Mills v. Commissioner of Social Security Administration

Filing 26

ORDER re 1 Complaint. The Commissioner's decision is reversed and this matter is remanded for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). Signed by Magistrate Judge Shiva V Hodges on 8/12/2014. (cwil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Hommer T. Mills,
Plaintiff,
vs.
Carolyn W. Colvin, Acting
Commissioner of Social Security
Administration,
Defendant.

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C/A No.: 1:13-792-SVH

ORDER

This appeal from a denial of social security benefits is before the court for a final

order pursuant to 28 U.S.C. § 636(c), Local Civil Rule 73.01(B) (D.S.C.), and the
Honorable Timothy M. Cain’s October 10, 2013, order referring this matter to United
States Magistrate Judge Bruce Howe Hendricks for disposition. [Entry #15]. This matter
was subsequently reassigned to the undersigned on June 4, 2014. [Entry #23]. The
parties consented to a United States Magistrate Judge’s disposition of this case, with any
appeal directly to the Fourth Circuit Court of Appeals. [Entry #12].
Plaintiff files this appeal pursuant to 42 U.S.C. § 405(g) of the Social Security Act
(“the Act”) to obtain judicial review of the final decision of the Commissioner of Social
Security (“Commissioner”) denying the claim for disability insurance benefits (“DIB”).
The two issues before the court are whether the Commissioner’s findings of fact are
supported by substantial evidence and whether she applied the proper legal standards.

For the reasons that follow, the court remands the Commissioner’s decision for
further proceedings as set forth herein.
I.

Relevant Background
A.

Procedural History

On December 8, 2005, Plaintiff filed an application for DIB in which he alleged
his disability began on June 5, 2004. Tr. at 70, 181–83. His application was denied
initially and upon reconsideration.

Tr. at 89–90, 100–01.

On September 3, 2008,

Plaintiff amended his alleged onset date to December 31, 2007, to coincide with his 50th
birthday.

Tr. at 286.

On September 12, 2008, Plaintiff had a hearing before

Administrative Law Judge (“ALJ”) Richard L. Vogel. Tr. at 35–49 (Hr’g Tr.). The ALJ
issued an unfavorable decision on October 8, 2008. Tr. at 72-84. On August 8, 2010, the
Appeals Council issued an order remanding the case to the ALJ. Tr. at 85. On June 30,
2011, Plaintiff had a second hearing before ALJ Vogel. Tr. at 52–67 (Hr’g Tr.). The
ALJ issued an unfavorable decision on July 13, 2011, finding that Plaintiff was not
disabled within the meaning of the Act. Tr. at 14–32. Subsequently, the Appeals
Council denied Plaintiff’s request for review, making the ALJ’s decision the final
decision of the Commissioner for purposes of judicial review. Tr. at 1–3. Thereafter,
Plaintiff brought this action seeking judicial review of the Commissioner’s decision in a
complaint filed on March 25, 2013. [Entry #1].

2

B.

Plaintiff’s Background and Medical History
1.

Background

Plaintiff was 53 years old at the time of the hearing. Tr. at 52. He completed the
ninth grade and obtained a high school equivalency certificate. Tr. at 36. His past
relevant work (“PRW”) was as a skating rink manager and a beer distribution laborer.
Tr. at 62. He alleges he has been unable to work since December 31, 2007. Tr. at 286.
2.

Medical History

Plaintiff presented to George F. Warren, M.D., on July 29, 2004, with complaint
of right-sided low back pain. Tr. at 318. Plaintiff reported that he had injured his back
while pulling a pallet jack at work on June 5, 2004. Id. Dr. Warren diagnosed right
lumbar facet syndrome and recommended that Plaintiff remain on light duty status. Tr. at
317.
Plaintiff presented to Timothy M. Zgleszewski, M.D., on September 20, 2004,
regarding low back pain. Tr. at 545–46. Dr. Zgleszewski indicated that, based on his
examination and Plaintiff’s lack of improvement, he suspected a greater problem than a
lumbosacral strain. Tr. at 546.
Plaintiff followed up with Dr. Zgleszewski on October 1, 2004. Tr. at 547–48. He
ruled out Plaintiff’s lumbar Z-joints as the source of the problem, and indicated that he
would next need to rule out the right SI joint. Tr. at 548. Dr. Zgleszewski scheduled
Plaintiff for diagnostic SI joint injection and MRI of the lumbar spine. Id.
MRI of the lumbar spine on October 14, 2004, indicated spondylosis of the lumbar
spine, greatest at L4-5, where there was a mild diffuse disc osteophyte complex and a
3

superimposed central and left parasagittal disc herniation with moderate to severe facet
hypertrophy. Tr. at 549. The MRI also indicated moderate spinal canal stenosis with
moderate to severe bilateral lateral recess stenosis. Tr. at 549–50. Compression of the
transiting L5 nerve root could not be excluded, but there was no definite compression of
the exiting L4 nerve root. Tr. at 550.
On October 26, 2004, Plaintiff followed up with Dr. Zgleszewski to review his
MRI report. Tr. at 551. Dr. Zgleszewski indicated that it was most likely that Plaintiff’s
pain was emanating from the disc itself. Id. Plaintiff agreed to proceed with provocative
lumbar discography. Id.
Plaintiff followed up with Dr. Zgleszewski on December 6, 2004. Tr. at 325. Dr.
Zgleszewski discussed with Plaintiff the findings of the post-discography CT scan and
recommended that Plaintiff undergo intradiscal electrothermal annuloplasty (“IDEA”) at
L3-4 and L4-5. Id.
On December 16, 2004, Plaintiff presented to R. Blake Dennis, M.D., for a second
opinion regarding his lumbar spine. Tr. at 319. Dr. Dennis indicated that Plaintiff had a
40 to 50 % chance of obtaining relief with IDEA, but that he expected that Plaintiff
would be more likely to experience continued pain and to require spinal fusion. Id. Dr.
Dennis recommended that Plaintiff participate in a vigorous active rehab program; use
anti-inflammatory medications; engage in aerobic conditioning; and return to work at a
light duty level. Id. Plaintiff agreed to pursue Dr. Dennis’s recommendations, and Dr.
Dennis gave him a note to return to work at light duty for six hours per day and to
progress to eight hours of light duty work four weeks later. Id.
4

On December 21, 2004, Dr. Zgleszewski wrote a note to Plaintiff’s file in which
he acknowledged that Plaintiff had opted not to proceed with IDEA. Tr. at 324. Dr.
Zgleszewski noted his disagreement with Dr. Dennis’s opinion. Id. Dr. Zgleszewski
wrote that Plaintiff was not a candidate for two-level fusion and noted that Plaintiff was
at maximum medical improvement. Id. He indicated that Plaintiff was limited to lifting
no greater than 20 pounds on an occasional basis and that he should avoid repetitive
bending, lifting, or twisting. Id. He wrote that Plaintiff could sit for 30 to 60 minutes at a
time, but must be able to change positions. Id. Dr. Zgleszewski noted that Plaintiff had
no limitations with respect to walking, standing, or engaging in repetitive movements
with his upper extremities. Id. He indicated that Plaintiff could not use his feet for
repetitive motions. Id. Dr. Zgleszewski noted that the restrictions were permanent. Id.
Dr. Zgeleszewski assessed a 12% impairment rating to Plaintiff’s lumbar spine. Id.
On January 27, 2005, Plaintiff reported worsened significant right leg pain and
worsened back pain to Dr. Dennis. Tr. at 398. Plaintiff complained that physical therapy
had provided no improvement and had worsened his back pain. Id.
On January 28, 2005, and February 25, 2005, Thomas D. Wooten, Jr., M.D.,
administered epidural steroid injections to the L4-5 level of Plaintiff’s spine. Tr. at 332,
336.
On February 15, 2005, Plaintiff complained to his primary care physician, David
Apple, M.D., about experiencing depression. Tr. at 493. Dr. Apple prescribed Cymbalta
and noted that Plaintiff may benefit from therapy with a psychologist. Tr. at 494.

