Smith v. Commissioner of Social Security Administration

Filing 21

REPORT AND RECOMMENDATION re 1 Complaint - Social Security filed by Bobby Smith; recommending the Commissioner's decision be reversed under sentence four of 42 U.S.C. § 405(g) and remanded for further administrative proceedings. Objections to R&R due by 8/31/2015. Signed by Magistrate Judge Shiva V Hodges on 8/12/2015. (cwil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Bobby Smith,
Plaintiff,
vs.
Commissioner of Social Security
Administration,
Defendant.

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C/A No.: 1:14-3387-DCN-SVH

REPORT AND RECOMMENDATION

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

Report and Recommendation (“Report”) pursuant to Local Civ. Rule 73.02(B)(2)(a)
(D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to
obtain judicial review of the final decision of the Commissioner of Social Security
(“Commissioner”) denying his 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. For the reasons that follow, the undersigned
recommends that the Commissioner’s decision be reversed and remanded for further
proceedings as set forth herein.

I.

Relevant Background
A.

Procedural History

On July 31, 2009, Plaintiff filed applications for DIB and SSI in which he alleged
his disability began on October 21, 2001.1 Tr. at 111, 112, 242–45, 246–52. His
applications were denied initially and upon reconsideration. Tr. at 148–50, 151–53. On
August 17, 2012, Plaintiff had a hearing before Administrative Law Judge Peggy
McFadden-Elmore (“ALJ McFadden-Elmore”). Tr. at 35–65 (Hr’g Tr.). ALJ McFaddenElmore issued a partially-favorable decision on November 8, 2012, finding that Plaintiff
became disabled on August 13, 2012. Tr. at 115–33. Plaintiff filed a request for review
with the Appeals Council, and the Appeals Council remanded the claim for another
hearing. Tr. at 134–37. A second hearing was held before Administrative Law Judge
Ronald Fleming (“ALJ Fleming”) on November 6, 2013. Tr. at 66–97 (Hr’g Tr.). ALJ
Fleming issued an unfavorable decision on December 30, 2013, finding that Plaintiff was
not disabled within the meaning of the Act. Tr. at 14–34. Subsequently, the Appeals
Council denied Plaintiff’s request for review, making ALJ Fleming’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 August 21, 2014. [ECF No. 1].

1

During the hearing, Plaintiff amended his alleged onset date to January 1, 2008. Tr. at
71.
2

B.

Plaintiff’s Background and Medical History
1.

Background

Plaintiff was 51 years old at the time of the hearing. Tr. at 41. He completed the
ninth grade. Tr. at 79. His past relevant work (“PRW”) was as a forklift operator, a
material handler, and a remodeling laborer. Tr. at 56. He alleges he has been unable to
work since January 1, 2008. Tr. at 71.
2.

Medical History

Plaintiff presented to Mark A. Roberts, M.D. (“Dr. Roberts”), on December 11,
2007, with a complaint of swelling in his left ear and pain in his middle and left chest. Tr.
at 395. He also reported pain on the left side of his face. Id. Dr. Roberts assessed a left
ear infection, hypertension, hyperlipidemia, and atypical chest pain. Tr. at 397. He
prescribed medications and instructed Plaintiff to follow up for fasting lab work in one
week. Id.
On June 16, 2008, Plaintiff complained to Dr. Roberts of a left earache, a smoker’s
cough, and pain in his upper back, left shoulder, and neck. Tr. at 461. Dr. Roberts noted
cerumen impaction in Plaintiff’s left ear and irrigated the ear. Tr. at 463. He
recommended Plaintiff discontinue smoking. Id.
Plaintiff presented to Allen L. Sloan, M.D. (“Dr. Sloan”), for cervical injections on
July 31, 2008.2 Tr. at 419. Dr. Sloan noted Plaintiff’s drug abuse screening test revealed

2

A medical records request dated November 2, 2009, indicates treatment records were
requested from Dr. Sloan’s office for the period from “07/01/08 TO PRESENT.” Tr. at
401. Dr. Sloan’s July 31, 2008, treatment note indicates Plaintiff “was last seen in the
3

no abnormalities. Id. Plaintiff indicated his pain was aggravated by overhead work,
lifting, carrying, pushing, and pulling. Id. Dr. Sloan noted Plaintiff’s lumbar spine was
unremarkable. Id. He observed moderate muscle and tissue loss over Plaintiff’s left
deltoid and suprascapular area. Id. He noted Plaintiff’s left paracervical region
demonstrated spasticity when palpated or when a needle was engaged. Id. He found
Plaintiff to have mild weakness in his left shoulder shrug and with vertical rotation and
extension in his cervical spine. Id. He indicated he was treating Plaintiff for cervical
spondylosis and radiculopathy with exacerbation of facet arthropathy; bilateral
suprascapular neuropathy, left greater than right, secondary to cervical spondylosis and
radiculopathy; post-radiation myeloradiculopathy; and evidence of cervical spondylosis
and lumbar spondylosis by MRI scan. Id. Dr. Sloan instructed Plaintiff to continue his
medications and administered bilateral three-level cervical facet blocks and bilateral
suprascapular injections. Tr. at 419–20.
On September 29, 2008, Plaintiff reported to Dr. Sloan that the injection he
received in July was very helpful, but that he continued to have shoulder and neck pain
aggravated by his daily activities. Tr. at 418. Dr. Sloan observed Plaintiff to have mild
difficulty rising from a seated position and mild pain with range of motion (“ROM”) of
the cervical spine and left suprascapular ridge. Id. He indicated Plaintiff should continue
his current medications and follow up in a month for injections. Id.

office on 3 June 2008.” Tr. at 420. In light of this information, it appears that Plaintiff’s
treatment history with Dr. Sloan predates the record.
4

Plaintiff visited Dr. Sloan for cervical facet injections on October 29, 2008. Tr. at
416. He indicated the medications and injections had helped to reduce his pain and
increase his activity level. Id. He endorsed pain and weakness in his mid and lower neck
and left shoulder, which were aggravated by most activities of daily living. Id. Upon
examination, Plaintiff’s lumbar spine was unremarkable. Id. He had notable loss of
muscle and bulk in his upper trapezius and deltoid and in the left side of the
sternomastoid posteriorly. Id. Plaintiff’s upper back was sensitive to touch, and Dr. Sloan
noted tenderness throughout Plaintiff’s cervical spine. Id. Dr. Sloan indicated bilateral
suprascapular neuropathy had produced notable tenderness in Plaintiff’s suprascapular
ridge, radiating into the areas served by that nerve. Id. He administered C3-4, C4-5, and
C5-6 cervical facet and bilateral suprascapular injections. Id.
On November 25, 2008, Plaintiff indicated to Dr. Sloan that the last injections
were very helpful. Tr. at 415. Dr. Sloan observed Plaintiff to have a mild degree of
difficulty rising from a seated position. Id. He indicated Plaintiff had mild pain with
ROM of the cervical spine and was less tender in his suprascapular ridges. Id.
On December 29, 2008, Dr. Sloan noted that Plaintiff gained weight over the
holidays. Tr. at 414. He indicated Plaintiff had moderate difficulty rising from a seated
position and complained of pain in his suprascapular ridges. Id. He recommended
Plaintiff continue his current medications and watch his diet and prescribed Adipex for
weight loss. Id.
On December 30, 2008, Plaintiff presented to Dr. Roberts for medication refills
and reported left ear pain and a cough. Tr. at 465. Dr. Roberts assessed wheezing, left ear
5

infection,

hypertension,

chronic

obstructive

pulmonary

disease

(“COPD”),

hyperlipidemia, obesity, and nicotine dependence. Tr. at 467. He prescribed medications
and instructed Plaintiff to abstain from smoking and to exercise. Id.
Plaintiff followed up with Dr. Sloan on January 27, 2009, for a cervical injection.
Tr. at 412. Dr. Sloan indicated “[o]verall, the injections on a periodic basis with his daily
medications have been very effective in controlling pain and improving his functionality
so that he is able to take care of himself and his family to a greater extent.” Id. He noted
Plaintiff’s lumbar exam to be unremarkable. Id. However, examination of Plaintiff’s
cervical and thoracic areas revealed extensive muscle loss in the left superior trapezius
region, which Dr. Sloan related to radiation necrosis. Id. Dr. Sloan indicated Plaintiff had
palpable tenderness over multiple cervical facets and the suprascapular ridges bilaterally.
Id. He indicated Plaintiff’s pain was greater with vertical extension and rotation than with
forward flexion. Id. Plaintiff received bilateral three-level cervical facet blocks and
bilateral suprascapular injections. Tr. at 412–13.
On February 24, 2009, Dr. Sloan indicated Plaintiff was attempting to lose weight
to alleviate some of the pressure from his spine and had lost approximately nine pounds
since his last visit. Tr. at 411. Plaintiff indicated the medications helped to manage his
pain. Id. Dr. Sloan observed Plaintiff to have mild difficulty rising from a seated position,
but to have less pain with ROM of his cervical spine and no other abnormal physical
findings. Id.
Plaintiff followed up with Dr. Sloan on March 24, 2009. Tr. at 410. Dr. Sloan
noted Plaintiff was using his medications correctly with no untoward side effects and had
6

lost four pounds over the prior month. Id. He observed Plaintiff to have a mild to
moderate degree of difficulty when standing from a seated position. Id. Plaintiff had pain
with ROM of the left shoulder and cervical spine, but demonstrated no other abnormal
physical findings. Id.
On May 9, 2009, Plaintiff reported to Dr. Sloan that he had been unable to obtain
his medications and injections because he had lost Medicaid for a month. Tr. at 409. Dr.
Sloan observed Plaintiff to be ambulatory with mild difficulty standing from a seated
position. Id. He indicated Plaintiff was taking his medications as directed and denied
untoward side effects. Id. Plaintiff endorsed mild pain with ROM of his cervical spine. Id.
Dr. Sloan observed Plaintiff to be tender in his left suprascapular ridge, but to have no
other abnormal physical findings. Id. He indicated Plaintiff should continue his
medications and follow up for an injection in May. Id.
Plaintiff returned to Dr. Sloan on May 21, 2009, for lumbar injective treatment. Tr.
at 407. Dr. Sloan indicated “[p]eriodic injections of this nature along with his oral
medications have enabled him to maintain functionality and help with control of his pain
for quite some time at this point.” Id. He stated Plaintiff had been using his medications
appropriately and had no untoward side effects. Id. Dr. Sloan indicated Plaintiff had a
history of cancer that was radiated extensively in the left paracervical region and resulted
in extensive radiation loss of tissue and increased pain from a post-radiation
myeloradiculopathy. Id. He stated “[t]his affects the left side of his posterior neck worse
than the right along with extensive loss of tissue from local excision in the left deltoid
and trapezius region.” Id. Dr. Sloan observed Plaintiff’s lumbar examination to be
7

unremarkable. Id. He noted a vast difference in muscle and bulk over Plaintiff’s left
suprascapular and scapular region as opposed to the right. Id. He indicated Plaintiff’s
right scapula, deltoid, and trapezius muscles were painful to touch, but were intact. Id.
Plaintiff was tender to palpation over multiple cervical facets and the suprascapular
ridges bilaterally. Id. He demonstrated pain with extension of his neck. Id. Dr. Sloan
instructed Plaintiff to continue his current medications and administered bilateral threelevel cervical facet blocks and bilateral suprascapular injections. Tr. at 407–08.
Plaintiff presented to Dr. Roberts for routine follow up on June 4, 2009. Tr. at 470.
Dr. Roberts noted Plaintiff continued to smoke and to have a cough. Id. He indicated
Plaintiff denied myalgias on Vytorin and had no localized soft tissue swelling in his
extremities. Id. He refilled Plaintiff’s medications and indicated Plaintiff would return for
fasting blood work. Tr. at 472.
On July 6, 2009, Plaintiff reported to Dr. Sloan that the injections were helpful and
that he had been swimming for exercise and had lost five pounds. Tr. at 406. Dr. Sloan
indicated Plaintiff was taking his medications appropriately and had no untoward side
effects. Id. Dr. Sloan observed Plaintiff to be ambulatory, but to have a mild degree of
difficulty standing from a seated position. Id. He stated Plaintiff had less pain with ROM
of the cervical spine and had no other abnormal findings. Id. He instructed Plaintiff to
continue his current medications and to follow up in one month. Id.
Plaintiff returned to Dr. Sloan on September 4, 2009, for a cervical facet block. Tr.
at 404. Dr. Sloan indicated periodic injections helped Plaintiff to reduce pain and
maintain function. Id. Dr. Sloan observed Plaintiff to have negative Lhermitte’s and
8

