Godfrey v. Commissioner of Social Security Administration

Filing 18

REPORT AND RECOMMENDATION re 1 Complaint - Social Security, recommending the decision of the Commissioner be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and the matter be remanded for further administrative proceedings. Objections to R&R due by 2/12/2016. Signed by Magistrate Judge Shiva V. Hodges on 01/26/2016. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Timothy Godfrey,
Plaintiff,
vs.
Carolyn W. Colvin, Acting
Commissioner of Social Security
Administration,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

C/A No.: 1:15-2036-CMC-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 August 29, 2012, Plaintiff protectively filed applications for DIB and SSI in
which he alleged his disability began on June 29, 2009. Tr. at 83, 96, 191–92. His

applications were denied initially and upon reconsideration. Tr. at 144–48, 154–55, 156–
57. On June 26, 2014, Plaintiff had a hearing before Administrative Law Judge (“ALJ”)
Jerry W. Peace. Tr. at 27–82 (Hr’g Tr.). The ALJ issued an unfavorable decision on
October 31, 2014, finding that Plaintiff was not disabled within the meaning of the Act.
Tr. at 6–26. Subsequently, the Appeals Council denied Plaintiff’s request for review,
making the ALJ’s decision the final decision of the Commissioner for purposes of
judicial review. Tr. at 1–3. Thereafter, Plaintiff brought this action seeking judicial
review of the Commissioner’s decision in a complaint filed on May 15, 2015. [ECF No.
1].
B.

Plaintiff’s Background and Medical History
1.

Background

Plaintiff was 53 years old at the time of the hearing. Tr. at 38. He completed high
school. Id. His past relevant work (“PRW”) was as a construction worker. Tr. at 76. He
alleges he has been unable to work since June 1, 2011.1 Tr. at 31–32.
2.

Medical History

Plaintiff presented to the emergency room (“ER”) at Spartanburg Regional
Healthcare System on November 7, 2011, with complaints of back pain and nausea. Tr. at
357. Plaintiff’s glucose was significantly elevated at 312 mg/dL. Tr. at 363. He was
diagnosed with back pain and diabetes, prescribed Glucophage and Lortab, and instructed
to follow a diabetic diet and to follow up with a clinic. Tr. at 359.

1

At the beginning of the hearing, Plaintiff’s attorney moved to amend his alleged
disability onset date from June 29, 2009, to June 1, 2011, because he drew unemployment
benefits through May 2011. Tr. at 31.
2

On April 24, 2012, Plaintiff presented to St. Luke’s Free Medical Clinic
(“SLFMC”) to establish primary care treatment. Tr. at 265, 270. He reported occasional
right flank pain and requested that his prescription for Metformin be refilled. Tr. at 265.
Blood tests indicated Plaintiff’s hemoglobin A1c was elevated at 9.0 percent and his
average glucose was estimated to be 212 mg/dL. Tr. at 267.
On May 16, 2012, Plaintiff presented to Palmetto Eye and Laser Center for an
examination. Tr. at 266. Leanne Wickliffe Keisler, M.D. (“Dr. Keisler”), indicated
Plaintiff’s eye exam showed his bilateral vision to be unaffected by diabetes, but
indicated he had cataracts and nuclear sclerosis in his bilateral eyes. Id. Dr. Keisler
prescribed new glasses. Id.
Plaintiff followed up at SLFMC on May 22, 2012, and indicated Lisinopril was
causing him to feel dizzy. Tr. at 264. The provider assessed uncontrolled blood pressure
and uncontrolled diabetes mellitus. Id. He increased Plaintiff’s dosage of Metformin for
diabetes and discontinued Lisinopril and prescribed Diovan for hypertension. Id.
Plaintiff’s blood sugar was 199 mg/dL and he reported intermittent right-sided pain and
tingling in his feet during the night. Id. Plaintiff indicated he was very depressed and did
not desire to be around others. Id. The provider observed Plaintiff to have tenderness in
his back, decreased pedal pulses, and decreased monofilament testing in his bilateral toes.
Id. The provider assessed uncontrolled diabetes with neuropathy, hypertension, and
situational depression. Id.
Plaintiff presented to SLFMC on June 19, 2012, and reported pain, numbness, and
tingling in his right arm, pain in his legs and feet, and elevated blood pressure. Tr. at 263.
3

He stated Diovan had caused him to experience a “fainting” feeling. Id. He reported
decreased interest in activities and increased stressors as a result of being unemployed
and requested medication to treat depression. Id. The provider prescribed Metaprolol for
hypertension and Citalopram (generic form of Celexa) for depression. Id.
On June 20, 2012, an x-ray of Plaintiff’s cervical spine indicated mild multilevel
degenerative changes that were most prominent at C6-7. Tr. at 269.
Plaintiff followed up at SLFMC on July 12, 2012, and reported a rash. Tr. at 262.
The provider indicated the rash was likely a reaction to either Celexa or Metaprolol. Id.
He recommended Plaintiff discontinue Celexa to see if his symptoms improved. Id. He
indicated that Plaintiff should discontinue Metaprolol and resume Celexa if the rash
remained five or six days after he discontinued Celexa. Id.
On August 6, 2012, Plaintiff presented to SLFMC for a follow-up visit regarding
diabetes and hypertension and to review his x-ray. Tr. at 261. Plaintiff reported continued
numbness and tingling in his left arm. Id. Plaintiff also complained of pain and numbness
in his right hand that radiated from his shoulder. Id. The physician noted that Plaintiff
endorsed tingling in his feet and diagnosed diabetic neuropathy. Id. He stated
degenerative changes were present on a computed tomography (“CT”) scan and that
Plaintiff may have nerve compression. Id. The provider increased Plaintiff’s dosage of
Metaprolol for depression and indicated Plaintiff’s depression was stable without Celexa.
Id.