5

MRI of Plaintiff’s lumbar spine on April 11, 2005, indicated severe central canal
stenosis at L4-5 on the basis of a left central protrusion with underlying disc bulge as well
as facet arthropathy and ligamentum flavum thickening; mild spondylosis at L3-4 with
facet arthropathy, but no significant stenosis; and moderate bilateral facet arthropathy at
L5-S1 without significant disc bulge or protrusion. Tr. at 416.
Plaintiff followed up with Dr. Dennis on April 14, 2005, to review MRI results.
Tr. at 392. He reported buttock and thigh pain, worsened with prolonged walking. Id.
Dr. Dennis recommended that Plaintiff proceed with nerve root canal and foraminal
decompression and discectomy, but informed Plaintiff that his condition would likely
require a lumbar fusion in the future. Id.
On April 29, 2005, Plaintiff underwent bilateral L4-5 laminectomy and nerve-root
canal foraminal decompression with discectomy. Tr. at 370.
On October 4, 2005, Plaintiff reported to Dr. Dennis that his leg pain was
resolved. Tr. at 386. Plaintiff complained of back pain, but Dr. Dennis indicated that he
told Plaintiff that he would still have back pain after the surgery. Id. Dr. Dennis
recommended that Plaintiff lift no more than 40 pounds. Id.
Plaintiff underwent functional capacity evaluation by Jesse McGrady, P.T., on
November 16, 2005. Tr. at 554–59. Plaintiff participated in work activities in the light
and medium work categories, but he consistently complained of high pain levels of 7/10
to 8/10. Tr. at 558. He was unable to squat lift. Id. Mr. McGrady concluded that
Plaintiff would not be able to “return to job types which require lifting and prolonged
standing and walking.” Id.
6

Plaintiff followed up with Dr. Dennis on November 22, 2005. Tr. at 385. Plaintiff
complained of 7/10 pain, which Dr. Dennis indicated to be inconsistent with his clinical
picture. Id. Dr. Dennis prescribed a chair-back brace, recommended that Plaintiff walk
two miles per day, and instructed Plaintiff to follow up in three to four weeks. Id.
Plaintiff fractured his left distal radius on December 10, 2005, after he lost his
balance and fell down approximately three stairs. Tr. at 362–66.
Plaintiff presented to Jerrold M. Buckaloo, M.D., on January 11, 2006, for
consultation regarding his left wrist fracture. Tr. at 528–29. Dr. Buckaloo noted that xrays dated January 4, 2006, demonstrated a distal radius ulnar styloid fracture with
impaction and further displacement of the volar ulnar aspect of the distal radius involving
the volar 50% of the lunate facet. Tr. at 529. On January 17, 2006, Dr. Buckaloo
performed open reduction internal fixation with limited osteotomy of the left distal
radius. Tr. at 530.
Plaintiff presented to Dr. Dennis on March 14, 2006, to report that his right leg
was giving way. Tr. at 432. Dr. Dennis indicated that the problem did not seem to be
consistent with a lumbar spine problem and he referred Plaintiff for EMG and nerve
conduction studies. Id.
Plaintiff underwent EMG/nerve conduction studies of the bilateral lumbar
paraspinals and lower extremities on April 6, 2006. Tr. at 587–88. The studies indicated
slightly decreased recruitment pattern of the right lower extremity musculature. Tr. at
588. Chronic denervation potentials were noted, but no acute denervation potentials were
identified. Id.
7

On May 3, 2006, state agency consultant Jean Smolka, M.D., completed a physical
residual functional capacity assessment.

Tr. at 418–25.

Dr. Smolka indicated the

following limitations: occasionally lift and/or carry 20 pounds; frequently lift and/or
carry 10 pounds; stand and/or walk (with normal breaks) for a total of about six hours in
an eight-hour workday; sit (with normal breaks) for about six hours in an eight-hour
workday; occasional heavy pushing and/or pulling with the left upper extremity;
frequently climbing ramp/stairs, balancing, kneeling, and crouching; occasionally
climbing

ladder/rope/scaffolds,

stooping,

and

crawling;

and

handling

(gross

manipulation) limited to frequent with the left upper extremity. Tr. at 419–21.
Plaintiff followed up with Dr. Dennis on May 9, 2006, and continued to complain
that his right leg was weak and giving way. Tr. at 430. Dr. Dennis indicated that recent
EMG and nerve conduction studies were negative. Id. He offered to refer Plaintiff to a
neurologist to rule out any occult neurological problem. Id. Dr. Dennis indicated that
Plaintiff had reached maximum medical improvement and he assigned Plaintiff a 20%
impairment rating to the lumbar spine. Id.
On June 10, 2006, Plaintiff was examined by Charles J. Gudas, DPM, at the
request of his workers’ compensation attorney. Tr. at 599–600. Plaintiff complained of
significant pain, irritation, and instability of his right lower extremity. Tr. at 599. He
indicated that his leg gave out one to three times per week. Id. Dr. Gudas noted the
following findings: moderate pain along the lateral aspect of the right foot, leg, and ankle;
very significant +3 plantar fasciitis; +3 inferior heel pain on the right side; and antalgic
gait with significant functional disturbance. Id. Dr. Gudas noted negative Babinski and
8

clonus, but observed decreased sensation in the lateral aspect of Plaintiff’s right leg,
consistent with lumbar spine derangement. Id. Dr. Gudas documented 4/5 muscle
strength of the right lower extremity. Id. Plaintiff’s right calf measured 36.5 centimeters
in girth and his left calf measured 38 centimeters in girth. Id. Dr. Gudas measured a 2.4
centimeter difference in the lengths of Plaintiff’s lower extremities. Tr. at 600. Dr.
Gudas recommended that Plaintiff use an ankle stabilization device and a cane. Id.
Plaintiff complained to Dr. Apple on July 18, 2006, that his right leg was going
out and that he was very depressed. Tr. at 491. Dr. Apple noted tenderness in Plaintiff’s
lumbosacral and low thoracic spine. Tr. at 492. He prescribed Cymbalta for depression
and Ultram for pain. Id.
State agency consultant Judith Von, Ph.D., completed a psychiatric review
technique on September 8, 2006. Tr. at 507–20. She considered Listing 12.04 for
affective disorders in light of Plaintiff’s treatment for depression. Id. She assessed
Plaintiff’s degree of limitation as mild with respect to restriction of activities of daily
living, difficulties in maintaining social functioning, and difficulties in maintaining
concentration, persistence, or pace. Tr. at 517. She determined that Plaintiff had no
episodes of decompensation and that the evidence did not support the presence of the “C”
criteria under the Listing. Tr. at 517–18.
On September 11, 2006, Plaintiff followed up with Dr. Buckaloo to receive an
impairment rating for his left wrist. Tr. at 522. Dr. Buckaloo observed that Plaintiff’s
digit mobility was full and unrestricted. Id. Plaintiff’s wrist flexion was 30 degrees;
extension was 45 degrees; radial deviation was 15 degrees; and ulnar deviation was 25
9

degrees. Id. Dr. Buckaloo assessed an 11% impairment rating of the upper extremity.
Id.
Dr. Stout administered EMG and nerve conduction studies on September 22, 2006.
Tr. at 593–95.

The studies showed no evidence of peripheral neuropathy or

radiculopathy. Tr. at 594.
State agency consultant William Cain, M.D., completed a physical residual
functional capacity assessment on September 25, 2006. Tr. at 533–40. He indicated that
Plaintiff had the following limitations: occasionally lift and/or carry 20 pounds;
frequently lift and/or carry 10 pounds; stand and/or walk (with normal breaks) about six
hours in an eight-hour workday; sit (with normal breaks) about six hours in an eight-hour
workday; occasional heavy pushing and/or pulling with the left upper extremity;
frequently climbing ramp/stairs, balancing, kneeling, and crouching; occasionally
climbing ladder/rope/scaffolds, stooping, and crawling; and frequent handling (gross
manipulation) with the left upper extremity. Tr. at 534–36.
Plaintiff followed up with Dr. Apple on December 1, 2006. Tr. at 616. He
reported that his low back pain was continuing to limit his activities. Id. Dr. Apple
observed palpable tenderness in Plaintiff’s lumbosacral spine. Id. He also noted that
Plaintiff had difficulty sitting for any length of time without shifting positions repeatedly
and difficulty rising from a seated or supine position. Id. Straight-leg raise was negative.
Id.
On December 4, 2006, Plaintiff was seen by Curtis Worthington, M.D., for a
workers’ compensation evaluation. Tr. at 575. Plaintiff reported that he was no longer
10

experiencing extremity pain. Id. Plaintiff indicated that he continued to experience low
back pain, which bothered him 100% of the time. Id. Dr. Worthington observed some
tenderness to palpation along the lower lumbar spinous process and limited mobility of
Plaintiff’s back.

Id.

