Seegers v. Commissioner of Social Security Administration

Filing 19

ORDER reversing the decision of the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) and remanding the action for further administrative proceedings. Signed by Magistrate Judge Shiva V. Hodges on 01/27/2017. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Michael O’dell Seegers,
Plaintiff,
vs.
Carolyn W. Colvin, Acting
Commissioner of Social Security
Administration,
Defendant.

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C/A No.: 1:16-1263-SVH

ORDER

This appeal from a denial of social security benefits is before the court for a final
order pursuant to 28 U.S.C. § 636(c), Local Civ. Rule 73.01(B) (D.S.C.), and the order of
the Honorable Margaret B. Seymour dated April 28, 2016, referring this matter for
disposition. [ECF No. 6]. The parties consented to the undersigned United States
Magistrate Judge’s disposition of this case, with any appeal directly to the Fourth Circuit
Court of Appeals. [ECF No. 5].
Plaintiff files this appeal pursuant to 42 U.S.C. § 405(g) of the Social Security Act
(“the Act”) to obtain judicial review of the final decision of the Commissioner of Social
Security (“Commissioner”) denying the claim for disability insurance benefits (“DIB”).
The two issues before the court are whether the Commissioner’s findings of fact are
supported by substantial evidence and whether she applied the proper legal standards. For
the reasons that follow, the court reverses and remands the Commissioner’s decision for
further proceedings as set forth herein.

I.

Relevant Background
A.

Procedural History

On November 13, 2012, Plaintiff protectively filed an application for DIB in
which he alleged his disability began on April 8, 2008. Tr. at 63 and 131–36. His
application was denied initially and upon reconsideration. Tr. at 85–88 and 90–95. On
April 1, 2015, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Ann G.
Paschall. Tr. at 29–49 (Hr’g Tr.). The ALJ issued an unfavorable decision on June 9,
2015, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 8–28.
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 1–6. Thereafter, Plaintiff brought this action seeking judicial review of the
Commissioner’s decision in a complaint filed on April 25, 2016. [ECF No. 1].
B.

Plaintiff’s Background and Medical History
1.

Background

Plaintiff was 59 years old at the time of the hearing. Tr. at 34. He completed the
second grade. Tr. at 148. His past relevant work (“PRW”) was as a weaver. Tr. at 47. He
alleges he has been unable to work since April 8, 2008. Tr. at 131.
2.

Medical History

Plaintiff presented to Benjamin C. Pinner, M.D. (“Dr. Pinner”), for evaluation of
hypothyroidism, hypertension, and hyperlipidemia on January 28, 2008. Tr. at 287. Dr.
Pinner indicated Plaintiff’s hypothyroidism was controlled with Synthroid and his

2

hypertension was controlled by diet. Id. He stated Plaintiff’s cholesterol was not at its
goal. Id.
On February 18, 2008, Plaintiff reported moderate pain after sustaining an on-thejob injury to his right fourth toe. Tr. at 284. Dr. Pinner diagnosed an ulcer, prescribed
Lortab and a 10-day course of Doxycycline, gave Plaintiff a work excuse, and instructed
him to return in four days. Tr. at 285–86. On, February 28, 2008, Dr. Pinner observed
Plaintiff to have a small ulceration medially and erythema extending proximally to the
base of the toe. Tr. at 278. He prescribed a four-day course of Doxycycline. Id.
Plaintiff complained of dizziness and tinnitus on February 19, 2009. Tr. at 273 and
274. Dr. Pinner observed no abnormalities on examination. Tr. at 274–75. He prescribed
Antivert for vertigo, Synthroid for hypothyroidism, Lisinopril for hypertension, and
Prilosec for gastroesophageal reflux disease (“GERD”). Tr. at 275–76.
Plaintiff followed up for hypertension, hypothyroidism, and GERD on July 12,
2010. Tr. at 269. He complained of back pain. Tr. at 270. A physical examination was
unremarkable. Tr. at 270–71. Dr. Pinner recommended Plaintiff restart Synthroid for
hypothyroidism. Tr. at 271. He prescribed Triamterene-HCTZ for hypertension and
Omeprazole for GERD. Id.
On September 13, 2010, Plaintiff reported chest pain and cramping in his lower
back and leg. Tr. at 267. Dr. Pinner observed Plaintiff to have some lower paraspinal
muscle tenderness. Tr. at 268. He stated he suspected Plaintiff’s cramping pain may be a
side effect of his blood pressure medication. Id. He discontinued Triamterene-HCTZ and
prescribed Procardia XL. Id.
3

Plaintiff followed up with Dr. Pinner regarding hypertension and hypothyroidism
on September 15, 2011. Tr. at 261. A physical examination was unremarkable. Tr. at
261–62. However, Dr. Pinner reduced Plaintiff’s dosage of Synthroid after reviewing lab
test results. Tr. at 260.
On December 19, 2011, Plaintiff complained of chest pain that radiated to his back
and worsening hypertension. Tr. at 258. He reported fatigue and dyspnea. Id. Dr. Pinner
indicated Plaintiff’s symptoms sounded musculoskeletal, but he encouraged Plaintiff to
schedule calcium scoring because of his risk factors for coronary artery disease. Tr. at
259. A chest x-ray showed Plaintiff to have poor inspiration, but was otherwise normal.
Id. An electrocardiogram (“EKG”) was also normal. Id. Lab tests indicated Plaintiff’s
thyroid medication was working properly. Id.
On August 21, 2012, Plaintiff complained that his hypertension was worsening
and had caused him to experience headaches and chest pain. Tr. at 253. He reported his
energy had decreased over the prior three-month period and that he had felt more
anxious. Id. He complained of paresthesias. Id. Dr. Pinner described Plaintiff as having
an anxious mood and affect, but noted no other abnormalities on examination. Tr. at 253–
54. He prescribed Xanax to be taken as needed and changed Plaintiff’s hypertension
medication from Procardia to Exforge. Tr. at 254.
Plaintiff presented to Dr. Pinner on September 17, 2012, for hypertension and
associated headache. Tr. at 251. Dr. Pinner noted no abnormalities on examination. Tr. at
251–52. He encouraged Plaintiff to work on reducing his weight to control his blood
pressure and cholesterol. Tr. at 252.
4

