Rife v. Commissioner of Social Security Administration

Filing 22

ORDER affirming the decision of the Commissioner. Signed by Magistrate Judge Shiva V. Hodges on 01/07/2021. (bshr, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
James Leroy Rife,
Plaintiff,
vs.
Andrew M. Saul,
Commissioner of Social Security
Administration,
Defendant.

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C/A No.: 1:20-cv-1685-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 J. Michelle Childs, United States
District Judge, dated October 23, 2020, referring this matter for disposition.
[ECF No. 17]. 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. 10].
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

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evidence and whether he applied the proper legal standards. For the reasons
that follow, the court affirms the Commissioner’s decision.
I.

Relevant Background
A.

Procedural History

On March 2, 2017, Plaintiff protectively filed an application for DIB in
which he alleged his disability began on October 21, 2016. Tr. at 72, 194–95.
His application was denied initially and upon reconsideration. Tr. at 116–19,
121–26. On December 11, 2018, Plaintiff had a hearing before Administrative
Law Judge (“ALJ”) Richard LaFata. Tr. at 1–58 (Hr’g Tr.). The ALJ issued an
unfavorable decision on May 15, 2019, finding that Plaintiff was not disabled
within the meaning of the Act. Tr. at 88–105. 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 106–
11. Thereafter, Plaintiff brought this action seeking judicial review of the
Commissioner’s decision in a complaint filed on April 29, 2020. [ECF No. 1].
B.

Plaintiff’s Background and Medical History
1.

Background

Plaintiff was 50 years old at the time of the hearing. Tr. at 9. He
completed high school and one year of college, obtaining a commercial driver’s
license (“CDL”). Tr. at 9–10. His past relevant work (“PRW”) was as an overthe-road truck driver and a combination dispatcher and tractor trailer driver.
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Tr. at 45. He alleges he has been unable to work since October 21, 2016. Tr.
at 194.
2.

Medical History

On October 18, 2016, Plaintiff presented to neurosurgeon Thomas S.
Anderson, M.D. (“Dr. Anderson”), at Southeastern Spine Institute. Tr. at 327.
He complained of back and leg pain that had been ongoing for two-and-a-half
to three months. Id. He reported his pain was exacerbated by prolonged
sitting and moving heavy objects. Id. He described achiness and stiffness in
his lower back that was worse in the mornings and sharp, stabbing, burning
pain that radiated from his lower back to his buttock and right hamstring. Id.
He noted 75% of his pain was in his back and 25% was in his legs. Id. He
identified aggravating factors to include sitting, standing, rising from a
seated position, leaning forward, walking, lying on his side, coughing,
sneezing, and bending forward. Id. He noted frequent changes of position
were helpful. Id. He rated his pain as a nine out of 10 on the pain scale. Id.
Dr. Anderson noted 5/5 strength on manual muscle testing, normal muscular
bulk and tone, no abnormal muscle movements, non-antalgic gait and
station, normal reflexes, intact cranial nerves, no Hoffman sign, no clonus,
and intact coordination and sensory exam. Tr. at 328. He ordered and
reviewed x-rays of Plaintiff’s lumbosacral spine that showed multilevel
degenerative spondylosis most pronounced at L5–S1. Id. He assessed low
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back pain and other spondylosis of the lumbar region and ordered magnetic
resonance imaging (“MRI”) of the lumbar spine. Id. He prescribed Valium 5
mg and Demerol 50 mg. Id. He encouraged exercise and provided Plaintiff
information on smoking cessation. Id.
On October 20, 2016, an MRI of Plaintiff’s lumbar spine showed a left
herniation with probable left L5 nerve root compression at L4–5 and a
herniation with bilateral S1 root contact and potential compression at L5–S1.
Tr. at 332.
Plaintiff followed up with Dr. Anderson to review his MRI scan on
October 24, 2016. Tr. at 326. Dr. Anderson explained that Plaintiff had two
degenerated discs at L4–5 and L5–S1, a small to moderate-sized left
paracentral herniation at L4–5 with deflection of his L5 root on the left, and a
central small herniation at L5–S1 between the nerve roots. Id. He noted 5/5
strength on manual muscle testing, normal muscle tone and bulk, no
abnormal muscle movements, and normal gait and station. Id. He assessed
low back pain, other spondylosis of the lumbar region, lumbar radiculopathy,
and other intervertebral disc displacement of the lumbar region. Id. He noted
Plaintiff should remain out of work for six weeks, rest, and avoid heavy or
repetitive lifting, bending, and twisting. Id. He also ordered an epidural
steroid injection (“ESI”) that G. Robert Richardson, M.D., administered at
Plaintiff’s L4–5 level. Tr. at 326, 331.
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On November 14, 2016, Plaintiff reported approximately 50% relief
from the ESI at L4–5. Tr. at 325. He rated his pain as a four. Id. Dr.
Anderson noted 5/5 strength in all muscle groups tested, normal muscle tone
and bulk, no abnormal muscle movements, and normal gait and station. Id.
He did not think he could manage Plaintiff’s problem effectively with
intermittent ESIs. Id. He recommended Plaintiff hold off on another ESI
until his pain levels were unbearable. Id. He also recommended Plaintiff use
a lumbar support arthrosis. Id.
Plaintiff presented to hepatology and gastroenterology specialist Ira R.
Willner, M.D. (“Dr. Willner”), for annual follow up as to fatty liver disease on
November 22, 2016. Tr. at 307. He endorsed no liver-related complaints, but
reported a back injury that had limited his activity over the prior six weeks.

