Barrett v. Commissioner of Social Security Administration
ORDER finding as moot 10 MOTION to Admit New Evidence; reversing the decision of the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) and remanding the matter for further administrative proceedings. Signed by Magistrate Judge Shiva V. Hodges on 02/13/2015. (bshr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
John D. Barrett, Sr.,
Commissioner of Social Security
C/A No.: 1:14-2398-SVH
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 Civ. Rule 73.01(B) (D.S.C.), and the order of
the Honorable Timothy M. Cain dated July 3, 2014, referring this matter for disposition.
[ECF No. 13]. The parties consented to the undersigned United States Magistrate Judge’s
disposition of this case, with any appeal directly to the Fourth Circuit Court of Appeals.
[ECF No. 9].
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 claims for disability insurance benefits (“DIB”)
and Supplemental Security Income (“SSI”). 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.1 For the reasons that follow, the court reverses and
remands the Commissioner’s decision for further proceedings as set forth herein.
On July 26, 2010, Plaintiff filed applications for DIB and SSI in which he alleged
his disability began on February 1, 2010. Tr. at 167–71, 173–93. His applications were
denied initially and upon reconsideration. Tr. at 79–83, 86–88, 89–91. On November 8,
2012, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Peggy
McFadden-Elmore. Tr. at 41–70 (Hr’g Tr.). The ALJ issued an unfavorable decision on
December 7, 2012, finding that Plaintiff was not disabled within the meaning of the Act.
Tr. at 19–40. 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 5–9. Thereafter, Plaintiff brought this action seeking judicial
review of the Commissioner’s decision in a complaint filed on June 16, 2014. [ECF No.
Plaintiff’s Background and Medical History
Plaintiff was 48 years old at the time of the hearing. Tr. at 45. He completed two
years of college. Tr. at 47. His past relevant work (“PRW”) was as an agricultural
commodities inspector. Tr. at 64. He alleges he has been unable to work since February
1, 2010. Tr. at 45.
Plaintiff also filed a motion to admit new evidence, which the undersigned addresses as
part of this order. See ECF No. 10.
Plaintiff was hospitalized at Palmetto Health Baptist from December 22, 1999, to
January 3, 2000, with depression and extreme anxiety. Tr. at 430. He was involuntarily
committed after assaulting his wife. Id. Psychological testing demonstrated adjustment
disorder with mixed emotional features and potential for brief psychotic reactions, as well
as alcohol abuse. Tr. at 431. He demonstrated some dependent and avoidant personality
traits. Id. Plaintiff’s discharge diagnoses included alcohol abuse, brief reactive psychosis,
and adjustment disorder with disturbance of mood and conduct. Id.
Plaintiff received intermittent psychiatric treatment with Timothy Malone, M.D.,
from March 15, 2000, through February 11, 2004. Tr. at 440–49. Notes from these visits
are generally illegible.
Plaintiff was hospitalized on the adult psychiatric ward at Palmetto Health Baptist
from January 2, 2006, to January 10, 2006, secondary to severe depression with suicidal
ideation. Tr. at 434. Plaintiff indicated he was going through a divorce and was unable to
see his children. Id. He reported poor sleep, crying spells, helplessness, hopelessness,
worthlessness, anhedonia, increased anxiety, and poor appetite. Id. Plaintiff’s final
diagnoses included major depressive disorder and mixed personality trait. Tr. at 435.
Plaintiff followed up with Dr. Malone on February 6, 2006. Tr. at 439. He
reported doing well and did not follow up thereafter. Id.
On January 30, 2010, Plaintiff presented to Kershaw Health Medical Center
(“Kershaw Health”) with vague complaints of things bothering him. Tr. at 285. He was
described as uncooperative, vague, and evasive. Tr. at 286. Plaintiff attempted to leave
the emergency department, but he was stopped by a nurse and the police were called. Tr.
at 287. Plaintiff was transferred to Palmetto Baptist for inpatient treatment, where he
remained until March 2, 2010. Tr. at 288, 289. Plaintiff endorsed paranoid thoughts, was
irritable, was guarded in his interaction with staff, and refused to comply with medication
orders until he was court-ordered to comply with treatment. Tr. at 292–93. After he
became compliant with treatment, he complained that Seroquel made him feel sedated
and lightheaded. Tr. at 293. Seroquel was discontinued, but later prescribed again after
other medications produced more significant side effects. Id. After resuming use of
Seroquel, Plaintiff became more compliant and his mood and affect improved. Id.
Jennifer E. Heath, M.D. (“Dr. Heath”), indicated final diagnoses including major
depressive disorder with psychotic features, possible paranoid personality disorder traits,
pernicious anemia, and hypertension. Tr. at 291. Dr. Heath indicated a global assessment
of functioning (“GAF”)2 score of 55 at the time of discharge. Id.
Plaintiff presented to Robert K. Hotchkiss, M.D. (“Dr. Hotchkiss”), at Kershaw
County Mental Health Center (“Kershaw Mental Health”) for an initial physician’s
assessment on March 29, 2010. Tr. at 335–37. Dr. Hotchkiss described Plaintiff’s insight
as poor, but indicated no other abnormalities on the mental status examination. Tr. at 336.
He assessed a GAF score of 50. Id.
The GAF scale is a means of tracking clinical progress of individuals with respect to
psychological, social, and occupational functioning. Diagnostic & Statistical Manual of
Mental Disorders, Fourth Edition, Text Revision (“DSM-IV-TR”) at 32. The GAF scale
provides 10-point ranges of assessment based on symptom severity and level of
functioning. Id. If an individual’s symptom severity and level of functioning are
discordant, the GAF score reflects the worse of the two. Id. at 33.
Plaintiff presented to Kershaw Health on May 18, 2010, for a psychiatric
evaluation after becoming aggressive with his mother. Tr. at 301. Plaintiff reported that
his mother “came to his door banging on the door” and told him that he had an
appointment. Tr. at 301. Plaintiff reported that he had rescheduled the appointment earlier
in the week and was frustrated. Tr. at 301, 304. He was not exhibiting symptoms of
psychosis and denied suicidal or homicidal ideations. Tr. at 304. He was discharged and
instructed to follow up with mental health. Tr. at 303.
Plaintiff was involuntarily committed to Palmetto Health Baptist from June 29,
2010, to August 27, 2010, for psychosis. Tr. at 313. Upon admission, he was slightly
agitated and his affect was irritable and constricted. Tr. at 313. He had some difficulty
with attention and concentration and his thoughts were disorganized. Id. He had “very
significant paranoid delusions.” Id. His insight and judgment were poor. Tr. at 313–14.
Plaintiff’s medications were adjusted several times during his hospitalization. Tr. at 314.
His thoughts and mood improved by the end of July, but his symptoms were exacerbated
when he had contact with his family. Tr. at 315. Finally, after a family meeting on August
19, plans were made for Plaintiff’s discharge. Tr. at 316. Dr. Heath indicated a final
diagnosis of schizophrenia, paranoid type. Tr. at 313. Plaintiff was also diagnosed with
chronic obstructive pulmonary disease (“COPD”) and was prescribed bronchodilators.
Tr. at 311.
On September 9, 2010, Plaintiff presented to Michael Kulungowski, M.D. (“Dr.
Kulungowski”), at Kershaw Mental Health. Tr. at 332–34. His target symptoms for
treatment included anxiety, delusions/paranoia, and legal problems. Tr. at 333. He
indicated that his mother was “the problem.” Id. Although Plaintiff’s mental status
examination was normal, Dr. Kulungowski assessed a GAF score of 40. Tr. at 334.
Plaintiff was instructed to “[g]et on meds.” Id.
Plaintiff presented to Leon Hunt, M.D. (“Dr. Hunt”), at Caresouth Carolina on
September 30, 2010, for a refill of his blood pressure medication. Tr. at 398. His oxygen
saturation was 98 percent. Id. He complained of no pain and indicated he exercised three
times per week. Id. Dr. Hunt refilled Plaintiff’s prescription for Lotensin. Id.
