Wilson v. Commissioner of Social Security Administration

Filing 15

ORDER affirming the decision of the Commissioner. Signed by Magistrate Judge Paige J. Gossett on 02/20/2019. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Bobby Gene Wilson, Jr.,

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

C/A No. 0:18-757-PJG

ORDER

This social security matter is before the court pursuant to Local Civil Rule 83.VII.02 (D.S.C.)
and 28 U.S.C. § 636(c) for final adjudication, with the consent of the parties, of the plaintiff’s
petition for judicial review. The plaintiff, Bobby Gene Wilson, Jr., brought this action pursuant to
42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the defendant,
Acting Commissioner of Social Security (“Commissioner”), denying his claims for Disability
Insurance Benefits (“DIB”). Having carefully considered the parties’ submissions and the applicable
law, the court concludes that the Commissioner’s decision should be affirmed.
SOCIAL SECURITY DISABILITY GENERALLY
Under 42 U.S.C. § 423(d)(1)(A) and (d)(5), as well as pursuant to the regulations formulated
by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an
“inability to do 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.” 20 C.F.R. § 404.1505(a); see also

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Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations require the Administrative
Law Judge (“ALJ”) to consider, in sequence:
(1)

whether the claimant is engaged in substantial gainful activity;

(2)

whether the claimant has a “severe” impairment;

(3)

whether the claimant has an impairment that meets or equals the requirements of an
impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”), and
is thus presumptively disabled;

(4)

whether the claimant can perform his past relevant work; and

(5)

whether the claimant’s impairments prevent him from doing any other kind of work.

20 C.F.R. § 404.1520(a)(4).1 If the ALJ can make a determination that a claimant is or is not
disabled at any point in this process, review does not proceed to the next step. Id.
Under this analysis, a claimant has the initial burden of showing that he is unable to return
to his past relevant work because of his impairments. Once the claimant establishes a prima facie
case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner
must establish that the claimant has the residual functional capacity, considering the claimant’s age,
education, work experience, and impairments, to perform alternative jobs that exist in the national
economy. 42 U.S.C. § 423(d)(2)(A); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir.
1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050,
1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a
vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).

1

The court observes that effective August 24, 2012, ALJs may engage in an expedited
process which permits the ALJs to bypass the fourth step of the sequential process under certain
circumstances. 20 C.F.R. § 404.1520(h).
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ADMINISTRATIVE PROCEEDINGS
In 2013, Wilson applied for DIB, alleging disability beginning May 12, 2011. Wilson’s
application was denied initially and upon reconsideration, and he requested a hearing before an ALJ.
A hearing was held on March 1, 2017, at which Wilson, who was represented by Brett Owens,
Esquire, appeared and testified. After hearing testimony from a vocational expert, the ALJ issued
a decision on March 28, 2017 finding that Wilson was not disabled from his alleged onset date of
May 12, 2011 through his date last insured of June 30, 2012.2 (Tr. 15-27.)
Wilson was born in 1975 and was thirty-six years old on his date last insured. He has a tenthgrade education and has past relevant work experience as a builder and a roofer. (Tr. 216.) Wilson
alleged disability due to neuritis lumbosacral, a bulging disc, and degenerative disc disease. (Tr.
215.)

2

The ALJ also noted as follows:

The claimant has previously filed for disability benefits. On June 6, 2011, the
claimant filed a Title II application for a period of disability and disability insurance
benefits, alleging disability beginning May 12, 2011, which is the same alleged onset
date as his current application. This claim was denied initially on November 3, 2011,
and upon reconsideration on March 7, 2012. The claimant filed a request for hearing.
However, by letter dated March 15, 2013, the claimant, through his representative at
the time, asked to withdraw the request for hearing. On March 15, 2013, an Order
of Dismissal was issued by Administrative Law Judge Peggy McFadden-Elmore,
which dismissed the claimant's request for hearing and indicated that the
reconsideration determination of March 7, 2012, remained in effect (Exhibit B-IA).
Accordingly, the doctrine of res judicata applies making the March 7, 2012,
determination final and binding. The doctrine of res judicata prevents the claimant
from establishing disability prior to March 7, 2012.
(Tr. 15.)
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In applying the five-step sequential process, the ALJ found that Wilson had not engaged in
substantial gainful activity since his alleged onset date of May 12, 2011 through his date last insured
of June 30, 2012. The ALJ determined that, through the date last insured, Wilson’s degenerative
disc disease and kidney cyst were severe impairments. However, the ALJ found that, through the
date last insured, Wilson had not had an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (“the “Listings”). The ALJ found, after consideration of the entire record that, through
the date last insured, Wilson retained the residual functional capacity to
lift and carry 20 pounds occasionally and 10 pounds frequently; with the ability to sit
for six hours in an eight-hour shift; stand and/or walk for six hours out of an eighthour shift; with alternating between standing and sitting every 60 minutes; limited
to occasionally climbing ramps and stairs; occasionally climb ladders, ropes or
scaffolds; occasionally balance, stoop, kneel, crouch, and crawl; limited to simple
routine tasks; and limited to frequent interaction with supervisors, coworkers, and the
public.
(Tr. 23.) The ALJ found that, through the date last insured, Wilson was unable to perform any past
relevant work, but that considering Wilson’s age, education, work experience, and residual
functional capacity, there were jobs that existed in significant numbers in the national economy that
Wilson could have performed. Therefore, the ALJ found that Wilson had not been disabled from
the alleged onset date of May 12, 2011 through the date last insured of June 30, 2012.
The Appeals Council denied Wilson’s request for review on January 26, 2018, making the
decision of the ALJ the final action of the Commissioner. (Tr. 1-5.) This action followed.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner’s denial of benefits.
However, this review is limited to considering whether the Commissioner’s findings “are supported
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by substantial evidence and were reached through application of the correct legal standard.” Craig
v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829
F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner’s
decision is supported by substantial evidence and whether the correct law was applied. See Brown
v. Comm’r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017); Myers v. Califano, 611 F.2d 980,
982 (4th Cir. 1980). “Substantial evidence” means “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion; it consists of more than a mere scintilla of
evidence but may be somewhat less than a preponderance.” Craig, 76 F.3d at 589; see also Pearson
v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015). In reviewing the evidence, the court may not
“undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its]
judgment for that of the [Commissioner].” Craig, 76 F.3d at 589; see also Hancock v. Astrue, 667
F.3d 470, 472 (4th Cir. 2012). Accordingly, even if the court disagrees with the Commissioner’s
decision, the court must uphold it if it is supported by substantial evidence. Blalock, 483 F.2d at
775.
ISSUES
Wilson raises the following issues for this judicial review:
I.

Did the ALJ err by applying administrative res judicata to bar Plaintiff’s
medical evidence from prior to March 7, 2012?

II.

Did the ALJ’s reliance on evidence from the period barred by administrative
res judicata constitute a reopening of the evidence for consideration?

III.

Did the ALJ err in finding that Plaintiff’s spinal disorders failed to rise to the
level of severity to meet the requirements of Listing 1.04?

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IV.

Did the ALJ err in concluding that Plaintiff does not suffer from a
combination of impairments that meet or medically equal [] the severity of
one of the listed impairments?

V.

Did the ALJ err in failing to properly weigh the evidence presented by
Plaintiff’s treating physicians regarding Plaintiff’s functional limitations?

(Pl.’s Br., ECF No. 10.)

DISCUSSION3
A.

Res Judicata
Wilson’s first two arguments hinge on the ALJ’s application of res judicata in evaluating the

current application. Wilson first argues that the ALJ erred in applying res judicata to limit
consideration of Wilson’s evidence to the period of March 7, 2012 through his date last insured, June
30, 2012. Second, Wilson argues that the ALJ’s statement that Wilson “was not under disability
within the meaning of the Social Security Act at any time, including from March 7, 2012, through
June 30, 2012,” was contrary to his other statements in the decision and indicates that he
reconsidered on the merits Wilson claim for disability prior to March 7, 2012. Wilson also points
out that the ALJ summarizes a February 2012 letter from Dr. Benjamin C. Pinner concerning results
of a drug screening. (Tr. 18-19.) In this letter, Dr. Pinner states that due to Wilson’s dishonesty
about the medications Wilson is taking, Dr. Pinner can no longer serve as Wilson’s primary care
physician and dismisses Wilson as a patient of the practice. (See Tr. 356.) After summarizing this
3