4

On August 21, 2012, magnetic resonance imaging (“MRI”) of Plaintiff’s cervical
spine showed a disc herniation on the right at C6-7 that appeared to press on the exiting
nerve root. Tr. at 321.
Plaintiff presented to Pamela N. Davenport, M.D. (“Dr. Davenport”), for an initial
office visit on October 8, 2012. Tr. at 334. Dr. Davenport noted that Plaintiff had limited
access to insurance coverage in recent years and was unable to afford test strips for
checking his blood sugar. Id. She stated Plaintiff had two recent syncopal episodes. Id.
Plaintiff complained of paresthesias down his right arm that affected his thumb, index,
and middle fingers. Id. He reported fatigue and daytime sleepiness. Id. He stated he had
nausea and diminished appetite and had unintentionally lost 60 pounds. Id. He
complained of tingling in his feet at night, cramps in his feet, and lower extremity pain
associated with walking. Id. Dr. Davenport described Plaintiff as “appearing chronicallyill.” Tr. at 337. She observed diminished pedal pulses in Plaintiff’s bilateral feet. Id. A
diabetic foot exam revealed a callus on the tip of Plaintiff’s right second toe without
ulceration, as well as diminished pulses and sensation. Id. Plaintiff had decreased
sensation to vibratory sense in his hands and feet. Id. His sharp sensation was diminished
in his right hand in the radial and ulnar distributions and in his left hand in the ulnar
distribution. Id. He had diminished reflexes throughout. Id. Dr. Davenport indicated
Plaintiff may have a neurologic component to his syncopal episodes and should be
evaluated for carotid artery stenosis. Tr. at 338. She stated Plaintiff had diabetes mellitus
with evidence of vascular and neurologic complications and indicated his poorlycontrolled diabetes had resulted in peripheral neuropathy. Id. She also noted Plaintiff
5

likely had some component of peripheral arterial disease. Id. However, a carotid
procedure on October 12, 2012, showed no evidence of hemodynamically-significant
carotid stenosis. Tr. at 341–43. On October 31, 2012, Plaintiff followed up with Dr.
Davenport, who noted that the carotid artery studies were within normal limits and that
Plaintiff had experienced no additional syncopal episodes. Tr. at 348. Dr. Davenport
reviewed Plaintiff’s blood sugar logs and noted that there was room for improvement, but
acknowledged that Plaintiff continued to complain of nausea and weight loss. Id. Dr.
Davenport indicated she suspected Plaintiff had autonomic neuropathy in additional to
diabetes-related peripheral neuropathy. Id. She also suspected possible gastroparesis and
recommended Plaintiff undergo upper gastrointestinal endoscopy. Id.
Plaintiff presented to Gordon Early, M.D. (“Dr. Early”), for a consultative
examination on December 13, 2012. Tr. at 272–74. Plaintiff indicated he was primarily
applying for disability benefits because of right shoulder pain. Tr. at 272. He reported
that he had developed numbness and tingling two to three years earlier and had lost
approximately 70 pounds over the last year. Id. Dr. Early indicated he suspected Plaintiff
had developed diabetes approximately five years earlier, around the time of the onset of
nocturia, and that it had gone untreated until one year earlier. Id. Plaintiff indicated that
he had difficulty with his balance and limited standing tolerance because of numbness
and tingling in his feet. Id. He stated he was very depressed. Tr. at 273. Dr. Early
observed Plaintiff to be 5’ 5” tall and to weigh 174 pounds. Id. Plaintiff’s blood pressure
was elevated at 182/96. Id. He had good range of motion (“ROM”) in his upper
extremities, but some osteoarthritic changes in the distal joints of his hands. Id. His right
6

shoulder abduction was reduced and he had one positive impingement finding. Id.
Plaintiff had 2+ crepitus in his bilateral knees. Id. His pulses were intact in his feet. Id.
He had positive Romberg’s test and 1+ positive tandem gait. Tr. at 273–74. Dr. Early
indicated Plaintiff had right shoulder impingement, but that the exam was not particularly
impressive. Tr. at 274. He stated that Plaintiff’s shoulder impingement would prevent
him from working with his hands over shoulder level as a carpenter. Id. He assessed
diabetes with peripheral neuropathy and ataxia and indicated Plaintiff “may have an
element of autonomic neuropathy with gastropathy and orthostatic syncope.” Id. He
stated Plaintiff had significant depression that may be contributing to his weight loss. Id.
An x-ray of Plaintiff’s lumbosacral spine was normal. Tr. at 277.
On January 10, 2013, state agency medical consultant Dale Van Slooten, M.D.,
assessed the following limitations as part of a physical residual functional capacity
(“RFC”) assessment: occasionally lift and/or carry 50 pounds; frequently lift and/or carry
25 pounds; stand and/or walk for a total of about six hours in an eight-hour workday; sit
for a total of about six hours in an eight-hour workday; frequently climb ramps/stairs,
stoop, kneel, and crawl; occasionally climb ladders/ropes/scaffolds and balance;
frequently reach overhead with the right upper extremity; and avoid concentrated
exposure to hazards. Tr. at 89–91.
Plaintiff presented to Caleb Loring, IV, Psy. D. (“Dr. Loring”), for a mental status
examination on January 24, 2013. Tr. at 278–80. He indicated to Dr. Loring that he was
depressed because of his inability to find a job. Tr. at 278. He also indicated he had
diabetes, high blood pressure, nerve damage in his feet, and degenerative disc disease. Id.
7

He stated that pain in his feet prevented him from standing for long periods. Id. He
indicated that he took Prozac for depression, which did not seem to relieve his symptoms.
Tr. at 279. He stated he had taken Effexor in the past and that it was more effective, but
was not covered by his current insurance. Id. Dr. Loring observed that Plaintiff
maintained appropriate eye contact and was pleasant and cooperative. Id. He stated
Plaintiff was “perhaps moderately depressed.” Id. He indicated Plaintiff had normal
speech, thought process, and thought content. Id. He stated Plaintiff did not have
problems with concentration and was alert and oriented. Id. He estimated Plaintiff’s
intellectual functioning to be in the low-average range. Id. He stated Plaintiff’s “physical
problems appear to be the primary issues.” Tr. at 280. He assessed anxiety disorder, not
otherwise specified (“NOS”) and mood disorder due to a general medical condition with
major depressive features. Id.
On January 24, 2013, Plaintiff followed up with Dr. Davenport at the request of
his family members who were concerned that he was not taking care of himself. Tr. at
312. Plaintiff indicated his blood sugars were running high and that his eating patterns
were erratic. Id. A review of symptoms revealed numbness and pain in Plaintiff’s feet and
poor balance. Id. Dr. Davenport assessed diabetes mellitus with neurologic complications
and poor motivation for self-care; peripheral neuropathy with increased pain; depression,
probably interfering with quality of life; subsided nausea; and hypertension with a labile
component. Id. She reviewed Plaintiff’s blood sugar log and adjusted his dosages of
Metformin, Neurontin, and Prozac. Id. She recommended Plaintiff obtain counseling
through the mental health center. Id.
8