Plaintiff’s gait was normal and his lower extremity strength,

sensation, and reflexes were intact. Id. Dr. Worthington recommended that Plaintiff
resume use of anti-inflammatories and muscle relaxants, participate in physical therapy,
and obtain epidural blocks. Id. Dr. Worthington also suggested that Plaintiff obtain a
new MRI scan. Id.
Plaintiff visited J. Robert Alexander, Jr., M.D., for initial consultation on February
8, 2007. Tr. at 585–90. Plaintiff complained of lumbar pain and chronic right lower
extremity weakness.

Tr. at 585.

Dr. Alexander observed tenderness to palpation

segmentally at L3 through S1 bilaterally, right greater than left. Id. Plaintiff complained
of increased lumbar pain with lumbar flexion, but not with extension. Id. Plaintiff had
negative straight-leg raise bilaterally, but straight-leg raise did produce axial symptoms
on the right. Id. Dr. Alexander administered bilateral lumbar paraspinal injections. Tr.
at 586.
On February 16, 2007, Plaintiff reported to Dr. Alexander that he experienced
some benefit after the last lumbar injection, but that his symptoms had returned. Tr. at
584.

Dr. Alexander scheduled Plaintiff for repeat bilateral transforaminal epidural

injection at L4. Id.
Plaintiff followed up with Dr. Alexander on March 13, 2007, and reported at least
two weeks of benefit from bilateral transforaminal epidural steroid injection. Tr. at 582.
11

However, Plaintiff indicated that his symptoms were slowly returning. Id. Dr. Alexander
recommended repeat MRI. Id.
MRI on March 23, 2007, indicated prior laminectomy at L4-5 on the right, with
central disc protrusion, deformity of the ventral thecal sac with minimal extension below
the superior endplate of L5 in the midline, and canal narrowing. Tr. at 579–80. The MRI
also indicated mild degeneration at L5-S1 and L3-4, but no disc herniation, canal
stenosis, or significant foraminal compromise. Tr.at 580.
Plaintiff followed up with Dr. Alexander on April 26, 2007, and reported a recent
increase in lower extremity discomfort. Tr. at 578. Dr. Alexander noted tenderness in
Plaintiff’s lumbosacral paraspinal region. Id. Dr. Alexander scheduled Plaintiff for
repeat bilateral transforaminal epidural steroid injection at L4. Id.
On June 1, 2007, Plaintiff followed up with Dr. Alexander after a bilateral
transforaminal epidural steroid injection. Tr. at 576. Plaintiff reported decreased pain
from 8/10 to 4/10 and indicated that he had recently discontinued use of Neurontin and
Feldene.

Id.

Dr. Alexander noted that Plaintiff had decreased tenderness in his

lumbosacral paraspinal region. Id. Dr. Alexander recommended that Plaintiff resume
use of Neurontin and Feldene. Id.
Plaintiff followed presented to neurologist Thomas F. Stout, M.D., on July 11,
2007, and complained of continued low back pain. Tr. at 591–92. Dr. Stout noted low
lumbosacral tenderness to palpation. Tr. at 591. Dr. Stout observed normal motor tone,
motor strength, reflexes, and sensation. Id. Dr. Stout diagnosed chronic pain syndrome,

12

also termed failed spine syndrome. Id. Dr. Stout recommended a medication regimen to
Plaintiff and referred him to Dr. Apple for ongoing medication management. Tr. at 592.
The record contains a July 26, 2007, letter written by Dr. Gudas to Linda C.
Wesman, RN, who was the nurse case manager in Plaintiff’s workers’ compensation
claim. Tr. at 598. Dr. Gudas indicated that Plaintiff had significant gait derangement,
which would preclude him from walking, standing, climbing, or bending. Id. He noted
that Plaintiff had neurologic dysfunction from his failed back surgery combined with a
limb-length discrepancy, which affected bending, squatting, standing, walking, and jobs
requiring weight bearing. Id. Dr. Gudas indicated that Plaintiff would not be able to
climb or make sudden lateral or forward movements. Id. Dr. Gudas wrote that Plaintiff
would likely have to sit for extended periods of time. Id.
Plaintiff followed up with Dr. Apple on July 30, 2007. Tr. at 613. Plaintiff
indicated that Cymbalta was working well for him and that he was socializing. Id.
Plaintiff reported being severely limited from his back. Id.
On September 25, 2007, Dr. Gudas completed an activity restrictions checklist,
indicating that Plaintiff was restricted as follows: occasionally lift and/or carry less than
10 pounds; no frequent lifting/carrying; never bend at the waist; stand and/or walk less
than two hours in an eight-hour workday; use of cane for walking and for
bending/stooping at all times; push and/or pull limited in lower extremities; sitting about
six hours in an eight-hour workday; position changes every hour; frequent and/or
unscheduled breaks every hour; alternate sitting and standing every hour; elevate legs
every hour; occasionally reaching; occasionally using arms independently; occasionally
13

using repetitive hand/finger actions with both hands to manipulate and work with small
objects; occasionally gripping and handling (gross manipulation); no heat or cold; no
humidity or wetness; no vibration; no dust/odors/fumes; and limitation in ability to
concentrate, remain alert, think clearly, or otherwise attend to work tasks to completion
due to pain or other discomfort and fatigue. Tr. at 596–97.
On October 31, 2007, Plaintiff attended an independent occupational evaluation
with Barry Weissglass, M.D., M.P.H. Tr. at 601–09. Plaintiff complained of low back
pain with radiation to the right leg and buttocks; left wrist pain and limited range of
motion with weakness; and mood changes with depression, irritability, social withdrawal,
and anhedonia. Tr. at 605. Dr. Weissglass noted that Plaintiff had no neurological
abnormalities. Tr. at 606. He indicated that Plaintiff had appropriate affect with no
unusual behaviors or disordered thought processes. Id. Dr. Weissglass observed full
range of motion of all of Plaintiff’s extremities except his left wrist, which had markedly
diminished extension and flexion. Id. He also noted that Plaintiff’s grip strength was
significantly impaired. Id. Dr. Weissglass noted that Plaintiff had markedly decreased
range of motion of the back and tenderness to palpation of the low back. Tr. at 607. Dr.
Weissglass noted that Plaintiff had impaired abilities to bend, lift, twist, sit, and drive. Id.
He also indicated that Plaintiff’s ability to use his left hand for repetitive activities was
impaired. Id. He noted that Plaintiff’s mood changes impaired his ability to maintain
appropriate personal and working relationships. Id. Dr. Weissglass noted that Plaintiff
should avoid bending or twisting; should avoid sitting or driving for more than 25 to 30
minutes at a time; would require frequent alternation of positions; should limit lifting to
14

15 to 20 pounds occasionally; should avoid repetitive heavy use of the left hand; and
should avoid activities in which stressful interpersonal relations are predictable. Tr. at
608. Dr. Weissglass also stated “[t]hese injuries in combination have rendered Mr. Mills
permanently and totally disabled to a reasonable degree of medical certainty.” Id.
On November 19, 2007, Plaintiff saw Dr. Apple for routine follow up. Tr. at 611–
12. Plaintiff reported continued back pain and depression. Tr. at 611. Dr. Apple
observed tenderness, decreased range of motion of Plaintiff’s lumbar spine, motor
weakness, and unsteady gait. Tr. at 612. He also noted negative straight leg raise and
intact reflexes. Id. He described Plaintiff’s affect as flat and depressed. Id. Dr. Apple
wrote “[p]atient is clearly in my opinion 100% disabled 2° to his work related injury.
Further, his depression, weight gain, and ED are directly consequential to this injury.
Encouraged to persist at attempts to obtain disability which I wholly believe he
deserves.” Id.
Plaintiff followed up with Dr. Apple on February 19, 2008. Tr. at 610. Dr. Apple
observed Plaintiff to have somewhat limited movement due to his back pain and
tenderness in the lumbar spine. Id. Plaintiff indicated that he was taking Cymbalta and
Neurontin, but that he was not taking his muscle relaxer or anti-inflammatory. Id.
Plaintiff’s attorney referred him for a psychological evaluation, which was
performed by C. Barton Saylor, Ph.D., ABPP, P.A., on January 22, 2009. Tr. at 620. Dr.
Saylor prepared a report dated February 16, 2009. Tr. at 620–24. Dr. Saylor assessed
Plaintiff’s full-scale IQ at 75; his verbal IQ at 76; and his performance IQ at 76. Tr. at
622. Dr. Saylor indicated that Plaintiff’s physical condition caused him to develop
15