On April 8, 2013, Plaintiff followed up for hypertension and hypothyroidism. Tr.
at 321. He reported a sore throat, increasing fatigue, and generalized muscle aches. Id.
Dr. Pinner noted no abnormalities on examination. Tr. at 321–22.
On April 29, 2013, an x-ray of Plaintiff’s right knee showed a small joint effusion
and mild degenerative changes of the medial and patellofemoral compartments. Tr. at
300. An x-ray of his left knee indicated minimal degenerative change of the medial knee
joint compartment. Tr. at 302. An x-ray of Plaintiff’s back showed mild disc degenerative
changes at the T12-L1 and L5-S1 levels. Tr. at 301.
Plaintiff presented to Branham Tomarchio, M.D. (“Dr. Tomarchio”), for a
consultative examination on May 18, 2013. Tr. at 304–09. Plaintiff described chronic
pain in his lumbar spine that was associated with some numbness and weakness in his
lower extremities and burning in his legs. Tr. at 306. He also endorsed some pain in his
knees and neck. Id. He reported abilities to dress and feed himself; to stand for 30
minutes at a time; to walk for two miles; to sit for 30 minutes; to lift 50 pounds; and to
engage in activities of daily living (“ADLs”) that included driving, sweeping, mopping,
vacuuming, washing dishes, shopping, climbing stairs, and mowing grass. Id. Dr.
Tomarchio observed Plaintiff to ambulate from the office into the examination room; to
shake his hand with a firm grip; to sit in the interview chair without difficulty; to rise to
move to the examination chair without difficulty; and to hear and speak normally. Tr. at
308. He noted Plaintiff’s spine showed no evidence of deformity and was not tender to
palpation. Id. Plaintiff’s extremities showed no evidence of edema, cyanosis, or clubbing.
Id. His joints demonstrated no redness, swelling, or effusion. Id. He had 5/5 grip strength
5

bilaterally. Id. Plaintiff demonstrated normal fine and gross manipulative skills. Id. He
had normal range of motion (“ROM”) throughout his spine and extremities. Id. He was
able to walk and squat without difficulty. Id. Plaintiff had normal motor strength and
reflexes and his muscles showed no atrophy. Id. Dr. Tomarchio assessed chronic back
pain, but indicated Plaintiff had “no objective evidence of significant functional capacity
deficit.” Tr. at 309.
State agency consultant Debra C. Price, Ph. D. (“Dr. Price”), reviewed the
evidence and completed a psychiatric review technique form (“PRTF”) on June 4, 2013.
Tr. at 56–57. She considered Listings 12.02 for organic mental disorders and 12.06 for
anxiety-related disorders and found that Plaintiff had mild restriction of ADLs and
difficulties in maintaining social functioning; moderate difficulties in maintaining
concentration, persistence, or pace; and no episodes of decompensation that were of
extended duration. Id. Dr. Price found that Plaintiff was moderately limited in his abilities
to understand, remember, and carry out detailed instructions; to maintain attention and
concentration for extended periods; to complete a normal workday and workweek
without interruptions from psychologically-based symptoms; and to perform at a
consistent pace without an unreasonable number and length of rest periods. Tr. at 58–60.
She stated Plaintiff’s symptoms and impairments were severe, “but would not preclude
the performance of simple, repetitive work tasks.” Tr. at 60. She indicated Plaintiff could
understand and remember simple instructions; carry out short and simple instructions;
maintain concentration and attention for at least two hours; respond appropriately to

6

coworkers, supervisors, and the general public; and be aware of normal hazards and take
appropriate precautions. Id.
On June 25, 2013, Plaintiff complained of a gradual onset of fatigue that had been
occurring in a persistent pattern for months. Tr. at 317. He reported generalized muscle
aches and pain in his bilateral knees and lower back. Id. Dr. Pinner observed Plaintiff to
be anxious; to be tender to palpation over his left sacroiliac joint; and to have a coarse
right knee. Tr. at 318. He prescribed Diclofenac Sodium for pain and Cymbalta for mood.
Id. He recommended Plaintiff avoid exposure to the sun. Id.
Plaintiff reported weight gain, fatigue, and dry skin on August 26, 2013. Tr. at
335. Dr. Pinner noted no abnormal findings on examination. Tr. at 335–36. He
discontinued Diclofenac Sodium and prescribed Feldene for osteoarthritis in Plaintiff’s
knee. Tr. at 336. He increased Plaintiff’s dosage of Cymbalta from 30 to 60 milligrams
and refilled his prescriptions for Exforge and Synthroid. Id.
On October 14, 2014, Plaintiff complained of hypertension, pain in his shoulders
and knee, and depression. Tr. at 356. Dr. Pinner noted no abnormalities on examination.
Tr. at 357. He diagnosed shoulder bursitis. Id. He refilled Plaintiff’s prescription for
Hydrocodone and indicated he could take the medication up to four times a day. Id.
Plaintiff reported anxiety that was accompanied by insomnia and sleep disturbance
on March 5, 2015. Tr. at 352. He complained of pain in his left shoulder that was
radiating toward his upper back. Id. Dr. Pinner observed Plaintiff to have reduced ROM
in his bilateral shoulders. Tr. at 353.