The court notes that numerous social security regulations and social security rulings (SSRs)
have changed effective March 27, 2017. However, these changes specifically state that they are
applicable to claims filed on or after March 27, 2017. See, e.g., 20 C.F.R. §§ 404.1513, 404.1527.
Because the instant claim was filed prior to that date, all references in the instant Order are to the
prior versions of the regulations which were in effect at the time Wilson’s application for benefits
was filed, unless otherwise specified.
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letter, the ALJ stated that “[t]he results of the claimant’s drug screen do not bolster his allegations
in his application for disability.” (Tr. 19.) Wilson argues that since the ALJ used evidence from the
prior period, the ALJ reopened Wilson’s prior claim without properly considering all of the evidence.
The United States Court of Appeals for the Fourth Circuit has explicitly addressed and
summarized the law applicable to subject matter jurisdiction and res judicata in cases involving
claims for Social Security benefits. In McGowen v. Harris, 666 F.2d 60 (4th Cir. 1981), the Fourth
Circuit summarized the applicable principles as follows:
1. The combined effect of 42 U.S.C. § 405(g) and (h) is to establish a power in the
Secretary to deny any social security claim on the basis that it has earlier been denied
on the merits by a final administrative decision, i.e., to apply administrative res
judicata in bar. Easley v. Finch, 431 F.2d 1351, 1353 (4th Cir. 1970).
2. An earlier administrative decision at any level in the adjudicative process may be
final and therefore properly treated as preclusive of a subsequent claim either because
the decision has been judicially affirmed or because administrative reconsideration,
hearing, or review, or judicial review has not been timely sought. Shrader v. Harris,
631 F.2d 297, 300-01 (4th Cir. 1980); Leviner v. Richardson, 443 F.2d 1338, 1342
(4th Cir. 1971); see also 20 C.F.R. § 404.957(c)(1) (1981) (superseding 20 C.F.R.
§ 404.937(a) (1980)).
3. When, following any final administrative decision denying a claim on the merits
a claimant files a subsequent claim, the Secretary may properly apply administrative
res judicata in bar only if it is the “same” claim earlier denied. 20 C.F.R.
§ 404.957(c)(1) (1981) (superseding 20 C.F.R. § 404.937(a) (1980)). Whether it is
the same claim must necessarily be determined according to general principles of res
judicata respecting the scope of a claim for purposes of merger and bar as adapted
to the social security claim context. See Restatement (Second) of Judgments § 61
(1980). Even though it is the same claim, the Secretary may nevertheless, within
time limits and for “good cause” shown, reopen the claim and consider it on the
merits, with or without new evidence. 20 C.F.R. § 404.989 (1981) (superseding 20
C.F.R. § 404.958 (1980)).
4. Assuming that the same claim is involved, and unless a constitutional objection
to applying res judicata is raised in the district court, see, e.g., Shrader v. Harris, 631
F.2d at 300, the district court is without jurisdiction under 42 U.S.C. § 405(g) to
engage in judicial review either of a decision by the Secretary not to reopen the
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claim, Califano v. Sanders, 430 U.S. 99 (1977); Matos v. Secretary of Health,
Education and Welfare, 581 F.2d 282, 286-87 (1st Cir. 1978), or to apply
administrative res judicata as a bar to it, Teague v. Califano, 560 F.2d 615, 618 (4th
Cir. 1977).
5. On the other hand, if administrative res judicata has been applied in bar of a
subsequent claim which, properly assessed, is not the same for res judicata purposes,
jurisdiction to engage in judicial review exists. In that situation the subsequent claim
is necessarily, in legal contemplation, a different one whose merits have never been
addressed administratively. In consequence the Secretary’s decision denying the
claim was one as to which the claimant was entitled to a hearing and hence, to
judicial review of the denial. Cf. Califano v. Sanders, 430 U.S. at 107-08 (refusal to
reopen not reviewable because no entitlement to hearing).