Id. Lab work showed normal liver function tests and F2 fibrosis. Id. Dr.
Willner noted Plaintiff had gained about 20 pounds over the prior year and
explained to him that he needed to increase his activity and overall health to
minimize progression of liver disease. Id.
On November 28, 2016, Plaintiff presented to Frampton Henderson,
M.D. (“Dr. Henderson”), for follow up of multiple conditions, including
diabetes mellitus, anxiety/depression, hypertension, and hyperlipidemia. Tr.
at 342. Dr. Henderson recorded normal findings on physical exam. Tr. at
343–44. He assessed type 2 diabetes without complication, depression,
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essential hypertension, hyperlipidemia, and low back pain. Tr. at 344. He
prescribed Norco 7.5-325 mg for low back pain and refilled Invokana 300 mg
and Metformin HCl ER 500 mg for diabetes, Celexa 20 mg for depression,
Lisinopril 10 mg for hypertension, Lipitor 40 mg for hyperlipidemia, and
Valium 2 mg. Id. He ordered a hemoglobin A1c test, a complete blood count,
and a comprehensive metabolic panel. Id.
On December 23, 2016, Leonard E. Forrest, M.D., administered an ESI
at Plaintiff’s L4–5 level. Tr. at 330.
Plaintiff returned to Dr. Anderson on January 10, 2017, and reported
no relief from his most recent ESI. Tr. at 324. He described lower back and
intermittent left leg pain. Id. Dr. Anderson observed 5/5 strength in all
muscle groups tested, normal muscular bulk and tone, no abnormal muscle
movements, and normal gait and station. Id. He noted Plaintiff had
significant disc disease at L4–5 and L5–S1, but was hesitant to consider
spinal fusion at the time. Id. He recommended Plaintiff concentrate on
weight loss, physical therapy, and injections to try to avoid surgery. Id. He
indicated Plaintiff was unable to return to work at the time and might need
long-term disability to recover. Id. He ordered a lumbar ESI, which German
Levin, M.D., administered. Tr. at 324, 329.
Plaintiff presented to Premier Physical Therapy for an initial
assessment on January 16, 2017. Tr. at 364. Patrick Colpitt, PT, DPT (“PT
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Colpitt”), observed Plaintiff to present with an antalgic gait and to
demonstrate decreased range of motion (“ROM”) of the lumbar spine and
lower extremity strength on testing. Id. He recommended Plaintiff participate
in physical therapy two-to-three times a week for six weeks. Id.
On February 17, 2017, Plaintiff reported a transcutaneous epidural
nerve stimulation (“TENS”) unit did not help his pain and ESIs had provided
minimal relief. Tr. at 368. He endorsed sleep disturbance and pain with
bending, lifting, and sitting, standing, and walking for extended periods. Id.
PT Colpitt indicated Plaintiff continued to report low back pain with certain
activities, but decreased left lower extremity pain. Tr. at 366. He noted
Plaintiff had attended ten physical therapy sessions and had increased the
ROM of his lumbar spine and his lower extremity strength since starting
therapy. Id.
Plaintiff followed up with Kimsey Cooper, PA-C (“PA Cooper”), in Dr.
Anderson’s office on February 21, 2017. Tr. at 323. He reported resolution of
his lower extremity pain with continued axial back pain. Id. He endorsed
difficulty upon bending, twisting, lifting, and prolonged sitting. Id. PA Cooper
reviewed Plaintiff’s MRI report, noting moderate bilateral facet arthropathy
at L4–5 and L5–S1 with disc degeneration and spondylosis at those levels. Id.
She observed Plaintiff to have 5/5 strength in all muscle groups tested,
normal muscular bulk and tone, no abnormal muscle movements, and normal
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gait and station. Id. She recommended facet injections and medial branch
blocks (“MBB”)/rhizotomy. Id. She encouraged Plaintiff to lose weight and
stop smoking. Id. She did not schedule Plaintiff for MBB, but indicated he
was to call the office back to schedule. Id.
On March 31, 2017, Plaintiff denied depressive symptoms and diabetesrelated complications, but complained of worsening anxiety and panic
attacks. Tr. at 337. He weighed 270 pounds. Tr. at 338. His glucose was high
at 146 mg/dL and his hemoglobin A1c was elevated at 9.5%. Tr. at 339. Dr.
Henderson assessed diabetes with diabetic kidney complications, proteinuria,
major