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3.

Education Records

Barbara Chapman of the Newberry County Adult Literacy Council drafted a letter
on January 8, 2013, that indicated Plaintiff was enrolled in an Adult Basic Reading class
from May 5, 2009, through February 2, 2012. Tr. at 166. She stated Plaintiff was able to
increase his reading level from a first to a second grade level with one-and-a-half hours
of one-on-one tutoring per week. Id.
A test administered on January 14, 2013, showed Plaintiff to be reading on a third
grade level. Tr. at 170.
On March 24, 2014, Robert V. Shea, Jr., indicated in a sworn statement that he
had served as a volunteer with the Newberry Literacy Society and had worked with
Plaintiff during one to two hour sessions that took place twice a week for a period of six
months to a year. Tr. at 223. He stated Plaintiff had difficulty learning words and
recognizing known words in sentences. Id. He noted Plaintiff put forth good effort, but
had a limited aptitude. Id. He stated Plaintiff’s reading and writing skills were so limited
that he would consider him illiterate. Tr. at 223–24.
C.

The Administrative Proceedings
1.

The Administrative Hearing
a.

Plaintiff’s Testimony

At the hearing on April 1, 2015, Plaintiff testified he was in special education
classes and withdrew from school at the age of 15. Tr. at 34. He stated he attended a
literacy class as an adult, but remained unable to read. Tr. at 35. He indicated he had
obtained a driver’s license because the test was administered orally. Id.
8

Plaintiff testified he started working at American Fiber and Finishing when he was
16 years old. Tr. at 36. He indicated he worked as a weaver because his reading problems
did not prevent him from performing the job. Id. He stated his employer closed down. Id.
He indicated he had some physical problems performing his job before the job ended. Tr.
at 37. He stated he looked for other work, but denied having worked anywhere since
April 4, 2008. Id.
Plaintiff testified he experienced pain in his knees, lower back, and shoulders. Tr.
at 37. He indicated his back pain was exacerbated by bending and standing for too long.
Tr. at 38. He stated he could walk for 15 minutes before he needed to stop and rest. Id.
He indicated he could stand for less than 15 minutes at a time. Id. He testified he was
unable to sit for a long period, but admitted that he had sat in the car for 35 to 40 minutes
on his way to the hearing. Tr. at 38–39. He stated he had difficulty lifting two pounds. Tr.
at 39.
Plaintiff stated he took Hydrocodone for pain. Tr. at 43–44. He indicated it
provided some relief, but did not stop his pain. Tr. at 44. He testified he was instructed to
take the medication every six hours, but was actually taking it closer to every four hours
because his pain returned after only four hours. Id. He stated his medications caused him
to have slowed thoughts and memory problems and to feel dizzy when he stood too
quickly. Tr. at 42 and 44. He indicated his doctor instructed him to avoid working outside
because of his history of skin cancer. Tr. at 42.
Plaintiff endorsed symptoms of depression as a result of being unable to help his
wife. Tr. at 43. He indicated he had been taking medication for approximately three
9

years. Id. He stated he would often have crying spells, but indicated the medication had
helped. Id.
Plaintiff indicated he had some difficulty getting in and out of the bath tub and
tying his shoes. Tr. at 39–40. He stated he was able to drive, but sometimes chose not to
do so because riding in a car exacerbated his back pain. Tr. at 35. He testified that his
sleep was interrupted by pain during the night. Tr. at 40. He indicated he took naps in the
morning and afternoon. Id. He stated he mowed his lawn with a riding mower, but
indicated he had difficulty using the clutch. Tr. at 41. He testified his wife did the
household chores, cooked, and shopped for groceries. Id.
b.

Vocational Expert Testimony

Vocational Expert (“VE”) Carey A. Washington, Ph. D., reviewed the record and
testified at the hearing. Tr. at 46. The VE categorized Plaintiff’s PRW as a weaver,
Dictionary of Occupational Titles (“DOT”) number 683.682-038, as light with a specific
vocational preparation (“SVP”) of four. Tr. at 47. Although the VE indicated the job was
classified as semiskilled, he stated he did not feel that it produced any transferable skills.
Id. The ALJ described a hypothetical individual of Plaintiff’s vocational profile who
could perform medium work that required lifting 25 pounds frequently and 50 pounds
occasionally; could sit, stand, and walk for up to six hours each in an eight-hour
workday; could read at a second or third grade level, but was essentially illiterate; was
limited to simple, repetitive tasks and verbal instructions; and could perform jobs that
required no more than occasional public contact. Id. The VE testified that the
hypothetical individual could perform Plaintiff’s PRW. Id.
10

The ALJ asked the VE to assume the hypothetical individual could not maintain
attention and focus to stay on task for as much as two hours at a time and would require
breaks in excess of a 15-minute morning break, a 30-minute afternoon break, and a 15minute lunch break. Tr. at 47–48. She asked if the individual would be able to perform
Plaintiff’s PRW or any other work. Tr. at 48. The VE indicated the individual could
perform no substantial gainful work activity. Id.
The ALJ asked the VE to assume the individual could not consistently work for
eight hours a day and five days per week or would miss three or more days of work per
month. Id. She asked if the individual could perform any jobs. Id. The VE stated no jobs
would be available. Id.
2.