6. By the same token, even though the subsequent claim be the same claim for res
judicata purposes, if it has nevertheless been reconsidered on the merits to any extent
and at any administrative level, it is thereupon properly treated as having been, to that
extent, reopened as a matter of administrative discretion under 20 C.F.R. § 404.989
(1981) (superseding 20 C.F.R. [§] 404.958 (1980)). In that event a final decision of
the Secretary denying the claim is also subject to judicial review to the extent of the
reopening, without regard to the expressed basis for the Secretary’s denial. See
Farley v. Califano, 599 F.2d 606 (4th Cir. 1979).
7. From this it is evident that upon a challenge to its jurisdiction on the basis that
administrative res judicata has been applied in bar of a claim, or that discretionary
reopening of a previously denied claim has been denied, or both, the district court has
jurisdiction to determine, as appropriate, whether res judicata has properly been
applied, or whether, though res judicata might properly have been applied, the claim
has nevertheless been reopened. See Farley v. Califano, 599 F.2d at 608 & n.4. In
this the court simply exercises its inherent jurisdiction to determine its own
jurisdiction. Texas & Pacific Railway v. Gulf, Colorado & Santa Fe Railway, 270
U.S. 266, 274 (1927). If the court determines that jurisdiction exists either because
administrative res judicata was not properly applied, or because the denied claim has
been either formally or by legal implication reopened, it may then of course judicially
review the Secretary’s final decision denying the claim.
8. In order to make this jurisdictional determination, the district court must have
before it a record sufficient to determine the scope of the successive claims for res
judicata purposes, see Farley v. Califano, 599 F.2d at 608 & n.4; Restatement
(Second) of Judgments § 61 (1980), or to determine whether the claim, though
subject to administrative res judicata, has in fact been administratively reopened to
any extent. This may well require that the entire administrative record be made a part
of the district court record, but not necessarily. If the identity of claims or the fact of
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reopening is otherwise apparent as a matter of law from the district court record, the
determination may of course be made on that basis.
9. The district court is obviously free to make its independent determination, subject
to appellate review, of the jurisdictional questions, including the scope of successive
claims for res judicata purposes and whether a denied claim has been
administratively reopened, without regard to any determinations or assertions by the
Secretary respecting those matters.
McGowen, 666 F.2d at 65-66.
Applying these principles to the case at hand, the court finds that the filings before the court
demonstrate that the Commissioner properly applied res judicata to Wilson’s DIB claim to the extent
Wilson sought disability prior to March 7, 2012 as that claim had previously been denied initially
and upon reconsideration and ultimately dismissed. Therefore, the court is without jurisdiction under
42 U.S.C. § 405(g) to engage in judicial review of either the decision by the Commissioner to apply
administrative res judicata as a bar to Wilson’s claim for DIB during that period or the decision not
to reopen the DIB claim.
With regard to Wilson’s arguments that the ALJ’s decision should be treated as having
reopened his prior claim, the court finds them unsupported.
[J]urisdiction to review exists when, even though the Secretary has purported to rest
denial of reopening on principles of administrative res judicata, a review of the
record discloses that the merits of the claim actually have been reconsidered. Under
these limited circumstances, the claim is “properly treated as having been, to that
extent, reopened as a matter of administrative discretion under 20 C.F.R. § 404.989.”
Hall v. Chater, 52 F.3d 518, 520 (4th Cir. 1995) (quoting McGowen, 666 F.2d at 65). But here, the
ALJ’s decision repeatedly reflects that treatments notes and opinions from the period barred by res
judicata were considered only for historical and background purposes. The limited statements relied