On October 4, 2010, Kevin King, Ph. D. (“Dr. King”), completed a psychiatric
review technique in which he indicated Plaintiff’s impairment was severe, but not
expected to last 12 months. Tr. at 338. He considered Listings 12.04 and 12.08. Id. He
indicated Plaintiff had major depressive disorder with psychotic features and paranoid
personality traits. Tr. at 341, 345. Dr. King assessed moderate restriction of activities of
daily living, moderate difficulties in maintaining social functioning, marked difficulties in
maintaining concentration, persistence, or pace, and one or two episodes of
decompensation, each of extended duration. Tr. at 348. Dr. King also completed a mental
residual functional capacity assessment in which he indicated Plaintiff was moderately
limited with respect to the following abilities: to carry out detailed instructions; to
maintain attention and concentration for extended periods; to perform activities within a
schedule, maintain regular attendance, and be punctual within customary tolerances; to
sustain an ordinary routine without special supervision; to work in coordination with or
proximity to others without being distracted by them; to make simple work-related
decisions; to complete a normal workday and workweek without interruptions from
psychologically-based symptoms; to perform at a consistent pace without an
unreasonable number and length of rest periods; to interact appropriately with the general
public; to ask simple questions or request assistance; to accept instructions and respond
appropriately to criticism from supervisors; to get along with coworkers or peers without
distracting them or exhibiting behavioral extremes; to maintain socially-appropriate
behavior; to adhere to basic standards of neatness and cleanliness; to respond
appropriately to changes in the work setting; to be aware of normal hazards and take
appropriate precautions; to travel in unfamiliar places or use public transportation; and to
set realistic goals or make plans independently of others. Tr. at 352–53. He further
indicated the following:
[T]he cl demonstrates good tx response, and although he is currently tx for
MDD with psych fx and paranoid personality traits, it is expected that
within 12 months of onset he will be able to have the capacity to
understand, remember, and carry out simple instructions. The cl will be
able to attend to a simple task without special supervision. The cl will be
able to maintain personal hygiene, and make simple work-related decisions.
The cl will be able to work best with limited contact with the general
public. The cl will be able to respond best to supportive supervision. The cl
will be able to recognize and avoid normal workplace hazards, and use
Tr. at 354.
On October 13, 2010, state agency medical consultant G. Hampton Smith, M.D.,
reviewed Plaintiff’s medical records and determined he had no severe physical
impairments. Tr. at 356.
Plaintiff followed up with Dr. Kulungowski on November 1, 2010. Tr. at 361–62.
Dr. Kulungowski noted no abnormalities on Plaintiff’s mental status examination. Tr. at
361. Plaintiff’s diagnoses included psychotic disorder, NOS, and depressive disorder,
NOS. Tr. at 362. Dr. Kulungowski assessed a GAF score of 60 and noted Plaintiff had
“no symptoms.” Id. He recommended Plaintiff participate in outside activities, exercise,
and stay in counseling. Id.
Plaintiff presented to Dr. Kulungowski for follow up on December 30, 2010. Tr. at
427–28. Plaintiff reported symptoms of depression and complained that Zoloft was too
strong. Tr. at 428. Dr. Kulungowski indicated Plaintiff had not filled his prescription for
Celexa. Id. Dr. Kulungowski instructed Plaintiff to remain on his medications and to
continue with counseling. Id.
On January 6, 2011, Dr. Kulungowski indicated Plaintiff’s prescription for Celexa
was “problematic,” and that he was replacing it with Remeron. Tr. at 426. Plaintiff denied
suicidal and homicidal ideations and his mental status examination was normal. Tr. at
425. Dr. Kulungowski assessed a GAF score of 60. Tr. at 426.
Plaintiff followed up with Dr. Kulungowski on February 3, 2011. Tr. at 423–24.
Plaintiff reported some tiredness from Remeron. Tr. at 424. He requested that his Invega
dosage be decreased, but Dr. Kulungowski was reluctant to lower it. Id. Plaintiff’s mental
status examination was normal, and Dr. Kulungowski assessed a GAF score of 65. Tr. at
On March 22, 2011, Plaintiff presented to Douglas R. Ritz, Ph. D. (“Dr. Ritz”), for
a consultative mental status examination. Tr. at 363–66. Plaintiff reported depression,
confusion, paranoid thoughts, and social withdrawal. Tr. at 363. He reported thoughts of
self-harm, but no specific plan. Id. He indicated his medications made him “sleepy.” Id.
He described his mood as “kind of blank.” Id. Plaintiff maintained eye contact with Dr.
Ritz and his speech was normal. Tr. at 364–65. His grooming and hygiene were good. Tr.
at 365. His was calm, logical, coherent, alert, responsive, and in no distress. Id. His
judgment was good. Id. His affect was flat and his insight was fair. Id. Plaintiff was able
to perform serial threes, but he was unable to interpret a proverb. Id. His remote memory
was good and he was able to remember three of four objects after a five-minute delay. Id.
Dr. Ritz estimated Plaintiff’s cognitive abilities to be average. Id. He indicated that
Plaintiff “may be able to handle an unskilled type work setting.” Id. He diagnosed major
depressive disorder, single episode, moderate and psychotic disorder, NOS and assessed a
GAF score of 55. Id.
Plaintiff presented to Chioma R. Ekechukwu, M.D. (“Dr. Ekechukwu”) at
Kershaw Mental Health, on March 31, 2011. Tr. at 421–22. He reported he was stable on
his medication regimen. Tr. at 421. Dr. Ekechukwu assessed a GAF score of 60. Tr. at
State agency consultant Gary E. Calhoun, Ph. D. (“Dr. Calhoun”), completed a
psychiatric review technique on April 5, 2011, in which he considered Listing 12.03 for
schizophrenic, paranoid, and other psychotic disorders, Listing 12.04 for affective
disorders, and Listing 12.08 for personality disorders. Tr. at 369. He determined
Plaintiff’s impairments included psychotic disorder, NOS, major depressive disorder
without psychotic features, moderate major depressive disorder (single episode), and
paranoid personality traits. Tr. at 371, 372, 376. He assessed mild restriction of activities
of daily living, moderate difficulties in maintaining social functioning, moderate
difficulties in maintaining concentration, persistence, or pace, and no episodes of
decompensation of extended duration. Tr. at 379. Dr. Calhoun indicated Plaintiff was
moderately limited with respect to the following abilities: to understand and remember
detailed instructions; to carry out detailed instructions; to maintain attention and
concentration for extended periods; and to interact appropriately with the general public.
Tr. at 383–84. Dr. Calhoun indicated “[o]verall, claimant’s symptoms and impairments
are severe but would not preclude the performance of simple, repetitive work tasks in a
setting that does not require on-going interaction with the public.” Tr. at 385.
On April 9, 2011, Plaintiff attended a disability determination examination with
Nicole Edwards, D.O. (“Dr. Edwards”). Tr. at 387–91. Plaintiff alleged psychosis, manic
depression, hypertension, anemia, COPD, low back pain, and blacking out. Tr. at 387–88.
He indicated he could sit and stand for unlimited periods, walk for 10 to 15 minutes at a
time on level ground, and lift approximately 20 pounds. Tr. at 388. Plaintiff favored his
left hip when he walked. Tr. at 389. He had reduced flexion of his lumbar spine to 80
degrees and bilateral knee crepitus. Tr. at 390. He had paresthesias on the left and low
back pain with left straight-leg raise. Id. His left ankle was internally rotated five to 10
degrees at rest. Id. Plaintiff’s physical examination was otherwise normal. Tr. at 389–90.
Dr. Edwards indicated Plaintiff’s “mentation was pleasant, but he did appear nervous.”
Tr. at 390. She further indicated Plaintiff bounced his legs and wrung his hands
throughout the examination. Id. She indicated Plaintiff’s “psychosis and manic
depression” needed to be “further evaluated through a psychiatric exam to determine his
functionality.” Id. She indicated Plaintiff’s hypertension, anemia, and COPD appeared to
be controlled. Id. She indicated he had some abnormalities due to low back pain, but that
they did not appear to be functionally limiting. Id. She found no neurological explanation
for Plaintiff’s blackouts. Id.
Plaintiff presented to Dr. Hunt for a medication refill on April 11, 2011. Tr. at 397.
He reported pain that was a seven out of 10. Id. His oxygen saturation was 96 percent. Id.
Dr. Hunt indicated diagnoses of hypertension and bipolar disorder. Id.
On April 29, 2011, state agency medical consultant Hugh Clarke, M.D., completed
a physical residual functional capacity assessment in which he indicated Plaintiff was
limited to occasionally lifting and/or carrying 50 pounds; frequently lifting and/or
carrying 25 pounds; standing and/or walking about six hours in an eight-hour workday;
sitting for about six hours in an eight-hour workday; pushing and/or pulling without limit;
occasionally climbing ramps/stairs; never climbing ladders/ropes/scaffolds; and avoiding
concentrated exposure to fumes, odors, dusts, gases, poor ventilation, and hazards. Tr. at
Plaintiff followed up with Dr. Ekechukwu on May 24, 2011. Tr. at 419–20. He
reported increased emotional bluntedness with an increased dosage of Invega. Tr. at 419.
He endorsed depressed mood, and Dr. Ekechukwu indicated she was reluctant to decrease
Plaintiff’s dosage of Invega without first prescribing an antidepressant. Id. Dr.
Ekechukwu assessed a GAF score of 56. Tr. at 420.
Plaintiff followed up with Dr. Ekechukwu on July 5, 2011. Tr. at 416–17.