depression. Tr. at 624. However, he indicated, “[i]n my opinion, Tommy’s affective
disorder alone would not render him unable to work at least on a part-time basis. Indeed
it appears to me that he would feel less depressed if he could gradually be reintroduced
into some form of productive daily activity, either vocational training, volunteer work, or
actually paid employment.” Id.
On March 10, 2009, Plaintiff was evaluated for a second time by Dr. Weissglass.
Tr. at 625–29. Dr. Weissglass observed that Plaintiff shifted his weight continuously in
his chair. Tr. at 627. He noted that Plaintiff had a mildly antalgic gait. Id. He described
Plaintiff as having a somewhat flat and depressed affect, but indicated that he had no
unusual behaviors or obviously disordered thought processes. Tr. at 628. Dr. Weissglass
indicated that Plaintiff had full range of motion of all extremities except his left wrist,
which had markedly diminished extension and flexion. Id. He described Plaintiff’s grip
strength as “significantly impaired.” Id. Dr. Weissglass observed markedly decreased
range of motion in Plaintiff’s back. Id. He indicated that Plaintiff had low back pain
with radiation to the right leg and buttocks, which “may be slightly worse than when last
seen a year and a half ago.” Id. He indicated that Plaintiff’s left wrist was the same
when he was last examined. Id. He noted that Plaintiff’s mood changed appeared to
have progressed since he was last examined. Id. Dr. Weissglass indicated that Plaintiff
was impaired in his abilities to bend, lift, twist, sit, drive, and use his left hand for
repetitive activities requiring significant prolonged use of force against resistance. Id.
He indicated that Plaintiff’s mood changes impaired his ability to maintain appropriate
and satisfactory relationships with friends, family, and others. Id. Finally, he stated “[t]o
16

a medical certainty, he is unable to perform any significant, gainful employment.” Tr. at
629.
Dr. Weissglass also completed an examining physician’s statement on March 10,
2009. Tr. at 630–36. Dr. Weissglass noted that Plaintiff’s diagnoses included chronic
low back pain secondary to work-related injury with associated radiculopathy to his right
leg; left distal radius fracture with chronic pain, decreased range of motion, and loss of
strength; and psychological impairment (depression and anxiety) associated with chronic
pain. Tr. at 631. He indicated that Plaintiff was restricted as follows: occasionally lift
and/or carry 10 pounds; frequently lift and/or carry less than 10 pounds; occasionally
bend at the waist; stand and/or walk (with normal breaks) less than two hours in an eighthour workday; unable to perform repetitive work with left upper extremity due to fracture
of left distal radius; sit (with normal breaks) for less than two hours in an eight-hour
workday; frequent position changes every 10 minutes; frequent and/or unscheduled
breaks for relief of pain requiring worker to leave workstation every 15 minutes; alternate
sitting and standing every 10 minutes; frequent reaching with the right arm; and
occasional reaching with the left arm. Tr. at 632–34. Dr. Weissglass also noted that
Plaintiff’s ability to concentrate, remain alert, think clearly, or otherwise attend to work
tasks to completion was limited by pain or other discomfort, fatigue, sleepiness,
lightheadedness, mental disorder, and side effect of prescribed medication for 50% or
more of workday or workweek. Tr. at 635. Dr. Weissglass indicated that Plaintiff could
not return to his past relevant work; that he would be absent from work four or more days
per month; that he could sustain no type of work activity at any exertional level due to
17

pain, fatigue, or other subjective symptoms; and that no significant improvement was
expected. Tr. at 636.
Plaintiff obtained treatment for his back pain and non-severe impairments from
Hugh E. Thompson, M.D, after his date last insured. Tr. at 684, 688, 690, 692.
C.

The Administrative Proceedings
1.

The Administrative Hearing
a.

Plaintiff’s Testimony
i.

Hearing on September 12, 2008

At the hearing on September 12, 2008, Plaintiff testified that he was 50 years old.
Tr. at 35. He indicated that he attended school through the ninth grade and that he
received a GED. Tr. at 36.
Plaintiff testified that he managed a skating rink for approximately 17 years. Tr. at
37. Plaintiff indicated that he also worked for a beer distribution company for about ten
years. Tr. at 38.
Plaintiff testified that prior to his back surgery in April 2005, he was experiencing
numbness in his right leg and that the leg was giving way. Tr. at 39. Plaintiff testified
that the surgery did not improve his back pain, but did improve the numbness in his right
leg. Tr. at 40.
Plaintiff testified that since age 50, he always experienced back pain, but some
days were worse than others. Id. He indicated that he took Lortab twice a day on most
days, but that he only took it before bed approximately two to three days per week. Tr. at
41. He testified that he felt a little drowsy after taking Lortab. Id.
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Plaintiff testified that he could sit in a chair for 30 minutes at a time and that he
would sometimes lie down for 15 to 20 minutes a couple times a day. Tr. at 41–42.
Plaintiff testified that he experienced two to three bad days per week in which he
did not leave his house. Tr. at 42.
Plaintiff testified that he sustained a fall in January 2007, in which his right leg
gave out and he broke his left wrist. Id. Plaintiff testified that his leg no longer gave out.
Id. He indicated that he tried not to lift anything over 10 pounds with his left hand and
that he had some weakness in his left hand when lifting. Tr. at 43.
He indicated that his back pain increased if he engaged in prolonged standing and
walking. Id. Plaintiff testified that he could sit for 30 minutes to an hour before needing
to stand. Id.
Plaintiff testified that he did not use a cane. Tr. at 44.
Plaintiff testified that his depression was treated by his primary care physician,
who prescribed Cymbalta. Id. Plaintiff indicated that his depression and sensitivity
would affect his ability to work. Id. He testified that he became frustrated easily, that he
was irritable, and that he was not motivated. Tr. at 44–45.
ii.

Hearing on June 30, 2011

At the hearing on June 30, 2011, Plaintiff testified that his back pain had neither
improved nor worsened. Tr. at 53. Plaintiff testified that the pain was mostly in his
lower back, but occasionally went down his leg and buttocks. Id. Plaintiff testified that
his back pain was aggravated by bending down and lifting, being on his feet, and sitting
in straight chairs. Tr. at 54. Plaintiff testified that he took Lortab and Flexeril for pain
19

and that his medication was prescribed by Dr. Thompson. Id. Plaintiff testified that the
medication made him sleepy. Tr. at 55. Plaintiff indicated that he took the medications
two to three times per day. Id.
Plaintiff testified that his left wrist bothered him from time-to-time and that its
strength was decreased. Tr. at 56.
Plaintiff testified that he spent his days watching television and sitting by the pool
across from his home for about thirty-minutes at a time. Tr. at 57. He testified that his
cousin, who lived with him, performed the housework. Id. Plaintiff testified that he
could not perform a job in which he would be standing for most of a workday. Tr. at 58.
He indicated that he could not sit upright for the majority of a workday. Id. Plaintiff
testified that he tried not to lift anything heavier than a gallon of milk. Tr. at 59.
Plaintiff testified that, in the beer distribution job, he moved beer from pallets to
the coolers inside grocery stores and that he built displays. Tr. at 59–60. Plaintiff
testified that, in the job at the skating rink, he handed out skates, mopped, vacuumed,
swept, and performed other similar duties. Tr. at 60. He testified that he did not hire or
fire employees or complete paperwork. Tr. at 60–61.
b.

Vocational Expert Testimony
i.

Hearing on September 12, 2008

Vocational Expert (“VE”) Arthur Schmitt, Ph.D., reviewed the record and testified
at the hearing. Tr. at 45–48. The VE categorized Plaintiff’s PRW as a skating rink
manager as DOT number 187.167-146. Tr. at 45. The VE testified that the DOT
classifies the position as SVP 6, but that he reclassified the job based on Plaintiff’s
20

testimony as SVP 4 and light. Id. The VE categorized Plaintiff’s other job as a beer
distributing [clerk] as DOT number 222.587-018, which is classified as SVP 2 and light
in the DOT, but which he would rate as SVP 3 and medium. Tr. at 45–46. The ALJ
described a hypothetical individual of Plaintiff’s vocational profile who retained a light
exertional capacity with no climbing or crawling; a sit/stand option at will; a low-stress
setting with no more than occasional decision-making or changes in the setting; and no
constant fingering and handling with the non-dominant hand. Tr. at 46. The VE testified
that the hypothetical individual could perform jobs as a tobacco sampler, DOT number
529.587-022, which was unskilled, SVP 2, and light with 2,684 jobs in the state and
96,600 nationally; a storage facility clerk, DOT number 295.367-026, which was
unskilled, SVP 2, and light with 2,522 jobs in the state and 227,000 nationally; and carton
packer/machine tender, DOT number 920.665-010, which was unskilled, SVP 2, and
light, with 12,040 jobs in the state and 165,490 jobs nationally. Id.
Plaintiff’s attorney asked the VE what break periods were typically allowed in the
jobs identified. Tr. at 47. The VE responded that typical breaks were 15 minutes in the
morning, 15 minutes in the afternoon, and 30 minutes to an hour for lunch.