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upon by Wilson do not establish that the merits of Wilson’s prior claim have been re-evaluated or
that the merits of the prior adjudicated claim were being reconsidered.
Accordingly, Wilson’s first two arguments are without merit.
B.

Step Three
Wilson’s next two arguments challenge the ALJ’s determination at Step Three. At this step,

the Commissioner must determine whether the claimant meets the criteria of one of the Listings and
is therefore presumptively disabled. “For a claimant to show that his impairment matches a listing,
it must meet all of the specified medical criteria.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990)
(emphasis added). It is not enough that the impairments have the diagnosis of a listed impairment;
the claimant must also meet the criteria found in the Listing of that impairment. 20 C.F.R.
§ 404.1525(d); see also Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting that the burden is on
the claimant to establish that his impairment is disabling at Step Three).
Wilson first argues that he met Listing 1.04, which provides as follows:
Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal
stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture),
resulting in compromise of a nerve root (including the cauda equina) or the spinal
cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic distribution
of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or reflex loss and, if there
is involvement of the lower back, positive straight-leg raising test (sitting and
supine);
or
B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue
biopsy, or by appropriate medically acceptable imaging, manifested by severe
burning or painful dysesthesia, resulting in the need for changes in position or
posture more than once every 2 hours;
or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings
on appropriate medically acceptable imaging, manifested by chronic nonradicular
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pain and weakness, and resulting in inability to ambulate effectively, as defined in
1.00B2b.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04. Wilson argues that he met Listing 1.04 because his
“back impairments worsened after being involved in an automobile accident in January of 2013” and
points to an MRI following that incident. Wilson appears to argue that these exacerbated symptoms
should have related back and should have been considered by the ALJ. However, the applicable
standard for DIB requires that the claimant be disabled on or before his date last insured, and
Wilson’s very arguments indicate that the accident in 2013—which was almost a year after his date
last insured—exacerbated his symptoms. Wilson’s reliance on an MRI from February 2011 that he
argues “revealed an annular fissure in the midline posterior disc at L4-L5 and central midline disc
protrusion at L5-S1” (Pl.’s Br. at 6, ECF No. 10 at 6) is also unavailing as he has failed to show how
it demonstrates that Wilson met any of the above requirements of Listing 1.04.
Wilson also argues that the ALJ erred in failing to consider his impairments in combination.
When a claimant has more than one impairment, the ALJ must consider the combined effect of all
impairments without regard to whether any such impairment, if considered separately, would be of
sufficient severity to be the basis of eligibility under the law. 20 C.F.R. § 404.1523. Further, in
Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989), the United States Court of Appeals for the
Fourth Circuit explained:
[A] failure to establish disability under the listings by reference to a single, separate
impairment does not prevent a disability award. It is axiomatic that disability may
result from a number of impairments which, taken separately, might not be disabling,
but whose total effect, taken together, is to render claimant unable to engage in
substantial gainful activity. In recognizing this principle, this Court has on numerous
occasions held that in evaluating the effect[] of various impairments upon a disability
benefit claimant, the Secretary must consider the combined effect of a claimant’s

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impairments and not fragmentize them. . . . As a corollary to this rule, the ALJ must
adequately explain his or her evaluation of the combined effects of the impairments.
Id. at 49-50 (internal citations omitted). However, “the adequacy requirement of Walker is met if
it is clear from the decision as a whole that the Commissioner considered the combined effect of a
claimant’s impairments.” Brown v. Astrue, C/A No. 0:10-cv-1584-RBH, 2012 WL 3716792, at *6
(D.S.C. Aug. 28, 2012) (citing Green v. Chater, 64 F.3d 657, 1995 WL 478032, at *3 (4th Cir.
1995)).
Wilson argues that the ALJ’s analysis is deficient because he failed to discuss the
impairments in combination at Step Three. However, contrary to Wilson’s arguments, the court
finds that during the course of the ALJ’s opinion, the ALJ sufficiently discussed Wilson’s alleged
impairments and limitations to demonstrate that he considered Wilson’s impairments in
combination. Review of the ALJ’s decision reveals that the ALJ found no evidence supporting the
existence of some of these impairments during the relevant time period and no evidence to support
any limitations stemming from some of the alleged impairments. Moreover, the opinion as a whole
demonstrates that in analyzing Wilson’s residual functional capacity, the ALJ also discussed
Wilson’s medical records at length, including physical and mental findings and diagnostic images
and testing results, as well as his testimony, and addressed conflicts in the records. The ALJ also
stated that through the date last insured, Wilson “did not have an impairment or combination of
impairments that met or medically equals the severity of one of the listed impairments . . . .” (Tr.
23.) For these reasons, the court finds the ALJ’s analysis sufficiently demonstrates that he
considered the combined effect of Wilson’s impairments. See Brown, 2012 WL 3716792, at *6