Plaintiff’s target symptoms for treatment included anxiety, delusions/paranoia, and legal
problems. Tr. at 416. Plaintiff reported increased swelling and blurred vision since
starting Wellbutrin SR. Id. He also reported residual paranoia. Id. Dr. Ekechukwu noted
Plaintiff “seems particularly sensitive to side effects” of medications. Id. Plaintiff decided
to remain on Wellbutrin SR despite its side effects because it had a positive effect on his
depressive symptoms. Id. However, Plaintiff complained that Invega caused him to be
emotionally blunted. Id. Dr. Ekechukwu prescribed a trial dose of Fanapt to target
Plaintiff followed up with Dr. Ekechukwu on September 13, 2011. Tr. at 414–15.
His target symptoms for treatment included anxiety and delusions/paranoia. Tr. at 414.
Plaintiff reported a negative reaction to Geodon. Id. He reported residual paranoia, but
stated that he could cope with it. Id. Dr. Ekechukwu decribed Plaintiff’s judgment and
insight as fair. Id. She noted that Plaintiff was taking his medication, keeping his
appointments, and acknowledged his illness and need for medication. Id. Dr. Ekechukwu
indicated diagnoses of psychotic disorder, NOS and depressive disorder, NOS. Tr. at 415.
She assessed a GAF score of 55 and discontinued Geodon. Id.
Plaintiff presented to Pamela Wood, APRN (“Ms. Wood”), at Kershaw Mental
Health on October 25, 2011. Tr. at 412–13. He reported delusions and moderate-to-severe
depression despite compliance with medications. Tr. at 412. He indicated he did not want
his dosage of Invega increased because it made his mind feel blank. Id. He reported a 40pound weight gain, which Ms. Wood indicated was possibly caused by Remeron. Id. Ms.
Wood increased Plaintiff’s Wellbutrin SR dosage to 300 mg. Tr. at 413.
Plaintiff followed up with Ms. Wood on November 28, 2011. Tr. at 410–11. His
target symptoms for treatment included anxiety, delusions/paranoia, depression, legal
problems, and sleep/appetite disturbance. Tr. at 410. He reported intermittent and
moderate depression, weird and paranoid thoughts, and moderate anxiety. Id. Ms. Wood
decreased Plaintiff’s Wellbutrin SR dosage to 150 mg and noted that he developed a
headache that lasted for two weeks while taking the higher dose. Id. She also prescribed
Zoloft and diagnosed schizophrenia, paranoid type, and depressive disorder, NOS. Tr. at
410, 411. She assessed a GAF score of 60. Id.
On January 13, 2012, Plaintiff presented to Donald W. Morgan, M.D., at Kershaw
Mental Health. Tr. at 408–09. His target symptoms for treatment included anxiety,
delusions/paranoia, depression, legal problems, and sleep/appetite disturbance. Tr. at 408.
Dr. Morgan noted Plaintiff was taking Invega 9 mg and Wellbutrin SR 150 mg and that
he was doing well with good sleep and appetite. Id. He reported no side effects to his
medications. Id. Dr. Morgan assessed schizophrenia, paranoid type and depressive
disorder, NOS. Id. He indicated Plaintiff’s GAF score to be 70. Tr. at 409.
Plaintiff followed up with Dr. Hotchkiss on February 13, 2012. Tr. at 451–53. He
reported rarely taking Remeron and taking Vistaril a couple of times per week for
anxiety. Tr. at 451. Plaintiff reported stable mood and denied excessive sedation and
major irritability, but endorsed mild paranoia. Id. Dr. Hotchkiss assessed a GAF score of
60. Tr. at 452.
On March 26, 2012, Plaintiff followed up with Dr. Hotchkiss. Tr. at 454–56.
Plaintiff reported that he saw his children monthly and went to a friend’s garage, but that
he was uncomfortable in social settings. Tr. at 454. He reported stable mood and denied
sleep and appetite disturbance, suicidal ideations, and homicidal ideations. Id. He denied
gross mania, hallucinations, and delusions, but endorsed a “little paranoia” and “slight
hypervigilance.” Id. He indicated he only used Remeron as needed and stated he had not
used Vistaril “much.” Id. Dr. Hotchkiss assessed a GAF score of 60. Tr. at 455.
Kelli Barnes, LPC (“Ms. Barnes”), wrote a letter on March 26, 2012, indicating
Plaintiff’s diagnoses included schizophrenia, paranoid type and depressive disorder,
NOS. Tr. at 437. Ms. Barnes wrote that Plaintiff reported depressed mood, anxiety
attacks, sleep disturbance, poor energy and concentration, confusion, persecutory
delusions, and paranoia. Id. Ms. Barnes indicated “[t]he symptoms reported are, at times,
sufficiently severe that his daily life is adversely affected in various ways.” Id. She
further indicated that Plaintiff had delusions toward his family members and was
aggressive with them, that he experienced mild paranoia, that he was confused in the
mornings and unable to concentrate on tasks, and that he had a history of wandering
when unstable. Id.
Plaintiff followed up with Dr. Hotchkiss on May 15, 2012. Tr. at 457–59. He
reported only rarely taking Remeron and Vistaril. Tr. at 457. He denied gross mania,
suicidal ideations, homicidal ideations, sustained depression, and sleep disturbance. Id.
He endorsed occasional strange thoughts and some sense of hypervigilance. Id. Plaintiff’s
insight was described as “fair,” but his mental status examination was otherwise normal.
Tr. at 457–58. Dr. Hotchkiss assessed a GAF score of 61. Tr. at 458.
Plaintiff again followed up with Dr. Hotchkiss on July 10, 2012. Tr. at 460–62. He
reported being depressed and feeling “so-so.” Tr. at 460. He indicated that he could not
think straight at times, had occasional racing thoughts, and obsessed about the past. Id.
He denied suicidal or homicidal ideation, gross mania, hallucinations, delusions,
paranoia, and hypervigilance. Id. He reported compliance with medications and denied
excess sedation. Id. Dr. Hotchkiss assessed a GAF score of 60. Tr. at 461.
Plaintiff saw Dr. Hotchkiss on September 6, 2012, and reported good sleep and
good appetite. Tr. at 463. He indicated he experienced occasional depression when he
focused on the past and that he was not very active. Id. Dr. Hotchkiss indicated Plaintiff
had fair insight, but the mental status examination was otherwise normal. Tr. at 464. He
assessed Plaintiff’s GAF score to be 59. Id.
The Administrative Proceedings
The Administrative Hearing
At the hearing on November 8, 2012, Plaintiff testified he lived in an apartment
behind his parents’ home. Tr. at 46. He stated he was 5’ 11” tall and weighed
approximately 190 pounds. Id. He indicated he was right handed. Id. He testified he had a
driver’s license, but had not driven since he was hospitalized. Tr. at 46–47. Plaintiff
stated that he did not smoke, drink, or use any drugs other than his prescribed
medications. Tr. at 47.
Plaintiff testified that his past work as a service person required him to inspect
farms to determine the health of birds. Tr. at 48. He stated that he stopped working in
2007, but did not collect unemployment compensation. Id. Plaintiff testified that he was
fired because of his health problems. Tr. at 52.
He stated he had schizophrenia and depression and that he experienced confusion
and difficulty focusing. Id. Plaintiff testified that he took medication before he was fired
from his job, but the medication did not work well. Tr. at 52–53. He testified that he
stopped taking medication prior to his hospitalization in February 2010, but had taken
medications since he was discharged. Tr. at 53. He stated that his hallucinations and
delusions decreased with use of the medication. Tr. at 53–54. Plaintiff indicated that his
medications were changed during his second hospitalization. Tr. at 54. He confirmed that
he began treatment with Ms. Barnes at the mental health center after the second
hospitalization. Tr. at 55. Plaintiff testified that on approximately eight to 10 days per
month, he experienced difficulty focusing, confusion, and strange thoughts that caused
him to be unable to do anything. Tr. at 55–56, 57. He stated that he experienced panic
attacks without warning that sometimes lasted for an entire day. Tr. at 58. He indicated
that he still heard voices and experienced visual hallucinations “at times.” Tr. at 61.
Plaintiff testified he had back problems and problems with his hip, but could not
afford treatment. Tr. at 61, 62. He stated he took medication for high blood pressure that
controlled his symptoms. Tr. at 61.
Plaintiff testified that his medications caused him to feel “drugged” and sleepy for
most of the day. Tr. at 56. He indicated he experienced dizziness and occasional blurred
vision. Id. He stated he had difficulty concentrating and focusing, but that he did not
know if those symptoms were related to his impairments or the medications. Id. Plaintiff
stated that he informed his doctors of the side effects, but that efforts to change his
medications had been unsuccessful. Tr. at 57.