Spurling’s sign. Id. Plaintiff had intrinsic neck pain with vertical extension more than
forward flexion and palpable tenderness over the cervical facets bilaterally at the lower
levels between C3 and C6, somewhat greater on the left than on the right. Id. Dr. Sloan
noted Plaintiff to have palpable tenderness over each suprascapular notch that reproduced
pain in the shoulder and shoulder blade. Id. He indicated Plaintiff should continue his
current medications and administered bilateral cervical facet injections and bilateral
suprascapular injections at C3-4, C4-5, and C5-6. Tr. at 405.
Plaintiff followed up with Dr. Sloan in October 2009. Tr. at 403. He reported the
cervical facet blocks and suprascapular injections administered at the prior visit were
beneficial. Id. Dr. Sloan indicated Plaintiff had no new medical issues and was taking his
medications appropriately without any untoward side effects. Id. Dr. Sloan indicated
Plaintiff should continue his current medications and follow up in two months for another
injection. Id.
On January 15, 2010, Plaintiff presented to John A. Nicholson, M.D. (“Dr.
Nicholson”) for a comprehensive orthopedic evaluation at the request of the South
Carolina Vocational Rehabilitation Department. Tr. at 422. Dr. Nicholson observed
Plaintiff to be morbidly obese and to have “marked pain behaviors with range of motion
of every joint tested.” Tr. at 423. Plaintiff demonstrated marked head-forward posture
while sitting. Tr. at 423. He had slightly flattened lumbar lordosis and reduced ROM of
his lumbar spine. Tr. at 423, 425. Dr. Nicholson indicated Plaintiff’s cervical ROM was
markedly limited in extension and moderately limited in lateral flexion. Id. Plaintiff
demonstrated reduced ROM in his bilateral shoulders, which was worse on the left than
9

on the right. Tr. at 425. The straight-leg raising test was positive. Tr. at 423, 425.
Plaintiff’s ROM in his distal upper and lower limbs was within normal limits, but he
demonstrated considerable pain behavior. Tr. at 423. Dr. Nicholson found Plaintiff’s
manual muscle testing to be quite limited secondary to pain and decreased exertion. Id.
Plaintiff’s grip strength was 2–3/5 bilaterally. Id. His limb strength was 4-/5 bilaterally.
Id. Plaintiff had normal bilateral patellar reflexes, but only trace Achilles reflexes. Id. His
gait was slow and antalgic. Id. He was able to able to perform a tandem walk, but tended
to lose his balance. Id. He was unable to perform toe walking, but could perform heel
walking. Id. He could squat to about 80 degrees of knee flexion. Id. He demonstrated no
muscular wasting or atrophy. Id. Dr. Nicholson assessed cervicalgia, lumbago, and
muscle spasm. Tr. at 423–24.
An x-ray of Plaintiff’s cervical spine on February 19, 2010, indicated mild
degenerative changes in the cervical spine and calcifications in the soft tissues of his left
neck, which suggested carotid arterial disease. Tr. at 428. An x-ray of Plaintiff’s lumbar
spine also indicated mild degenerative changes. Tr. at 429.
Plaintiff followed up with Marolyn Baril, MN, FNP (“Ms. Baril”), in Dr. Roberts’
office on March 18, 2010. Tr. at 474. Plaintiff complained of neck stiffness, swollen
glands, and shoulder pain that he rated as a nine on a 10-point scale. Id. Plaintiff
indicated he took medications and received injections for his shoulder pain, but that the
injections typically wore off after 10 days. Id. He complained of feeling tired and
experiencing shortness of breath. Id. Ms. Baril observed Plaintiff to have a decrease in
breath sounds, wheezing, prolonged expiratory time, and decreased expiratory force. Tr.
10

at 475. She also noted Plaintiff had 2+ edema in his leg and ankle and pedal edema. Tr. at
476. Ms. Baril indicated she had a long conversation with Plaintiff regarding abstinence
from smoking. Id. She prescribed new medications and encouraged Plaintiff to follow a
diet and to exercise. Id.
On March 25, 2010, state agency medical consultant Richard Weymouth, M.D.
(“Dr. Weymouth”), reviewed the record and completed a physical residual functional
capacity (“RFC”) assessment. Tr. at 430–37.
Plaintiff followed up with Ms. Baril on April 20, 2010, regarding his blood
pressure and lab work. Tr. at 478. Ms. Baril observed Plaintiff to have prolonged
expiration and scattered expiratory wheezes, particularly in the left lung, but fairly good
airflow throughout both lungs. Tr. at 479. Ms. Baril refilled Plaintiff’s medications and
referred him for lab work. Tr. at 480–81.
Plaintiff presented to James L. Bland, M.D. (“Dr. Bland”), as a new patient on
July 13, 2010. Tr. at 445. Plaintiff indicated he was no longer able to remodel mobile
homes because of pain in his neck, shoulder, and back. Id. Dr. Bland indicated Plaintiff
last saw Dr. Sloan in April 2010.3 Id. Plaintiff stated he had not taken pain medications in
three months. Id. Dr. Bland indicated he would get medical records from Dr. Sloan and
wrote “told if we find in future visits evid of Cocaine or Marijuana He will be
discharged.” Id.

3

Dr. Bland’s handwritten notes are difficult to decipher, but it appears that he indicated
Plaintiff stopped seeing Dr. Sloan due “to Cocaine & Marijuana.” See Tr. at 445.
11

An x-ray of Plaintiff’s cervical spine on July 30, 2010, indicated no significant
findings. Tr. at 441. Plaintiff followed up with Dr. Bland to discuss the x-ray on August
12, 2010. Tr. at 444. He referred Plaintiff for bilateral carotid Doppler studies. Id.
Plaintiff followed up with Ms. Baril on August 20, 2010. Tr. at 482. He reported
tiring easily, left neck pain and muscle tightness, dyspnea, and orthopnea. Id. He
complained of pain in his neck, lumbar spine, and knees. Tr. at 483. Ms. Baril observed
Plaintiff to have a scattered mild ronchi and decreased breath sounds, but no acute
breathing problem. Id. Ms. Baril ordered lab work, refilled Plaintiff’s medications, and
instructed him to follow up in three months. Tr. at 484.
On August 26, 2010, a carotid Doppler ultrasound revealed Plaintiff to have
moderate to severe disease in the left common carotid and proximal internal carotid
arteries that resulted in 60 to 75 percent stenosis. Tr. at 439. Plaintiff had no Dopplerable
flow in the left vertebral artery, which suggested occlusion. Id.
Plaintiff returned to Dr. Bland on September 8, 2010, to discuss the ultrasound
results and to obtain prescription refills. Tr. at 443. Plaintiff had contacted Dr. Bland’s
office the day before to report that his feet were swelling and he was experiencing
dizziness. Tr. at 450. Dr. Bland indicated diagnoses of COPD, hypertension, GERD, and
chronic pain syndrome. Tr. at 443. He referred Plaintiff to a vascular surgeon. Id.
Plaintiff presented to Christopher Gates, M.D., on September 17, 2010, for
consultation regarding the blockage in his left carotid artery. Tr. at 456. Dr. Gates
indicated Plaintiff had developed complete occlusion of his left vertebral artery and
stenosis of his left internal carotid artery because of radiation administered 15 years
12

earlier to treat for left neck pituitary cancer. Id. Dr. Gates indicated he was referring
Plaintiff for angiograms and that Plaintiff should return after the procedure. Id.
Plaintiff underwent angiograms of the cervicocerebral arch and bilateral selective
carotids on September 29, 2010. Tr. at 457–58.The tests showed complete occlusion of
Plaintiff’s left thyrocervical trunk, including the left vertebral artery, and two areas of
stenosis in the left common carotid/internal carotid artery with 50 to 60% stenosis in the
common carotid and 60 to 70% stenosis of the internal carotid. Tr. at 458. Plaintiff also
underwent a Duplex scan of the veins in his lower extremities, which showed no
evidence of deep venous thrombosis, mild venous valvular incompetence in the deep
system on the right side, and venous valvular incompetence of the left greater saphenous
vein. Tr. at 459.
Plaintiff followed up with Dr. Bland on October 7, 2010. Tr. at 531. He indicated
to Dr. Bland that he had seen Dr. Gates, who had determined he had a blockage in his left
carotid artery. Id. Dr. Bland assessed left carotid artery occlusion, COPD, GERD, and
neck pain and refilled Plaintiff’s medications. Id.
On October 22, 2010, Plaintiff underwent a left carotoid endarterectomy. Tr. at
505. Dr. Gates observed Plaintiff to have a significant area of stenosis and significant
adhesions and scarring all around the carotid artery from previous surgery and radiation.
Id.
Plaintiff presented to Dr. Gates for removal of his stitches and surgical staples on
November 1, 2010. Tr. at 516. Dr. Gates noted Plaintiff had venous valvular

13

incompetency and complained of swelling and cramps in his left leg. Id. He indicated he
would schedule Plaintiff for venous closure. Id.
On November 8, 2010, Plaintiff followed up with Dr. Bland for chronic left neck
and shoulder pain. Tr. at 532. He indicated his pain had increased and he was taking more
Norco than usual. Id. Dr. Bland increased Plaintiff’s quantity of Norco to 100 tablets per
month. Id.
Plaintiff presented to Dr. Roberts on November 19, 2010, for routine follow up
and medication refills. Tr. at 487. Dr. Roberts indicated Plaintiff was “doing great”
following left carotid endarterectomy. Id. Plaintiff was wheezing and continued to have a
chronic cough, but Dr. Roberts noted that he continued to smoke, as well. Tr. at 488. Dr.
Roberts observed Plaintiff to have prolonged expiration and scattered end-expiratory
squeaks bilaterally. Tr. at 489. He indicated “HE ABSOLUTELY MUST STOP
SMOKING, AND I TOLD HIM SO. HE’S GOT A NICOTINE PATCH, BUT I DON’T
THINK HE’S USING IT. I ASKED HIM TO MAKE A SERIOUS EFFORT TO QUIT.”
Id. He continued Plaintiff’s current medications and instructed him to follow up in two
months. Id.
A Doppler carotid scan on November 22, 2010, showed excellent flow in
Plaintiff’s bilateral carotid arteries and no significant stenosis. Tr. at 508.
Plaintiff presented to Dr. Bland for follow up on December 2, 2010. Tr. at 529. Dr.
Bland indicated Plaintiff continued to complain of pain and a “stinging feeling” in the left
side of his neck. Id. Dr. Bland indicated he would obtain Dr. Gates’ records and the
Doppler studies and x-rays. Id.
14