On February 5, 2013, Dr. Davenport indicated that Plaintiff had been unable to
increase his dosage of Neurontin because his drug plan and pharmacy could not
accommodate the new dose at the same price as his previous dose. Tr. at 282. She noted
that Plaintiff felt fatigued and depressed. Id. She indicated she had recommended Plaintiff
pursue counseling at the mental health center, but Plaintiff had failed to follow through.
Id. Dr. Davenport indicated Plaintiff’s blood pressure showed no orthostatic drop during
the examination. Id. She stated Plaintiff’s fatigue, depression, and erectile dysfunction
were possibly aggravated by his use of a beta blocker. Id. Dr. Davenport noted that
Plaintiff had multiple neurologic complications from diabetes, including peripheral
neuropathy and suboptimal control of pain. Id.
State agency consultant Samuel Goots, Ph. D. (“Dr. Goots”), completed a
psychiatric review technique form (“PRTF”) on February 8, 2013, and considered
Listings 12.04 for affective disorders and 12.06 for anxiety related disorders. Tr. at 87–
88. He assessed Plaintiff as having mild restriction of activities of daily living, mild
difficulties in maintaining social functioning, and moderate difficulties in maintaining
concentration, persistence, or pace. Tr. at 87. He indicated Plaintiff was limited to
unskilled work. Tr. at 88. Dr. Goots also completed a mental RFC assessment and
assessed Plaintiff as moderately limited in his abilities to understand, remember, and
carry out detailed instructions. Tr. at 91–93.
On February 27, 2013, Plaintiff presented to Dr. Davenport’s office for a blood
pressure check. Tr. at 303. He complained of depression and lower back pain. Id. He
indicated antidepressant medication had not improved his depression and Gabapentin
9

caused him to feel terrible and provided no relief. Id. Amanda Brown, NP (“Ms.
Brown”), observed bilateral lower lumbar tenderness to palpation and depressed affect,
but noted no other abnormalities. Tr. at 306. She prescribed an increased dose of
Lisinopril and instructed Plaintiff to decrease his sodium intake and to monitor his blood
pressure. Tr. at 307. Ms. Brown indicated Plaintiff should do no heavy lifting, bending, or
stooping. Id.
On March 14, 2013, Plaintiff followed up with Ms. Brown. Tr. at 295–99. He
shared a blood pressure log that showed his blood pressure to vary from 93/70 to 176/77
mg/dL. Tr. at 295. He reported several episodes of dizziness when Lisinopril was
increased, but noted that the dizziness had stopped. Id. Ms. Brown observed no
abnormalities on examination. Tr. at 297–98.
On March 19, 2013, state agency consultant Xanthia Harkness, Ph. D. (“Dr.
Harkness”), reviewed the evidence and completed a PRTF. Tr. at 116–17. She considered
Listings 12.04 and 12.06 and concluded that Plaintiff had mild restriction of activities of
daily living, mild difficulties in maintaining social functioning, and moderate difficulties
in maintain concentration, persistence, or pace. Id. Dr. Harkness indicated in a mental
RFC assessment that Plaintiff had moderately limited abilities to understand, remember,
and carry out detailed instructions. Tr. at 121–23.
State agency medical consultant Seham El-Ibiary, M.D. (“Dr. El-Ibiary”),
assessed Plaintiff’s physical RFC on March 19, 2013, and indicated Plaintiff was limited
as follows: 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
10

in an eight-hour workday; frequently push/pull with the bilateral lower extremities, reach
overhead with the right arm, climb ramps/stairs, stoop, kneel, crouch, and crawl;
occasionally climb ladders/ropes/scaffolds and balance; and avoid concentrated exposure
to hazards. Tr. at 118–21.
On June 6, 2013, Dr. Davenport indicated Plaintiff’s blood sugar log showed him
to have good control. Tr. at 401. Plaintiff complained of positional paresthesias in his
hands that were consistent with carpal tunnel syndrome and dysesthesias in his feet that
were consistent with peripheral neuropathy. Id. Plaintiff indicated he was unable to work
outside because of dizziness and lightheadedness; could not use his hands to paint
because of carpal tunnel syndrome; and could not clip his own toenails safely because of
peripheral neuropathy. Id. Plaintiff’s blood pressure was elevated. Id. A diabetic foot
exam showed diminished pedal pulses bilaterally; decreased sensation; and slight trauma
to the cuticle of the left great toe. Id. Dr. Davenport recommended Plaintiff use wrist
splints on his bilateral hands and apply antibiotic ointment to the injured cuticle and a
lesion on his skin. Id. She authorized Plaintiff to receive a disabled parking placard and
indicated on the form that he had “a substantial limitation in the ability to walk due to an
arthritic, neurological, or orthopedic condition” that was permanent. Tr. at 405, 410.
Plaintiff followed up with Ms. Brown on June 27, 2013. Tr. at 397. He reported
occasional lightheadedness on the increased dose of Lisinopril. Id. He indicated his blood
pressure ranged from 86/60 to 154/106 and his blood sugar ranged from 90 to 177 mg/dL.
Id. Ms. Brown observed no abnormalities on physical exam. Tr. at 398–99.

11

On July 18, 2013, Plaintiff followed up with Ms. Brown. Tr. at 392. He denied
dizziness, but complained of more stress and poor sleep. Id. Ms. Brown observed no
abnormalities on examination. Tr. at 394. She refilled Plaintiff’s medications and
instructed him to continue to monitor his blood pressure. Tr. at 394–95.
Plaintiff presented to Dr. Davenport with multiple complaints on September 24,
2013. Tr. at 383. He reported leg pain, foot pain, leg cramps, back pain, stiffness,
depression, and inability to obtain medical assistance. Id. He complained of excessive
sedation while taking a high dose of Gabapentin, but indicated he was unable to sleep at
night because of worry. Id. Dr. Davenport indicated Plaintiff’s blood sugars ranged from
119 to 187 mg/dL, but Plaintiff reported no hypoglycemia or recent fainting spells. Id.
Dr. Davenport noted that Plaintiff cried intermittently and was unable to maintain eye
contact during the examination. Id. A diabetic foot exam revealed diminished pulse in
Plaintiff’s bilateral feet, a callus on the tip of the right second toe, and peripheral
neuropathy. Id. Dr. Davenport indicated she offered to adjust Plaintiff’s dosage of
Gabapentin, but he did not want for her to do so. Id. She offered to adjust the Prozac, but
Plaintiff was afraid his pharmacy would charge too much. Id. She recommended Plaintiff
visit the mental health clinic, but he stated that the mental health clinic told him he would
need to go to the ER. Id. Plaintiff also declined a referral to physical therapy because he
said he did not have transportation. Id.
Plaintiff underwent a vascular lower extremities arterial duplex and lower arterial
plethysmography procedure on October 3, 2013. Tr. at 353–55. The study revealed
bilateral lower extremity atherosclerotic disease and mild flow reduction in the bilateral
12