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(finding that Fourth Circuit precedent issued after Walker suggested that Walker was not meant to
be used as a trap for the Commissioner).
Moreover, even assuming Wilson is correct and the ALJ’s statements throughout the opinion
are not sufficient, Wilson has failed to explain how more discussion or explanation by the ALJ
regarding the combined effects of his alleged impairments would change the outcome of this case.4
See, e.g., Brown, 2012 WL 3716792, at *6 (“If the Commissioner’s analysis is fragmentized, it is,
of course, the Plaintiff’s task to adequately show the Court that the Commissioner’s decision could
have been different had he done an adequate combined effect analysis of his multiple impairments.”).
Although Wilson may believe that additional limitations were warranted, he fails to specify them or
detail any basis for them. Accordingly, based on a review of the decision as a whole, Wilson has
failed to demonstrate that the ALJ failed to consider adequately his combined impairments and has
not explained how the outcome would have differed with additional discussion; therefore, remand
is not warranted on this basis. See, e.g., Glockner v. Astrue, C/A No. 0:11-955-CMC-PJG, 2012 WL
4092618, at *5 (D.S.C. Sept. 17, 2012) (finding that the ALJ sufficiently discussed the plaintiff’s
alleged impairments and limitations to demonstrate that he considered the plaintiff’s impairments
in combination and observing that the plaintiff neither cited an impairment ignored by the ALJ nor
offered any explanation as to how more discussion or explanation may have changed the outcome
in the case).
4

As indicated above, it is the plaintiff's burden to present evidence that his impairments meet
or equal a Listing. Kellough v. Heckler, 785 F.2d 1147, 1152 (4th Cir. 1986). Further, “[i]t is the
claimant’s burden, and not the Social Security Commissioner’s burden, to prove the claimant’s
[residual functional capacity].” Baldwin v. Barnhart, 349 F.3d 549, 556 (8th Cir. 2003); see also
Dollars v. Colvin, No. 5:14-CV-00048-FDW, 2014 WL 6666510, at *3 (W.D.N.C. Nov. 24, 2014)
(“It is the claimant’s burden, however, to establish his RFC by demonstrating how his impairment
impacts his functioning.”) (citing 20 C.F.R. §§ 404.1512(c), 416.912(c)).
Page 13 of 18

C.

Treating Physician
Finally, Wilson argues that the ALJ erred in discounting opinions dated March 2013 and May