depressive

disorder

(“MDD”)

in

partial

remission,

essential

hypertension, hyperlipidemia, low back pain, panic disorder, and balanitis.
Tr. at 340. He stopped Invokana, started Farxiga, and refilled Oxyglyza for
diabetes. Id. He increased Plaintiff’s dose of Celexa for MDD from 20 to 40
mg.

Id. He continued Lisinopril for hypertension and Lipitor for

hyperlipidemia, refilled Norco for back pain and Valium for panic disorder,
and prescribed Fluconazole for balanitis. Tr. at 340–41.
Dr. Henderson completed a mental capacity assessment on March 31,
2017. Tr. at 354–56. He noted Plaintiff had slight limitations as to his
abilities to: understand and remember detailed instructions; carry out very
short and simple instructions; ask simple questions or request assistance;
accept instructions and respond appropriately to criticism from supervisors;
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maintain socially-appropriate behavior and adhere to basic standards of
neatness and cleanliness; and be aware of normal hazards and take
appropriate precautions. Id. He indicated Plaintiff had moderate limitation
as to abilities to: carry out detailed instructions; maintain attention and
concentration for extended periods; sustain an ordinary routine without
special supervision; work in coordination with or proximity to others without
being distracted by them; complete a normal workday and workweek without
interruptions from psychologically-based symptoms; interact appropriately
with the general public; get along with coworkers or peers without distracting
them or exhibiting behavioral extremes; respond appropriately to changes in
the work setting; travel in unfamiliar places or use public transportation; and
set realistic goals or make plans independently of others. Id. He noted
Plaintiff had marked limitation in his abilities to perform at a consistent pace
with a standard number and length of rest periods and to perform activities
within a schedule, maintain regular attendance, and be punctual within
customary tolerances. Tr. at 354, 355. He stated Plaintiff had marked-tosevere anxiety. Tr. at 356. He denied that alcohol or substances affected
Plaintiff’s functional abilities. Id. He considered Plaintiff capable of managing
benefits in his own best interest. Id.
State agency medical consultant Jean Smolka, M.D. (“Dr. Smolka”),
reviewed the record on June 12, 2017, and assessed Plaintiff’s physical
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residual functional capacity (“RFC”) as follows: occasionally lift and/or carry
20 pounds; frequently lift and/or carry 10 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 balance, crouch, and climb
ramps/stairs;

occasionally

stoop,

kneel,

and

crawl;