lower extremities. Tr. at 353. Dr. Davenport’s note from the next day indicated that
Plaintiff’s peripheral arterial disease should not cause pain at rest and that Plaintiff should
walk “as best he can to promote improved circulation in nearby arteries” and should treat
the pain from neuropathy with Gabapentin. Tr. at 388.
On January 7, 2014, Plaintiff complained to Dr. Davenport of foot pain related to
neuropathy and vascular disease. Tr. at 377. He stated his pain occurred mostly at night,
but indicated his balance was compromised and that he staggered at times. Id. Dr.
Davenport encouraged Plaintiff to take 2000 units of Vitamin D daily and prescribed an
increased dose of Pravastatin. Tr. at 382.
Plaintiff presented to Dr. Davenport on March 10, 2014, complaining of a sore on
his left great toe that had appeared two weeks earlier and recently worsened. Tr. at 452.
He reported throbbing pain in his left great toe. Id. He indicated he had experienced a loss
of consciousness a couple of months earlier when he ran into a wall while playing with a
child, but denied syncopal episodes. Id. Dr. Davenport noted that the diabetic foot exam
showed two hemorrhagic round lesions just distal to the medial corner of the toenail bed
on the tip of the left great toe. Tr. at 455. She indicated the lesions measured four-tenths
and eight-tenths of a centimeter. Id. She noted the wounds were red and tender to
palpation. Id. Dr. Davenport indicated Plaintiff’s left great toe was hemorrhagic with
vesicles and cellulitis emerging. Id. She prescribed Keflex for cellulitis and referred
Plaintiff to the wound center. Tr. at 457.
Plaintiff presented to Howard Klickman, M.D. (“Dr. Klickman”), at Spartanburg
Regional Wound Healing Services on March 12, 2014. Tr. at 422. Plaintiff indicated his
13

left great toe had developed redness and that the pain had worsened. Id. He reported no
improvements since starting the Keflex prescription. Id. Plaintiff indicated he
experienced claudication in his bilateral calves while walking. Id. Dr. Klickman noted
that Plaintiff’s dorsalis pedis and posterior tibial pulses were somewhat diminished
bilaterally. Tr. at 424. He observed a black necrotic area on the tip of the medial corner of
the nail of Plaintiff’s left great toe that measured about six-tenths of a centimeter in
diameter. Id. He described the skin and soft tissues on the tip as red, slightly swollen, and
exquisitely tender. Id. Plaintiff had diminished sensor-monofilament in her bilateral feet.
Tr. at 425. Dr. Klickman prescribed Keflex and Bactrim for treatment of cellulitis. Id. He
recommended transcutaneous oxygen measurements and referral to a vascular surgeon.
Id. He noted that Plaintiff was at moderately-high risk for more proximal limb loss. Id.
On March 19, 2014, Plaintiff continued to complain to Dr. Klickman of throbbing
pain in his left great toe and the dorsum of his foot. Tr. at 417. Transcutaneous oxygen
measurements showed normal oxygen tension, but poor response to the oxygen challenge
in the left calf. Tr. at 418. The 10-minute equilibration readings at the left lateral calf and
the left dorsal foot indicated severe hypoxemia with no response to the oxygen challenge.
Tr. at 418–19. Dr. Klickman indicated further arterial evaluation was warranted and was
being pursued. Tr. at 419. He prescribed Norco for pain and Clindamycin for cellulitis.
Tr. at 420.
Plaintiff also visited Cuyler Calton, M.D. (“Dr. Calton”), on March 19, 2014. Tr.
at 428. He indicated he experienced bilateral claudication symptoms when he walked 100
yards. Id. He stated his pain resolved after he rested for 10 to 15 minutes. Id. Plaintiff
14

endorsed numbness in his feet and occasional balance problems as a result of neuropathy.
Id. Dr. Calton observed Plaintiff to have a small ulcer on his left great toe with black
eschar that measured two to three millimeters. Tr. at 431. He indicated Plaintiff’s
sensation was intact and his gait was steady. Id. A vascular exam indicated pulses were
barely palpable in the bilateral popliteal veins. Id. Dr. Calton assessed a diabetic ulcer of
the left great toe and peripheral vascular disease. Id.
Plaintiff returned to Dr. Klickman on March 26, 2014. Tr. at 414. He reported the
throbbing in his toe had improved significantly with the addition of Clindamycin. Id. Dr.
Klickman noted that the cellulitis had improved and that Plaintiff no longer needed
antibiotics. Tr. at 415. He indicated Plaintiff should continue to paint his toe with
Betadine daily, use a post-operative shoe for offloading, continue taking pain medication,
and return in one week after undergoing angiogram. Id.
On March 27, 2014, Plaintiff underwent limited distal aortogram and pelvic
arteriogram, left lower extremity arteriogram, left superficial femoral artery (“SFA”)
balloon angioplasty, left mid-popliteal artery balloon angioplasty, left peroneal artery
balloon angioplasty, and ultrasound-guided puncture to confirm patency of the right
femoral artery. Tr. at 544. Dr. Calton recommended Plaintiff be maintained on Plavix
indefinitely due to small vessel disease and tenuous angioplasty. Tr. at 546. He also
recommended Plaintiff continue taking aspirin and a statin. Id. He instructed Plaintiff to
follow up with Dr. Klickman regarding his toe ulcer. Id.
Plaintiff followed up with Dr. Klickman on April 2, 2014. Tr. at 411. He
continued to report a dull pain in his left great toe that he rated as a six to seven of ten. Id.
15