Id.

Plaintiff’s attorney asked if it would affect his ability to perform those jobs if a worker
had to take breaks more frequently or at different times than the scheduled breaks. Id.
The VE testified that unscheduled and frequent breaks would eliminate those jobs and
any other jobs in the national economy. Id. Plaintiff’s attorney then asked if a worker
was suffering from difficulty concentrating due to pain, side effects of medication, or any
other problem at least on some days out of a week, what percentage of the time would be
21

considered unacceptable on the jobs identified in response to the first hypothetical. Tr. at
47–48. The VE indicated that anything over 20% of a workday would be unacceptable.
Tr. at 48.
ii.

Hearing on June 30, 2011

Dr. Schmitt again reviewed the record and testified at the hearing. Tr. at 62–66.
The VE identified Plaintiff’s PRW as manager, skating rink, DOT number 187.167-146.
Tr. at 62. The VE indicated that the DOT classified the job as SVP 6, skilled, and light,
but that he reclassified it based on Plaintiff’s testimony as SVP 3, semi-skilled, and
medium. Id. The VE identified Plaintiff’s other PRW as spare man beer distributor/
laborer, DOT number 869.664-014, which was SVP 3, semi-skilled, and heavy. Id. The
ALJ asked if there would be any transferable skills from those jobs to other jobs with
SVP of 3. Id. The VE indicated that there would not. Id. The ALJ described a
hypothetical individual of Plaintiff’s vocational profile who retained light exertional
capacity, with no climbing, crawling, or exposure to industrial hazards; a sit-stand option
at will; and a low stress setting with no more than occasional decision making or changes
in the setting. Tr. at 62–63. The ALJ asked the VE to identify unskilled light work that
was consistent with that vocational profile.

Tr. at 63.

The VE identified tobacco

sampler, DOT number 529.587-022, which was unskilled with a SVP of 2 and light, with
8,800 jobs in South Carolina and 430,000 nationally; storage facility clerk, DOT number
295.367-026, which was unskilled with a SVP of 2 and light, with 4,400 jobs in South
Carolina and 416,000 nationally; and ticket taker, DOT number 344.667-010, which was

22

unskilled with a SVP of 2 and light, with 1,260 jobs in South Carolina and 104,000
nationally. Id. The VE testified that his testimony was in accordance with the DOT. Id.
Plaintiff’s attorney asked the VE to add to the hypothetical question the following
restrictions: a need to change positions every 10 minutes; unscheduled breaks requiring
the worker to leave the work station every 15 minutes; and alternation of sitting and
standing every 10 minutes.

Tr. at 64.

Plaintiff’s attorney asked if the additional

restrictions would significantly affect the ability to perform those jobs. Id. The VE
responded that the unscheduled breaks would eliminate those jobs and any other jobs in
the national economy. Id. Plaintiff’s attorney asked if limiting reaching with the left
non-dominant arm to occasional would significant affect the VE’s response to the ALJ’s
hypothetical. Id. The VE testified that it would not. Id. Plaintiff’s attorney asked the
VE what percentage of the workday or work week spent off task would preclude work.
Tr. at 65. The VE responded “20 %.” Plaintiff’s attorney asked the VE how much
absenteeism was generally tolerated on jobs like those cited. Id. The VE testified “no
more than three days per month.” Id.
2.

The ALJ’s Findings

In his decision dated July 13, 2011, the ALJ made the following findings of fact
and conclusions of law:
1.
2.

The claimant last met the insured status requirements of the Social Security
Act on December 31, 2009.
The claimant did not engage in substantial gainful activity during the period
from his amended alleged onset date of December 31, 2007, through his
date last insured of December 31, 2009 (20 C.F.R. § 404.1571 et. seq.).

23

3.

4.

5.

6.
7.

8.
9.

10.

11.

Through the date last insured, the claimant had the following severe
impairments: status post lumbar surgery and depression (20 C.F.R. §
404.1520(c)).
Through the date last insured, the claimant did not have an impairment or
combination of impairments that met or medically equaled one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §
404.1520(d), 404.1525, and 404.1526.
After careful consideration of the entire record, the undersigned finds that,
through the date last insured, the claimant had the residual functional
capacity to perform light work as defined in 20 C.F.R. § 404.1567(b).
Specifically, the claimant could lift and carry up to 20 pounds occasionally
and 10 pounds frequently and stand, walk, and sit for 6 hours each in an 8hour workday. However, the claimant climb, crawl, or be exposed to
industrial hazards. Additionally, the claimant required the option to sit and
stand at will. He could work only in a low-stress environment, defined as
requiring no more than occasional decision-making or changes in the work
setting.
Through the date last insured, the claimant was unable to perform any past
relevant work (20 C.F.R. § 404.1565).
The claimant was born on December 31, 1957 and was 52 years old, which
is defined as an individual closely approaching advanced age, on the date
last insured (20 C.F.R. § 404.1563).
The claimant has a limited education and is able to communicate in English
(20 C.F.R. § 404.1564).
Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled” whether or not the claimant has
transferable job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpt. P.,
Appendix 2).
Through the date last insured, considering the claimant’s age, education,
work experience, and residual functional capacity, there were jobs that
existed in significant numbers in the national economy that the claimant
could have performed (20 C.F.R. § 404.1569 and 404.1569(a)).
The claimant was not under a disability, as defined in the Social Security
Act, at any time from December 31, 2007, the amended alleged onset date,
through December 31, 2009, the date last insured (20 C.F.R. § 404. 1520
(g)).

Tr. at 19–31.

24

D.

Appeals Council Review

Plaintiff filed a request for review of hearing decision/order dated August 11,
2011. Tr. at 10. The Appeals Council denied Plaintiff’s request for review by notice
dated February 8, 2013. Tr. at 1–3.
II.

Discussion
Plaintiff alleges the Commissioner erred for the following reasons:
1)

The ALJ’s evaluation of the medical evidence was reached through

misapplication of the governing legal standards and his RFC findings, which were based
on outdated medical opinions, were not supported by substantial evidence;
2)

The ALJ erred by failing to properly consider all of Plaintiff’s medically

determinable impairments, both individually and in combination, at step two of the
sequential evaluation and in making his RFC findings; and
3)

The ALJ improperly evaluated Plaintiff’s credibility concerning allegations

of back pain.
The Commissioner counters that substantial evidence supports the ALJ’s findings
and that the ALJ committed no legal error in his decision.
A.

Legal Framework
1.

The Commissioner’s Determination-of-Disability Process

The Act provides that disability benefits shall be available to those persons insured
for benefits, who are not of retirement age, who properly apply, and who are under a
“disability.” 42 U.S.C. § 423(a). Section 423(d)(1)(A) 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
25

expected to result in death or which has lasted or can be expected to last for
at least 12 consecutive months.
42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations
promulgated under the Act have reduced the statutory definition of disability to a series
of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983)
(discussing considerations and noting “need for efficiency” in considering disability
claims). An examiner must consider the following: (1) whether the claimant is engaged
in substantial gainful activity; (2) whether he has a severe impairment; (3) whether that
impairment meets or equals an impairment included in the Listings;1 (4) whether such
impairment prevents claimant from performing PRW;2 and (5) whether the impairment
prevents him from doing substantial gainful employment. See 20 C.F.R. § 404.1520.
These considerations are sometimes referred to as the “five steps” of the Commissioner’s
disability analysis. If a decision regarding disability may be made at any step, no further

1

The Commissioner’s regulations include an extensive list of impairments (“the
Listings” or “Listed impairments”) the Agency considers disabling without the need to
assess whether there are any jobs a claimant could do. The Agency considers the Listed
impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to
prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a
claimant meets or equals all criteria of any of the Listed impairments for at least one year,
he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii).
To meet or equal one of these Listings, the claimant must establish that his impairments
match several specific criteria or be “at least equal in severity and duration to [those]
criteria.” 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen
v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his
impairment is disabling at Step 3).
2
In the event the examiner does not find a claimant disabled at the third step and does not
have sufficient information about the claimant’s past relevant work to make a finding at
the fourth step, he may proceed to the fifth step of the sequential evaluation process
pursuant to 20 C.F.R. § 404.1520(h).
26

inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can
find claimant disabled or not disabled at a step, Commissioner makes determination and
does not go on to the next step).
A claimant is not disabled within the meaning of the Act if he can return to PRW
as it is customarily performed in the economy or as the claimant actually performed the
work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling (“SSR”) 8262 (1982). The claimant bears the burden of establishing his inability to work within the
meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing
the inability to return to PRW, the burden shifts to the Commissioner to come forward
with evidence that claimant can perform alternative work and that such work exists in the
regional economy. To satisfy that burden, the Commissioner may obtain testimony from
a VE demonstrating the existence of jobs available in the national economy that claimant
can perform despite the existence of impairments that prevent the return to PRW. Walls
v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that
burden, the claimant must then establish that he is unable to perform other work. Hall v.
Harris, 658 F.2d 260, 264–65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S.
137, 146. n.5 (1987) (regarding burdens of proof).
2.