never

climb

ladders/ropes/scaffolds; frequently lift overhead with the bilateral upper
extremities; and avoid concentrated exposure to extreme heat and hazards.
Tr. at 66–69.
On June 14, 2017, state agency psychological consultant Jennifer
Steadham, Ph.D. (“Dr. Steadham”), reviewed the record and considered
Listing 12.04 for depressive, bipolar, and related disorders. Tr. at 64–65. She
assessed Plaintiff as having mild difficulties in interacting with others and
concentrating, persisting, or maintaining pace and no difficulties as to
adapting or managing oneself and understanding, remembering, or applying
information. Id. A second state agency psychological consultant, Annette
Brooks-Warren, M.D. (“Dr. Brooks-Warren”), affirmed Dr. Steadham’s
opinion on September 6, 2017. Tr. at 79–80.
On June 30, 2017, Plaintiff reported poor, but improving, response to
diabetes therapy. Tr. at 487. He endorsed worsened anxiety and panic
attacks. Id. Recent lab studies showed elevated glucose at 295 mg/dL and
hemoglobin A1c at 9.4%. Tr. at 490. Dr. Henderson observed decreased ROM
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in Plaintiff’s lower back. Tr. at 491. He indicated Plaintiff did not want to add
medication for diabetes management and indicated he would work on diet
and weight loss instead. Tr. at 492. Dr. Henderson said he would need to
modify Plaintiff’s medication regimen if he failed to show improvement at his
next visit. Id. He prescribed Trazodone for insomnia, refilled Lipitor, and
continued Plaintiff’s other medications. Tr. at 491–92.
On July 18, 2017, Plaintiff presented to John M. Ferguson, M.D. (“Dr.
Ferguson”), with a seven-day history of worsening right upper quadrant pain.
Tr. at 485. He described the pain as like that he experienced when diagnosed
with pancreatitis in 2015. Id. Dr. Ferguson noted normal findings on exam.
Tr. at 485. He ordered a computed tomography (“CT”) scan of Plaintiff’s
abdomen and pelvis that showed a possible duodenal mass. Tr. at 482, 483.
He subsequently ordered an upper gastrointestinal series and referred
Plaintiff to Dr. Willner for further evaluation. Tr. at 483.
Plaintiff

followed

up

for

routine

management

of

diabetes,

anxiety/depression, hypertension, hyperlipidemia, pain management, and
insomnia on September 29, 2017. Tr. at 472–73. Recent lab studies showed
elevated hemoglobin A1c at 9.4%. Tr. at 474. Dr. Henderson noted a scaling
rash to Plaintiff’s left groin and decreased ROM in his lower back. Tr. at 477.
He refilled Farxiga and Metformin, stopped Onglyza, and started Trulicity
for diabetes management. Tr. at 477. He stopped Celexa and prescribed
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Cymbalta for MDD and refilled Valium for panic disorder, Lisinopril for
hypertension, Lipitor for hyperlipidemia, Norco for chronic pain, and
Trazodone for sleep. Tr. at 478.
On October 16, 2017, a second state agency medical consultant, James
M. Lewis, M.D. (“Dr. Lewis”), reviewed the record and assessed Plaintiff’s
physical RFC as follows: occasionally lift and/or carry 20 pounds; frequently
lift and/or carry 10 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; occasionally stoop, kneel, crawl, and climb ramps/stairs; frequently
crouch and balance; and never climb ladders/ropes/scaffolds. Tr. at 81–83.
Plaintiff followed up with Dr. Henderson for anxiety/depression,
diabetes, hypertension, hyperlipidemia, pain management, and insomnia on
January 2, 2018. Tr. at 463–64. He reported Actos caused a film on his
tongue and he could not tolerate it. Tr. at 463. Recent lab tests showed
Plaintiff’s glucose and hemoglobin A1c to be elevated at 329 mg/dL and 9.6%,
respectively. Tr. at 464–68. Dr. Henderson recorded normal findings on exam,
aside from decreased ROM in Plaintiff’s lower back. Tr. at 468–69. He
assessed MDD in partial remission, panic disorders, type 2 diabetes with
diabetic neuropathy and other diabetic kidney complications, polyneuropathy
associated