Dr. Klickman noted that the ulcer on Plaintiff’s toe was ischemic and that Plaintiff was at
high risk for limb loss. Tr. at 412. He refilled Plaintiff’s prescription for Norco for pain,
painted Plaintiff’s toe with Betadine, and instructed Plaintiff to continue painting his toe
with Betadine on a daily basis, to use a post-operative shoe, and to follow up in two
weeks. Id.
Plaintiff followed up with Dr. Calton on April 16, 2014. Tr. at 532. Dr. Calton
noted that the ulcer on Plaintiff’s toe was healing and felt much better. Id. Plaintiff denied
left leg claudication. Id. Dr. Calton indicated Plaintiff was doing well following
multivessel angioplasty. Tr. at 535. He recommended Plaintiff undergo baseline arterial
duplex scan. Id.
Plaintiff also presented to Dr. Klickman on April 16, 2014, for reevaluation of his
left great toe ulcer. Tr. at 550. He denied pain in the toe. Id. Dr. Klickman noted that the
ulcer was noticeably smaller than it was during the last visit. Tr. at 551.
On April 21, 2014, Dr. Davenport indicated she had instructed Plaintiff to
discontinue Lisinopril over the previous weekend because lab work revealed his
potassium to be too high. Tr. at 434. Plaintiff presented with elevated blood pressure. Id.
Dr. Davenport prescribed Amlodipine and instructed Plaintiff to remain off Lisinopril and
to stop drinking mineral water. Tr. at 437. She indicated the lab work showed Plaintiff’s
diabetes to be reasonably controlled. Tr. at 438.
Plaintiff underwent arterial duplex examination of his bilateral lower extremities
on April 22, 2014. Tr. at 528–31. Testing revealed the following results in Plaintiff’s
right lower extremity: right SFA stenosis; precluded ankle brachial index (“ABI”); wave
16

forms compatible with runoff disease; critically depressed right toe brachial index
(“TBI”); and no detectable measurable pressure in the dorsalis pedis artery (“DPA”). Tr.
at 529. Plaintiff’s left lower extremity results were as follows: precluded ABI; patent
SFA, popliteal, and peroneal arteries following angioplasty without focal intra-luminal
stenosis being demonstrated; precluded posterior tibial artery (“PTA”); severely
depressed TBI; and no detectable measurable pressure in the DPA. Id.
On May 7, 2014, Plaintiff returned to Dr. Klickman for follow up. Tr. at 547. He
denied pain in the toe. Id. Dr. Klickman indicated Plaintiff’s ulcer had healed and that he
could discontinue painting it with Betadine. Tr. at 548.
Plaintiff presented to Alfred R. Moss, M.D. (“Dr. Moss”), on June 25, 2014, for
nerve conduction velocity (“NCV”) and electromyography (“EMG”) studies. Tr. at 555.
Plaintiff complained of constant bilateral distal lower extremity pain and paresthesias. Id.
He reported severe burning in his feet that was worse on the left. Id. He endorsed bilateral
leg cramping and significant pain in his lumbar spine. Id. He reported loss of balance and
difficulty walking, standing, and sleeping. Id. Dr. Moss assessed moderate sensory and
motor polyneuropathy of the nerves of the bilateral feet that was axonal in nature. Id. He
indicated Plaintiff had bilateral lower extremity neuropathy as a result of diabetes. Id.
C.

The Administrative Proceedings
1.

The Administrative Hearing
a.

Plaintiff’s Testimony

At the hearing on June 26, 2014, Plaintiff testified he last worked as a plumber’s
helper for Compton Plumbing and indicated he was laid off from the job as the result of a
17

lack of work. Tr. at 40–41. He stated he applied for work during the entire period that he
collected unemployment, but stopped searching for work in 2011. Tr. at 41–42.
Plaintiff testified he received treatment through a grant-based program called
Access Health that relied upon physicians who volunteered their time. Tr. at 45. He
indicated he had received treatment for approximately two years. Id.
Plaintiff testified that the neuropathy in his feet and legs prevented him from
working. Tr. at 46. He indicated that the neuropathy resulted from diabetes that he failed
to treat for several years. Tr. at 49. He stated he had received treatment for blocked
arteries and a non-healing ulcer on his toe. Tr. at 46. He indicated some of his arteries
remained blocked and that he experienced numbness on the bottom of his foot and in his
toes. Id. He testified he had difficulty with balance. Tr. at 56. He indicated he had bulging
discs and pinched nerves in his back. Id. He stated he was depressed. Tr. at 47. Plaintiff
testified he had difficulty with his bilateral hands and that his doctors initially thought he
had carpal tunnel syndrome, but more recently indicated peripheral arterial disease may
be affecting his hands. Tr. at 57. He stated his hands often became numb. Id. He
described some shoulder pain and indicated his doctors thought it may be related to a
bulging disc. Id.
Plaintiff testified he visited the mental health clinic for treatment, but was
informed that they could not provide charity help. Tr. at 47. He indicated he was
instructed to go to the emergency room if he thought he was going to hurt himself or
someone else. Id.

18

Plaintiff testified that he would prefer to work, but that no one would hire him. Tr.
at 48. He stated he had started working as a school bus driver at the age of 16. Id. He
stated his work history included 20 years with the same company. Tr. at 49.
Plaintiff testified that he did not experience pain while sitting and resting in the
hearing room. Tr. at 49. However, he stated that his legs, calves, and feet throbbed when
he walked from the parking lot to the hearing office. Id. He indicated his legs and feet felt
like needles at night and that he could not get comfortable. Id. Plaintiff testified he was
able to use his hands to pick up small objects, but had some difficulty maintaining a grip
on items like a paintbrush and a coffee cup. Tr. at 69.
Plaintiff testified he could stand for 30 to 45 minutes and sit for an hour to an
hour-and-a-half at a time. Tr. at 54. He stated he could walk for five to 10 minutes. Id. He
indicated his doctor told him not to lift over 10 pounds, but that he felt he could lift up to
20 pounds. Id. He stated he sometimes used a cane, but indicated it was not prescribed by
his doctor. Id. Plaintiff testified his doctor had completed an application for him to
receive a disabled placard. Tr. at 55.
Plaintiff testified that his doctor prescribed Zoloft for his depression, but that he
could not afford an increased dosage of the medication. Tr. at 60. He stated he took
Metformin for diabetes and indicated it was effective. Tr. at 61–62. He indicated
Gabapentin helped his neuropathy, but that he sometimes could not afford to have it filled
because its price had increased from $3 to over $40. Tr. at 62. He stated that both
Gabapentin and Prozac made him sleepy. Tr. at 63.

19

Plaintiff testified that he awoke around 7:00 each morning. Tr. at 58. He stated he
watched television, cooked, and assisted his wife with household chores. Id. He indicated
he was able to shower, dress, and shave on his own. Id. He stated he visited the grocery
store with his wife. Tr. at 59. He denied visiting family and friends, attending church
regularly, and going out to dinner or movies. Id.
b.