The ALJ’s Findings

In his decision dated June 9, 2015, the ALJ made the following findings of fact
and conclusions of law:
1.
2.

3.

4.

5.

The claimant last met the insured status requirements of the Social Security
Act on March 31, 2013.
The claimant did not engage in substantial gainful activity during the period
from his alleged onset date of April 8, 2008 through his date last insured of
March 31, 2013 (20 CFR 404.1571 et seq.).
Through the date last insured, the claimant had the following severe
impairments: lumbar degenerative disc disease, degenerative joint disease
of both knees, illiteracy, depression and anxiety disorders. (20 CFR
404.1520(c)).
Through the date last insured, the claimant did not have an impairment or
combination of impairments that met or medically equaled the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1525 and 404.1526).
After careful consideration of the entire record, I find that, through the date
last insured, the claimant had the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) except he is limited to simple
retentive tasks with verbal instructions and only occasional contact with the
public.
11

6.

7.

Through the date last insured, the claimant was capable of performing past
relevant work as a weaver. This work did not require the performance of
work-related activities precluded by the claimant’s residual functional
capacity (20 CFR 404.1565).
The claimant was not under a disability, as defined in the Social Security
Act, at any time from April 8, 2008, the alleged onset date, through March
31, 2013, the date last insured (20 CFR 404.1520(f)).

Tr. at 13–23.
II.

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

the ALJ failed to properly evaluate and weigh the medical opinions of
record;

2)

the ALJ erred in finding that Plaintiff was capable of performing PRW, and
Plaintiff’s inability to perform PRW directed a finding that he was disabled
under Medical-Vocational Rule 202.02 in light of his age, education, PRW,
and the RFC assessed by the ALJ;

3)

the ALJ did not consider the combined effect of his impairments in
determining whether his impairments met a Listing;

4)

the ALJ did not adequately consider the singular and combined effects of
depression and anxiety, illiteracy, and pain caused by degenerative joint
and disc disease in assessing Plaintiff’s RFC;

5)

the ALJ did not evaluate Plaintiff’s credibility in light of his work record;

6)

the ALJ erred in finding that Plaintiff’s PRW existed in significant
numbers; and

7)

the ALJ placed undeserved emphasis on Dr. Tomarchio’s report.

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

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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;1 (4) whether such

1

The Commissioner’s regulations include an extensive list of impairments (“the
Listings” or “Listed impairments”) the Agency considers disabling without the need to
assess whether there are any jobs a claimant could do. The Agency considers the Listed
impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to
prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a
claimant meets or equals all criteria of any of the Listed impairments for at least one year,
he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To
meet or equal one of these Listings, the claimant must establish that his impairments
match several specific criteria or are “at least equal in severity and duration to [those]
criteria.” 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen
v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his
impairment is disabling at Step 3).
13

impairment prevents claimant from performing PRW;2 and (5) whether the impairment
prevents him from doing substantial gainful employment. See 20 C.F.R. § 404.1520.
These considerations are sometimes referred to as the “five steps” of the Commissioner’s
disability analysis. If a decision regarding disability may be made at any step, no further
inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can
find claimant disabled or not disabled at a step, Commissioner makes determination and
does not go on to the next step).
A claimant is not disabled within the meaning of the Act if he can return to PRW
as it is customarily performed in the economy or as the claimant actually performed the
work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling (“SSR”) 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,
2

In the event the examiner does not find a claimant disabled at the third step and does not
have sufficient information about the claimant’s past relevant work to make a finding at
the fourth step, he may proceed to the fifth step of the sequential evaluation process
pursuant to 20 C.F.R. § 404.1520(h).
14

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

15

affirmed “even should the court disagree with such decision.” Blalock v. Richardson, 483
F.2d 773, 775 (4th Cir. 1972).
B.

Analysis
1.

Evaluation of Opinion Evidence

Plaintiff argues the ALJ erred in rejecting medical opinions from Drs. Pinner, Van
Slooten, and Hammonds and the vocational opinion from Mr. Hinson that supported a
finding that he was disabled. [ECF No. 13 at 7–8 and 14–15]. The Commissioner
maintains the ALJ’s findings were consistent with the medical opinions of record and that
the ALJ provided adequate reasons for accepting opinions from the VE and Dr.
Tomarchio in favor of Mr. Hinson’s test results and opinion. [ECF No. 14 at 5–8].
ALJs must consider all medical opinions of record. 20 C.F.R. § 404.1527(b).
Medical opinions may only be rendered by acceptable medical sources, which include
licensed physicians, licensed or certified psychologists, licensed optometrists, licensed
podiatrists, and qualified speech-language pathologists. SSR 06-03p; 20 C.F.R. §
404.1513(a). The regulations require that ALJs accord controlling weight to treating
physicians’ medical opinions 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); SSR 96-2p.
If the record contains no opinion from a treating physician or if the ALJ
determines that the treating physician’s opinion is not entitled to controlling weight, she
is required to evaluate all medical opinions of record based on the factors in 20 C.F.R. §
404.1527(c). Those factors include (1) the examining relationship between the claimant
16