On December 16, 2010, Plaintiff underwent radiofrequency obliteration of the left
greater saphenous vein. Tr. at 495. He tolerated the procedure well and was discharged to
his home following the outpatient surgery. Id.
On December 23, 2010, a duplex scan of Plaintiff’s lower extremities showed
normal flow and closure of the left greater saphenous vein at all levels. Tr. at 507. Dr.
Gates indicated Plaintiff was “doing well with no complaints other than a little bit of
numbness and tingling in his legs” that did not limit his activities. Tr. at 515. He
indicated Plaintiff should follow up as needed. Id.
Plaintiff presented to Dr. Bland for monthly follow up on January 3, 2011, and
complained of sleep disturbance. Tr. at 528. On February 1, 2011, he followed up with
Dr. Bland for cervical pain, COPD, left leg pain, history of left carotid endarterectomy,
and prescription refills. Tr. at 527.
State agency medical consultant Frank Ferrell, M.D. (“Dr. Ferrell”), completed a
physical RFC assessment on February 25, 2011. Tr. at 517–24.
Plaintiff followed up with Dr. Bland for left leg pain, gastroesophageal reflux
disease (“GERD”), left neck pain, and COPD on March 1, 2011. Tr. at 526. Dr. Bland
refilled Plaintiff’s medications. Id. On May 2, Plaintiff presented to Dr. Bland with a
severe headache. Tr. at 536. Dr. Bland noted Plaintiff had lost seven-and-a-half pounds.
Id. He observed tenderness on the left side of Plaintiff’s neck and assessed COPD,
GERD, muscle pain, anxiety/stress, and arthritis. Id. On June 27, Plaintiff followed up
with Dr. Bland for a recheck and medication refills. Tr. at 538. Plaintiff complained to
Dr. Bland that his left foot was swelling and that he was wheezing on August 30. Tr. at
15

539. Dr. Bland observed swelling, but only diagnosed “foot pain.” Id. Plaintiff presented
to Dr. Bland for a recheck on October 3, and Dr. Bland noted that he had lost 17 pounds
since his August visit. Tr. at 545. A review of systems was within normal limits. Id. On
November 2, Dr. Bland noted that Plaintiff’s wife had recently left him and that his
Medicaid coverage was dropped. Tr. at 546. He indicated Plaintiff had lost 11 pounds
since his visit the previous month. Id. Plaintiff saw Dr. Bland again on November 30, and
Dr. Bland indicated he had lost another four pounds. Tr. at 547. Plaintiff indicated he had
recently “put up 15 sheets of sheet rock.” Tr. at 548.
Plaintiff followed up with Dr. Bland on February 6, 2012, for prescription refills.
Tr. at 549. Dr. Bland indicated Plaintiff was stable on his medications and had lost 12
pounds in two months. Id. On March 14, Plaintiff complained to Dr. Bland of difficulty
sleeping and stated he had a lot of stress in his life. Tr. at 552. Dr. Bland prescribed
Exforge 5/160, Valium 10 milligrams, Mobic 15 milligrams, Norco 10/325, Spiriva 18
micrograms, and Advair Diskus 250/50. Tr. at 553. On May 9, Plaintiff informed Dr.
Bland that he was unable to afford his prescription for Exforge. Tr. at 556. Dr. Bland
indicated Plaintiff’s impairments were stable and that he had lost another pound. Id. On
July 11, Dr. Bland indicated Plaintiff’s weight had decreased from 223 pounds to 215
pounds. Tr. at 557. He refilled Plaintiff’s medications. Id. Plaintiff presented to Dr. Bland
on August 13, for follow up and to have paperwork completed for his disability claim. Tr.
at 561. He indicated he was unable to afford his blood pressure medication. Id. Dr. Bland
noted Plaintiff had a history of back, neck, and shoulder pain. Id. He completed the
disability questionnaire as detailed below. Tr. at 559.
16

Plaintiff underwent pulmonary function testing at Aiken Regional Medical Center
on September 14, 2012. Tr. at 563–66. He gave good effort and his breathing improved
after administration of a bronchodilator. Tr. at 563.
On September 15, 2012, Plaintiff presented to Branham Tomarchio, M.D., for a
consultative examination.4 Tr. at 576–80. Dr. Tomarchio noted Plaintiff rose from the
waiting room chair slowly and with much difficulty. Tr. at 578. He observed Plaintiff to
keep his back straight at all times and his neck bent to the right. Id. He indicated
Plaintiff’s right shoulder was higher than his left. Id. Dr. Tomarchio observed Plaintiff to
walk with a tight, hunched position and a shuffling gait and to be unstable. Id. Plaintiff
had an abnormal posture and an obvious muscle spasm. Id. Dr. Tomarchio indicated he
appeared anxious. Id. Plaintiff had a large area of vertical scarring on the left side of his
neck and his left cheek was deformed and tight. Id. He was tender to palpation over his
mid-spine. Tr. at 579. Dr. Tomarchio found Plaintiff to have 5/5 grip strength bilaterally,
but he indicated Plaintiff’s abilities to perform fine and gross manipulation were impaired
because he kept his arms in frozen position to protect his neck and back. Id. Plaintiff
demonstrated significantly reduced ROM of his cervical spine with flexion reduced from
50 to 10 degrees, extension reduced from 60 to five degrees, lateral flexion reduced from
45 to 10 degrees bilaterally, and rotation reduced from 80 to 20 degrees bilaterally. Tr. at
574. Plaintiff’s lumbar ROM was also limited, with flexion reduced from 90 to 25
degrees, extension reduced from 25 to 10 degrees, and lateral flexion reduced from 25 to

4

Following the first hearing, ALJ McFadden-Elmore referred Plaintiff to Dr. Tomarchio
for a consultative examination and requested a medical source statement. See Tr. at 64,
363–64.
17

10 degrees. Id. His bilateral shoulder ROM was diminished, with abduction reduced from
150 to 40 degrees bilaterally, adduction reduced from 30 to 20 degrees bilaterally,
forward elevation reduced from 150 to 120 degrees on the left and 100 degrees on the
right, and external rotation reduced from 80 to 20 degrees bilaterally. Id. Plaintiff’s
bilateral elbow supination and pronation were slightly reduced from 80 to 70 degrees. Id.
His hip ROM was significantly decreased, with abduction reduced from 40 to 25 degrees
bilaterally, adduction reduced from 20 to 10 degrees bilaterally, flexion reduced from 100
degrees to 25 degrees on the left and 35 degrees on the right, internal rotation reduced
from 40 degrees to 5 degrees on the left and 10 degrees on the right, and extension
reduced from 30 degrees to 10 degrees on the left and 20 degrees on the right. Id.
Straight-leg raising tests were positive in the sitting and supine positions bilaterally. Id.
Plaintiff demonstrated difficulty performing the tandem walk, heel/toe walk, and squat,
and his gait was disturbed. Tr. at 575. Plaintiff had 5/5 muscle strength in the proximal
and distal muscle groups of his upper and lower extremities and a grossly intact sensory
examination. Tr. at 579. Dr. Tomarchio indicated Plaintiff would have difficulty with
activities that involved cervical ROM, such as looking up; the use of fine and gross
manipulative skills; sitting, standing, or walking for prolonged periods; and bending,
carrying, or lifting. Tr. at 580.
Plaintiff followed up with Dr. Bland on October 8, 2012, for a recheck and to
discuss medications. Tr. at 583. Dr. Bland noted Plaintiff had lost eight pounds since
August. Id. On December 4, Dr. Bland indicated Plaintiff’s weight loss might have
something to do with his medications. Tr. at 584. He stated it may be necessary to
18

discontinue a medication if Plaintiff’s weight continued to fall. Id. Plaintiff followed up
with Dr. Bland on March 11, 2013, for a recheck and to discuss medications. Tr. at 585.
He continued to complain to Dr. Bland of pain in his left shoulder and on the left side of
his neck on May 13, 2013. Tr. at 586. He followed up with Dr. Bland on July 9, 2013,
and September 4, 2013, but notes from these visits are generally illegible. See Tr. at 587–
89.
On November 6, 2013, Dr. Bland wrote a letter in response to Dr. McClure’s
testimony at the hearing. Tr. at 591. He stated his clinical findings were based on his inoffice evaluations, indicated Plaintiff had previously seen Drs. Sloan and Roberts for pain
management, and suggested Dr. McClure review his office notes and those of Dr. Sloan
more thoroughly. Id.
C.

The Administrative Proceedings
1.

August 2012 Administrative Hearing
a.

Plaintiff’s Testimony

At the hearing on August 17, 2012, Plaintiff testified he lived alone in a mobile
home. Tr. at 41. He stated he was 6’1” tall and weighed 218 pounds after having lost over
60 pounds. Id. He testified he had a driver’s license and drove up to three times per week.
Tr. at 42. He indicated he smoked a pack of cigarettes every two days. Tr. at 43. He
denied having worked or received unemployment compensation since January 1, 2008.
Id.

19

Plaintiff testified his PRW included full-time work as a heavy equipment operator
and a forklift operator and part-time work cleaning out and refurbishing mobile homes.
Tr. at 43.
Plaintiff testified he received injections that helped a little, but rarely lasted for
more than a week. Tr. at 47. He indicated his pain had worsened since his alleged onset
date. Tr. at 48. He endorsed pain in his neck, shoulders, and back and stated he could
barely move his neck. Id. He indicated he would have difficulty sitting up throughout a
day without having his neck supported. Tr. at 49. He stated he could sit for 20 minutes at
a time and stand for 20 minutes at a time. Tr. at 51. He testified he could stand and walk
for around two hours out of an eight hour workday. Tr. at 54. He indicated he could lift
25 pounds on his right side and about 10 pounds on his left side. Tr. at 51. He testified he
had difficulty gripping and holding objects, particularly with his left hand. Tr. at 52.
Plaintiff testified he awoke around 7:30 to 8:00 a.m., but sometimes was unable to
sleep during the night. Tr. at 44. He stated he took his medications, watched television,
and went back to sleep. Tr. at 45. He indicated his mother and sister did his laundry,
brought food to him, did his grocery shopping, and cared for his dog. Tr. at 45–46. He
testified he fell asleep before 9:30 each evening, but sometimes awoke with a panic
attack during the night. Tr. at 45–46.
b.

Vocational Expert Testimony

Vocational Expert (“VE”) Thomas Neil, Ph. D., reviewed the record and testified
at the hearing. Tr. at 55–63. The VE categorized Plaintiff’s PRW as a forklift operator,
Dictionary of Occupational Titles (“DOT”) number 921.683-050, as medium with a
20

specific vocational preparation (“SVP”) of three; a material handler, DOT number
929.687-030, as heavy with an SVP of three; a grounds keeper, 406.687-010, as medium
with an SVP of two; and a remodeling laborer, 869.687-026, as medium to heavy with an
SVP of two. Tr. at 56. ALJ McFadden-Elmore described a hypothetical individual of
Plaintiff’s vocational profile who could lift and/or carry 20 pounds occasionally and 10
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; and
occasionally climb ramps or stairs, balance, stoop, kneel, crouch, and crawl. Tr. at 57.
The VE testified that the hypothetical individual would be unable to perform Plaintiff’s
PRW. Id. ALJ McFadden-Elmore asked whether there were any other jobs in the region
or national economy that the hypothetical person could perform. Id. The VE identified
light and unskilled jobs as a commercial cleaner, DOT number 323.687-014, with 850
positions in South Carolina and 90,000 positions nationally; a laundry garment bagger,
DOT number 920.687-018, with 650 positions in South Carolina and 17,000 positions in
the national economy; and a dining room attendant, DOT number 311.677-010, with 950
positions in South Carolina and 70,000 positions in the national economy. Id.
ALJ McFadden-Elmore next asked the VE to assume the hypothetical individual
was limited as follows: lift and/or carry 10 pounds occasionally and less than 10 pounds
frequently; stand and/or walk at least two 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, balance, stoop, kneel, crouch, and crawl. Tr. at 58. He asked if the
hypothetical individual could perform any jobs available in the local or national
21