The Court’s Standard of Review

The Act permits a claimant to obtain judicial review of “any final decision of the
Commissioner [] made after a hearing to which he was a party.” 42 U.S.C. § 405(g).
The scope of that federal court review is narrowly-tailored to determine whether the
27

findings of the Commissioner are supported by substantial evidence and whether the
Commissioner applied the proper legal standard in evaluating the claimant’s case. See
id., Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls v. Barnhart, 296 F.3d 287,
290 (4th Cir. 2002) (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court’s function is not to “try these cases de novo or resolve mere conflicts in
the evidence.” Vitek v. Finch, 438 F.2d 1157, 1157–58 (4th Cir. 1971); see Pyles v.
Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345
(4th Cir. 1986)). Rather, the court must uphold the Commissioner’s decision if it is
supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson, 402
U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the
court must carefully scrutinize the entire record to assure there is a sound foundation for
the Commissioner’s findings and that her conclusion is rational. See Vitek, 438 F.2d at
1157–58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is
substantial evidence to support the decision of the Commissioner, that decision must be
affirmed “even should the court disagree with such decision.” Blalock v. Richardson,
483 F.2d 773, 775 (4th Cir. 1972).
B.

Analysis
1.

Medical Opinions and Findings of Drs. Gudas, Weissglass, and

Apple
“Courts evaluate and weigh medical opinions pursuant to the following nonexclusive list: (1) whether the physician has examined the applicant, (2) the treatment
28

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, 434 F.3d at 654. In undertaking review of the
ALJ’s treatment of a claimant’s treating sources, the court focuses its review on whether
the ALJ’s opinion is supported by substantial evidence, because its role is not to
“undertake to re-weigh conflicting evidence, make credibility determinations, or
substitute [its] judgment for that of the [Commissioner].” Craig v. Chater, 76 F.3d, 585,
589 (4th Cir. 1996).
a.

Drs. Gudas’s and Weissglass’s Findings and Opinions

Plaintiff argues that the ALJ erred in rejecting the opinions of Drs. Gudas and
Weissglass that Plaintiff’s impairments worsened over time and limited him to work at or
below the sedentary exertional level. [Entry #13 at 20]. Plaintiff argues that the ALJ
failed to cite current medical evidence to support his conclusions, instead relying on
outdated evidence. Entry #13 at 20–21]. Plaintiff contends that the ALJ should have
accepted the findings and opinions of Drs. Gudas and Weissglass because he did not call
a medical expert or obtain additional evidence to more fully develop the record. [Entry
#13 at 27–28].
The Commissioner argues that the ALJ provided adequate reasons for rejecting the
opinions of Drs. Gudas and Weissglass. [Entry #16 at 27–28]. The Commissioner
argues that Plaintiff sought only minimal treatment for his “allegedly disabling
impairments” during the relevant period. [Entry #16 at 22]. The Commissioner contends

29

that, because the evidence was sufficient for the ALJ to make a decision, the ALJ was not
required to order a consultative examination. [Entry #16 at 15].
If a treating source’s medical opinion is “well-supported and not inconsistent with
the other substantial evidence in the case record, it must be given controlling weight[.]”
SSR 96-2p. However, “[a] non-treating source is ‘a physician, psychologist, or other
acceptable medical source who has examined you but does not have, or did not have, an
ongoing treatment relationship with you.’” Simila v. Astrue, 573 F.3d 503, 514 (7th Cir.
2009) citing 20 C.F.R. § 404.1502 (finding that the ALJ properly determined that a
physician who examined claimant once at the behest of claimant’s attorney was a nontreating source). Non-treating source opinions are not entitled to controlling weight, but
“the ALJ must follow SSA rules requiring consideration of the background and expertise
of the experts, the supporting evidence in the record for the opinions and consistency of
the opinions.” Bryant ex rel. Bryant v. Barnhart, 63 Fed. Appx. 90, 95 (4th Cir. 2003)
citing SSR 96-6p.
Other Circuits have held that “where there is no competing evidence, the ALJ is
not permitted to substitute his opinions for those of the examining doctors.” Grecol v.
Halter, 46 Fed. Appx. 773 (6th Cir. 2002) (remanding the case for consideration of
Plaintiff’s psychological condition where there was no evidence that Plaintiff’s
examining doctor’s opinion was incorrect); see also Ness v. Sullivan, 904 F.2d 432 (8th
Cir. 1990) (finding that the ALJ erred by substituting his observation that Plaintiff did not
appear to be depressed or unhealthy during the hearing for the opinion of Plaintiff’s
doctor that Plaintiff was suffering from depression); Ramos v. Barnhart, 60 Fed. Appx.
30

334, 336 (1st Cir. 2003) (concluding that the ALJ substituted his own lay opinion for the
uncontroverted medical evidence where the ALJ concluded that Plaintiff did not have an
impairment that was diagnosed by two examining physicians and not rejected by any
examining physician). While the Fourth Circuit has not directly stated this proposition,
the court has reversed and remanded the case where the ALJ substituted his opinion for
the uncontradicted opinion of an examining physician. See Wilson v. Heckler, 743 F.2d
218, 221 (4th Cir. 1984) (finding that the ALJ substituted expertise he did not possess in
the field of orthopedic medicine for the opinion of an examining physician that was
supported by the findings of a treating physician).
The Fourth Circuit has held that “the ALJ has a duty to explore all relevant facts
and inquire into the issues necessary for adequate development of the record . . . .” Cook
v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). “Where the ALJ fails in his duty to
fully inquire into the issues necessary for adequate development of the record, and such
failure is prejudicial to the claimant, the case should be remanded.” Marsh v. Harris, 632
F.2d 296, 300 (4th Cir. 1980) (finding that the ALJ failed to properly develop the record
where claimant was unrepresented and ALJ failed to obtain records from claimant’s
treating physician after promising claimant that he would).
The ALJ indicated that he gave little weight to the opinions of Dr. Gudas “because
they were rendered several months prior to the claimant’s amended alleged onset date
and because there is no objective evidence from the relevant time period to support
them.” Tr. at 27. The ALJ notes that Dr. Gudas examined Plaintiff in June 2006 and set

31

forth the limitations over a year later without indicating that he examined Plaintiff in the
interim. Id.
The ALJ indicated that he gave some weight to Dr. Weissglass’s October 2007
opinion, but that “claimant’s failure to seek medical attention for his left hand pain during
the period in question renders Dr. Weissglass’s restriction on the left hand use less
persuasive.” Id. The ALJ noted that, with the exception of Dr. Weissglass’s restrictions
on bending and twisting, Dr. Weissglass’s remaining opinions are generally consistent
with the objective evidence from the relevant period and have been given some weight in
limiting the claimant to a reduced range of light work in a low-stress setting.” Tr. at 28.
On the other hand, the ALJ noted that he accorded “little weight” to Dr. Weissglass’s
March 2009 opinions because he was a non-treating physician who had limited contact
with Plaintiff; because he cited no new clinical abnormalities to support his conclusion
that Plaintiff’s symptoms had progressively worsened; because Plaintiff failed to seek
more than occasional treatment for his back pain from the alleged onset date through the
date last insured; and because his opinion was inconsistent with other evidence from the
period at issue. Id.
Both Drs. Gudas and Weissglass examined Plaintiff. They were not treating
physicians, so their opinions were not entitled to controlling weight. However, they both
conducted thorough examinations of Plaintiff that yielded significant objective findings.
During the June 10, 2006, examination, Dr. Gudas set forth numerous objective findings
including antalgic gait, decreased sensation in the lateral aspect of Plaintiff’s right leg,
4/5 muscle strength in Plaintiff’s right lower extremity, a 1.5 centimeter difference in calf
32