Plaintiff testified that he generally awoke around 7:00 a.m. and had breakfast with
his parents. Tr. at 49. He stated his parents prepared the food. Id. He indicated he rode to
the store with his father to drink coffee two to three times per week. Id. He stated he
returned home, watched television, and napped for about an hour-and-a-half on most
mornings. Tr. at 49, 60. Id. He testified he ate lunch with his parents and typically slept
for another hour-and-a-half in the afternoon. Tr. at 49, 60. He indicated he ate dinner with
his parents around 7:00 p.m. on nights when he ate dinner. Tr. at 50. He testified he
typically went to bed around 9:00 p.m. Id. He indicated he took additional medication
when he had difficulty sleeping. Tr. at 59–60. He stated he slept for 10 to 12 hours most
nights, but awoke feeling “drugged out.” Tr. at 60.
Plaintiff testified he cleaned his apartment with his mother’s assistance. Tr. at 50.
He indicated he swept the floor, washed some dishes, and did some laundry
approximately every week-and-a-half. Id. He testified he shopped for groceries with his
mother approximately twice a month. Tr. at 50–51. He stated that he attended the church
where his mother was the pianist approximately once every three months. Tr. at 51.
Plaintiff testified that he ate in restaurants with his parents once every week or two. Id.
He indicated he had a dog, but that his father typically cared for it. Id. Plaintiff indicated
that he typically remembered to take his medications, but that his mother checked behind
him. Tr. at 59.
Vocational Expert Testimony
Vocational Expert (“VE”) Celena Earl reviewed the record and testified at the
hearing. Tr. at 63–69. The VE categorized Plaintiff’s PRW as an agricultural
commodities inspector, Dictionary of Occupational Titles (“DOT”) number 168.287-010,
as light with a specific vocational preparation (“SVP”) of seven. Tr. at 64. The ALJ
described a hypothetical individual of Plaintiff’s vocational profile who could lift and/or
carry 50 pounds occasionally and 25 pounds frequently; stand and/or walk about six
hours in an eight-hour workday; sit about six hours in an eight-hour workday; never
climb ladders, ropes, or scaffolds; occasionally climb ramps and stairs; frequently
balance, stoop, kneel, crouch, and crawl; and should avoid concentrated exposure to
extreme heat, fumes, odors, dust, gas, poor ventilation, and hazards. Tr. at 64. The ALJ
further indicated the individual would be limited to unskilled work and/or routine
repetitive tasks with no interaction with the public and no production-pace work (i.e.,
assembly line), but could perform goal-oriented work (i.e., office cleaner). Tr. at 64–65.
The VE testified that the hypothetical individual could not perform Plaintiff’s PRW. Tr.
at 65. The ALJ asked whether there were any other jobs in the region or national
economy that the hypothetical person could perform. Id. The VE identified jobs as an
auto cleaner, DOT number 919.687-014, as medium with an SVP of one with 2,586
positions in South Carolina and 195,998 positions in the United States; an industrial
cleaner, DOT number 381.687-018, as medium with a SVP of two with 11,470 positions
in South Carolina and 1,077,761 positions in the United States; and a store laborer, DOT
number 922.687-058, as medium with a SVP of two with 1,363 positions in South
Carolina and 86,706 positions in the United States. Id. The ALJ next asked the VE to
assume a hypothetical individual of Plaintiff’s vocational profile who could lift and/or
carry 50 pounds occasionally and 25 pounds frequently; stand and/or walk about six
hours in an eight-hour workday; sit about six hours in an eight-hour workday; never
climb ladders, ropes, or scaffolds; occasionally climb ramps or stairs, frequently balance,
stoop, kneel, crouch, and crawl; and should avoid concentrated exposure to extreme heat,
fumes, odors, dust, gas, poor ventilation, and hazards. Tr. at 65–66. The ALJ further
limited the individual to unskilled work and/or routine, repetitive tasks with no
interaction with the public and stated the individual could not maintain concentration,
persistence, and pace to complete an eight-hour workday and 40-hour workweek. Tr. at
66. The ALJ asked if the individual would be able to perform any work available in the
local or national economy. Id. The VE testified that the individual could perform no
work. Id. The ALJ then asked the VE to assume a hypothetical individual with Plaintiff’s
vocational profile who was limited as stated in Plaintiff’s testimony, considering all
testimony to be credible. Id. She asked the VE if the individual could perform any work.
Tr. at 66–67. The VE testified that the individual would be able to perform no work. Tr.
Plaintiff’s attorney asked the VE to assume the same limitations as provided in the
first hypothetical, but to assume that the individual would have to nap for at least one
hour per day because of side effects from medications taken to control schizophrenia. Tr.
at 67–68. Plaintiff’s attorney asked if there would be any work available that would
accommodate such a requirement. Tr. at 68. The VE testified that limitation would
eliminate all jobs. Id. Plaintiff’s attorney then asked the VE to assume the same
limitations in the ALJ’s first hypothetical, but to assume that the individual would
experience at least one panic attack per week that required him to be away from work for
half of a day. Id. Plaintiff’s attorney asked if there would be any work available to that
individual. Id. The VE testified that there would be no work. Id. Finally, Plaintiff’s
attorney asked the VE to assume that hypothetical individual suffered from confusion to
the degree that he would not be able to focus on work for at least one hour out of an
eight-hour day. Id. He asked if any work would be available to that individual. Id. The
VE testified that no work would be available. Tr. at 69.
The ALJ’s Findings
In her decision dated December 7, 2012, the ALJ made the following findings of
fact and conclusions of law:
The claimant meets the insured status requirements of the Social Security
Act through December 31, 2012.
The claimant has not engaged in substantial gainful activity since February
1, 2010, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et
The claimant has the following severe impairments: disorders of the back,
chronic obstructive pulmonary disease, blackouts, psychotic disorder, major
depressive disorder with psychotic features, and paranoid personality traits
(20 CFR 404.1520(c) and 416.920(c)).
The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525, 404.1526, 416.920(c), 416.925 and 416.926).
After careful consideration of the entire record, I find that the claimant has
the residual functional capacity to perform less than the full range of
medium work as defined in 20 CFR 404.1567(c) and 416.967(c). Claimant
can lift and/or carry 50 pounds occasionally and 25 pounds frequently,
stand and/or walk about 6 hours in an 8 hour workday, and sit about 6 hours
in an 8 hour workday. Claimant can occasionally climb ramps and stairs,
never climb, ladders, ropes, and scaffolds, and frequently balance, stoop,
kneel, crouch, and crawl. Claimant should avoid concentrated exposure to
extreme heat, hazards, fumes, odors, dusts, gases, and poor ventilation.
Claimant is limited to performing routine, repetitive tasks and/or unskilled
work with no public interaction. Claimant cannot perform work requiring a
production pace such as work on an assembly line, but can do goal oriented
work such as work as an office cleaner.
The claimant is unable to perform any past relevant work (20 CFR
404.1565 and 416.965).
The claimant was born on April 9, 1964 and was 45 years old, which is
defined as a younger individual age 18–49, on the alleged disability onset
date (20 CFR 404.1563 and 416.963).
The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).
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 CFR Part 404, Subpart P,
Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR 404.1569,
404.1569(a), 416.969, and 416.969(a)).
The claimant has not been under a disability, as defined in the Social
Security Act, from February 1, 2010, through the date of this decision (20
CFR 404.1520(g) and 416.920(g)).
Tr. at 24–35.
Appeals Council Review
The Appeals Council denied Plaintiff’s request for review in a notice dated
January 23, 2015. Tr. at 5–9. The Appeals Council indicated it considered new evidence
submitted by Plaintiff, which included medical reports from South Carolina Radiology,
Florence MRI and Imaging, and a physician’s statement completed by Dr. Hunt for the
South Carolina Department of Social Services. Tr. at 6. However, the Appeals Council
concluded that the new information was about a later time and did not affect the decision
about whether Plaintiff was disabled beginning on or before December 7, 2012. Id.
Plaintiff alleges the Commissioner erred for the following reasons:
the ALJ improperly assessed and failed to explain her findings regarding
the ALJ failed to consider the entire record in assessing Plaintiff’s
the ALJ improperly considered the medical opinion evidence.
The Commissioner counters that substantial evidence supports the ALJ’s findings
and that the ALJ committed no legal error in her decision.
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
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;3 (4) whether such
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
impairment prevents claimant from performing PRW;4 and (5) whether the impairment
prevents him from doing substantial gainful employment. See 20 C.F.R. §§ 404.1520,
416.920. 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 inquiry is necessary. 20 C.F.R. §§ 404.1520(a)(4), 416.920(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), 416.920(a), (b); Social Security
Ruling (“SSR”) 82-62 (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
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, 416.925. 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), 416.920(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, 416.926;
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
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), 416.920(h).
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).
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 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).
Plaintiff argues the ALJ failed to properly assess his RFC based on the
requirements in SSRs 96-8p and 85-15 and Fourth Circuit precedent. [ECF No. 26 at 3–
4]. The Commissioner maintains that the ALJ properly assessed Plaintiff’s RFC based on
the evidence in the record. [ECF No. 28 at 12–14].