economy. Id. The VE testified the individual would be able to perform the full range of
sedentary, unskilled work and identified specific jobs as a business service operator, DOT
number 237.367-014, with 1,000 positions in South Carolina and 110,000 positions
nationally; an addressing clerk, DOT number 209.587-010, with 900 positions in South
Carolina and 16,000 positions nationally; and a brake lining coater, DOT number
574.685-010, with 550 positions in South Carolina and 25,000 positions nationally. Tr. at
58–59.
For a third hypothetical, ALJ McFadden-Elmore asked the VE to assume an
individual of Plaintiff’s vocational profile who could lift and/or carry 20 pounds
occasionally and less than 10 pounds frequently; stand and/or walk for about six hours in
an eight-hour workday; never climb ladders, ropes, or scaffolds; occasionally climb
ramps and stairs, balance, stoop, kneel, crouch, and crawl; and should avoid concentrated
exposure to extreme cold, extreme heat, fumes, odors, dust, gases, and poor ventilation.
Tr. at 59. ALJ McFadden-Elmore asked if the hypothetical individual could perform any
jobs. Id. The VE testified the individual could perform the same jobs identified in
response to the first hypothetical question. Tr. at 60.
For a fourth hypothetical question, ALJ McFadden-Elmore asked the VE to
assume an individual of Plaintiff’s vocational profile who was limited as follows: lift
and/or carry 10 pounds occasionally and less than 10 pounds frequently; stand and/or
walk about least two 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;
balance, stoop, kneel, crouch, and crawl; and avoid concentrated exposure to extreme
22

cold, extreme heat, fumes, odors, dust, gases, and poor ventilation. Id. ALJ McFaddenElmore asked if this individual would be able to perform any work available in the local
or national economy. Id. The VE testified the same jobs identified in response to the
second hypothetical question would be available. Tr. at 61.
For a fifth hypothetical, ALJ McFadden-Elmore asked the VE to consider an
individual of Plaintiff’s vocational profile with the following limitations: lift and/or carry
10 pounds occasionally and less than 10 pounds frequently; stand and/or walk for less
than two hours because of pain; sit for less than six hours because of pain; never climb
ladders, ropes, or scaffolds; occasionally climb ramps and stairs, balance, stoop, kneel,
crouch, and crawl; and avoid concentrated exposure to extreme cold, extreme heat, and
fumes. Id. ALJ McFadden-Elmore asked if this individual would be able to perform any
work available in the local or national economy. Id. The VE testified the individual
would not be able to perform any jobs because he would not be meeting a normal
workday. Id.
ALJ McFadden-Elmore asked the VE if his testimony was consistent with the
DOT, the Selected Characteristics of Occupations Defined in the Revised Diction of
Occupational Titles (“SCO”), and supporting publications. Id. The VE stated “[t]o the
best of my knowledge.” Id.
Plaintiff’s counsel (“Counsel”) asked the VE to assume the individual had
problems with grip strength to the point that he was limited to only occasional
manipulation with his hands. Tr. at 62. He asked if that would preclude the sedentary jobs
identified. Id. The VE testified that only one unskilled, sedentary job allowed for
23

occasional reaching, handling, and fingering. Id. He indicated a limitation to occasional
use of the hands for reaching, handling, and fingering would have a substantial impact on
the sedentary, unskilled occupational base. Id.
Counsel next asked the VE to assess the vocational implications of an individual
using a head support. Id. The VE indicated that use of a head support would present no
problem in the workplace as long as the individual was meeting performance standards.
Id.
Counsel asked the VE whether an individual was expected to maintain a seated
position for most of the day in a sedentary job. Tr. at 62. The VE indicated the
assumption in the DOT was that the individual could sit for six hours out of a normal day.
Id. He stated the DOT did not speak to the sit/stand option. Id. He further indicated the
normal assumption underlying the DOT is that the individual could sit for at least two
hours on a continuous basis. Id.
2.

November 2013 Administrative Hearing
a.

Plaintiff’s Testimony

At the hearing on November 6, 2013, Plaintiff testified he weighed 212 pounds
and had lost weight because he was depressed and did not feel like eating. Tr. at 72. He
indicated he had a driver’s license, but did not drive because he no longer owned a
vehicle. Tr. at 79.
Plaintiff testified he had constant pain in his shoulder and neck and occasional
pain in his lower back. Tr. at 82–83. He assessed the pain in his lower back as an eight to
nine of 10. Tr. at 83. He indicated he took Oxycodone for pain, which provided
24

temporary relief. Id. He stated no doctors had recommended back surgery. Id. Plaintiff
endorsed taking medication for COPD and using an inhaler. Tr. at 84. He acknowledged
that he continued to smoke. Id. Plaintiff testified he experienced a tingling sensation in
his neck and hands, but denied tingling in his feet and legs. Tr. at 85. He indicated his
right hand was fine, but his left hand was weak. Tr. at 90. He testified he recently
dropped a gallon of bleach, causing it to break and spill on the floor. Id. He stated he was
taking medication for anxiety and experienced panic attacks a couple of times per month.
Tr. at 85. Counsel questioned Plaintiff about his treatment with Dr. Sloan and Plaintiff
indicated Dr. Sloan’s treatment provided short-term relief. Tr. at 89.
Plaintiff testified he was unable to work because of his pain. Tr. at 91. He
indicated he could not lift, sit, or stand to perform a job. Id. He stated he was unable to do
anything for too long and needed to lie down. Id. Plaintiff indicated he spent six to seven
hours lying down during a typical day. Id. He stated his medication made him sleepy and
caused him to doze off. Tr. at 91–92.
Plaintiff testified he could sit and stand for 10 minutes at a time. Tr. at 86. He
indicated he could walk for an eighth to a quarter of a mile. Id. He stated he could not
carry anything in his left hand, but could carry 10 pounds in his right hand. Id. He
indicated he could pick up an item off the ground, kneel on one knee, squat, and crawl.
Id.
Plaintiff testified he microwaved food that his mother prepared and brought to him
daily. Tr. at 87. He stated his mother washed his dishes, did his yard work, and
vacuumed, mopped, and swept his floors. Id. He indicated he did his own laundry. Id. He
25

testified he went with his mother to the grocery store. Id. He stated that on a typical
morning, he had a cup of coffee, watched television, ate something, and went back to
sleep. Tr. at 88. He indicated he took short naps throughout the day and was unable to
sleep for more than six hours at night because of his back pain. Id.
b.

Medical Expert Testimony

Medical Expert (“ME”) Howard McClure, M.D., reviewed the record and testified
at the hearing. Tr. at 73–77. ALJ Fleming asked the ME to identify Plaintiff’s
impairments between January 1, 2008, and December 31, 2011. Tr. at 73. The ME
indicated Plaintiff had a left carotid malignancy with surgery and radiation therapy in
1995 that resulted in vocal stuttering and complaints of pain in his face and neck. Tr. at
73–74. He stated Plaintiff had an occlusion of his left vertebral artery and a left carotid
endarterectomy without significant neurological loss. Tr. at 74. He indicated Plaintiff had
COPD that was not severe. Id. He stated Plaintiff had hypertension, but no significant
coronary artery disease. Id. The ME indicated Plaintiff’s impairments did not meet or
equal a listed impairment and supported an RFC for the full range of medium work. Id.
ALJ Fleming asked the ME to provide an opinion regarding the x-rays of
Plaintiff’s cervical and lumbar spine. Id. The ME classified the changes on x-ray as minor
and stated Plaintiff had no evidence of radiculopathy. Id.
Counsel questioned the ME about Dr. Sloan’s report. Tr. at 75. The ME stated he
reviewed Dr. Sloan’s report, but did not agree with the diagnosis of right radiculopathy
because he did not find an objective test that supported it in the records. Id.

26

Counsel asked the ME if the muscle loss in Plaintiff’s left superior area would be
expected from the radiation treatment he received. Tr. at 76. The ME testified that it
might be expected from the radiation, but did not significantly hamper Plaintiff’s
activities. Id.
Counsel asked the ME about Dr. Tomarchio’s indications that Plaintiff had
obvious muscle spasm and was limited in his physical abilities. Id. The ME indicated
there was no objective support for the limitations. Id. Counsel asked the ME if limited
strength in the hands and straight-leg raising tests provided support for Dr. Tomarchio’s
opinion. Id. The ME indicated it depended on what sort of impairments were found based
on those observations and that the specified limitations were not supported by the
objective findings. Tr. at 76–77. Counsel asked what objective findings would be
necessary to support the limitations identified. Tr. at 77. The ME testified that Dr.
Tomarchio would have had to specify which impairments he was talking about. Id.
Counsel pointed out that Plaintiff was treated for neuropathy, radiculopathy, and muscle
lessening. Id. The ME testified the limitations did not make sense to him in light of those
diagnoses. Id.
c.

VE Testimony

VE Mary Cornelius reviewed the record and testified at the hearing. Tr. at 92–95.
She classified Plaintiff’s PRW as that of a heavy equipment operator, DOT number
859.683-010, which is medium and skilled with an SVP of six and a forklift operator,
DOT number 921.683-050, which is medium and semiskilled with an SVP of three. Tr. at
93. ALJ Fleming asked the VE to consider a hypothetical individual with Plaintiff’s
27

vocational profile that was limited to light work with the following restrictions:
frequently climbing ramps and stairs and balancing; no climbing of ladders, ropes, or
scaffolds, kneeling, crouching, or crawling; occasionally stooping; and must avoid
concentrated exposure to fumes, odors, dust, gases, poor ventilation, machinery, and
heights. Id. He asked if the hypothetical individual could perform any of Plaintiff’s PRW.
Id. The VE testified the individual could not. Id. ALJ Fleming asked if there were other
jobs for an individual who was limited as described in the hypothetical. Id. The VE
testified the individual could perform light and unskilled work as a mail sorter, DOT
number 209.687-026, with 1,600 positions in South Carolina and 100,000 positions
nationally; a proofreader helper, DOT number 239.667-010, with 1,000 positions in
South Carolina and 54,000 positions nationally; and a plumbing assembler, DOT number
706.684-086, with 900 positions in South Carolina and 60,000 positions nationally. Id.
For a second hypothetical, ALJ Fleming asked the VE to assume the same
restrictions in the first hypothetical, but to further assume the individual was limited to
occasional handling with the non-dominant upper extremity. Tr. at 93. ALJ Fleming
asked if the additional restriction precluded performance of the jobs identified in response
to the first hypothetical. Tr. at 94. The VE indicated it did not. Id.
For a third hypothetical, ALJ Fleming asked the VE to assume the same
restrictions in the second hypothetical, but to assume the individual was limited to
sedentary work, would be off task for 20 percent of the workday, and would miss three
days of work per month. Id. He asked if the hypothetical individual could perform any
work. Id. The VE testified he could not. Id.
28

Counsel asked the VE if a person could perform sedentary work if he was not able
to remain in a seated position throughout most of the day. Id. The VE testified that if the
individual was unable to perform the job tasks, he would not be able to engage in
sedentary work. Tr. at 95. Counsel asked if a limitation to no more than two hours of
standing and walking daily would limit an individual to sedentary work. Id. The VE
indicated it would. Id. Counsel asked the VE to assume the individual was occasionally
limited to fine and gross hand manipulations. Id. He asked if the individual could perform
sedentary and light jobs in substantial numbers. Id. The VE testified the individual could
not perform sedentary jobs if he lacked good bilateral handling and fine manipulation. Id.
ALJ Fleming asked the VE if her testimony comported with the DOT. Id. She
indicated it did. Id.
3.

ALJ Fleming’s Findings

In his decision dated December 30, 2013, ALJ Fleming made the following
findings of fact and conclusions of law:
1.
2.

3.

4.