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 treatment records; (4) the consistency of the
medical opinion with other evidence in the record; (5) the specialization of the medical
provider offering the opinion; and (6) any other relevant factors that tend to support or
contradict the opinion. Johnson, 434 F.3d at 654; 20 C.F.R. § 404.1527(c).
Other sources, including nurse practitioners, physician assistants, licensed clinical
social workers, naturopaths, chiropractors, audiologists, therapists, educational personnel,
social welfare agency personnel, rehabilitation counselors, spouses, other relatives,
friends, neighbors, clergy, and former coworkers and employers, may offer opinions, as
well. See 20 C.F.R. § 404.1513(d). Although ALJs are not required to evaluate these
sources’ opinions as stringently as opinions from acceptable medical sources, ALJs
should be guided by the basic principles outlined in 20 C.F.R. § 404.1527 in considering
them. SSR 06-03p.
ALJs are not required to expressly discuss each factor in 20 C.F.R. § 404.1527(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). It is not
the role of this court to disturb the ALJ’s determination as to the weight to be assigned to
a medical source opinion “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
17

given good reason for the weight afforded a particular opinion.” Craft v. Apfel, 164 F.3d
624, 1998 WL 702296, at *2 (4th Cir. 1998) (unpublished table decision) (per curiam).
In view of the foregoing authority, the undersigned considers Plaintiff’s specific
allegations of error.
a.

Dr. Pinner’s Opinions

On February 1, 2013, Dr. Pinner indicated Plaintiff’s mental diagnosis was
anxiety. Tr. at 296. He stated he had prescribed Xanax to be taken as needed. Id. He
indicated Plaintiff’s anxiety had improved with Xanax and stated he had not
recommended psychiatric care. Id. He described Plaintiff as being oriented to time,
person, place, and situation; demonstrating an intact thought process and appropriate
thought

content;

showing

a

worried/anxious

mood/affect;

and

having

good

attention/concentration and memory. Id. He assessed Plaintiff as having a slight workrelated limitation in function as a result of his mental condition and noted he “may
become anxious with some work duties.” Id. He stated Plaintiff was capable of managing
his funds. Id.
Dr. Pinner completed a physical capacities evaluation on March 22, 2014. Tr. at
339–41. He indicated Plaintiff should be able to sit for four hours, stand for two hours,
and walk for two hours in an eight-hour workday. Tr. at 339. He stated Plaintiff could
continuously lift up to 20 pounds and could occasionally lift 20 to 100 pounds. Id. He
stated Plaintiff could continuously carry up to 20 pounds; could occasionally carry up to
50 pounds; and could never carry over 50 pounds. Tr. at 340. He indicated Plaintiff
should be able to use his extremities for simple grasping, handling, reaching, pushing and
18

pulling, hand manipulation, and operating foot and leg controls. Id. He stated Plaintiff
could frequently climb stairs and lift his hands above shoulder level. Id. He indicated
Plaintiff could occasionally climb ladders, bend unsupported, squat unsupported, kneel,
be on scaffolding, and crawl. Id. He noted Plaintiff could frequently be exposed to
moving machinery, noise, dust, fumes, and gases and could occasionally be exposed to
unprotected heights, vibration, and extreme temperatures. Tr. at 341. He indicated
Plaintiff did not use any mobility aides or devices. Id.
The ALJ adequately considered Dr. Pinner’s February 2013 opinion that
Plaintiff’s anxiety caused a slight work-related limitation and that he may become
anxious with some work duties. See Tr. at 296. She indicated she gave some weight to
Dr. Pinner’s opinion that Plaintiff had a slight work-related limitation of function because
it was reasonable that he may become anxious with some work duties. Tr. at 22. She
stated this opinion was supported by treatment records and was consistent with Plaintiff’s
ADLs. Id. Dr. Pinner did not specify any particular work duties that Plaintiff would have
difficulty performing or should avoid. See id. In the absence of specific restrictions from
Dr. Pinner, it was not unreasonable for the ALJ to find that Plaintiff’s anxiety would
affect his ability to deal with the public and to limit him to jobs that required only
occasional public contact.
The ALJ’s evaluation of Dr. Pinner’s March 2014 opinion provides sufficient
reasons for declining to give it controlling weight and reflects her consideration of the
examining and treatment relationship, the supportability of Dr. Pinner’s opinion in his
records, the consistency of his opinion with the other evidence, and other relevant
19

factors.3 The ALJ noted Plaintiff was insured for DIB through March 31, 2013, but Dr.
Pinner rendered the opinion approximately a year later and did not indicate it applied to
the earlier period. See Tr. at 20. The record supports the ALJ’s conclusion that Plaintiff’s
treatment history was inconsistent with Dr. Pinner’s opinion. See Tr. at 18–19 and 20. As
the ALJ noted, Plaintiff complained to Dr. Pinner of back pain on few occasions prior to
his DLI. See Tr. at 18; see also 253–54 (noting Plaintiff’s complaint of paresthesias, but
indicating no musculoskeletal abnormalities on physical examination), 267–68 (noting
Plaintiff’s complaint of cramping in his lower back and leg, observing some lower
paraspinal muscle tenderness, and opining that cramping pain may be a side effect of
blood pressure medication), and 270 (noting a complaint of back pain, but finding no
abnormalities). The ALJ also noted that Plaintiff did not report knee pain prior to his DLI
and that Dr. Pinner did not prescribe any medication for pain prior to June 2013. See Tr.
at 18–19 and 20. Earlier in the decision, the ALJ noted that the objective testing and Dr.
Tomarchio’s examination findings showed Plaintiff to have mild degenerative disc
disease and degenerative joint disease in the period after his DLI. See Tr. at 19. Finally,
the ALJ stated Dr. Pinner’s opinion was inconsistent with Plaintiff’s reported ADLs. Tr.
at 20. In light of the foregoing explanation, substantial evidence supports the ALJ’s
evaluation of Dr. Pinner’s March 2014 opinion.