RFC is an assessment of the claimant’s ability to perform sustained work-related
activities eight hours per day, five days per week. SSR 96-8p. The ALJ must identify the
limitations imposed by the claimant’s impairments and assess his work-related abilities
on a function-by-function basis. Id. “The RFC assessment must include a narrative
discussion describing how the evidence supports each conclusion, citing specific medical
facts (e.g., laboratory findings) and non-medical evidence (e.g., daily activities,
The RFC assessment must be based on all of the relevant evidence in the case
record, which includes medical history, medical signs and laboratory findings, the effects
of treatment, reports of daily activities, lay evidence, recorded observations, medical
source statements, effects of symptoms that are reasonably attributed to the medicallydeterminable impairment, evidence from attempts to work, need for structured living
environment, and work evaluations. Id.
In cases in which a claimant’s impairment does not meet or equal a Listing, but the
individual is unable to meet the mental demands of PRW, the ALJ must consider his
occupational base, age, education, and work experience to determine if he can do other
work considering his remaining mental capacities. SSR 85-15. Failure to meet or equal a
listed mental impairment does not necessarily equate with a capacity to perform unskilled
work, and the ALJ must carefully assess the claimant’s RFC based on the “[t]he basic
mental demands of competitive, remunerative, unskilled work,” which “include the
abilities (on a sustained basis) to understand, carry out, and remember simple
instructions; to respond appropriately to supervision, coworkers, and usual work
situations; and to deal with changes in a routine work setting.” Id. If the claimant has
substantially lost the ability to meet any basic mental demands, a finding that the
claimant is disabled is supported by a severe reduction in the potential occupational base.
The ability of an individual with a mental illness to function outside of a work
environment does not necessarily reflect that individual’s ability to function in the
workplace. See id. According to SSR 85-15:
Individuals with mental disorders often adopt a highly restricted and/or
inflexible lifestyle within which they appear to function well. Good mental
health services and care may enable chronic patients to function adequately
in the community by lowering psychological pressures, by medication, and
by support from services such as outpatient facilities, day care programs,
social work programs and similar assistance.
The reaction to the demands of work (stress) is highly individualized, and
mental illness is characterized by adverse responses to seemingly trivial
circumstances. The mentally impaired may cease to function effectively
when facing such demands as getting to work regularly, having their
performance supervised, and remaining in the workplace for a full day….
Thus, the mentally impaired may have difficulty meeting the requirement
of even so-called “low stress” jobs.
In light of the foregoing authorities, the court considers the specific issues raised
by Plaintiff regarding the ALJ’s RFC assessment.
Consideration of the Entire Record
Plaintiff argues the ALJ incorrectly determined his RFC and neglected to support
her conclusions. [ECF No. 26 at 3]. He maintains the ALJ failed to consider all of his
psychiatric treatment notes together and instead supported her conclusion by isolating a
few notes in which his symptoms had improved. Id. at 4. Plaintiff cites the Fourth
Circuit’s decisions in Totten v. Califano, 624 F.2d 10 (4th Cir. 1980), and Kellough v.
Heckler, 785 F.2d 1147 (4th Cir. 1986), to argue that the ALJ was required to consider
the entire record. Id.
The Commissioner maintains the ALJ considered “all of the relevant medical and
non-medical evidence” in assessing Plaintiff’s RFC. [ECF No. 28 at 14].
The Fourth Circuit’s decisions in Totten and Kellough emphasize that ALJs are
required to look beyond specific treatment notes for evidence of a claimant’s general
functional ability. In Totten, the Fourth Circuit remanded the case where the ALJ failed to
consider whether the plaintiff’s well-documented, sporadic periods of incapacity
prevented her from performing substantial gainful activity within the meaning of the Act.
624 F.2d at 12. The court stated “[t]he ‘continuous period’ language of § 423(d)(1)(A)
does not require a claimant to show an inability to engage in any substantial gainful
activity every day of his existence.” Id. at 11. In Kellough, the court found that “isolated
references in the physician’s notes to ‘feeling well’ and ‘normal activity’” did not provide
a substantial basis for disregarding the plaintiff’s subjective complaints. 785 F.2d at
1153. Although the court was directly addressing credibility, as opposed to the RFC
assessment, the undersigned notes the court’s emphasis on the requirement for the
Commissioner to avoid relying on statements without examining the context of those
In the case at hand, the ALJ wrote the following:
Specifically, claimant alleged he did not handle stress well, experienced
confusion, felt anxious and depressed around others, and had problems with
focus and memory, and I have limited claimant to performing unskilled
work with no public interaction or production pace. However, I note
claimant reported he shopped, attended church, spent time with friends and
family, and did simple household chores, examinations generally showed
intact attention and memory, and treatment notes from 2011 and 2012
describe claimant’s condition as generally stable.
Claimant also reported panic attacks lasting up to an entire day. However,
treatment notes do not reveal repeated complaints of panic attacks, claimant
was not diagnosed with a panic disorder, and the record reveals no
emergent treatment for panic attacks. Moreover, though claimant reported
hallucinations, examinations generally revealed intact cognition and
thought processes (Exhibits 17F and 23F), and recent treatment notes report
no hallucinations (Exhibits 23F, 24F, and 25F).
Tr. at 31.
The undersigned finds that the ALJ neglected to consider all the relevant evidence
in the case record in assessing Plaintiff’s RFC. Plaintiff’s treatment notes revealed
persistent symptoms related to his mental impairments, including nervousness, social
anxiety, emotional bluntedness, depressed mood, residual paranoia, delusions,
hypervigilance, and obsessive and racing thoughts. On April 9, 2011, Dr. Edwards noted
that Plaintiff appeared nervous, bounced his legs, and wrung his hands throughout the
examination. Tr. at 390. On May 24, 2011, Plaintiff complained of emotional bluntedness
and depressed mood. Tr. at 419. He reported residual paranoia and emotional bluntedness
on July 5, 2011. Tr. at 416. On September 13, 2011, he complained of residual paranoid,
but stated he was “able to cope.” Tr. at 414. Plaintiff reported delusions, moderate to
severe depression, and blank mind on October 25, 2011. Tr. at 412. On November 28,
2011, he complained of intermittent and moderate depression, weird and paranoid
thoughts, and moderate anxiety. Tr. at 410. In February 2012, Plaintiff reported mild
paranoia. Tr. at 451. On March 26, 2012, he complained of discomfort in social settings,
paranoia, and hypervigilance. Tr. at 454. On that same date, Ms. Barnes indicated
Plaintiff’s symptoms included depressed mood, anxiety attacks, sleep disturbance, poor
energy, confusion, poor concentration, persecutory delusions, and paranoia. Tr. at 437.
Plaintiff endorsed occasional strange thoughts and hypervigilance on May 15, 2012. Tr.
at 457. On July 10, 2012, he reported depression, occasional racing thoughts, and
obsession about the past. Tr. at 460. On September 6, 2012, Plaintiff indicated he was not
very active and experienced occasional depression when he focused on the past. Tr. at
463. The ALJ relied on treatment notes that indicated stable condition and intact
cognition and thought processes at the time of examination, but excluded evidence of
Plaintiff’s symptoms between treatment visits and his functioning outside the treatment
environment. This evidence indicated more prevalent symptoms than were considered in
the ALJ’s RFC assessment.
The undersigned further finds that the ALJ did not adequately consider whether
Plaintiff maintained the ability to meet the basic mental demands of unskilled work as
discussed in SSR 85-15. The ALJ neglected to look outside of Plaintiff’s treatment notes
at evidence that suggested Plaintiff was doing well because he had adopted a highlyrestricted daily routine. See Tr. at 49–51 (Plaintiff testified that he lived in an apartment
behind his parents’ home; parents prepared most of his meals; he napped for extended
periods in each morning and afternoon; his mother assisted with cleaning, confirmed that
he took his medications, and accompanied him to the grocery store twice a month; his
father provided transportation and went with him to get coffee at a store two or three
times per week); see also Tr. at 218–25, 230–34, 236–43, 274–76 (reported activities in
disability and function reports consistent with Plaintiff’s testimony), 364 (Plaintiff’s
description of his daily activities to Dr. Ritz were consistent with the disability and
function reports and his testimony). As indicated by SSR 85-15, an individual’s ability to
function within a highly-restrictive lifestyle is not necessarily indicative of his ability to
function in a work environment. The ALJ also failed to consider evidence that suggested
periods of symptom exacerbation that further reduced Plaintiff’s ability to function on
some days as opposed to others. See Tr. at 55–56, 57 (Plaintiff testified that on
approximately eight to 10 days per month, he experienced difficulty focusing, confusion,
and strange thoughts that caused him to be unable to do anything), 410 (Plaintiff
indicated to Ms. Wood that he experienced intermittent depression, weird and paranoid
thoughts, and anxiety), 437 (Ms. Barnes indicated Plaintiff’s symptoms were severe
enough, at times, to adversely affect his daily life), 451 (Plaintiff reported to Dr.