The claimant meets the insured status requirements of the Social Security
Act through December 31, 2011.
The claimant has not engaged in substantial gainful activity since January
1, 2008, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et
seq.).
The claimant has the following severe impairments: status post left carotid
endarterectomy secondary to parotid gland tumor with removal and
radiation and chemotherapy; chronic obstructive pulmonary disorder
(COPD); status post closure of the greater saphenous vein; neuropathy;
degenerative disc disease of the lumbar and cervical spine (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 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(d), 416.925 and 416.926).
29

5.

6.
7.

8.
9.

10.

11.

After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b) except: he can only
occasionally climb ramps and stairs; he can never climb ladders, ropes, or
scaffolds; he can frequently balance; he can only occasionally stoop; he can
never kneel, crouch, or crawl; he should avoid concentrated exposure to
fumes, odors, dusts, gases, poor ventilation, machinery, and heights; he can
only occasionally handle with the left upper extremity.
The claimant is unable to perform any past relevant work (20 CFR
404.1565 and 416.965).
The claimant was born on September 28, 1960 and was 47 years old, which
is defined as a younger individual age 18–49, on the amended alleged
disability onset date. The claimant subsequently changed age category to
closely approaching advanced age (20 CFR 404.1563 and 416.963).
The claimant has a limited 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 applying 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,
Appendix 2).
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, 416.969(a)).
The claimant has not been under a disability, as defined in the Social
Security Act, from January 1, 2008, through the date of this decision (20
CFR 404.1520(g) and 416.920(g)).

Tr. at 20–28.
D.

Appeals Council Review
1.

July 9, 2013

The Appeals Council issued an order remanding the case to an ALJ on July 9,
2013. Tr. at 134–36. It indicated it granted the request for review under the substantial
evidence provision of the Social Security Administration’s (“SSA’s”) regulations. Tr. at
135. It stated its order vacated the hearing decision and remanded the case to an ALJ to
30

determine whether Plaintiff was disabled prior to his date last insured.5 Id. The order
instructed the ALJ to obtain evidence from a medical expert; to give further consideration
to the claimant’s maximum RFC, if necessary; and to obtain supplemental evidence from
a VE, if warranted by the expanded record. Tr. at 136.
2.

June 18, 2014

On June 18, 2014, the Appeals Council issued a notice denying Plaintiff’s request
for review. Tr. at 1–3.
II.

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

ALJ Fleming neglected to address the prior ALJ’s findings and
determination;

2)

ALJ Fleming did not adequately evaluate the opinion evidence; and

3)

ALJ Fleming ignored conflicts between the VE’s testimony and the DOT.

The Commissioner counters that substantial evidence supports ALJ Fleming’s
findings and argues ALJ Fleming committed no legal error in his decision.

5

The Appeals Council noted that ALJ McFadden-Elmore found Plaintiff to have
sufficient quarters of coverage to remain insured through December 31, 2012, but the
SSA’s queries indicated Plaintiff was only insured for benefits through December 31,
2011. Tr. at 135. Because ALJ McFadden-Elmore found Plaintiff disabled on August 13,
2012, the change in date last insured meant Plaintiff was no longer insured for DIB on the
date ALJ McFadden-Elmore found him disabled.
31

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
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;6 (4) whether such

6

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, 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
32

impairment prevents claimant from performing PRW;7 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
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.

(1987) (noting the burden is on claimant to establish his impairment is disabling at Step
3). 
7
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).
33

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 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, 296 F.3d at 290 (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
34

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.

Prior ALJ Determination

In a partially-favorable decision dated November 8, 2012, ALJ McFadden-Elmore
made the following findings of fact and conclusions of law:
1.
2.

3.

4.

5.

6.

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 the
alleged onset date, as amended (20 CFR 404.1571 et seq., and 416.971 et
seq.).
Since the amended alleged onset date of disability, January 1, 2008, the
claimant has had the following severe impairments: degenerative disc
disease of the cervical and lumbar spines, neck pain, back pain, and
shoulder pain. Beginning on the established onset date of disability, August
13, 2012, the claimant has had the following severe impairments:
degenerative disc disease of the cervical and lumbar spines, neck pain, back
pain, shoulder pain, and chronic obstructive pulmonary disease (COPD) (20
CFR 404.1520(c) and 416.920(c)).
Since the alleged onset date of disability, as amended, January 1, 2008, the
claimant has not had 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(d), 416.925, and 416.926).
After careful consideration of the entire record, I find that prior to August
13, 2012, the date the claimant became disabled, the claimant had the
residual functional capacity to perform a range of light work as defined in
20 CFR 404.1567(b) and 416.967(b) in that he could lift and carry no more
than twenty pounds occasionally and ten pounds frequently; stand and walk
for about six hours in a workday; and sit for about six hours in a workday.
He could occasionally balance, stoop, kneel, crouch, crawl, and climb
ramps and stairs, but never climb ladders, ropes, and scaffolds.
After careful consideration of the entire record, I find that beginning on
August 13, 2012, the claimant has the residual functional capacity to
35

7.
8.

9.
10.

11.

12.

13.

perform the exertional requirements of no more than the full range of
sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a).
Since January 1, 2008, the claimant has been unable to perform any past
relevant work (20 CFR 404.1565 and 416.965).
Prior to the established disability onset date, the claimant was a younger
individual age 18–49. Since the established disability onset date, the
claimant’s age category has changed to an individual closely approaching
advanced age (20 CFR 404.1563 and 416.963).
The claimant has a limited education and is able to communicate in English
(20 CFR 404.1564 and 416.964).
Prior to August 13, 2012, 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. Beginning on August 13,
2012, the claimant has not been able to transfer job skills to other
occupations (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
Prior to August 13, 2012, 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 CFR 404.1569, 404.1569a, 416.969, and 416.969a).
Beginning on August 13, 2012, considering the claimant’s age, education,
work experience, and residual functional capacity, there are no jobs that
exist in significant numbers in the national economy that the claimant can
perform (20 CFR 404.1560(c), 404.1566, 416.960(c), and 416.966).
The claimant was not disabled prior to August 13, 2012, but became
disabled on that date and has continued to be disabled through the date of
this decision (20 CFR 404.1520(g) and 416.920(g)).

Tr. at 121–28.
Plaintiff argues ALJ Fleming neglected to reconcile or even address his reasons
for deviating from ALJ McFadden-Elmore’s findings. [ECF No. 17 at 20–24]. He
maintains ALJ Fleming neglected to follow the mandates of Acquiescence Ruling (“AR”)
00-1(4) and the Fourth Circuit’s decision in Albright v. Commissioner of the Social
Security Administration, 174 F.3d 473 (4th Cir. 1999). Id. at 21–22. Although Plaintiff
acknowledges ALJ McFadden-Elmore’s decision was not administratively final, he
argues that ALJ Fleming could not reject the prior decision unless substantial evidence
36

supported such a decision. Id. at 23. Finally, he argues that substantial evidence did not
support ALJ’s Fleming’s rejection of the prior decision because he failed to provide any
explanation for his deviation from ALJ McFadden-Elmore’s findings. Id.
The Commissioner argues the only applicable test is whether substantial evidence
supports her final decision. [ECF No. 19 at 7]. She maintains that the holding in Albright
and the policy articulated in AR 00-1(4) are not applicable because the prior ALJ’s
decision was not the Commissioner’s final decision. Id. at 8. She also contends that even
if Albright and AR 00-1(4) applied here, the findings by both ALJs did not violate the
concern over consistency articulated in Albright in that both ALJs found Plaintiff was not
disabled before the expiration of his insured status. Id.
The Fourth Circuit issued Albright in response to the SSA’s AR 94-2(4) that
prevented claimants in the Fourth Circuit from obtaining benefits on second and
subsequent applications unless they could “produce new and material evidence” that their
impairments increased in severity from the date of a prior unfavorable final
determination. Albright, 174 F.3d at 475. In striking down the ruling, the court explained
that the ruling “operates to mechanistically merge two claims into one” and “carves out
an exception to the general rule that separate claims are to be considered separately.” Id.
at 476. In Albright, the court explained that AR 94-2(4) was promulgated following the
court’s ruling in Lively v. Secretary of Health and Human Services, 820 F.2d 1391 (4th
Cir. 1987). In striking down AR 94-2(4), the court stated Lively was “best understood as a
practical application of the substantial evidence rule.” Albright, 174 F.3d at 477. It
expounded as follows:
37

[W]e determined that the finding of a qualified and disinterested tribunal
that Lively was capable of performing only light work as of a certain date
was such an important and probative fact as to render the subsequent
finding to the contrary unsupported by substantial evidence. To have held
otherwise would have thwarted the legitimate expectations of claimants—
and, indeed, society at large—that final agency adjudications should carry
considerable weight. Even more importantly, judicial ratification of the
SSA’s ‘bait-and-switch’ approach to resolving Lively’s claim would have
produced a result reasonably perceived as unjust and fundamentally unfair.
Id. at 477–78.
Following the Fourth Circuit’s decision in Albright, the SSA issued AR 00-1(4),
which interpreted Albright “to hold that where a final decision of SSA after a hearing on
a prior disability claim contains a finding required at a step in the sequential evaluation
process for determining disability, SSA must consider such finding as evidence and give
it appropriate weight in light of all relevant facts and circumstances when adjudicating a
subsequent claim involving an unadjudicated period.” 2000 WL 43774, at *4. Pursuant to
AR 00-1(4), the ALJ must consider the following factors:
(1) whether the fact on which the prior finding was based is subject to
change with the passage of time, such as a fact relating to the severity of a
claimant’s medical condition; (2) the likelihood of such a change,
considering the length of time that has elapsed between the period
previously adjudicated and the period being adjudicated in the subsequent
claim; and (3) the extent that evidence not considered in the final decision
on the prior claim provides a basis for making a different finding with
respect to the period being adjudicated in the subsequent claim.
The undersigned’s research indicates neither this court nor the Fourth Circuit have
addressed whether ALJs must follow the directives of Albright and AR 00-1(4) when
considering prior ALJ decisions that were vacated by the Appeals Council. Most of the
lower courts that have addressed the issued have held that Albright and AR 00-1(4) do
38

not apply because the prior ALJs’ decisions were not the agency’s final decisions. In
Batson v. Colvin, 2015 WL 1000791, at *7 (E.D.N.C. Mar. 5, 2015), the court held that
“Albright did not require the second ALJ to consider the first ALJ’s decision because that
decision had been vacated, and thus no finding remained to be considered in the
subsequent determination.” The court cited Monroe v. Colvin, C/A No.: 7:13-74-FL,
2014 WL 7404136, at *2 (E.D.N.C. Dec. 30, 2014), in which the court stated “[c]ontrary
to plaintiff’s argument, however, the ALJ was not required to give weight to the findings
made in the 2010 decision, because it was vacated and not the final agency decision of
the Commissioner,” and Williams v. Colvin, C/A No. 7:12-242, 2013 WL 5151797, at *4
(W.D. Va. Sept. 13, 2013), in which the court stated “both of the prior ALJ decision in
this case were vacated, and thus there was no ‘prior finding’ to be afforded any weight
under SSAR 00-1(4).” Batson, 2015 WL 1000791, at *7. However, the court in Batson
acknowledged a contrary finding from the Middle District of North Carolina, which
rejected “the argument that the rule of Albright and Lively does not apply to prior
decisions vacated by the Appeals Council.” Id., citing Bordwell v. Colvin, C/A No. 1:111096-TWB-LPA, 2013 WL 5151791, at *4 (M.D.N.C. July 24, 2014). Most recently, in
Myers v. Colvin, C/A No. 1:13-898, 2015 WL 4366201, at *3 n.4 (M.D.N.C. July 16,
2015), the court indicated in a footnote that the ALJ was not required to give weight to
the prior ALJ’s findings because that decision had been vacated by the Appeals Council.
Thus, the case law weighs in favor of a finding that the holding in Albright and AR 001(4) apply only to the Commissioner’s final decisions and are inapplicable when the

