear that the ALJ
adequately assessed whether the opinion was consistent with the evidence
as a whole or not. Downing argues that the 2006 MRI documented
impingement, and the ALJ did not consider evidence that supported the
12

opinion in addition to the evidence cited that (at least arguably) does not
support the opinion. . . .
Downing also challenged the ALJ’s conclusion that Dr. Davis’s statement that
Downing had lower extremity weakness was inconsistent with the record.
The Magistrate Judge responds that the ALJ acknowledged Downing’s use
of a cane and recognized Dr. Davis’s records (Dkt. 19 at 16). First, Downing
notes that Dr. Davis’s August 2011 opinion cited “muscle weakness” as a
reason for finding Downing disabled. The records prior to this opinion
document Downing’s reduced extremity strength (Tr. 407, 404, 503). The
ALJ’s conclusion that the opinion should not be given controlling weight
because it is not consistent with the treatment records regarding lower
extremity weakness is not supported by the evidence.
Downing has made two other arguments regarding Dr. Davis’s opinions.
First, the ALJ failed to consider a subsequent letter from Dr. Davis that
addresses the 2011 opinion and explains that Downing’s limitations were still
valid and in effect, even though Downing was not diagnosed with MS or
fibromyalgia. Second, Dr. Davis’s opinion regarding cane use was consistent
with Dr. Baxley’s opinion that Downing needed a cane. The ALJ’s failure to
consider Dr. Davis’s clarifying letter, as well as her erroneous conclusion that
the two opinions were inconsistent, merits remand. The Magistrate Judge
does not directly respond to either of these arguments (Dkt. 19 at 17).
The Report and Recommendation merely states that the ALJ applied the
relevant factors in evaluating Dr. Davis’s opinions. Downing submits that the
Report and Recommendation inadequately addresses the heart of the
arguments. A response that the ALJ properly considered the opinion
evidence, without any supporting argument of how the ALJ showed it was
inconsistent or unsupported, is contrary to the regulations.
(ECF No. 20 at 3-5.)
After review, the Court agrees with the Magistrate Judge that the ALJ was not
required to discuss all of the evidence of record, and Plaintiff has not explained how the
ALJ’s alleged failure to consider a 2006 MRI would have changed the ALJ’s decision to
give Dr. Davis’s opinion little weight. However, the Court also agrees with Plaintiff that the
Magistrate Judge’s Report does not squarely consider Plaintiff’s other arguments. While
the Court is not overly concerned with the ALJ’s failure to consider Dr. Davis’s clarifying
13

letter from 2016, in light of the Court’s prior findings with respect to Plaintiff’s alleged need
for a cane, the Court is concerned with the ALJ’s conclusion that Dr. Davis’s opinion is not
consistent with Dr. Baxley’s opinion, as the record indicates that both doctors prescribed
a cane for Plaintiff. On remand, the Commissioner should fully consider the medical
evidence pertaining to Plaintiff’s need for a cane, including the evidence of Plaintiff’s
treating physicians and any newly submitted evidence on the issue, and provide ample
explanation of the weight afforded to the evidence. For the foregoing reasons, the Court
overrules in part and sustains in part Plaintiff’s second objection.
C.

The ALJ’s Evaluation of Plaintiff’s Credibility

An ALJ must consider the extent to which a claimant's self-reported symptoms can
reasonably be accepted as consistent with the objective medical evidence and other
evidence. Pursuant to Social Security Ruling 96-7p,6 if an ALJ finds a claimant to be less
than fully credible, the ALJ must cite specific reasons based on the evidence. This ruling
provides:
It is not sufficient to make a conclusory statement that "the individual's
allegations have been considered" or that "the allegations are (or are not)
credible." It is also not enough for the adjudicator simply to recite the factors
that are described in the regulations for evaluating symptoms. The
determination or decision must contain specific reasons for the finding on
credibility, supported by the evidence in the case record, and must be
sufficiently specific to make clear to the individual and to any subsequent
reviewers the weight the adjudicator gave to the individual's statements and
the reasons for that weight. This documentation is necessary in order to give
the individual a full and fair review of his claim, and in order to ensure a
well-reasoned determination or decision.

6

Effective March 28, 2016, S.S.R. 96-7p was superceded by S.S.R. 16-3p; however, this application
was adjudicated prior to the effective date of S.S.R. 16-3p, so the Court analyzes Plaintiff’s allegations under
S.S.R. 96-7p.

14

SSR 96-7p. In evaluating a claimant’s subjective complaints of pain, the Social Security
Regulations direct the Commissioner to consider the following factors:
(i) Your daily activities;
(ii) The location, duration, frequency, and intensity of your pain or other
symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication you
take or have taken to alleviate your pain or other symptoms;
(v) Treatment, other than medication, you receive or have received for relief
of your pain or other symptoms;
(vi) Any measures you use or have used to relieve your pain or other
symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every
hour, sleeping on a board, etc.); and
(vii) Other factors concerning your functional limitations and restrictions due
to pain or other symptoms.
20 C.F.R. § 404.1529(c)(3).
Here, Plaintiff argues that the Magistrate Judge simply cites the ALJ’s reasoning for
discounting Plaintiff’s credibility but provides no insight as to how the reasoning was proper
or supported by the law. (ECF No. 20 at 5.) Plaintiff also complains about the ALJ’s
reference to his “propensity to exaggerate,” which is noted in treatment records, and
argues that “the ALJ’s acknowledgment that Downing had limited insight should not
discount his credibility, but rather bolster Dr. Davis’s opinion that Downing lacked insight
concerning matters relevant to self and lacked judgment regarding every day activities.”
(ECF No. 20 at 5.)
After review, the Court finds Plaintiff’s objection largely without merit. As the
Magistrate Judge determined, the ALJ referenced both objective and subjective evidence
that showed inconsistencies with Plaintiff’s statements regarding the extent of his
limitations and the evidence of record, and the ALJ considered the appropriate factors in
evaluating Plaintiff’s credibility. Ultimately, however, because the Court finds that remand
15

is necessary for further consideration of the evidence relevant to Plaintiff’s need to use a
cane while standing, and because such evidence includes Plaintiff’s subjective statements,
on remand the Commissioner should consider all of the evidence (including any newly
submitted evidence) in evaluating Plaintiff’s credibility.
CONCLUSION
For the foregoing reasons, the Court sustains in part and overrules in part Plaintiff’s
objections (ECF No. 20), and the Court respectfully declines to adopt the Magistrate
Judge’s Report (ECF No. 19) and instead remands the case to the Commissioner pursuant
to sentence four of 42 U.S.C. § 405(g) for further evaluation and explanation of the
evidence related to Plaintiff’s need to use a cane while standing, and for the submission
of additional evidence to the extent necessary to evaluate the aforementioned issue.
IT IS SO ORDERED.
/s/Bruce H. Hendricks
The Honorable Bruce H. Hendricks
United States District Judge
March 13, 2018
Charleston, South Carolina

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