with

underlying

disease,

unspecific

proteinuria,

essential

hypertension, hyperlipidemia, low back pain, other chronic pain, insomnia
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due to medical condition, fatty liver, seasonal allergic rhinitis, and oral
thrush. Tr. at 469. He stopped Actos, started Lantus 10 units, prescribed
Diflucan, refilled Norco, and continued Plaintiff’s other medications. Tr. at
469–70.
On January 31, 2018, Plaintiff reported inability to exercise,
intolerance to Actos, and poor response to diabetes therapy. Tr. at 457. Dr.
Henderson noted normal findings on exam. Tr. at 461. He instructed Plaintiff
to titrate up his Lantus dose by two units every two days until his fasting
glucose was consistently below 130 mg/dL. Id.
Plaintiff reported poor response to diabetes therapy and worsening
bilateral lower back pain on March 30, 2018. Tr. at 447. Dr. Henderson noted
normal findings on exam. Tr. at 452–53. Testing on March 28 showed
Plaintiff’s hemoglobin A1c to be elevated at 9.7%, Tr. at 449, but Dr.
Henderson noted this measure reflected part of the time before he was on
insulin. Tr. at 453. Dr. Henderson continued Lantus for diabetes and
instructed Plaintiff to continue to titrate it by two units every two days until
his fasting blood sugar level was consistently below 130 mg/dL. Id. He refilled
Lisinopril and Norco and continued Plaintiff’s other medications. Tr. at 453–
54.
On July 2, 2018, Plaintiff reported symptoms consistent with mild
depression. Tr. at 438. Dr. Henderson recorded normal findings on physical
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exam. Tr. at 444. He continued Farxiga and Metformin and increased Lantus
to 60 units once a day. Id. He refilled Norco, Trazodone, and Cymbalta and
instructed Plaintiff to continue his other medications and to eat healthier
foods. Tr. at 445.
Plaintiff complained of “[s]haking really bad” on August 21, 2018. Tr. at
432. He described having developed constant fine shaking in his arms and
hands four weeks prior. Id. He also endorsed moderate daily headaches. Id.
He was 71” tall and weighed 266 pounds. Id. Dr. Henderson observed a fine
amplitude tremor in Plaintiff’s arms and hands that was more pronounced
with his arms outstretched than relaxed. Tr. at 436. He ordered lab studies
and referred Plaintiff to a neurologist for evaluation of migraines and
tremors. Id. He encouraged Plaintiff to exercise for a minimum of 30 minutes
per day on five days a week and to eat more fruits, vegetables, lean protein,
and whole grains. Id.
C.

The Administrative Proceedings
1.

The Administrative Hearing
a.

Plaintiff’s Testimony

At the hearing on December 11, 2018, Plaintiff testified he lived in a
house with his sister, her husband, and their children, ages 14 and 18. Tr. at
8. He denied providing care to anyone in the household. Tr. at 9. He said he
was 5’11” tall, weighed 270 pounds, and was right-handed. Tr. at 9, 13. He
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confirmed that his commercial driver’s license remained valid. Tr. at 10. He
said he had last renewed it in 2014, at which time he underwent a
Department of Transportation physical. Id. He noted he continued to drive
his personal vehicle and had driven himself to the hearing. Tr. at 13. He
denied having served in the military or having any other professional or
technical license or certification. Tr. at 11. He said he had not applied for or
received unemployment benefits since his alleged onset date. Tr. at 11–12. He
indicated he was receiving long-term disability benefits through his former
employer. Tr. at 12. He said that he would receive the benefits through
January 2020 based on his inability to perform his prior occupation. Tr. at
12–13. He denied having applied for or engaged in work since October 20,
2016. Tr. at 14, 21. He explained that additional pay he received during the
fourth quarter of 2016 was for unused sick days and personal time. Tr. at 20–
21.
Plaintiff testified he worked as a tractor trailer driver for AAA Cooper
Transportation from 2010 until 2016. Tr. at 14–15. He said that in 2009 and
2010, he worked for CGM SC as a truck driver, dispatcher, and manager. Tr.
at 15. He noted he was hired as a dispatcher and filled in as a driver when
necessary. Id. He stated his supervisor ultimately concluded he was not
capable of performing the dispatcher position and reassigned him to driving a
truck. Tr. at 15–16. He described his job duty in the dispatcher role as
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communicating assignments to drivers. Tr. at 16. He denied having hired,
fired, and engaged in performance evaluations for other employees. Id. He
said he ordered materials and supplies, dealt with customers, kept schedules,
and prepared reports. Tr. at 16–17. He testified he worked for D&E Portside
in 2007 and 2008, driving and serving as a dispatcher and manager at the
same time. Tr. at 17. He said his job duties were comparable to those at CGM
SC, except that he was driving all the time and performing his other duties
from the truck. Tr. at 17–18. He stated he worked as a self-employed tractor
trailer driver in 2008. Tr. at 18. He said he worked as an over-the-road truck
driver for Averitt Express from 2003 to 2005. Tr. at 19.
Plaintiff testified that he had started using a cane eight to ten months
prior. Tr. at 21. He explained that his left leg felt as if it were going out from
underneath him when he started to walk. Id. He said he used the cane for
support so that he would not fall. Id. He noted he could not bend over or
stand up straight. Tr. at 21–22. He was uncertain why Dr. Henderson had
not mentioned he was using a cane, despite having asked him about it during
several visits. Tr. at 22. He admitted the cane had not been prescribed by a
doctor. Tr. at 23. He said he used the cane outside of his home. Id. He denied
requiring the cane to raise to a standing position, but felt he would need it if
he attempted to stand for 20 minutes. Tr. at 35. He noted he wore a back
brace at times, but said it did not help with his pain. Tr at 23, 35.
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Plaintiff testified he visited Dr. Anderson on or around October 18,
2016, for lower back pain that he had initially noticed a couple of months
prior. Tr. at 23–24. He stated the pain was making it more difficult for him to
do his job. Tr. at 24. He said he could hardly move after driving two-and-ahalf hours from Conway to Charleston. Tr. at 25. He stated he had difficulty
moving after sitting for more than 20 minutes. Id. He described pain that
radiated down both of his legs and into his toes, with the left being worse
than the right. Id. He indicated his feet also felt numb, likely due to effects of
diabetes. Tr. at 26. He noted he had pain in his legs and feet from both his
back and diabetes. Id. He stated he first developed the diabetes-related pain
in late-2016 or early-2017. Tr. at 27. He admitted his diabetes was generally
controlled when he followed his doctor’s advice and took his medication, but
his neuropathy was not. Tr. at 27–28. He confirmed that Dr. Anderson had
administered ESIs, but claimed they provided no prolonged relief. Tr. at 28–
30.
Plaintiff testified he was unable to work because he could not stand for
longer than 20 to 30 minutes without experiencing throbbing pain in his left
leg and toes. Tr. at 30. He stated his knees locked up when he attempted to
walk. Id. He said he had difficulty sitting for long periods of time and lifting a
gallon of milk. Id. He noted he experienced excruciating pain that ranged