Vocational Expert Testimony

Vocational Expert (“VE”) Celena Earl, MRC, CRC, reviewed the record and
testified at the hearing. Tr. at 74–80. The VE categorized Plaintiff’s PRW as a
construction worker I, Dictionary of Occupational Titles (“DOT”) number 869.664-014,
with a strength level of heavy and a specific vocational preparation (“SVP”) of four. Tr.
at 76. The ALJ described a hypothetical individual of Plaintiff’s vocational profile who
could lift up to 20 pounds occasionally; could lift or carry up to 10 pounds frequently;
could stand or walk for approximately six hours during an eight-hour workday; could sit
for approximately six hours during an eight-hour workday; could frequently push and
pull with the bilateral upper extremities, reach overhead, stoop, crouch, kneel, and crawl;
could occasionally climb ladders, ropes, or scaffolds; must avoid concentrated use of
moving machinery and exposure to unprotected heights; and was limited to one- or twostep tasks. Id. The VE testified that the hypothetical individual could not perform
Plaintiff’s PRW. Id. The ALJ asked whether there were any other jobs in the regional or
national economy that the hypothetical person could perform. Tr. at 77. The VE
identified light jobs with an SVP of two as a small parts assembler, DOT number
706.684-022, with 3,700 positions in South Carolina and 87,200 positions in the national
20

economy; an electronics worker, DOT number 726.687-010, with 1,100 positions in
South Carolina and 38,900 positions in the national economy; and a laundry folder, DOT
number 369.687-018, with 1,500 positions in South Carolina and 94,300 positions in the
national economy. Id.
The ALJ next described a hypothetical individual of Plaintiff’s vocational profile
who could perform light work as defined in the first hypothetical; could frequently push
or pull with the bilateral upper extremities and reach overhead with the right arm; could
never climb ladders, ropes, scaffolds, ramps, or stairs; could occasionally balance, stoop,
crouch, and kneel; could never crawl; must avoid concentrated use of moving machinery
and exposure to unprotected heights; and was limited to one- or two-step tasks. Tr. at 77–
78. He asked if there were jobs available for someone with those limitations. Tr. at 78.
The VE responded that the individual could perform all the jobs identified in response to
the first hypothetical question. Id.
The ALJ described a hypothetical individual of Plaintiff’s vocational profile who
was limited as described in the second question, but would be unable to engage in
sustained work activity for a full eight-hour workday on a regular and consistent basis
because of medical conditions and mental impairments. Id. He asked if there would be
jobs available. Id. The VE indicated there would be no jobs. Id.
Plaintiff’s attorney asked the VE to assume the same restrictions set forth in the
second hypothetical, but to further assume the individual was limited to frequent bilateral
handling and fingering. Tr. at 79. He asked if the jobs identified in response to the second
question could be performed. Id. The VE indicated all the jobs could be performed. Id.
21

Plaintiff’s attorney asked the VE to assume the individual could only use his hands
in an extended position on a frequent basis. Tr. at 80. He asked if the jobs identified in
response to the earlier question would be available. Id. The VE indicated that the jobs
could be performed. Id.
2.

The ALJ’s Findings

In his decision dated October 31, 2014, the ALJ made the following findings of
fact and conclusions of law:
1.
2.

3.

4.

5.

6.

The claimant meets the insured status requirement of the Social Security
Act through December 31, 2013.
The claimant has not engaged in substantial gainful activity since June 1,
2011, the amended alleged onset date (20 CFR 404.1571 et seq., and
416.971 et seq.).
The claimant has the following severe impairments: an affective disorder;
an anxiety disorder; diabetes mellitus; diabetic peripheral neuropathy;
peripheral artery disease; a right shoulder impingement; cervical
degenerative disc disease; and osteoarthritis (20 CFR 404.1520(c) and
416.920(c)).
The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1526, 416.920(d), 416.925 and 416.926).
After careful consideration of the entire record, I find that the claimant has
the residual functional capacity to perform less than the full range of light
work as defined in 20 CFR 404.1567(b) and 416.967(b). The claimant can
lift up to 20 pounds occasionally; and lift and carry up to ten pounds
frequently. The claimant can stand or walk for six hours and sit for six
hours, in an eight-hour workday. The claimant is limited to frequent
bilateral pushing/pulling. The claimant can never climb ladders, ropes,
scaffolds, ramps, or stairs. The claimant can occasionally balance, stoop,
crouch, or kneel, but can never crawl. The claimant is limited to frequent
right overhead reaching. The claimant must avoid concentrated use of
moving machinery and avoid concentrated exposure to unprotected heights.
The claimant is further limited to one or two-step tasks.
The claimant is unable to perform any past relevant work (20 CFR
404.1565 and 416.965).
22

7.

8.
9.

10.

11.

The claimant was born on February 25, 1961 and was 50 years old, which
is defined as an individual closely approaching advanced age, on the
alleged disability onset date (20 CFR 404.1563 and 416.963).
The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).
Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled,” whether or not the claimant has
transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P,
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, and 416.969(a)).
The claimant has not been under a disability, as defined in the Social
Security Act, from June 1, 2011, through the date of this decision (20 CFR
404.1520(g) and 416.920(g)).

Tr. at 11–21.
II.

Discussion
Plaintiff alleges the Commissioner erred in improperly rejecting her treating

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

Legal Framework
1.

The Commissioner’s Determination-of-Disability Process

The Act provides that disability benefits shall be available to those persons insured
for benefits, who are not of retirement age, who properly apply, and who are under a
“disability.” 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:
the inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for
at least 12 consecutive months.
23

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;2 (4) whether such
impairment prevents claimant from performing PRW;3 and (5) whether the impairment
prevents him from engaging in 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)

2

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 are “at
least equal in severity and duration to [those] criteria.” 20 C.F.R. §§ 404.1526, 416.926;
Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146
(1987) (noting the burden is on claimant to establish his impairment is disabling at Step
3). 
3
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).
24

(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.
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
25

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
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

On March 18, 2013, Dr. Davenport completed two questionnaires. Tr. at 281, 407.
The first questionnaire addressed Plaintiff’s mental functioning. Tr. at 281. Dr.
Davenport indicated Plaintiff had been diagnosed with depression and was prescribed
Fluoxetine. Id. She stated the Fluoxetine had helped Plaintiff’s condition, but that she had
referred him to the mental health clinic on January 24, 2013. Id. Dr. Davenport described
26