39

Appeals Council vacates a prior ALJ’s decision, but this court is not bound by the
findings of any of the courts that have addressed the matter.
Courts that have addressed AR 00-1(4)’s requirements in the context of final
decisions have generally found that ALJs were not required to explicitly discuss and
weigh the decisions of prior ALJs. In Harris v. Astrue, C/A No. 2:12-45, 2013 WL
1187151, at *8, (N.D. W. Va. Mar. 21, 2013), the court held that “[a]lthough the ALJ did
not specifically cite to AR 00-1(4) or his prior ruling in his April 2010 decision,” several
factors suggested he had weighed the opinion in accordance with AR 00-1(4), including
inclusion of his prior decision in the list of exhibits attached to the decision at issue and
the presence of more favorable findings at steps two and three than in his prior decision.
The plaintiff argued the ALJ was required to explicitly state the weight assigned to his
prior decision, but the court indicated “AR 00-1(4) does not impose such a burden upon
the ALJ; AR 00-1(4) merely states that the ALJ shall consider and weigh the prior ruling
as evidence in reaching his decision in the second claim.” Harris, 2013 WL 1187151, at
*8; see also McKay v. Colvin, C/A No. 3:12-1601, 2013 WL 3282928, at *13 (S.D. W.
Va. Jun. 27, 2013) (“AR 00-1(4) requires the ALJ to consider and weigh the prior
decision as evidence, but does not impose a burden on the ALJ to explicitly state the
weight he assigned to this evidence.”). In Melvin v. Astrue, 602 F. Supp. 2d 694, 702
(E.D.N.C. 2009), the court found that, although the ALJ did not specifically refer to AR
00-1(4) or explain the precise weight he gave the prior ALJ’s findings, he complied with
SSR 00-1(4) and Albright because he “did mention claimant’s prior attempts to get
benefits (including the August 20, 2001 denial) and did not invoke res judicata.” The
40

court explained the ALJ evaluated the whole record, applied the governing legal standard,
and denied plaintiff’s claim. Melvin, 602 F. Supp. 2d at 702.
Although Albright and AR 00-1(4) have generally been interpreted to not require
ALJs to explicitly weigh prior ALJs’ decisions, this court has indicated substantial
evidence must support the weight ALJs give to those decisions. In Rowell v. Astrue, 2012
WL 5873824 (D.S.C. Nov. 2, 2012), this court found that substantial evidence did not
support the ALJ’s treatment of the prior ALJ’s decision. The court wrote “[a]lthough AR
00-1(4) does not appear to require that the ALJ specifically discuss each of the three
factors outlined above, it is unclear from the ALJ’s conclusory statement why he
concluded that Plaintiff’s condition did not decline after the April 2005 decision.”
Rowell, 2012 WL 5873824, at *8. However, in Rivers v. Colvin, C/A No. 9:12-2558MGL, 2014 WL 1094616 (D.S.C. Mar. 19, 2014), the court determined substantial
evidence supported the ALJ’s treatment of the prior ALJ’s findings. The court noted
“[t]he ALJ’s review of the medical evidence of record, including the records from the
previously adjudicated period, demonstrates that she complied with AR 00-1(4) and
Albright.” Rivers, 2014 WL 1094616, at *4.
In view of the foregoing, the undersigned recommends the court find ALJ Fleming
did not err in his consideration of the prior ALJ’s decision. Because the Appeals Council
vacated ALJ McFadden-Elmore’s decision, her decision was not a final determination.
The majority of the non-binding case law suggests that Albright and AR 00-1(4) require
no consideration of the prior ALJ’s decision under these circumstances. However,
because neither this court nor the Fourth Circuit has addressed this specific issue, the
41

undersigned proceeds to examine whether ALJ Fleming adequately considered ALJ
McFadden-Elmore’s findings and whether his decision to deviate from her findings was
supported by substantial evidence. The undersigned notes that ALJ Fleming discussed the
procedural history and acknowledged that ALJ McFadden-Elmore “determined the
claimant had an established onset date of August 13, 2012” and “awarded both Title II
and XVI benefits as of that date.” See Tr. at 17. Here, as in Harris, the exhibit list
attached to ALJ Fleming’s decision indicates ALJ McFadden-Elmore’s decision was in
the record he reviewed. See Tr. at 29. Also, as in Melvin, ALJ Fleming discussed the
prior finding in his recitation of the procedural history. Therefore, the undersigned
concludes that ALJ Fleming considered ALJ McFadden-Elmore’s decision.
Although ALJ Fleming did not explicitly discuss his reasons for rejecting some of
ALJ McFadden-Elmore’s findings, his decision and the record as a whole reveal that he
reached a different conclusion based on additional evidence not available to ALJ
McFadden-Elmore. The Appeals Council remanded the case with specific instructions for
the ALJ to obtain evidence from an ME, reconsider Plaintiff’s maximum RFC, and obtain
additional VE testimony. Tr. at 136. In accordance with the Appeals’ Council’s
directives, ALJ Fleming obtained testimony from an ME. Tr. at 73–77.

Also in

accordance with the directives of the Appeals Council, ALJ Fleming reconsidered
Plaintiff’s maximum RFC in light of all the evidence and found that the ME’s opinion, in
combination with the opinions of the consultative examiners and state agency medical
consultants, supported a finding that Plaintiff had a maximum RFC to perform light
work. See Tr. at 26. Finally, ALJ Fleming followed the Appeals Council’s third directive
42

in obtaining additional VE testimony that indicated an individual with the maximum RFC
he assessed could perform jobs that existed in significant numbers in the economy. Tr. at
93.
Pursuant to SSR 00-1(4), one of the factors to be considered in determining how
much weight to give to a prior ALJ’s decision is “the extent that evidence not considered
in the final decision on the prior claim provides a basis for making a different finding
with respect to the period being adjudicated in the subsequent claim.” The record before
ALJ Fleming contained additional evidence from Dr. McClure, who testified that
Plaintiff had a maximum RFC to perform the full range of medium work and indicated
the diagnoses made by Dr. Sloan and the restrictions set forth by Dr. Tomarchio were not
supported by the objective findings in the record. See Tr. at 74–77. Where, as here,
additional and conflicting evidence is made part of the record after a prior ALJ’s finding,
it is reasonable for the new ALJ to make different findings and reach a conclusion
contrary to that of the prior ALJ. In light of the new evidence, which raised suspicion
regarding the validity of the diagnoses and restrictions relied upon by ALJ McFaddenElmore and provided a new opinion that Plaintiff could perform medium work, the
undersigned finds ALJ Fleming adequately weighed and rejected ALJ McFaddenElmore’s findings in accordance with Albright and AR 00-1(4).
2.

Evaluation of Opinion Evidence

Plaintiff argues ALJ Fleming failed to evaluate the opinion evidence as required
by 20 C.F.R. § 404.1527(c), SSR 96-2p, and SSR 96-5p. [ECF No. 17 at 24–36]. The

43

Commissioner maintains ALJ Fleming adequately evaluated the opinion evidence. [ECF
No. 19 at 10–15].
SSA’s rules mandate that ALJs consider all medical opinions in the record and
dictate specific factors that must be weighed in evaluating opinion evidence. 20 C.F.R. §
416.927(b), (c). If the record contains the opinion of a claimant’s treating physician, that
opinion is presumed to carry controlling weight as long as it is well-supported by
medically-acceptable clinical and laboratory diagnostic techniques and is not inconsistent
with the other substantial evidence in the case record. 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2). However, if a treating physician’s opinion is not well-supported by
medically-acceptable clinical and laboratory diagnostic techniques or is inconsistent with
the other substantial evidence in the case record, it may still be entitled to deference and
should be weighed based on the factors set forth in 20 C.F.R. §§ 404.1527(c)(2)–(6) and
416.927(c)(2)–(6). 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); SSR 96-2p. If the record
contains no treating physician’s opinion or if the ALJ declines to give the treating
physician’s opinion controlling weight, all of the medical opinions in the record must be
weighed based upon the following factors: (1) the examining relationship between the
claimant and the medical provider; (2) the treatment relationship between the claimant
and the medical provider, including the length of the treatment relationship and frequency
of treatment and the nature and extent of the treatment relationship; (3) the supportability
of the medical provider’s opinion in his or her own treatment records; (4) the consistency
of the medical opinion with other evidence in the record; and (5) the specialization of the
medical provider offering the opinion. Johnson, 434 F.3d at 654; 20 C.F.R. § 416.927(c).
44

The SSA’s rulings and regulations specifically guide ALJs in considering the
relevant factors to determine the weight to be accorded to the medical opinion evidence.
20 C.F.R. §§ 404.1527(c), 416.927(c). They provide that even if a treating physician’s
opinion is not accorded controlling weight, it should generally carry more weight than
any other opinion evidence in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
However, the Fourth Circuit has indicated “the ALJ holds the discretion to give less
weight to the testimony of a treating physician in the face of persuasive contrary
evidence.” Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001), citing Hunter v. Sullivan,
993 F.2d 31, 35 (4th Cir. 1992). The regulations specify that opinions from examining
medical sources typically carry more weight than those from non-examining sources,
such as state agency medical and psychological consultants and medical experts who
testify at hearings. Morgan v. Barnhart, 142 F. App’x 716, 727 (4th Cir. 2005); 20 C.F.R.
§ 416.927(c)(1). However, ALJs may rely upon the opinions of non-examining
physicians when their opinions are “consistent with the record.” Tanner v. Commissioner
of Social Sec., 602 F. App’x 95, 101 (4th Cir. 2015), citing Smith v. Schweiker, 795 F.2d
343, 345 (4th Cir. 1986). Conversely, “a non-examining physician’s opinion cannot, by
itself, serve as substantial evidence supporting a denial of disability benefits when it is
contradicted by all of the other evidence in the record.” Smith, 795 F.2d at 345. The
regulations state that medical opinions that are supported by medical signs and laboratory
findings and adequately explained deserve more weight than unsupported and
unexplained opinions. 20 C.F.R. § 416.927(c)(3). They provide that medical opinions that
are consistent with the entire record carry more weight than those that are not. 20 C.F.R.
45

§§ 404.1527(c)(4), 416.927(c)(4); Stanley v. Barnhart, 116 F. App’x 427, 429 (4th Cir.
2004) (“The medical source opinion regulations indicate that the more consistent an
opinion is with the record as a whole, the more weight the Commissioner will give it.”).
The regulations stipulate that ALJs should accord greater weight to opinions from
specialists that address medical issues related to their areas of specialty. 20 C.F.R. §
416.927(c)(5). Finally, ALJs should consider any additional factors that tend to support
or contradict medical opinions in the record. 20 C.F.R. § 416.927(c)(6).
In view of the foregoing authority, the undersigned considers ALJ Fleming’s
treatment of the opinion evidence of record.
a.