Hotchkiss that he was taking Vistaril a couple of times per week for anxiety), 457
(Plaintiff reported occasional strange thoughts and hypervigilance), 460 (Plaintiff
complained to Dr. Hotchkiss that he could not think straight at times and had occasional
racing thoughts). In light of the foregoing, the undersigned finds that the ALJ failed to
consider whether Plaintiff’s ability to function in a controlled environment appropriately
reflected his ability to function outside of it and whether he could meet basic mental
demands in a work setting over the course of an eight-hour workday and 40-hour
Plaintiff maintains the ALJ did not adequately consider his psychiatric
hospitalizations or the abnormalities noted by Dr. Ritz, Dr. Kulungowski, and other
providers. [ECF No. 26 at 4]. The Commissioner argues that the ALJ considered
Plaintiff’s hospitalizations, but concluded that his condition improved and stabilized with
consistent treatment. [ECF No. 28 at 14–20].
The ALJ indicated the following regarding Plaintiff’s hospitalizations: “Claimant
was hospitalized for about a month beginning in February 2010 due to depression and
possible paranoia (Exhibit 2F, examination in May 2010 showed anxious mood, agitated
affect, and pressured speech (Exhibit 3F/3), and claimant was hospitalized for about 2
months beginning in June 2010 due to altered mental status (Exhibit 4F).” Tr. at 29. She
further indicated that Dr. Heath “reported claimant demonstrated improved affect, good
mood, no paranoia, and logical thinking after taking Seroquel reliably during
hospitalization in February 2010 (Exhibit 2F/5).” Tr. at 30.
The undersigned finds that the ALJ did not adequately consider Plaintiff’s
hospitalizations in assessing his RFC. The ALJ mentioned the hospitalizations and
concluded that Plaintiff’s impairments improved after discharge, but she did not discuss
particular details of the hospitalizations or their implications. Plaintiff was hospitalized
on two occasions for a combined total of nearly 13 weeks in 2010. See Tr. at 287–89,
313. The treatment notes from these hospitalizations are particularly relevant because
they indicate difficulty finding a medication regimen that adequately addressed Plaintiff’s
symptoms. See Tr. at 292–93, 314–16. The records also indicated Plaintiff experienced
persistent symptoms while in a controlled environment with regular medication
monitoring and administration. See id. Furthermore, the ALJ neglected to assess
indications from other treatment providers that suggested persistent symptoms after
Plaintiff’s hospitalizations. Because the ALJ failed to adequately consider the records
from Plaintiff’s hospitalizations and subsequent outpatient treatment, the undersigned
finds the RFC she assessed was not based upon the entire record.
Finally, Plaintiff maintains the ALJ improperly relied on GAF scores to support
her conclusion. [ECF No. 26 at 10]. The Commissioner argues the ALJ was required to
assess the GAF scores as opinion evidence. [ECF No. 28 at 14].
The ALJ indicated the following regarding Plaintiff’s GAF scores:
I have also given significant weight to the various Global Assessment of
Functioning scores reported in treatment notes from state mental health
centers (Exhibits 5F, 9F, 17F, 23F, 24F, and 25F). Such scores only provide
a snapshot of claimant’s condition at any given time. However, such are
consistent with mental health treatment notes and examinations, which
indicate claimant’s condition improved and stabilized with consistent
treatment. Moreover, scores from the end of 2010 through September 2012
indicate claimant had largely mild to moderate symptoms or related
decrease in functioning, which is consistent with the assessments of Dr.
Calhoun and Dr. King, as well as Dr. Ritz’s opinions.
Tr. at 32.
The American Psychiatric Association (“APA”) recognized the GAF scale as a
means of tracking clinical progress of individuals with respect to psychological, social,
and occupational functioning. DSM-IV-TR” at 32. However, the APA dispensed with use
of the GAF scale in the Fifth Edition of the Diagnostic & Statistical Manual of Mental
Disorders (“DSM-V”) for several reasons, including “its conceptual lack of clarity (i.e.,
including symptoms, suicide risk, and disabilities in its descriptors) and questionable
psychometrics in routine practice.” DSM-V at 16. The DSM-V instead uses the World
Health Organization’s Disability Assessment Schedule (“WHODAS”) to provide a global
measure of disability. This court has previously held that without additional context, a
GAF score is not meaningful. See Parker v. Astrue, 664 F. Supp. 2d 544, 557 (D.S.C.
2009) (stating that “Plaintiff’s GAF score is only a snapshot in time, and not indicative of
Plaintiff’s long term level of functioning.”).
The undersigned finds that the ALJ placed improper emphasis on Plaintiff’s GAF
scores to the exclusion of specific evidence regarding Plaintiff’s symptoms and level of
disability. The undersigned agrees with the Commissioner’s argument that GAF scores
represent opinion evidence that the ALJ should consider. However, in light of the
psychiatric community’s rejection of the GAF scale as an adequate means of assessment
and this court’s requirement that ALJ’s look beyond GAF scores, the undersigned finds
that the ALJ accorded greater weight to Plaintiff’s GAF scores than was warranted by the
record. The ALJ gave significant weight to GAF scores that conflicted with other
evidence regarding Plaintiff’s global functioning, including treatment notes that
documented more severe symptoms and descriptions of daily activities that suggested
greater disability.5 Therefore, the undersigned that the ALJ erred in relying on Plaintiff’s
GAF scores to support the assessed RFC.
Inclusion of Additional Restrictions in RFC
Plaintiff argues the ALJ failed to comply with the requirements of SSRs 85-15 and
96-8p because she neglected to explain how Plaintiff’s psychiatric impairments were
accommodated by the assessed RFC. Id. at 8–9. The Commissioner argues that additional
limitations were not supported by the record. [ECF No. 28 at 15].
The ALJ indicated that Plaintiff’s mental impairments restricted him to
“performing routine, repetitive tasks and/or unskilled work with no public interaction”
and that he could not “perform work requiring a production pace such as work on an
assembly line.” Tr. at 28. The ALJ further found that Plaintiff could perform “goal
oriented work such as work as an office cleaner.” Id. She further restricted Plaintiff “from
all public interaction and from performing work with a production pace” given his
The undersigned acknowledges that the ALJ rendered her opinion before the DSM-V
was published and is not suggesting that she should have anticipated that the APA would
reject the GAF scale. However, the undersigned believes that this court’s decision in
Parker emphasizes the APA’s reasons for finding the GAF scale to be an inaccurate
indicator of mental functioning and is consistent with the APA’s decision to abandon use
of the GAF scale.
“history of paranoia and depression and allegations of problems handling stress,
maintaining focus, and being around others.” Tr. at 32.
Although the ALJ indicated that restricting Plaintiff from public interaction and
production-pace addressed his paranoia, depression and problems handling stress,
concentrating, and being around others, the ALJ did not adequately explain how she
accommodated all of Plaintiff’s symptoms or how the restrictions that she imposed
addressed the symptoms that she purported to address. Therefore, upon remand, the ALJ
should reconsider whether the restrictions she imposed adequately addressed the cited
symptoms and whether Plaintiff’s additional symptoms warrant the imposition of
Plaintiff argues the ALJ failed to follow the requirements of SSR 96-7p and
Fourth Circuit precedent in evaluating his credibility. [ECF No. 26 at 10–12]. The
Commissioner argues that the ALJ explained why she found Plaintiff’s statements to not
be credible. [ECF No. 28 at 13].
After a claimant has established the existence of a medically-determinable
impairment, the ALJ should consider the intensity, persistence, and functionally-limiting
effects of his symptoms to determine the extent to which they affect the claimant’s ability
to do basic work activities. SSR 96-7p. “[T]he adjudicator must carefully consider the
individual’s statement about symptoms with the rest of the relevant evidence in the case
record” in determining whether the claimant’s statements are credible. Id. To assess the
credibility of the claimant’s statements, the ALJ “must consider the entire case record,
including the objective medical evidence, the individual’s own statements about
symptoms, statements and other information provided by treating or examining
physicians or psychologists and other persons about the symptoms and how they affect
the individual, and any other relevant evidence in the case record.” Id. The ALJ cannot
disregard the claimant’s statements about symptoms merely because they are not
substantiated by objective medical evidence. Id. Furthermore, the ALJ must specify his
reasons for the finding on credibility, and his reasons must be supported by the evidence
in the case record. Id. The ALJ’s decision must clearly indicate the weight accorded to
the claimant’s statements and the reasons for that weight. Id.