Plaintiff as being oriented to time, person, place, and situation; having an intact thought
process; demonstrating appropriate thought content; having a depressed mood/affect;
showing adequate attention/concentration; and demonstrating adequate memory. Id. She
stated Plaintiff did not exhibit any work-related limitation in function due to the mental
condition. Id.
The second questionnaire asked if Plaintiff could engage in anything more than
sedentary work on an eight-hour day, five day per week basis and defined sedentary work
as follows:
Sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small
tools. Although a sedentary job is defined as one which involves sitting, a
certain amount of walking and standing is often necessary in carrying out
job duties. Jobs are sedentary if walking and standing are required
occasionally and other sedentary criteria are met.
Tr. at 407. Dr. Davenport indicated Plaintiff could perform no more than sedentary work.
Id. She stated Plaintiff’s diagnoses included peripheral neuropathy and probable
autonomic neuropathy, syncope, and vascular disease. Id. She indicated her opinion was
based on Plaintiff’s medical records, history, and physical examination. Id.
Plaintiff argues the ALJ erroneously rejected the work-preclusive limitations set
forth by Dr. Davenport. [ECF No. 13 at 16–22]. He maintains that Dr. Davenport’s
opinion was particularly important because it suggested he was limited to sedentary
work, which directed a finding that he was disabled based on the Medical-Vocational
Guidelines. Id. at 19. He contends the ALJ failed to identify inconsistencies between Dr.
Davenport’s examination findings and her opinion. Id. at 20. Plaintiff further argues that
27

the ALJ failed to identify inconsistencies between Dr. Davenport’s opinion and the
medical evidence as a whole, which supported a finding that Plaintiff was limited to
sedentary work. Id. at 21–23.
The Commissioner argues the ALJ carefully considered Dr. Davenport’s opinion
and provided sufficient reasons for the weight he assigned to it. [ECF No. 15 at 11–12].
She maintains Dr. Davenport’s opinion was inconsistent with her treatment records and
examination findings and with the other evidence of record. Id. at 12. She contends
Plaintiff’s diabetes was controlled; he was able to ambulate independently; he had normal
ROM and strength in his upper extremities; he had intact sensation and normal gait; and
the wound on his foot was successfully treated. Id. She argues Plaintiff’s activities of
daily living (“ADLs”) were consistent with an ability to perform light work. Id. at 13. She
also

maintains

the

ALJ

imposed

non-exertional

limitations

that

adequately

accommodated all of Plaintiff’s limitations. Id. at 13–14.
The Social Security Administration’s (“SSA’s”) regulations require that ALJs
carefully consider medical source opinions of record. SSR 96-5p. ALJs must accord
controlling weight to the opinions of treating physicians that are well-supported by
medically-acceptable clinical and laboratory diagnostic techniques and that are not
inconsistent with the other substantial evidence of record. 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2). Should the ALJ determine that the treating physician’s opinion is not
entitled to controlling weight, the ALJ is required to evaluate the treating physician’s
opinion and all other medical opinions of record based on the factors in 20 C.F.R. §§
404.1527(c) and 416.927(c). Id.; SSR 96-2p. The relevant factors include (1) the
28

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. §§ 404.1527(c), 416.927(c).
ALJs are also guided in weighing the relevant factors by the provisions of 20
C.F.R. §§ 404.1527(c) and 416.927(c). A treating source’s opinion generally carries more
weight than any other opinion evidence of record, even if it is not well-supported by
medically-acceptable clinical and laboratory diagnostic techniques or is inconsistent with
the other substantial evidence in the case record. 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2). However, “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). Medical opinions that are adequately explained by the medical source and
supported by medical signs and laboratory findings should be accorded greater weight
than uncorroborated opinions. 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3). “[T]he more
consistent an opinion is with the record as a whole, the more weight the Commissioner
will give it.” Stanley v. Barnhart, 116 F. App’x 427, 429 (4th Cir. 2004), citing 20 C.F.R.

29

§ 416.927(d) (2004).4 Finally, medical opinions from specialists regarding medical issues
related to their particular areas of specialty should carry greater weight than opinions
from physicians regarding impairments outside their areas of specialty. 20 C.F.R. §§
404.1527(c)(5), 416.927(c)(5).
This court should not disturb the ALJ’s weighing of the medical opinion evidence
of record “absent some indication that the ALJ has dredged up ‘specious inconsistencies,’
Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992), or has not given good reason
for the weight afforded a particular opinion.” Craft v. Apfel, 164 F.3d 624 (Table), 1998
WL 702296, at *2 (4th Cir. 1998) (per curiam). ALJs are not required to expressly
discuss each factor in 20 C.F.R. §§ 404.1527(c) and 416.927(c), but their decisions
should demonstrate that they considered and applied all the factors and accorded each
opinion appropriate weight in light of the evidence of record. See Hendrix v. Astrue, No.
1:09-1283-HFF, 2010 WL 3448624, at *3 (D.S.C. Sept. 1, 2010). “[C]ourts have
consistently held that unexplained and rote observations that an opinion is simply
inconsistent with treatment notes or the record, by itself, is not a sufficient basis to reduce
the opinion’s weight.” Lydia v. Astrue, No. 2:11-1453-DCN-BHH 2012 WL 3304107, at
*10 (D.S.C. July 25, 2012), adopted by 2012 WL 3308108 (D.S.C. Aug. 13, 2012), citing
Cagle v. Astrue, 266 F. App’x 788 (10th Cir. 2008) (“stating ‘the ALJ failed to explain or
identify what the claimed inconsistencies were between opinion and the other substantial
evidence in the record,’ and concluded that the ALJ’s reasoning was not ‘sufficiently

4

The version of 20 C.F.R. § 416.927 effective March 26, 2012, redesignated 20 C.F.R. §
416.927(d)(4) as 20 C.F.R. § 416.927(c)(4).
30

specific to enable this court to meaningfully review his findings’”); Langley v. Barnhart,
373 F.3d 1116, 1122 (10th Cir. 2004).
The ALJ indicated he accorded “some weight” to Dr. Davenport’s March 2013
opinion regarding Plaintiff’s mental functioning because it was rendered by Plaintiff’s
treating physician and was consistent with Dr. Loring’s findings. Tr. at 17. He stated he
gave “little weight” to Dr. Davenport’s opinion that Plaintiff could engage in no more
than sedentary work because it was not supported by Dr. Davenport’s treatment records
and examination findings and was inconsistent with the medical evidence of record. Id.
Although the ALJ recognized Dr. Davenport as Plaintiff’s treating physician, it
does not appear that he accorded her opinion any deference in light of her relationship as
required by 20 C.F.R. §§ 404.1527(c) and 416.927(c). The SSA’s regulations provide
significant deference to treating physicians’ opinions, and, while ALJs may give them
less weight where the record presents persuasive contrary evidence, it does not appear
that the ALJ has cited such evidence. See Mastro, 270 F.3d at 178; 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2). Dr. Davenport specifically indicated Plaintiff could
engage in no more than sedentary work. Tr. at 407. She did not suggest Plaintiff was
incapable of engaging in all work.5 See id.; see also Tr. at 281. While the ALJ cited