3

Plaintiff does not allege and the record does not suggest Dr. Pinner had any particular
medical specialization. Therefore, it was unnecessary for the ALJ to consider the
specialization factor.
20

b.

State Agency Consultants’ Opinions

On May 29, 2013, state agency medical consultant Dale Van Slooten, M.D. (“Dr.
Van Slooten”), reviewed the record and found that Plaintiff’s physical impairments were
not severe. Tr. at 56. He determined that Plaintiff was unable to perform his PRW
because his PRW was semiskilled, but Plaintiff was limited to unskilled work. Tr. at 60–
62.
On July 22, 2013, state agency psychologist Michael Hammonds, Ph. D. (“Dr.
Hammonds”), reviewed the record and completed a PRTF. Tr. at 74–76. He considered
Listing 12.06 and found that Plaintiff had mild restriction of ADLs; moderate difficulties
in maintaining social functioning and concentration, persistence, or pace; and no episodes
of decompensation that were of an extended duration. Id. Dr. Hammonds found that
Plaintiff was moderately limited in his abilities to understand, remember, and carry out
detailed instructions; to maintain attention and concentration for extended periods; to
interact appropriately with the general public; to accept instructions and respond
appropriately to criticism from supervisors; and to respond appropriately to changes in
the work setting. Tr. at 77–79. He found that Plaintiff demonstrated abilities to complete
simple two to three step commands; could maintain attention and concentration for two
hours at a time, as required to perform simple tasks and complete an eight-hour day and
40-hour week; would do best in an environment with limited public contact; would do
best with supervision that was direct and non-confrontational; and could adapt to a
predictable work environment involving simple, repetitive tasks, but may have difficulty

21

adapting to new situations. Tr. at 79. Dr. Hammonds indicated Plaintiff was unable to
perform his PRW because he was limited to unskilled work. Tr. at 79–81.
The ALJ appropriately relied on evidence obtained after Dr. Van Slooten reviewed
the record to support her decision to give little weight to his opinion that Plaintiff had no
severe impairments. See Tr. at 20. Subsequent evidence showed Plaintiff to have
degenerative disc disease in his back and degenerative joint disease in his bilateral knees.
See id.
Plaintiff argues the ALJ erred in giving little weight to Dr. Van Slooten’s opinion
that he was unable to perform his PRW (ECF No. 13 at 7), but opinions on an
individual’s ability to perform PRW are reserved to the Commissioner. See 20 C.F.R. §
404.1527(d). While the ALJ was not required to give any special significance to Dr. Van
Slooten’s opinion that Plaintiff was unable to perform his PRW, it is unclear from her
decision whether she accepted his opinion that Plaintiff was limited to unskilled work.
Pursuant to SSR 85-15, “[t]he basic mental demands of competitive, remunerative,
unskilled work include the abilities (on a sustained basis) to understand, carry out, and
remember simple instructions; to respond appropriately to supervision, coworkers, and
usual work situations; and to deal with changes in a routine work setting.” This definition
and the fact that the ALJ limited Plaintiff to “simple retentive tasks” suggest she limited
him to unskilled work. However, the ALJ did not specify that Plaintiff was limited to
unskilled work and she found that he was capable of performing a job that is classified by
the DOT as semiskilled. Therefore, it is unclear from the ALJ’s decision whether she
restricted Plaintiff to unskilled work.
22

Although the ALJ weighed Dr. Hammonds’s opinion and offered no reasons for
rejecting any of his findings, she failed to incorporate all of the limitations he indicated in
the assessed RFC. The ALJ accorded some weight to Dr. Hammonds’s opinion because
“it reflects consideration of the medical record by a specialist who is familiar with Social
Security regulations, and is consistent with the claimant’s activities of daily living.” Tr. at
21. She found that Plaintiff’s and his wife’s statements that he was anxious and stressed
around people were consistent with Dr. Hammonds’s finding of moderate limitations to
his ability to interact with the general public. Id. She stated Dr. Hammonds’s opinion that
Plaintiff was restricted to simple, routine tasks because his illiteracy was well-supported
by the record. Id. The ALJ limited Plaintiff to “simple retentive tasks with verbal
instructions and only occasional contact with the public,” but she did not specify that he
was limited to unskilled work, include any restrictions that addressed the type of
supervision he would require, or address his ability to adjust to changes in the workplace.
In the absence of an explanation from the ALJ as to why she did not include these
additional limitations, her evaluation of Dr. Hammonds’s opinion is flawed.
c.