2013 from Dr. John Thompson and a December 2011 opinion from Dr. Robert Roberts. The law
applicable to Wilson’s application provides that regardless of the source, the Commissioner will
evaluate every medical opinion received. 20 C.F.R. § 404.1527(c). Typically, the Social Security
Administration accords greater weight to the opinion of treating medical sources because treating
physicians are best able to provide “a detailed, longitudinal picture” of a claimant’s alleged
disability. See id. However, “the rule does not require that the testimony be given controlling
weight.” Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (per curiam). Instead, a treating
physician’s opinion is evaluated and weighed “pursuant to the following non-exclusive list: (1)
whether the physician has examined the applicant, (2) the treatment relationship between the
physician and the applicant, (3) the supportability of the physician’s opinion, (4) the consistency of
the opinion with the record, and (5) whether the physician is a specialist.” Johnson v. Barnhart, 434
F.3d 650, 654 (4th Cir. 2005) (citing 20 C.F.R. § 404.1527). Any other factors that may support or
contradict the opinion should also be considered. 20 C.F.R. § 404.1527(c)(6). In the face of
“persuasive contrary evidence,” the ALJ has the discretion to accord less than controlling weight to
such an opinion. Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). Further, “if a 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.” Id. (quoting Craig, 76 F.3d at 590).
First, with regard to Dr. Thompson’s opinions, the ALJ found as follows:
In March 2013, Dr. Thompson completed a Physical Capacities Evaluation and a
pain questionnaire. Dr. Thompson has indicated that it is not physically possible for
the claimant to work an eight-hour workday. Dr. Thompson has indicated extreme
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limitations including walking for no hours per eight-hour workday and absenteeism
of about four workdays per month. However, Dr. Thompson also indicated that the
claimant could frequently lift and carry 11-20 pounds. Dr. Thompson stated that the
claimant is diagnosed with lumbar spondylosis with L5-S1 disc disease and that the
claimant has been felt not to be a surgical candidate by neurosurgery (Exhibit B-10F).
I have given little to no weight to Dr. Thompson’s conclusions on these forms. First
of all, these conclusions were made nearly 10 months after the claimant’s date last
insured. Thus, they are too remote to the claimant’s conditions regarding the period
in question. Secondly, these extreme conclusions appear to be inconsistent with one
another. As an example, it seems unlikely that someone who could not stand for any
period of time would be capable of frequently lifting and carrying 11-20 pounds. In
addition, these extreme restrictions regarding findings including walking and
absenteeism are not supported by the treatment notes of record or diagnostic imaging,
which have shown limited abnormal findings. It is also important to note that when
Dr. Thompson completed these forms in March 2013, he ha[d] not received the
treatment records from Dr. Toussaint. Dr. Thompson specifically indicated at an
office visit in April 2013 that he did not have these records yet. Dr. Thompson also
indicated in his treatment notes at this office visit that they would get Dr. Toussaint’s
report before proceeding with a disability evaluation (emphasis added) (Exhibit B12F, page 5). While Dr. Thompson indicated at this April 2013 office visit that they
would wait on a disability evaluation, he actually did the exact opposite and
completed forms in March 2013 and indicated that the claimant was unable to work.
At an office visit in May 2013, Dr. Thompson indicated that he was not sure if the
claimant is fully disabled but that he clearly cannot work on his feet and a full-time
capacity. Dr. Thompson stated that the claimant does continue to have chronic pain
which impairs his sitting and standing. Dr. Thompson stated that the claimant is
clearly impaired but that he suspects he is not completely disabled. At this office
visit, the claimant indicated that he wanted something for anxiety. Dr. Thompson
prescribed Ativan to be taken on an as needed basis (Exhibit B-12F).
I have given little to no weight to Dr. Thompson’s statements at the May 2013 office
visit. Again, these statements were made nearly a year after the claimant’s date last
insured. However, it does appear that Dr. Thompson has indicated that the claimant
may be capable of some work activities.
(Tr. 21-22.) Wilson’s sole challenge the ALJ’s evaluation of this evidence is that in discounting the
opinions based on the fact that they were issued after the date last insured, the ALJ failed to consider
whether this evidence credibly reflected Wilson’s conditions prior to his date last insured. Wilson’s