The ALJ should consider the following factors in addition to the objective medical
evidence in assessing the credibility of a claimant’s statements: (1) the individual’s daily
activities; (2) the location, duration, frequency and intensity of the individual’s pain or
other symptoms; (3) factors that precipitate and aggravate the symptoms; (4) the type,
dosage, effectiveness, and side effects of any medication the individual takes or has taken
to alleviate pain or other symptoms; (5) treatment, other than medication, the individual
receives or has received for relief of pain or other symptoms; (6) any measures other than
treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying
flat on his or her back, standing for 15 or 20 minutes every hour, or sleeping on a board);
and (7) any other factors concerning the individual’s functional limitations and
restrictions due to pain or other symptoms. Id. (citing 20 CFR §§ 404.1529(c) and
In light of the foregoing authorities, the court considers the specific issues raised
by Plaintiff regarding the ALJ’s credibility assessment.
Plaintiff maintains the ALJ considered the activities he performed without
considering the infrequency of those activities and his unreliability in performing them.
[ECF No. 26 at 12–15].
The ALJ indicated that she considered Plaintiff’s reports that he performed selfcare, prepared simple meals, went out alone, shopped, spent time with family and a
neighbor, did laundry, walked several times per day, performed yardwork, swept,
mopped, vacuumed, washed dishes, went fishing, went out to eat, and attended church
occasionally. Tr. at 30.
The undersigned finds that the ALJ failed to properly consider Plaintiff’s daily
activities in assessing his credibility. Although Plaintiff indicated that he performed the
activities cited by the ALJ, he also indicated that he was unable to function for eight to 10
days per month, required his mother’s assistance to perform chores and shopping,
generally ate the meals that his parents prepared, did not drive, and napped for an hourand-a-half twice daily. Tr. at 49–51, 57. The Fourth Circuit’s decisions in Totten and
Kellough emphasize that ALJ’s should not take information out of context and should
instead consider the claimant’s general functional ability. See Totten, 624 F.2d at 12;
Kellough, 785 F.2d at 1153. The undersigned finds that the ALJ improperly relied on
some of Plaintiff’s reported daily activities, but did not consider Plaintiff’s limitations in
performing those activities or provide a substantial basis for disregarding other daily
activities that suggested he would have difficulty functioning in the workplace. Thus, the
ALJ neglected to consider the implications of Plaintiff’s daily activities on his general
Side Effects of Medications
Plaintiff contends the ALJ erroneously stated he had no side effects from his
medications and neglected to consider the side effects documented in the record. Id. at
The ALJ indicated that she considered Plaintiff’s “alleged drowsiness and
dizziness due to medication,” but “included no related limitations” because [t]reatment
notes from May and July 2012 report claimant denied sedation and other side effects
from medication (Exhibit 23F, 81 Exhibit 24F/1), and examinations showed claimant was
alert and oriented (Exhibits 17F and 23F).” Tr. at 31.
Plaintiff’s records indicate significant struggles to regulate his medications due to
multiple side effects and general ineffectiveness. During his hospitalization from January
30 to March 2, 2010, Plaintiff was initially prescribed Seroquel, but he reported that it
made him feel sedated and lightheaded. Tr. at 293. He was given 20 mg of Celexa, but he
continued to have disorganized and tangential thoughts. Id. Plaintiff was then prescribed
Haldol and reported improvement, but developed a slight hand tremor. Id. He was again
prescribed Seroquel prior to discharge. Id. During the second hospitalization, Plaintiff
was initially prescribed Prolixin, which was gradually titrated to a higher dosage. Tr. at
314. He again developed a tremor. Id. His Prolixin dosage was decreased after he
complained of daytime sedation. Tr. at 314. However, the dosage was ineffective to
control his symptoms, so it was later increased. Id. His tremor again worsened and
Prolixin was again decreased and Invega was prescribed. Tr. at 315. On December 30,
2010, Plaintiff complained that Zoloft was too strong. Tr. at 428. On January 6, 2011, Dr.
Kulungowski indicated Plaintiff’s prescription for Celexa was “problematic” and he
replaced it with Remeron. Tr. at 426. Plaintiff completed an adult function report on
January 10, 2011, in which he indicated he experienced drowsiness and dizziness as side
effects of medication use. Tr. at 243. On February 3, 2011, Plaintiff reported some
tiredness from Remeron and requested that his Invega dosage be decreased. Tr. at 424.
During the consultative examination on March 22, 2011, Plaintiff indicated to Dr. Ritz
that his medications made him sleepy. Tr. at 364. On May 24, 2011, Plaintiff complained
of increased emotional bluntedness with the increased dosage of Invega. Tr. at 419. In
July 2011, Plaintiff complained of increased swelling and blurred vision since starting
Wellbutrin. Tr. at 416. Dr. Ekechukwu noted Plaintiff seemed “particularly sensitive to
side effects” of medications. Id. Plaintiff decided to remain on Wellbutrin SR despite its
side effects because it had a positive effect on his depressive symptoms. Id. However, he
complained that Invega caused him to be emotionally blunted. Id. Dr. Ekechukwu
prescribed a trial dose of Fanapt to target paranoia, and Plaintiff was instructed to follow
up with the nurse in two weeks regarding its effectiveness. Id. Although the record does
not reflect Plaintiff’s follow up with the nurse, the undersigned notes that Plaintiff was
not taking Fanapt at his next visit and was instead taking Geodon. Tr. at 414. On
September 13, 2011, Plaintiff reported a negative reaction to Geodon and Dr. Ekechukwu
discontinued the prescription. Tr. at 414, 415. On October 25, 2011, Plaintiff reported
delusions and moderate-to-severe depression despite compliance with medications. Tr. at
412. Ms. Wood increased Plaintiff’s Wellbutrin SR dosage to 300 mg. Tr. at 413. On
November 28, 2011, Ms. Wood noted that Plaintiff developed a headache that lasted for
two weeks while taking the increased dosage of Wellbutrin and reduced the dosage to
150 mg daily and prescribed Zoloft. Tr. at 410. On February 13, 2012, Plaintiff reported
rarely taking Remeron and taking Vistaril a couple of times per week for anxiety. Tr. at
451. He was taking Wellbutrin SR and Invega as prescribed. Id. Plaintiff reported stable
mood and denied excess sedation and major irritability, but reported mild paranoia. Id. In
March 2012, Plaintiff reported that he only used Remeron as needed and stated he had
not used Vistaril “much.” Tr. at 454. He denied gross mania, hallucinations, and
delusions, but endorsed “little paranoia” and “slight hypervigilance.” Id. On May 15,
2012, Plaintiff reported only rarely taking Remeron and Vistaril. Tr. at 457. He denied
gross mania, suicidal ideations, homicidal ideations, sustained depression, and sleep
disturbance, but endorsed occasional strange thoughts and some sense of hypervigilance.
Id. Although Plaintiff denied excess sedation on July 10, 2012, he reported increased
depression, difficulty thinking, occasional racing thoughts and obsession with the past.
Tr. at 460.
The undersigned finds that the ALJ did not properly consider the side effects of
Plaintiff’s medications or the difficulty that Plaintiff had in controlling his symptoms
with medications. The ALJ based her conclusion that Plaintiff did not have side effects
from his medications on two treatment notes from May and July 2012, to the exclusion of
multiple references to medication side effects throughout the file and in Plaintiff’s
testimony. The record reflects that Plaintiff’s physicians discontinued or changed the
dosage of at least eight medications because of their side effects or ineffectiveness. See
Tr. at 293, 315, 401, 415, 426, 428. Despite Plaintiff’s many medication changes, he
remained symptomatic. See Tr. at 412, 451, 454, 457, 460. Dr. Ekechukwu specifically
noted that Plaintiff was particularly sensitive to the side effects of medications. Tr. at
416. Although Plaintiff endorsed no side effects from medications in July 2012, he had
previously complained of side effects from three of the four medications he was
prescribed at that time. See Tr. at 364, 410, 416, 419, 424. Plaintiff accepted the side
effects of Wellbutrin SR because of its effectiveness. See Tr. at 416. It also appears that
he attempted to minimize his general side effects by only taking Remeron and Vistaril
when his symptoms were exacerbated. See Tr. at 451, 454, 457. In light of welldocumented evidence of Plaintiff’s medication side effects and difficulty finding
effective medications, his psychiatrist’s suggestion that he was particularly sensitive to
the side effects of medications, and his documented efforts to cope with and minimize his
side effects, the undersigned finds that the ALJ did not properly consider the
effectiveness and side effects of Plaintiff’s medications in assessing his credibility.
Medical Source Opinions
Ms. Barnes’ Statements
Plaintiff argues the ALJ violated SSR 96-2p by failing to specify the weight
accorded to Ms. Barnes’ statements. [ECF No. 26 at 19]. The Commissioner maintains
that Ms. Barnes was not an acceptable medical source and was, thus, incapable of
rendering a treating source’s opinion. [ECF No. 28 at 22]. Nevertheless, the
Commissioner argues that the ALJ evaluated Ms. Barnes’ opinion based on the
guidelines set forth in SSR 06-03p. Id. at 23.