Mr. Hinson’s Findings and Vocational Opinion

Plaintiff attended a vocational evaluation with Gerald N. Hinson, M. Ed. (“Mr.
Hinson”), on April 5, 2014. Tr. at 343–46. Mr. Hinson tested Plaintiff’s aptitudes for
motor coordination, finger dexterity, and manual dexterity. Tr. at 344. Plaintiff’s scores
in all three areas indicated he had a minimal ability to perform or was unable to perform.
Id. Mr. Hinson indicated he found the results of the testing to be a valid and accurate
assessment of Plaintiff’s ability to work. Tr. at 345. He further indicated Plaintiff
23

struggled with reading words that were on a first and second grade level. Id. Mr. Hinson
stated Plaintiff’s PRW was performed at a light to medium exertional level and required
above-average motor coordination, finger dexterity, and manual dexterity. Id. He
indicated Plaintiff would be unable to perform his PRW and that other sedentary and light
jobs would require motor coordination, finger dexterity, manual dexterity, and a higher
degree of literacy. Id.
The ALJ adequately evaluated Mr. Hinson’s test results and his opinion that
Plaintiff was unable to perform any jobs. As indicated above, an opinion that an
individual is disabled or unable to perform PRW carries no special significance because
the disability decision is reserved to the Commissioner. See 20 C.F.R. § 404.1527(d).
Substantial evidence supports the ALJ’s decision to accord little weight to Mr. Hinson’s
test results regarding Plaintiff’s dexterity and motor coordination. See Tr. at 19 and 21.
The ALJ noted that Mr. Hinson was not an acceptable medical source; that the tests were
conducted a year after Plaintiff’s DLI; that Mr. Hinson did not indicate his opinion was
retrospective; that Dr. Tomarchio observed Plaintiff to have no limitations in either hand
in May 2013; that Dr. Pinner opined that Plaintiff could use his bilateral hands for
repetitive action; and that no medically-determinable impairment accounted for the
symptoms. Tr. at 19 and 21. Thus, the ALJ discounted Mr. Hinson’s opinion based on its
inconsistency with evidence in the record that reflected Plaintiff’s functioning closer to
his DLI. Furthermore, the ALJ correctly noted that she could not rely on evidence of
decreased manual dexterity in the absence of evidence of an impairment that caused the
symptom. See Craig v. Chater, 76 F.3d 585, 592 (4th Cir. 1996) (“Thus, for disability to
24

be found, an underlying medically determinable impairment resulting from some
demonstrable abnormality must be established.”).
2.

Ability to Perform PRW and Medical-Vocational Rules

Plaintiff argues the ALJ erred in finding that he was capable of performing his
PRW. [ECF No. 13 at 9–10 and 20]. He contends Mr. Hinson opined that his PRW was
performed at the light to medium exertional level and above. Id. at 11–12. He maintains
the ALJ did not consider his age and erred in not applying Grid Rule 202.02 to find he
was disabled as of his fifty-fifth birthday. Id. at 10–11. He further argues the ALJ did not
question the VE as to whether he was capable of performing his PRW with the
limitations she ultimately included in her RFC assessment. Id. at 21–22.
The Commissioner argues Plaintiff has not met his burden to prove he was unable
to perform his PRW. [ECF No. 14 at 16]. She maintains the ALJ relied on the VE’s
testimony in concluding that Plaintiff was able to perform his PRW with the assessed
RFC. Id. at 18. She further contends the Social Security Administration is not required to
show that jobs exist in significant numbers if a claimant is able to perform PRW. Id. at 18
n.2.
A claimant will generally be found “not disabled” if his RFC allows him to meet
the physical and mental demands of his PRW as actually performed or as customarily
performed throughout the economy. SSR 82-62. “Past work experience must be
considered carefully to assure that the available facts support a conclusion regarding the
claimant’s ability or inability to perform the functional activities required in this work.”
Id. The ALJ must carefully evaluate the claimant’s statements as to which PRW
25

requirements can no longer be met and the reasons for his inability to meet those
requirements; medical evidence establishing how the impairment limits the claimant’s
ability to meet the physical and mental requirements of the work; and in some cases,
supplementary or corroborative information from employers, the DOT, and other sources
on the requirements of the work as generally performed in the economy. Id. Because a
determination as to whether a claimant can perform PRW is important and sometimes
even controlling, it is very important that the ALJ make every effort “to secure evidence
that resolves the issue as clearly and explicitly as circumstances permit.” Id.
The ALJ must make the following specific findings of fact to support a
determination that the claimant can perform PRW: (1) a finding of fact as to the
claimant’s RFC; (2) a finding of fact as to the physical and mental demands of his PRW;
and (3) a finding of fact that the claimant’s RFC would permit a return to his PRW. Id.
The ALJ made a specific finding of fact as to Plaintiff’s RFC. See Tr. at 17
(finding Plaintiff had the RFC to perform light work, but was limited to simple, retentive
tasks with verbal instructions and only occasional contact with the public). She also made
a finding of fact as to the physical and mental demands of Plaintiff’s PRW. See Tr. at 23
(noting that the DOT classified work as a weaver as being light and semiskilled with an
SVP of 4). Finally, she concluded that Plaintiff’s RFC would allow him to return to his
PRW. See Tr. at 23 (finding Plaintiff was capable of performing his PRW as a fiber
weaver as actually performed).
Although the ALJ explicitly found that Plaintiff was capable of performing his
PRW as a weaver as actually performed, she relied on the DOT’s description of the job
26