Dr. Bland’s Opinion

On August 13, 2012, Dr. Bland indicated Plaintiff was limited as follows: unable
to engage in greater than part-time work activity; condition likely to cause incapacitating
pain several times per month to the extent he would be precluded from performing
gainful activity for an entire workday; substantially limited in ability to sit throughout the
day in a normal seated position; and unable to stand and walk for more than a few hours
per day. Tr. at 559. He wrote “[t]he above answers reflect a long standing of progressive
incapacity & disability.” Id.
On November 6, 2013, Dr. Bland wrote a follow up letter in which he explained
that Plaintiff had a history of diagnosis and treatment for high-grade left carotid artery
stenosis secondary to radiation from a carotid cancer and that Plaintiff had seen Drs.
Roberts and Sloan for pain management prior to presenting to him for treatment. Tr. at
591. Dr. Bland disputed Dr. McClure’s opinion and indicated Dr. McClure should more
46

thoroughly review both his records and those of Dr. Sloan. Id. Finally, he stated, “[b]ased
on my evaluation and records, I feel that Mr. Smith is unable to maintain any sustained
gainful employment.” Id.
Plaintiff argues ALJ Fleming failed to provide good reasons for dismissing Dr.
Bland’s opinion. [ECF No. 17 at 28–29]. The

Commissioner

argues

ALJ

Fleming

reasonably concluded the limitations assessed by Dr. Bland were inconsistent with
evidence that indicated Plaintiff could perform light work and were based on Plaintiff’s
subjective complaints. [ECF No. 19 at 13].
ALJ Fleming gave little weight to Dr. Bland’s opinion because he found it was not
supported by the objective clinical evidence or a review of his records. Tr. at 26. He
indicated “it appears that his opinion is based on the claimant’s subjective complaints.”
Id.
The undersigned recommends the court find ALJ Fleming failed to appropriately
evaluate and weigh Dr. Bland’s opinion based on the factors in 20 C.F.R. § 404.1527(c)
and 416.927(c). ALJ Fleming provided substantial reasons for declining to accord
controlling weight to Dr. Bland’s opinion, explaining that it was not well-supported by
medically-acceptable clinical and laboratory diagnostic techniques. This conclusion is
supported by the record, which shows few objective findings in Dr. Bland’s treatment
notes. See Tr. at 442–52, 525–39, 543–57, 560–61. However, ALJ Fleming failed to
weigh the other relevant factors set forth in 20 C.F.R. §§ 404.1527(c) and 416.927(c). He
recognized Dr. Bland’s status as a treating physician as required by 20 C.F.R. §
404.1527(c)(2) and 416.927(c)(2), but he neglected to discuss the frequency of Plaintiff’s
47

treatment with Dr. Bland, a factor that weighed in favor of accepting Dr. Bland’s opinion.
See Tr. at 24. The record reflects that Plaintiff visited Dr. Bland 26 times between July
2010 and September 2013. Tr. at 443–45, 526–32, 536–39, 546–61, 583–89. ALJ
Fleming also failed to adequately consider the nature and extent of Dr. Bland’s treatment
relationship with Plaintiff. See 20 C.F.R. §§ 404.1527(c)(2)(ii), 416.927(c)(2)(ii). He
recognized that Dr. Bland was Plaintiff’s primary care physician, but he did not consider
that Dr. Bland was the only physician who treated Plaintiff’s pain in the three years prior
to the hearing and, thus, was in the best position to provide an opinion as to the effects of
Plaintiff’s pain on his ability to work. See Tr. at 442–52, 525–39, 543–57, 560–61.
Finally, ALJ Fleming failed to assess the consistency between Dr. Bland’s opinion and
the evidence from Dr. Sloan, Dr. Nicholson, and Dr. Tomarchio, who relied on
medically-acceptable clinical and laboratory diagnostic techniques to conclude that
Plaintiff experienced significant pain. See Tr. at 399–420, 421–26, 567–80. In light of the
foregoing, the undersigned recommends a finding that ALJ Fleming’s decision to accord
little weight to Dr. Bland’s opinion was not supported by substantial evidence.
b.

Dr. Tomarchio’s Opinion

Following the consultative examination on September 15, 2012, Dr. Tomarchio
completed a medical source statement. Tr. at 568–73. He indicated Plaintiff should never
perform any lifting because of decreased ROM in his cervical spine and upper extremity
and unsteady gait. Tr. at 568. He stated Plaintiff could sit for 30 minutes a time and for
one hour during an eight-hour workday; stand for 15 minutes at a time and for 30 minutes
during an eight-hour workday; and walk for five minutes at a time and for 15 minutes
48

during an eight-hour workday. Tr. at 569. Dr. Tomarchio based these restrictions on
decreased ROM of Plaintiff’s spine, upper extremities, and lower extremities and his
reduced ability to balance to perform gait maneuvers. Id. He indicated Plaintiff could
occasionally reach, handle, finger, feel, and push/pull with his bilateral upper extremities,
based on decreased ROM in his head and neck as a result of tumor removal. Tr. at 570.
He stated Plaintiff could frequently operate foot controls with his bilateral lower
extremities. Id. He found Plaintiff could never climb stairs, ramps, ladders, or scaffolds;
balance; stoop; kneel; crouch; or crawl based on decreased ROM following parotid tumor
removal. Tr. at 571. He indicated Plaintiff could never be exposed to unprotected heights,
moving mechanical parts, operating a motor vehicle, or vibration, based upon decreased
ROM and balance. Tr. at 572. However, he stated Plaintiff could frequently be exposed to
wetness, humidity, dust, odors, fumes, pulmonary irritants, extreme cold, and extreme
heat. Id. He found Plaintiff could not walk a block at a reasonable pace on rough or
uneven surfaces and could not climb a few steps at a reasonable pace with the use of a
single hand rail. Tr. at 573. Finally, he indicated the limitations had lasted or were
expected to last for 12 consecutive months. Id.
Plaintiff argues ALJ Fleming rejected Dr. Tomarchio’s opinion without addressing
the explanation Dr. Tomarchio provided for that opinion and the evidence that supported
it. [ECF No. 17 at 31–32].
The Commissioner argues ALJ Fleming reasonably considered Dr. Tomarchio’s
opinion in light of Dr. Tomarchio’s inconsistent observations and other evidence in the
record, including mild diagnostic findings. [ECF No. 19 at 13].
49

ALJ Fleming gave little weight to Dr. Tomarchio’s opinion because he found it to
be inconsistent with Dr. Tomarchio’s objective findings. Tr. at 26. He explained that Dr.
Tomarchio “found normal strength throughout the claimant’s body, no deficits in
sensation, and grossly intact cerebellar functioning.” Id. He stated “[t]he most significant
[thing] that he found was the claimant’s self-limiting behavior in regards to fine and gross
motor skills, but he did not indicate that this behavior was medically necessary.” Tr. at
26–27. He concluded “it appears that his opinion was based more on the claimant’s
subjective complaints, and less on any objective findings.” Tr. at 27.
The undersigned recommends the court find ALJ Fleming’s conclusion regarding
Dr. Tomarchio’s opinion to be unsupported by substantial evidence for several reasons.
First, ALJ Fleming’s conclusion that Dr. Tomarchio’s opinion was inconsistent with the
objective evidence makes little sense in light of the abnormalities Dr. Tomarchio
observed. See Tr. at 574 (significantly reduced ROM of cervical spine; limited lumbar
ROM; diminished bilateral shoulder ROM; slightly reduced bilateral elbow supination
and pronation; significantly decreased bilateral hip ROM; positive straight-leg raising
tests in the sitting and supine positions bilaterally; difficulty performing tandem walk,
heel/toe walk, and squat), 578 (difficulty rising from a seated position, unstable and
shuffling gait, abnormal posture and obvious muscle spasm, tenderness to palpation over
mid-spine). Second, ALJ Fleming’s conclusion that Plaintiff’s self-limiting behavior was
not medically-necessary finds little support in Dr. Tomarchio’s report. Although Dr.
Tomarchio indicated Plaintiff engaged in movements designed to protect his neck and
back, he did not indicate that Plaintiff was exaggerating his pain or otherwise
50

malingering. See Tr. at 579. In fact, Dr. Tomarchio noted obvious muscle spasm as a
reason for Plaintiff’s guarded movements. Tr. at 578. Third, ALJ Fleming failed to note
the consistency of Dr. Tomarchio’s opinion with the findings of the other treating and
examining physicians. See 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4). The consultative
orthopedist, Dr. Nicholson, observed Plaintiff to have marked pain behavior, reduced
ROM, positive straight-leg raising test, abnormal gait, and muscle spasms. Tr. at 423–24.
Dr. Bland similarly indicated Plaintiff had limited abilities to sit, stand, and walk and was
further limited by pain. Tr. at 559. Dr. Sloan also observed abnormalities that were
consistent with those noted by Dr. Tomarchio, including muscle and tissue loss,
spasticity, difficulty standing from a seated position, painful ROM, and tenderness to
palpation. Tr. at 399–420. In light of these errors, the undersigned recommends the court
find ALJ Fleming failed to adequately weigh Dr. Tomarchio’s opinion based on the
record as a whole and as guided by the factors set forth in 20 C.F.R. §§ 404.1527(c) and
416.927(c).
c.

Dr. McClure’s Opinion

Dr. McClure testified that Plaintiff was capable of performing the full range of
medium work and that the diagnoses and restrictions set forth by the treating and
consultative physicians were inconsistent with the physical findings of record. Tr. at 73–
77.
Plaintiff argues ALJ Fleming erred in giving significant weight to Dr. McClure’s
opinion. [ECF No. 17 at 33]. He maintains Dr. McClure did not provide an adequate
explanation for his conclusion that the objective evidence did not support the opinion
51

evidence in the record. Id. at 33–34. He contends that, although ALJ Fleming gave
significant weight to Dr. McClure’s testimony, he did not adopt Dr. McClure’s RFC and
failed to explain his reasons for rejecting it. Id. at 34. Finally, Plaintiff argues ALJ
Fleming failed to explain his reasons for giving more weight to the opinion of a nontreating, non-examining physician than to the opinions of a treating and examining
physician. Id. at 35.
The Commissioner maintains that ALJ Fleming reasonably gave significant
weight to Dr. McClure, but reduced Plaintiff’s RFC from the medium to light level based
on the state agency consultants’ opinions. [ECF No. 19 at 14].
ALJ Fleming gave significant weight to Dr. McClure’s opinion, noting that he was
a specialist and was an unbiased medical expert. Tr. at 26. He explained that Dr.
McClure’s testimony was “supported generally by the evidence noted above showing
normal strength, sensation, and coordination (Exhibits B1F; B9F; B23F).” Id. However,
ALJ Fleming indicated he gave greater weight to the opinions of the state agency
consultants than to Dr. McClure because he concluded Plaintiff was limited to light work.
Id.
The undersigned recommends a finding that ALJ Fleming’s decision to accord
significant weight to Dr. McClure’s opinion was not supported by substantial evidence
because it was inconsistent with the opinions of the treating and consultative physician
and was not adequately explained. During his testimony, McClure admitted his testimony
was inconsistent with the other medical opinions in the record. Tr. at 75–76 (Counsel
pointed out that Dr. Sloan diagnosed right radiculopathy, but Dr. McClure stated he did
52

not agree with that diagnosis because it was not supported by any specific test results8),
76 (Dr. McClure indicated there was no objective support for Dr. Tomarchio’s
indications that Plaintiff had obvious muscle spasm and extremely limited physical
ability). ALJ Fleming further acknowledged that Dr. McClure’s opinion was inconsistent
with the opinions of the state agency medical consultants who found Plaintiff could
perform light work. Tr. at 26. When asked to explain his reason for reaching a different
conclusion regarding Plaintiff’s limitations than the treating and examining physicians,
Dr. McClure stated “It doesn’t, doesn’t hang together medically.” Tr. at 77. Counsel
pressed Dr. McClure to explain what specific medical evidence would be necessary to
support the other physicians’ opinions, but Dr. McClure answered Counsel’s question
with a question, indicating Counsel would have to tell him which impairments he was
talking about. Id. Counsel stated Plaintiff was treated for neuropathy, radiculopathy, and
muscle lessening. Id. Dr. McClure responded “[t]hat doesn’t make any sense to me, no,
sir.” Id. At no point did Dr. McClure explain why the restrictions advanced by the
examining and treating physician failed to “hang together medically” or provide any
guidance as to what the record would need to show to support such restrictions. Although
the Fourth Circuit has held that “the ALJ holds the discretion to give less weight to the
testimony of a treating physician in the face of persuasive contrary evidence,” the
undersigned is unable to find that Dr. McClure’s unexplained conclusion serves as
“persuasive contrary evidence.” See Mastro, 270 F.3d at 178; Hunter, 993 F.2d at 35. In

8

Dr. Sloan indicated Plaintiff had evidence of cervical and lumbar spondylosis on MRI,
but the record does not contain a cervical or lumbar MRI. See Tr. at 419.
53

light of the inconsistency of Dr. McClure’s medical opinion with the record as a whole
and his lack of explanation for that inconsistency, the undersigned recommends a finding
that substantial evidence did not support ALJ Fleming’s decision to give the opinion
substantial weight.
d.