girth between left and right, and a 2.4 centimeter leg-length discrepancy. Tr. at 599–600.
During the October 31, 2007 examination, Dr. Weissglass observed that Plaintiff had
markedly decreased flexion and extension of the left wrist, decreased grip strength,
markedly decreased range of motion of the low back, and tenderness to palpation of the
low back. Tr. at 606. During the March 10, 2009, examination, Dr. Weissglass made the
following observations with respect to Plaintiff’s impairments: mildly antalgic gait;
markedly decreased flexion and extension of the left wrist; significantly impaired grip
strength; and markedly decreased range of motion in the back. Tr. at 627–28.
Drs. Gudas’s and Weissglass’s observations and parts of their opinions were also
supported by other evidence in the record. On November 16, 2005, physical therapist
Jesse McGrady conducted a functional capacity evaluation and concluded that Plaintiff
would not be able to “return to job types which require lifting and prolonged standing and
walking.” Tr. at 558. Dr. Buckaloo noted decreased range of motion of Plaintiff’s left
wrist when he released Plaintiff from his care on September 11, 2006. Tr. at 522.
Approximately one month before he was examined by Dr. Gudas, Plaintiff complained to
Dr. Dennis that his right leg was weak and giving way. Tr. at 430. A little over a month
after being examined by Dr. Gudas, Plaintiff complained to Dr. Apple that his right leg
was going out. Tr. at 491. Plaintiff was again complaining of extremity weakness when
he presented to Dr. Alexander on February 8, 2007. Tr. at 585. Plaintiff reported a
recent increase in lower extremity discomfort to Dr. Alexander on April 26, 2007. Tr. at
578.

Less than a month after Plaintiff’s first examination by Dr. Weissglass, he

complained to Dr. Apple of back pain. Tr. at 611. Dr. Apple observed tenderness,
33

decreased range of motion of Plaintiff’s lumbar spine, motor weakness, and unsteady
gait. Tr. at 612. In February 2008, Dr. Apple observed tenderness in Plaintiff’s lumbar
spine and somewhat limited movement. Tr. at 610. Plaintiff also complained of back
pain after his date last insured. Tr. at 684, 688, 690, 692.
The ALJ indicated that Drs. Gudas’s and Weissglass’s opinions were not
consistent with other opinions. While it is correct that Drs. Gudas and Weissglass
indicated greater physical restrictions than other physicians who treated Plaintiff earlier,
the record suggests that Plaintiff’s back pain and lower extremity symptoms worsened
after those opinions were rendered. Plaintiff’s condition was expected to worsen over
time, as evidenced by the fact that before his surgery in 2005, Dr. Dennis warned Plaintiff
that he would likely require lumbar fusion surgery in the future. Tr. at 392. Drs. Warren
and Zgleszewski imposed limitations before Plaintiff’s surgery and more than three years
before his alleged onset date. Dr. Dennis’s opinion was rendered more than two years
before the alleged onset date and before Plaintiff pursued pain management treatment
with Dr. Alexander. Drs. Gudas and Weissglass also indicated greater restrictions than
the state agency consultants, but the state agency consultants did not examine Plaintiff
and rendered their opinions more than a year before Dr. Weissglass examined Plaintiff
for the first time.
Drs. Gudas and Weissglass were also specialists in their fields. Dr. Gudas was a
podiatrist and reconstructive foot surgeon who served as a clinical professor of medicine.
Tr. at 598. Dr. Weissglass was board certified in occupational medicine. Tr. at 629.

34

The undersigned finds that the ALJ should have accorded greater weight to the
opinions of Drs. Gudas and Weissglass based on the criteria set forth for evaluating
opinion evidence. The undersigned is not suggesting that Drs. Gudas’s and Weissglass’s
opinions are entitled to controlling weight, but is instead indicating that the ALJ should
have considered the uncontroverted elements of their opinions apart from the features that
conflicted with other evidence in the record. The ALJ should have also considered their
uncontroverted objective findings apart from their opinions.
The undersigned also finds that the ALJ erroneously substituted his opinion for
those of the examining doctors. Where, as here, the ALJ disagrees with the findings of
an examining physician, he must develop the record to support his conclusion. The
reports from Dr. Gudas’s examination and Dr. Weissglass’s first examination were in the
record prior to the September 12, 2008, hearing. The ALJ could have easily referred
Plaintiff for a consultative examination before or after that hearing in order to obtain
objective evidence to either support or refute the findings of Drs. Gudas and Weissglass.
Because the ALJ failed to avail himself of the opportunity to further develop the record,
Drs. Gudas’s and Weissglass’s objective findings must be treated as uncontroverted
evidence.
b.

Dr. Apple’s Opinion

Plaintiff argues that the ALJ failed to address the opinion of Plaintiff’s treating
physician, Dr. Apple. [Entry #13 at 29]. The Commissioner counters that Dr. Apple’s
statement was not a medical opinion, but an administrative finding reserved to the
Commissioner, and because the ALJ cited to that reason for rejecting part of Dr.
35

Weissglass’s opinion, his failure to address Dr. Apple’s statement was harmless. [Entry
#16 at 29].
On November 19, 2007, Dr. Apple wrote “[p]atient is clearly in my opinion 100%
disabled 2° to his work related injury. Further, his depression, weight gain, and ED are
directly consequential to this injury. Encouraged to persist at attempts to obtain disability
which I wholly believe he deserves.” Id.
The ALJ did not address Dr. Apple’s opinion in his decision.
“Opinions on some issues . . . are not medical opinions . . . but are, instead,
opinions on issues reserved to the Commissioner because they are administrative findings
that are dispositive of a case; i.e., that would direct the determination or decision of
disability.” 20 C.F.R. § 404.1527(d). “Opinions that you are disabled” are among those
reserved to the Commissioner. 20 C.F.R. § 404.1527(d)(1). The law does not give “any
special significance to the source of an opinion on issues reserved to the Commissioner.”
20 C.F.R. § 404.1527(d)(3).

However, “[t]he adjudicator is required to evaluate all

evidence in the case record that may have a bearing on the determination of disability,
including opinions from medical sources about issues reserved to the Commissioner.”
SSR 96-5p. “If the case record contains an opinion from a medical source on an issue
reserved to the Commissioner, the adjudicator must evaluate all the evidence in the case
record to determine the extent to which the opinion is supported by the record. Id.
20 C.F.R. § 404.1527 requires that the adjudicator address opinions of treating
sources as follows:
[T]he notice of the determination or decision must contain specific reasons
for the weight given to the treating source’s medical opinion, supported by
36

the evidence in the case record, and must be sufficiently specific to make
clear to any subsequent reviewers the weight the adjudicator gave to the
treating source’s medical opinion and the reason for that weight.
SSR 96-2p.
The undersigned finds that Dr. Apple’s statement was an opinion on an issue
reserved to the Commissioner, but that the ALJ erred in failing to address the opinion in
accordance with 20 C.F.R § 404.1527 and SSRs 96-2p and 96-5p. Dr. Apple was
Plaintiff’s treating physician. Therefore, his opinion was required to be considered in a
very specific manner. SSR 96-2p requires that the notice of decision specifically address
the opinion of a treating physician and clearly state the weight given the opinion and the
reasons for that weight. By neglecting to address Dr. Apple’s opinion, the ALJ ignored
the express requirements of SSR 96-2p.
The undersigned rejects the Commissioner’s argument that the ALJ did not have
to address Dr. Apple’s opinion because he addressed a similar statement made by Dr.
Weissglass. Dr. Weissglass’s opinion is distinguishable from Dr. Apple’s opinion in that
Dr. Weissglass was not a treating physician. The requirements of SSR 96-2p did not
have to be followed with respect to Dr. Weissglass’s opinion, but they did have to be
followed with respect to Dr. Apple’s opinion.
2.

Consideration of Combination of Impairments

Plaintiff argues that the ALJ erred in failing to determine that Plaintiff’s leg-length
discrepancy and left wrist impairment were severe impairments. [Entry #13 at 30].
Plaintiff further argues that the ALJ failed to consider the combined effects of all of
Plaintiff’s impairments and symptoms. [Entry #13 at 31].
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The Commissioner argues that the Plaintiff’s leg length and muscle strength
discrepancies were not severe. [Entry #16 at 14]. The Commissioner also argues that the
Plaintiff’s wrist injury was not a severe impairment and that the ALJ did not err in failing
to determine it to be a severe impairment in his second decision, even though he found it
to be severe in his first decision. [Entry #16 at 15–16]. The Commissioner contends that
the ALJ considered all of Plaintiff’s impairments in determining the RFC. [Entry #16 at
16].
A severe impairment is one that “significantly limits [a claimant’s] physical or
mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). A non-severe
impairment is defined as one that “does not significantly limit [a claimant’s] physical or
mental ability to do basic work activities.”