instead of Plaintiff’s description. See Tr. at 23. In Harris v. Secretary, Dept. of Health
and Human Services, 866 F.2d 1415 (Table), 1989 WL 7013, at *2 (4th Cir. 1989), the
court remanded the case because the ALJ’s decision was devoid of reference to or
discussion of the plaintiff’s explanation as to why he was unable to perform his past
relevant work. Here, the ALJ indicated Plaintiff’s PRW “included a full range of the light
exertional level,” but she did not reference Plaintiff’s description of the physical demands
of his PRW. See id. Plaintiff described his work as a weaver as requiring he frequently
lift 25 pounds and lift up to a maximum of 50 pounds.4 Tr. at 149. This was consistent
with performance of work at the medium exertional level. See 20 C.F.R. §404.1567(c)
(“Medium work involves lifting no more than 50 pounds at a time with frequent lifting or
carrying of objects weighing up to 25 pounds.”). Thus, the ALJ’s determination that
Plaintiff’s PRW was performed at the light exertional level conflicts with his description
of the work as requiring medium exertion. Given the assessed RFC for light work,
Plaintiff was unable to perform his PRW as he described having performed it.
Because an individual is not disabled if he can either return to PRW as customarily
performed or as actually performed, the undersigned has considered whether the ALJ
cited substantial evidence to support a conclusion that Plaintiff could perform his PRW as
customarily performed. The ALJ noted that the DOT described the job of weaver as being
light and semiskilled with an SVP of four. Tr. at 23. She accepted the VE’s testimony
that the job of weaver could be performed by an individual who could lift no more than
4

Plaintiff’s description was sustained by Mr. Hinson’s assessment that his PRW was
performed “at the light–medium and above exertional demand.” See Tr. at 345. The ALJ
also posed a hypothetical question to the VE that indicated the individual was limited to
work at the medium exertional level. See Tr. at 47.
27

25 pounds frequently and 50 pounds occasionally; could sit, stand, or walk up to six
hours each in an eight-hour day; could read at the second or third grade level; could
perform simple, repetitive tasks with verbal instructions; and could be exposed to the
public on no more than an occasional basis. Tr. at 23 and 47. The DOT’s and the VE’s
classification of the job of weaver as requiring light exertion is consistent with the
assessed RFC,5 but their classification of the job as semiskilled presents a problem. As
discussed above, the ALJ’s inclusion in the RFC of restrictions to simple, retentive tasks
is consistent with performance of unskilled work. An individual limited to unskilled work
would be unable to perform a semiskilled job. In addition, the DOT describes the job of
“weaver” as requiring the individual “[a]pply commonsense understanding to carry out
instructions furnished in written, oral, or diagrammatic form.” See 683.682-038
WEAVER. Dictionary of Occupational Titles (4th ed., revised 1991), 1991 WL 678228.
This conflicts with the RFC’s restriction to verbal instructions. The job description also
indicates a need to “[r]ead at a rate of 190–215 words per minute,” which may conflict
with the restriction to reading at a second or third grade level. See id.
Although an ALJ may accept a VE’s testimony that conflicts with the DOT, the
ALJ must acknowledge the conflict and provide her reasons for accepting the VE’s
testimony over the information in the DOT. See Pearson v. Colvin, 810 F.3d 204, 208–10
(4th Cir. 2015); see also SSR 00-4p. In light of the ALJ’s failure to acknowledge the
5

Plaintiff correctly points out that the assessed RFC did not match the hypothetical
question the ALJ presented to the VE. See ECF No. 13 at 21–22. However, the
discrepancy between the exertional level included in the hypothetical question and that
adopted in the assessed RFC was inconsequential because 20 C.F.R. § 404.1567(c)
provides “[i]f someone can do medium work, we determine that he or she can also do
sedentary and light work.”
28

conflict between the DOT and the VE’s testimony, the record lacks substantial evidence
to support a finding that Plaintiff could perform his PRW as customarily performed.
It appears the ALJ found Plaintiff capable of meeting the physical demands of the
job of weaver as customarily performed and the mental demands of the job as actually
performed. While she did not explicitly acknowledge a conflict between the mental
limitations included in the RFC and a finding that Plaintiff could perform semiskilled
work, she relied on Plaintiff’s past ability to fulfill the mental requirements of the work.
She stated “[a]lthough his residual functional abilities limit him to simple repetitive tasks
and verbal instructions, I find that he is able to return to past relevant work because this
limitation is based solely on the claimant’s illiteracy. Id. She noted that Plaintiff had
worked in the textile industry for in excess of 36 years and was able to perform the job
despite his illiteracy. Id. Because the ALJ did not find that Plaintiff was capable of
meeting both the physical and mental demands of his PRW, substantial evidence does not
support her finding that he could return to PRW.
The court declines to find that the Medical-Vocational Rules direct a finding of
disability. Although Medical-Vocational Rule 202.026 would direct a finding of
“disabled” as of Plaintiff’s fifty-fifth birthday if he were unable to perform his PRW as
actually and customarily performed, clarification from the ALJ and the VE may result in
a determination that Plaintiff was able to perform his PRW as customarily performed.
The court also notes that Plaintiff has not amended his alleged onset date of disability to
6

Medical-Vocational Rule 202.02 directs a finding of “disabled” if an individual is
limited to light work; is of advanced age; has a limited or less education; and has a
history of semiskilled or skilled work that results in no transferable skills. 20 C.F.R. Part
404, Subpart P, Appendix 2, § 202.02.
29

his fifty-fifth birthday, and that the ALJ’s reconsideration of the state agency consultants’
medical opinions and vocational evidence could result in a finding that he was disabled
before his fifty-fifth birthday.
3.

Additional Allegations of Error

Having found remand appropriate based on the ALJ’s failure to adequately
consider the opinions of Drs. Van Slooten and Hammonds and Plaintiff’s ability to
perform PRW, the court declines to address Plaintiff’s additional allegations of error.
III.

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

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

January 27, 2017
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

30