State Agency Consultants’ Opinions

On March 25, 2010, Dr. Weymouth indicated in the physical RFC assessment that
Plaintiff had the following limitations: occasionally lift and/or carry 20 pounds;
frequently lift and/or carry 10 pounds; stand and/or walk about six hours in an eight-hour
workday; sit about six hours in an eight-hour workday; and occasionally climb, balance,
stoop, kneel, crouch, and crawl. Tr. at 430–37. Dr. Ferrell assessed the same limitations
in a physical RFC assessment on February 25, 2011. Tr. at 517–24.
Plaintiff argues ALJ Fleming erred in giving great weight to the state agency
medical consultants’ opinions because they were unsupported by the medical evidence
and were rendered without review of the opinions of Drs. Bland and Tomarchio. [ECF
No. 17 at 36]. The Commissioner argues that the record as a whole supports the ALJ’s
adoption of the RFC assessed by the state agency consultants. [ECF No. 19 at 14].
ALJ Fleming explained that he gave great weight to the state agency medical
consultants’ opinions because the consultants were “acceptable medical sources,”
“unbiased experts in assessing the claimant’s limitations under Social Security Rules and
Regulations,” and their opinions were “consistent with the weight of the objective
evidence, which shows that the claimant has maintained generally normal strength,
sensation, and coordination (Exhibits B1F; B9F; B23F).” Tr. at 26.
54

The undersigned recommends a finding that ALJ Fleming placed unsupported
emphasis on the opinions of the state agency consultants. While an ALJ may rely on the
opinions of non-treating and non-examining physicians that are consistent with the record
and may even accord greater weight to the state agency consultants’ opinions under
appropriate circumstances, the undersigned is reluctant to find that the state agency
consultants’ opinions were consistent with the record in this case or that ALJ Fleming
provided adequate reasons to support according greater weight to the state agency
physicians’ opinions than to those of the examining and treating physician. See Tanner,
602 F. App’x at 101; Smith, 795 F.2d at 345; SSR 96-6p. The state agency consultants’
opinions were contradicted by those of Drs. Bland and Tomarchio and were rendered
more than a year-and-a-half before Dr. Tomarchio’s examination of Plaintiff. Given the
undersigned’s earlier recommendation that the court find ALJ Fleming failed to
adequately consider the opinions of Drs. Bland and Tomarchio, the undersigned is unable
to find that ALJ Fleming reconciled the state agency consultants’ opinions with the other
opinion evidence of record.
3.

Conflicts Between VE Testimony and DOT

Plaintiff argues ALJ Fleming failed to acknowledge and erroneously concluded no
conflicts existed between the VE’s testimony and the DOT. [ECF No. 17 at 38]. He
contends the DOT’s description of the mail sorter and plumbing assembler positions
conflicts with the restriction in the RFC for only occasional use of the left hand. Id. He
also maintains the non-exertional restrictions were not accounted for in the DOT and the
VE failed to provide a basis to support her testimony that the identified jobs could be
55

performed. Id. at 38–39. In light of these errors, Plaintiff argues the Commissioner failed
to meet her burden at step five to show that he could perform other work that existed in
significant numbers in the economy. Id. at 39.
The Commissioner maintains Plaintiff presents no authority for his assertions that
the jobs identified were inconsistent with their descriptions in the DOT. [ECF No. 19 at
15].
The provisions of 20 C.F.R. §§ 404.1566(d) and 416.966(d) provide that the ALJ
should take administrative notice of job information contained in the DOT. Furthermore,
SSR 00-4p indicates that “we rely primarily on the DOT (including its companion
publication, the SCO) for information about the requirements of work in the national
economy.” In some cases, ALJs call upon the services of a VE to address how certain
restrictions affect a claimant’s ability to perform specific jobs. 20 C.F.R. §§ 404.1566(e),
416.966(e).

Because the opinions of VEs sometimes conflict with the information

contained in the DOT, the SSA promulgated SSR 00-4p to explain how these conflicts
should be resolved.
Pursuant to SSR 00-4p, before relying on VE evidence to support a disability
decision, the ALJ must “identify and obtain a reasonable explanation for any conflicts
between occupational evidence” in the DOT and in its companion publication, the SCO,
and explain in the determination or decision how any conflict that has been identified was
resolved. The ALJ has an affirmative responsibility to ask about any possible conflict
between the VE testimony and the information provided in the DOT. SSR 00-4p. “When
vocational evidence provided by a VE or VS is not consistent with the information in the
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DOT, the adjudicator must resolve this conflict before relying on the VE or VS evidence
to support a determination or decision that the individual is or is not disabled.” Novak v.
Commissioner of Social Sec. Admin., C/A No. 9:08-2687-HFF-BM, 2009 WL 1922297,
at *2 (D.S.C. June 30, 2009), citing SSR 00-4p. “The adjudicator will explain in the
determination or decision how he or she resolved the conflict.” Id. “The adjudicator must
explain the resolution of the conflict irrespective of how the conflict was identified.” Id.
However, the Fourth Circuit has indicated ALJs are not required to uncover and resolve
all conflicts between the DOT and a VE’s testimony, but are only required to uncover and
resolve “apparent conflicts.” See Fisher v. Barnhart, 181 F. App’x 359, 365 (4th Cir.
2006); Justin v. Massanari, 20 F. App’x 158, 160 (4th Cir. 2001). This court has
indicated “[t]he question, then, is whether here there was a conflict between the VE’s
testimony and the DOT that was so apparent that the ALJ should have picked up on it
without any assistance.” Acevedo ex rel. Acevedo v. Colvin, C/A No. 0:12-2137-TMC,
2014 WL 197738, at *5 (D.S.C. Jan. 16, 2014).
ALJ Fleming complied with his affirmative responsibility to ask the VE about
potential conflicts between her testimony and the DOT, and the VE indicated her
testimony was consistent with the DOT. Tr. at 95. However, a review of the DOT’s
descriptions of the jobs of mail sorter9 and plumbing assembler10 reveals that these

9

The DOT describes the job of mail clerk as follows: “Sorts incoming mail for
distribution and dispatches outgoing mail. Sorts mail according to destination and type,
such as returned letters, adjustments, bills, orders, and payments. Readdresses
undeliverable mail bearing incomplete or incorrect address. Examines outgoing mail for
appearance and seals envelopes by hand or machine. Stamps outgoing mail by hand or
with postage meter.” DICOT, 209.687-026 (G.P.O.), 1991 WL 671813.
57

positions require frequent handling. DICOT, 209.687-026 (G.P.O.), 1991 WL 671813;
DICOT, 706.684-086 (G.P.O.), 1991 WL 679065. This conflicts with the limitation of
only occasional handling with the left upper extremity that ALJ Fleming included in the
RFC assessment. In addition, the third job identified by the VE, proofreader helper, does
not match the DOT number the VE provided,11 which rendered that portion of the VE’s
testimony inconsistent with the DOT. See Edmond v. Colvin, C/A No. 8:12-1081-RMGJDA, 2013 WL 4647516, at *11 (D.S.C. July 29, 2013) (“Moreover, two of the job codes
identified by the VE do not match listings in the DOT, which testimony would also be
inconsistent with the DOT.”). Because a conflict exists, it is necessary to determine
whether the conflict was apparent and, thus, triggered the ALJ’s affirmative duty to
identify and resolve conflicts between the DOT and the vocational testimony. See Novak,
2009 WL 1922297, at *2. The undersigned finds the conflict between the VE’s testimony
and the DOT was an apparent conflict because it was evident in merely reading the job
descriptions in the DOT and comparing them with the RFC. See Dross-Swart v. Astrue,

10

The DOT provides the following description of a plumbing-hardware assembler:
“Assembles plumbing fixtures, such as faucets, stoppers, and shower heads, using
handtools and power tools. Screws pipe fittings into grease traps, check valves, and other
plumbing fixtures, using pipe wrench or power wrench. Drills holes in fixtures for bolt
attachments, using power drill. Fits parts together and secures parts with screws, bolts, or
solder, using handtools and flame solderer. May adjust valves and other linkage to ensure
free action of moving parts. DICOT, 706.684-086 (G.P.O.), 1991 WL 679065.
11
The DOT contains definitions for “proofreader,” DOT number 209.387-030 (DICOT
209.387-030 (G.P.O.), 1991 WL 671790), “proofreader,” DOT number 209.687-010
(DICOT 209.387-030 (G.P.O.), 1991 WL 671790), “production proofreader,” DOT
number 247.667-010 (DICOT 247.667-010 (G.P.O.), 1991 WL 672286), and “copy
holder,” DOT number 209.667-010 (DICOT 209.667-010 (G.P.O.), 1991 WL 671806.
Each of these has a similar name or DOT number to that identified by the VE. Therefore,
it is impossible for the undersigned to determine which the VE identified as a possible
job Plaintiff could perform.
58

872 Fed. Supp. 2d 780, 800 (N.D. Ind. 2012) (holding that a conflict was apparent from
“the very terms of the positions’ descriptions and the ALJ’s RFC determination”); accord
Graham-Willis v. Colvin, C/A No. 1:12-2489-JMC, 2013 WL 6840465, at *7 (D.S.C.
Dec. 27, 2013) (holding an apparent conflict existed between the jobs identified by the
VE that had GED reasoning levels of 3 and the limitation in the hypothetical to
performance of only simple tasks), citing Phillips v. Astrue, C/A No. 3:11-1085-MBS,
2013 WL 353604, at *2 (D.S.C. Jan. 29, 2013); Reid v. Astrue, C/A No. 6:10-2118-MBSKFM, 2012 WL 667164, at *12–13 (D.S.C. Feb. 8. 2012), adopted by 2012 WL
4482943; Martin v. Astrue, C/A No. 6:11-1572-TMC-KFM, 2012 WL 4479280, at *15–
16 (D.S.C. July 27, 2012), adopted by 2012 WL 4482943. In light of ALJ Fleming’s error
in failing to identify and resolve the conflict between the DOT and the VE’s testimony,
the undersigned concludes he failed to comply with requirements of SSR 00-4p.
III.

Conclusion and Recommendation
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 recommends, pursuant to
the power of the court to enter a judgment affirming, modifying, or reversing the
Commissioner’s decision with remand in Social Security actions under sentence four of
42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative
proceedings.

59

IT IS SO RECOMMENDED.

August 12, 2015
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

The parties are directed to note the important information in the attached
“Notice of Right to File Objections to Report and Recommendation.”

60

Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report
and Recommendation with the District Judge. Objections must specifically identify the
portions of the Report and Recommendation to which objections are made and the basis
for such objections. “[I]n the absence of a timely filed objection, a district court need not
conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error
on the face of the record in order to accept the recommendation.’” Diamond v. Colonial
Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory
committee’s note).
Specific written objections must be filed within fourteen (14) days of the date of
service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b);
see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5
may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and
Recommendation will result in waiver of the right to appeal from a judgment of the
District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v.
Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States
v. Schronce, 727 F.2d 91 (4th Cir. 1984).