5

Nevertheless, because of Plaintiff’s age, education, and PRW, a finding that he was
limited to no more than sedentary work would have directed a finding that he was
disabled under Medical-Vocational Rule 201.14. See 20 C.F.R. Part 404, Subpart P,
Appendix 2, § 201.14 (directing a finding of “disabled” if an individual is limited to
sedentary work; between the ages of 50 and 54; is a high school graduate or more with no
education that provides for direct entry into skilled work; and has a history of skilled or
semiskilled work without transferable skills). The Medical-Vocational Guidelines
consider not just ability to perform work, but also major functional and vocational
31

evidence to indicate Plaintiff retained some functional abilities, he did not cite evidence
that directly contradicted Dr. Davenport’s opinion regarding Plaintiff’s inability to
perform sedentary work. See Tr. at 18 (indicating that the record suggested few
limitations as a result of Plaintiff’s diabetes, which appeared to be controlled as long as
Plaintiff was compliant with medications; stating that Plaintiff failed to seek counseling
when he was advised to do so and that neither Dr. Loring nor Dr. Davenport indicated he
had significant abnormalities or work-related limitations as a result of depression; and
finding that Plaintiff’s daily activities were inconsistent with an allegation of disability).
In summarizing the medical evidence of record, the ALJ cited evidence that
suggested Plaintiff was limited to the extent suggested by Dr. Davenport, as well as
evidence that indicated Plaintiff may retain greater functional abilities. See Tr. at 15–18
(MRI in August 2012 revealed disc herniation on the right at C6-7; December 2012 exam
with Dr. Early indicated right shoulder impingement, 2+ crepitus in knees, indications of
difficulty with standing and balancing, intact pulses in feet, and normal x-ray of
lumbosacral spine; Plaintiff indicated to Dr. Loring in January 2013 that he was able to
drive, perform indoor and outdoor chores, shop, manage money, tend to his personal
hygiene, watch television, and prepare simple meals; blood work in January 2013 showed

patterns that are encountered in cases where individuals are unable to perform their PRW.
20 C.F.R. Part 404, Subpart P, Appendix 2, § 200.00(a). Medical-Vocational Rule 201.14
specifically recognizes that individuals over age 50 who have no education that provides
for direct entry into skilled work, who cannot return to their PRW, and who have no
transferable skills from their PRW to sedentary work would encounter significant
practical barriers to obtaining sedentary employment. Thus, it allows for a finding that
the individual is disabled, despite the fact that he could perform a sedentary job if given
the opportunity.
32

Plaintiff’s A1c level to be 6.0 percent; Plaintiff complained of low back pain and had
lower lumbar bilateral tenderness in February 2013; Dr. Davenport signed an application
for a disabled placard and license plate application in June 2013; Plaintiff’s A1c was 5.5
percent and he was able to ambulate independently and to get on and off an exam table
without assistance in June 2013, but a diabetic foot examination showed diminished
pedal pulses bilaterally and decreased sensation; Plaintiff complained of leg pain, foot
pain, leg cramps, back pain, constant pain, depression, and stiffness in September 2013,
but his A1c level was 5.8 percent and he declined recommended treatments; Plaintiff was
diagnosed with bilateral lower atherosclerotic disease, mild flow reduction in the right
lower extremity, and mild flow reduction in the left upper extremity in October 2013;
Plaintiff reported that he had lost consciousness when he ran into a wall while playing
with a three-year-old and indicated his foot pain occurred mostly at night in January
2014; Plaintiff presented for treatment of diabetic foot ulcer and cellulitis of the left great
toe in March 2014; Plaintiff had normal range of motion and strength in his upper
extremity, intact sensation, and a steady gait in March 2014; Dr. Davenport noted that lab
work showed reasonable control of Plaintiff’s diabetes in April 2014; an April 2014
vascular lower extremities arterial duplex and lower arterial plethysmography procedure
indicated elevated velocities in the right mid-SFA, a non-compressible PTA at rest, right
TBI reduced at rest, absent color flow and Doppler signal in the left PTA, noncompressible left DPA at rest, reduced TBI at rest, and monophasic Doppler waveforms
in Plaintiff’s runoff vessels at rest; Plaintiff’s ulcer improved and he reported no pain by
May 2014; June 2014 NCV testing showed moderate sensory and motor polyneuropathy
33

that was axonal in nature in the nerves of the bilateral feet and Plaintiff was diagnosed
with bilateral lower extremity neuropathy).
The ALJ failed to reconcile the evidence to allow the court to determine why he
concluded Dr. Davenport’s opinion was unsupported by her treatment records and
inconsistent with the other medical evidence of record. Based on the ALJ’s summary, he
could have just as easily concluded that Plaintiff was limited to sedentary work instead of
light work based on the objective testing that showed a disc herniation in Plaintiff’s
cervical spine, significant peripheral arterial disease, and moderate diabetic neuropathy;
examination reports that indicated decreased sensation and diminished pedal pulses; a
history of poorly-healing foot ulcer, cellulitis, and angioplasty; and Plaintiff’s multiple
complaints of foot pain, cramps, tingling, shoulder pain, claudication, and difficulty
ambulating. See Tr. at 15–18. While the Commissioner points to the evidence cited by the
ALJ that supports his RFC finding and decision to reject Dr. Davenport’s opinion, she
ignores the other evidence the ALJ also cited that was consistent with Dr. Davenport’s
opinion. Compare ECF No. 15 at 12–13, with Tr. at 15–18. The court’s review is limited
to the ALJ’s decision, which lacks explanation as to how the evidence cited either
supports or refutes Dr. Davenport’s opinion. See Hall v. Colvin, No. 8:13-2509-BHHJDA, 2015 WL 366930, at *11 (D.S.C. Jan. 15, 2015); Cassidy v. Colvin, No. 1:13-821JFA-SVH, 2014 WL 1094379, at *7 n.4 (D.S.C. March 18, 2014), citing Golembiewski v.
Barnhart, 322 F.3d 912, 916 (7th Cir. 2003) (“[G]eneral principles of administrative law
preclude the Commissioner’s lawyers from advancing grounds in support of the agency’s
decision that were not given by the ALJ.”). Thus, it is impossible to determine based on a
34

review of the ALJ’s decision why he concluded that Dr. Davenport’s opinion was entitled
to little weight.
In light of the foregoing, the undersigned recommends the court find the ALJ erred
in failing to adequately consider Dr. Davenport’s opinion in light of the requirements of
20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2) and in neglecting to explain his
conclusion that Dr. Davenport’s opinion was unsupported by her findings and the other
medical evidence of record.
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.
IT IS SO RECOMMENDED.

January 26, 2016
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.”

35

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).