The ALJ accorded “some weight” to Ms. Barnes’ statements, but noted that Ms.
Barnes “largely repeated claimant’s own subjective statements rather than rendering
professional, independent opinions” and that mental health treatment notes indicated
Plaintiff’s condition had been “generally stable since the end of 2010.” Tr. at 32.
Pursuant to 20 C.F.R. §§ 404.1527(b) and 416.927(b), the ALJ must consider all
relevant evidence in the case record when determining whether a claimant is disabled.
See also SSR 06-3p. However, medical opinions may only be rendered by “acceptable
medical sources,” which include licensed physicians, licensed or certified psychologists,
licensed optometrists, licensed podiatrists, and qualified speech-language pathologists.
SSR 06-3p; see 20 C.F.R. §§ 404.1513(a), 416.913(a). “Other sources” are defined as
individuals other than acceptable medical sources and include medical providers, such as
nurse practitioners, physician assistants, licensed clinical social workers, naturopaths,
chiropractors, audiologists, and therapists, as well as non-medical sources, such as
educational personnel, social welfare agency personnel, rehabilitation counselors,
spouses, parents, other relatives, friends, neighbors, clergy, and employers. 20 C.F.R. §§
404.1513(d), 416.913(d). Medical opinions must be considered based on the criteria set
forth in 20 C.F.R. § 404.1527(c), but opinions from “other sources” are not medical
opinions. SSR 06-3p. While the factors in 20 C.F.R. § 404.1527(c) and 416.927(c) do not
have to be explicitly considered in evaluating the opinions of other medical sources, they
represent basic principles for the consideration of all opinion evidence. Id. “The
evaluation of an opinion from a medical source who is not an ‘acceptable medical source’
depends on the particular facts in each case,” and should be based on “consideration of
the probative value of the opinions and a weighing of all evidence in that particular case.”
The undersigned concludes that the ALJ properly considered Ms. Barnes’ opinion
based on the evidence in the record. Because Ms. Barnes was a counselor and not an
acceptable medical source, the ALJ was not required to strictly assess her opinion based
on the criteria in 20 C.F.R. §§ 404.1527(c) and 416.927(c). However, the ALJ was
guided by those criteria, which include the examining relationship, the treatment
relationship (including length of treatment relationship and frequency of examination and
nature and extent of treatment relationship), the supportability of the opinion, the
consistency of the opinion with the record as a whole, and the specialization of the
provider. See 20 C.F.R. §§ 404.1527(c) and 416.927(c). Plaintiff testified that he began
treating with Ms. Barnes after he was hospitalized in February 2010. Tr. at 55. Therefore,
the record suggests that Ms. Barnes had an examining and treatment relationship with
Plaintiff, which the ALJ acknowledged. Tr. at 32. However, Ms. Barnes did not indicate
how frequently Plaintiff participated in therapy or include any treatment notes to
corroborate her statement, so the treatment relationship was unclear. See Tr. at 437.
Likewise, Ms. Barnes’ statement lacked supportability because it could not be
corroborated by treatment notes. The ALJ acknowledged that Ms. Barnes’ statement was
consistent with some indications in the record, but indicated additional restrictions that
were not verified in the psychiatrists’ treatment notes. See Tr. 32. The undersigned agrees
that Ms. Barnes suggested some limitations that were not documented in those records.
The ALJ acknowledged Ms. Barnes’ specialization as a mental health counselor. Tr. at
32. The undersigned finds that the ALJ was guided by the factors in 20 C.F.R. §
404.1527(c) and 416.927(c), and that she reasonably gave “some weight,” as opposed to
controlling weight to Ms. Barnes’ opinion in the absence of corroborative records.
However, the undersigned directs that that ALJ should reconsider Ms. Barnes’ opinion on
remand if additional records are provided to corroborate her opinion.
State Agency Consultants’ Opinions
Plaintiff contends the ALJ accorded unjustified weight to the opinions of the nonexamining state agency consultants. Id. at 21–22. Plaintiff further maintains that, while
the ALJ suggested she gave significant weight to Dr. King’s opinion, she neglected to
consider specific indications provided by Dr. King that suggested Plaintiff was unable to
work. Id. at 18–19. The Commissioner argues that the ALJ’s decision to accord
significant weight to the opinions of Drs. Calhoun and King was supported by substantial
evidence and that the ALJ correctly interpreted the limitations in Dr. King’s opinion to be
temporary restrictions that would last for less than 12 months. [ECF No. 28 at 22].
The ALJ accorded significant weight to the opinions of Drs. King and Calhoun
based on their “substantial experience applying Social Security disability law and
policy,” review of “evidence from varied sources,” and “detailed rationale for their
conclusions.” Tr. at 32. She also noted that the Dr. Calhoun’s assessment and Dr. King’s
assessment were consistent with one another. Id.
The undersigned has reviewed Dr. King’s opinion, and accepts the
Commissioner’s argument that the restrictions identified were for less than a 12-month
period. See Tr. at 338–50. Dr. King indicated Plaintiff was “expected to be able to
perform simple unskilled work by 2/11.” Tr. at 350. He also indicated that he gave
controlling weight to the September 2010 record from the mental health center, which
suggested an unremarkable mental status examination. Id. He stated that Plaintiff’s status
would likely remain unremarkable if he was complaint with medication. Id. The
undersigned finds that Dr. King’s opinion was speculative. Furthermore, it failed to
reflect problems with medications and symptoms that were documented in subsequent
treatment notes. Therefore, the undersigned finds that the ALJ erroneously gave
significant weight to Dr. King’s opinion, which was not supported by substantial
The undersigned also finds that the ALJ improperly gave significant weight to Dr.
Calhoun’s opinion. It does not appear that Dr. Calhoun considered Plaintiff’s
hospitalizations. See Tr. at 379 (selected “none” with regard to episodes of
decompensation), 381 (failed to cite records from hospitalizations). He also failed to
properly considered Plaintiff’s activities of daily living, noting the activities that Plaintiff
could perform, but failing to note his restrictions in performing those and other activities.
See Tr. at 381. Dr. Calhoun based his assessment on one mental health treatment note
from November 2010 and the consultative examination report from Dr. Ritz, which fail to
reflect subsequent problems in regulating Plaintiff’s medications and controlling his
symptoms and side effects. See id. Because Dr. Calhoun’s opinion was not based upon
the entire record, the undersigned finds that the ALJ’s decision to accord it significant
weight was unsupported by substantial evidence.
Dr. Hunt’s opinion
Plaintiff argues that the Commissioner neglected to consider Dr. Hunt’s records
and opinion, which he included as an attachment to his motion to admit new evidence.
[ECF No. 26 at 20–21]; [ECF No. 10-3]. Plaintiff argues Dr. Hunt’s records are material
because they contain a statement in which Dr. Hunt indicated Plaintiff was permanently
disabled and that his primary disabling diagnosis was bipolar disorder. [ECF No. 10-1 at
2–3]. Although Plaintiff initially argued that there was good cause for his failure to admit
the evidence at the administrative level, he subsequently indicated in his brief that, upon
review of the record, he discovered that most of the evidence he sought to admit was
submitted at the administrative level and appeared in the record. [ECF No. 26 at 20].
The Commissioner argues that the additional records and opinion from Dr. Hunt
were not material and that Plaintiff did not demonstrate good cause for his failure to
submit the records at the administrative level. [ECF No. 18 at 2–5].
The undersigned denies Plaintiff’s motion to admit the additional evidence as
moot. “[T]he mootness doctrine usually requires a court to dismiss an action in which,
because of events occurring after the plaintiff filed the suit, any relief the court might
grant would be of no utility to the plaintiff.” Ogunde v. Holder, 563 F. App’x. 237 (4th
Cir. 2014) (citing Central States, Se. & Sw. Areas Pension Fund v. Central Transp., Inc.,
841 F.2d 92, 93 (4th Cir. 1998); Tucker v. Phyfer, 819 F.2d 1030, 1034 n. 3 (11th Cir.
1987). In light of Plaintiff’s admission that the evidence that he sought to admit,
including Dr. Hunt’s opinion, was already in evidence, it would provide no utility to
Plaintiff for the undersigned to decide if the ALJ had a duty to acquire the evidence
before making a decision.
consideration of Dr. Hunt’s opinion. Although the Appeals Council determined that Dr.
Hunt’s opinion concerned a period after the date of the ALJ’s decision, the ALJ will have
the opportunity to consider Dr. Hunt’s opinion and the additional records on remand.
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. §
The undersigned also denies as moot Plaintiff’s motion to admit new evidence.
[ECF No. 10].
IT IS SO ORDERED.
February 13, 2015
Columbia, South Carolina
Shiva V. Hodges
United States Magistrate Judge
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