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argument is unavailing. First, in accordance with applicable law, the ALJ clearly considered whether
the limitations suggested related back to Wilson’s date last insured; however, the ALJ found that the
opinions were too remote. See Bird v. Comm’r of Soc. Sec. Admin., 699 F.3d 337, 345 (4th Cir.
2012) (holding that the Commissioner “must give retrospective consideration to medical evidence
created after a claimant’s last insured date when such evidence may be ‘reflective of a possible
earlier and progressive degeneration’ ”). And this was not the only reason offered by the ALJ. The
ALJ also found that Dr. Thompson’s opinions were contradicted by Dr. Thompson’s treatment
records, as well as the treatment records and opinions from Dr. C. Philip Toussaint, a neurologist.
The ALJ also observed unexplained inconsistencies within the opinion.
Further, with regard to Dr. Roberts, the ALJ found as follows:
[T]he claimant has also been treated by Dr. Roberts of The Pain Center. The
claimant was seen for office visits from February 2011 through January 2012, which
is during the time barred by res judicata. The claimant was diagnosed with various
conditions including sacroiliitis, neuritis, lumbosacral displacement, and lumbago.
A cervical spine MRI scan in December 2011 indicated multilevel shallow disc
protrusions creating mild degrees of stenoses. In December 2011, Dr. Roberts
indicated in a letter “to whom it may concern” that the claimant had been advised that
he may not lift/push/pull greater than 10 pounds, and that he should avoid any
repetitive bending or twisting. A lumbar spine MRI scan in February 2011 indicated
findings of a recurrent annular fissure at L4-5 with non compressive protrusion, and
disc protrusion at L5-S1 without neural contact or likely significant stenosis. While
the claimant signed a release for an epidural steroid injection in March 2012, it does
not appear that the claimant had this procedure completed. In April 2012, the
claimant signed a Patient’s Code of Conduct. From these records, it appears that the
claimant’s last actual office visit was in January 2012. These records also include
Dr. Pinner’s letter and the claimant’s drug screen (Exhibits B-1F, B-2F and B-4F).
I have considered Dr. Roberts’ letter in December 2011 concerning limitations for
the claimant, but I have given it little weight for several reasons. First of all, this
letter was completed during the time barred by res judicata. Dr. Roberts does not
provide any explanation for these limitations. These limitations are not supported by
Dr. Roberts’ treatment notes or Dr. Pinner’s treatment notes, the claimant’s two
treating physicians at that time. Finally, these limitations are not supported by
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diagnostic imaging completed in December 2011 and February 2012, which showed
limited abnormalities.
(Tr. 19.) Wilson argues that the ALJ erred in discounting Dr. Roberts’s letter because Dr. Roberts
treated Wilson for approximately one year and attempted to relieve Wilson’s pain with back
injections. Wilson also reiterates his above argument that the ALJ erred in applying res judicata.
As explained above, Wilson has failed to demonstrate any error by the ALJ in applying res judicata.
Wilson’s remaining arguments are insufficient to demonstrate that the ALJ’s discussion of this
evidence was unsupported.
Thus, upon thorough review of the ALJ’s decision and the record, the court concludes that
it is clear that the ALJ applied the factors, to the extent they were applicable, in evaluating the
opinion evidence, and finds that Wilson has failed to demonstrate that the ALJ’s evaluation of these
opinions is unsupported by substantial evidence or based on an incorrect application of the law. See
20 C.F.R. § 404.1527(c); Mastro, 270 F.3d at 178 (stating that “if a 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”) (internal quotation marks and citation omitted); Dunn v. Colvin,
607 F. App’x 264, 267 (4th Cir. 2015) (“An ALJ’s determination as to the weight to be assigned to
a medical opinion generally will not be disturbed absent some indication that the ALJ has dredged
up ‘specious inconsistencies,’ . . . or has failed to give a sufficient reason for the weight afforded a
particular opinion[.]”) (internal citations omitted); see also 20 C.F.R. § 404.1527(c)(6) (providing
as an example of other factors to consider in weighing an opinion, the source’s familiarity with other
information in the record); 20 C.F.R. § 404.1527(c)(3) (“The more a medical source presents
relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more

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weight we will give that opinion. The better an explanation a source provides for an opinion, the
more weight we will give that opinion.”).
Based on the foregoing, Wilson has failed to demonstrate that the ALJ’s conclusions
regarding these opinions are unsupported by substantial evidence. In fact, it is clear that the ALJ,
as part of his duties in weighing the evidence, properly considered these opinions in accordance with
the applicable factors and legal authority. See Craig, 76 F.3d at 589 (stating that the court may not
“undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its]
judgment for that of the [Commissioner]”); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)
(holding that it is the ALJ’s responsibility, not the court’s, to determine the weight of evidence and
resolve conflicts of evidence). Thus, the court finds that Wilson has not shown that the ALJ’s
decision with regard to the opinion evidence was unsupported by substantial evidence or reached
through application of an incorrect legal standard.
ORDER
For the foregoing reasons, the court finds that Wilson has not shown that the Commissioner’s
decision was unsupported by substantial evidence or reached through application of an incorrect
legal standard. See Craig, 76 F.3d at 589; see also 42 U.S.C. § 405(g); Coffman, 829 F.2d at 517.
Therefore, it is hereby
ORDERED that the Commissioner’s decision is affirmed.
IT IS SO ORDERED.

February 20, 2019
Columbia, South Carolina

____________________________________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE

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