20 C.F.R. § 404.1521(a).

A severe

impairment “must result from anatomical, physiological, or psychological abnormalities
which can be shown by medically acceptable clinical and laboratory diagnostic
techniques. A physical or mental impairment must be established by medical evidence
consisting of signs, symptoms, and laboratory findings, not only by your statement of
symptoms[.]” 20 C.F.R. § 404.1508. Determination of severity of claimant’s impairment
is “[a] de minimis hurdle in [the] disability determination process,” meant to expedite just
settlement of claims by “screening out totally groundless claims.” Anthony v. Astrue, 266
Fed.Appx. 451, 457 (6th Cir. 2008).
When a claimant has more than one impairment, the statutory and regulatory
scheme for making disability determinations, as interpreted by the Fourth Circuit,
requires that the ALJ consider the combined effect of these impairments in determining
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the claimant’s disability status. See Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989);
see also Saxon v. Astrue, 662 F. Supp. 2d 471, 479 (D.S.C. 2009) (collecting cases in
which courts in this District have reiterated importance of the ALJ’s explaining how he
evaluated the combined effects of a claimant’s impairments). The Commissioner is
required to “consider the combined effect of all of the individual’s impairments without
regard to whether any such impairment, if considered separately, would be of such
severity.” 42 U.S.C. § 423(d)(2)(B) (2004). The ALJ must “consider the combined
effect of a claimant’s impairments and not fragmentize them.” Walker, 889 F.2d at 50.
“As a corollary, the ALJ must adequately explain his or her evaluation of the combined
effects of the impairments.” Id.
The ALJ concluded that “there is no evidence that the claimant’s status post left
wrist fracture and surgery more than minimally affected his ability to perform workrelated activity from his amended alleged onset date through his date last insured. Tr. at
20. With respect to claimant’s leg-length discrepancy, the ALJ indicated “[a]lthough the
claimant’s leg length discrepancy was noted in July 2007, other examining physicians
have failed to note this condition on a regular basis, suggesting that it does not impose
more than minimal functional limitations.” Tr. at 21.
The ALJ mischaracterized Plaintiff’s testimony and the medical evidence to
support his conclusion that the left wrist impairment and leg-length discrepancy were
non-severe impairments. First, the ALJ indicated that Dr. Buckaloo “noted the claimant
demonstrated excellent digit mobility with good flexion, extension, pronation, and
supination of the left wrist/hand.” Tr. at 20. In fact, Dr. Buckaloo concluded that
39

Plaintiff’s digit mobility was full and unrestricted, but his wrist range of motion was
restricted to 30 degrees of flexion, 45 degrees of extension, 15 degrees of radial
deviation, and 25 degrees of ulnar deviation. Tr. at 522. As Plaintiff’s attorney points
out, these are reduced ranges of motion according to the American Medical Association’s
Guides to the Evaluation of Permanent Impairment, which cites normal wrist flexion and
extension to be 60 degrees, normal radial deviation to be 20 degrees, and normal ulnar
deviation to be 30 degrees.

[Entry #13 at 36] citing Guides to the Evaluation of

Permanent Impairment, 67–68 (5th Ed. 2004).

Second, the ALJ indicated that an

examining physician documented no abnormalities of Plaintiff’s wrist in February 2008.
The undersigned has reviewed Dr. Apple’s February 19, 2008, visit note. Tr. at 610.
While the ALJ is technically correct that Dr. Apple documented no abnormality of
Plaintiff’s wrist, there is also no indication that Dr. Apple checked the range of motion or
function of Plaintiff’s wrist during that or any other visit. Third, the ALJ indicated that
Plaintiff indicated at the hearing that he rarely experienced left wrist pain. Tr. at 20. In
fact, during the September 12, 2008 hearing, Plaintiff testified that he tried not to lift
anything over 10 pounds with his left hand and that he had some weakness in his left
hand when lifting. Tr. at 43. At the June 30, 2011 hearing, Plaintiff testified that his left
wrist bothered him from time-to-time and that its strength was decreased. Tr. at 56.
Fourth, the ALJ indicated that other physicians failed to note Plaintiff’s leg-length
discrepancy. Tr. at 21. While this is technically correct, the record does not indicate that
any other physician measured Plaintiff’s leg length.

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Furthermore, Dr. Apple noted

unsteady gait on November 19, 2007, which is a symptom consistent with a leg-length
discrepancy. Tr. at 612.
The undersigned finds that the ALJ did not consider the combined effects of all of
Plaintiff’s impairments in determining Plaintiff’s RFC. The ALJ made no mention of
Plaintiff’s leg-length discrepancy or any limitations imposed by it after finding it to be a
non-severe impairment at step two. The ALJ did mention Dr. Weissglass’s assessment of
Plaintiff’s left wrist limitations, but concluded that “the limitation on repetitive, ‘heavy’
use of the left hand is not inconsistent with the above residual functional capacity.” Tr. at
28. However, the undersigned notes that the RFC outlined by the ALJ contains no
restrictions regarding use of Plaintiff’s left upper extremity other than the restrictions set
forth with regard to lifting and carrying.
The undersigned finds that substantial evidence supported a finding that Plaintiff’s
wrist impairment and leg-length discrepancy were severe impairments that imposed more
than minimal restrictions on Plaintiff’s ability to work. The undersigned further finds
that the ALJ failed to consider the combined effects of all of the Plaintiff’s impairments
in determining Plaintiff’s disability status.
3.

Plaintiff’s Credibility

Plaintiff argues that the ALJ erroneously evaluated Plaintiff’s credibility because
he relied on the fact that Plaintiff had received infrequent and sporadic medical treatment,
but failed to give Plaintiff an opportunity to explain the reasons for his infrequent
treatment. [Entry #13 at 38–39]. Plaintiff further argues that Plaintiff’s explanation for
his failure to receive regular treatment was new and material evidence that should have
41

been considered in determining whether the ALJ’s decision was supported by substantial
evidence. [Entry #13 at 39].
The Commissioner argues that the objective medical evidence was inconsistent
with the degree of symptomatology Plaintiff alleged.

[Entry #16 at 30].

The

Commissioner also argues that Plaintiff’s non-compliance with treatment undermined his
credibility. Id. Finally, the Commissioner contends that the ALJ permissibly relied on
the inconsistency between claimant’s level of treatment and his claims of disabling pain.
[Entry #16 at 31].
Frequency and consistency of treatment should be considered by the ALJ when
making a credibility determination.
[T]he individual’s statements may be less credible if the level or frequency
of treatment is inconsistent with the level of complaints, or if the medical
reports or records show that the individual is not following the treatment as
prescribed and there are no good reasons for this failure. However, the
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, or other information in the case record, that may explain infrequent
or irregular medical visits or failure to seek medical treatment. The
adjudicator may need to recontact the individual or question the individual
at the administrative proceeding in order to determine whether there are
good reasons the individual does not seek medical treatment or does not
pursue treatment in a consistent manner. The explanations provided by the
individual may provide insight into the individual’s credibility.
SSR 96-7p.
The undersigned finds that the ALJ’s determination regarding Plaintiff’s
credibility was flawed. The ALJ explicitly considered the infrequency of Plaintiff’s
medical treatment in assessing the limiting effects of his symptoms. Tr. at 23. SSR 967p makes it clear that the ALJ should not draw conclusion about a claimant’s symptoms
42

and their functional effects from a failure to seek or pursue medical treatment without
seeking explanation from the claimant. The ALJ twice had the opportunity to question
Plaintiff about his lack of treatment, but he failed to do so. Upon remand, the ALJ should
question Plaintiff and obtain additional evidence, if necessary, in order to determine
Plaintiff’s reasons for failing to seek or pursue regular medical treatment and should
make a new credibility determination.
III.

Conclusion
The court’s function is not to substitute its own judgment for that of the ALJ, but

to determine whether the ALJ’s decision is supported as a matter of fact and law. Based
on the foregoing, the court cannot determine that the Commissioner’s decision is
supported by substantial evidence. Therefore, the undersigned reverses and remands this
matter for further administrative proceedings pursuant to sentence four of 42 U.S.C. §
405(g).
IT IS SO ORDERED.

August 12, 2014
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

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