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from a seven to a nine. Id. He said Norco took the edge off his pain, but did
not take it away. Tr. at 31.
Plaintiff testified he would get up each morning, drink a cup of coffee,
and smoke a cigarette prior to lying down for an hour or two because of pain
in his legs and feet. Tr. at 31. He said he subsequently would get up, go to the
bathroom, and take a shower. Id. He noted a shower had previously taken
him 15 to 20 minutes, but more recently took him 30 to 45 minutes because
he felt lightheaded. Id. He described sitting on the edge of the tub because his
legs felt as if they were going to fall out from underneath him. Id. He said he
would lie down again after showering because his back pain would increase.

Id. He indicated he tried to help his sister to prepare dinner, but avoided
heavy lifting. Tr. at 32. He said he spent all but an hour of the prior day lying
down because the cold weather had exacerbated his back pain. Tr. at 34. He
estimated he was typically spending six hours a day lying down when he
stopped work in October 2016. Id.
Plaintiff admitted Dr. Anderson was initially reluctant to perform
surgery. Tr. at 34. He said he would consider surgery if it were an option, but
that he could not afford it. Tr. at 32. He noted he had stopped treating with
Dr. Anderson in early 2017 because he did not like the physician assistant in
his office. Tr. at 33. He also said he could not continue to see Dr. Anderson
because he had no insurance. Id. He indicated he had sought low-cost and no18

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cost insurance, but did not qualify because of his long-term disability
benefits. Tr. at 33–34.
Plaintiff stated he had recently reported tremors to Dr. Henderson, who
had prescribed anxiety medication that had not helped. Tr. at 36. He said Dr.
Henderson planned to pursue further testing to determine if some
abnormality in his brain was causing the tremors. Id.
Plaintiff testified he used a smartphone to “keep tabs on” his father and
for social networking, including Facebook. Tr. at 42. He said he sometimes
used a computer. Id. He noted he had worked as a truck driver for 26 years
and had loved his job. Tr. at 43.
b.

Vocational Expert Testimony

Vocational Expert (“VE”) Lavonne Brent reviewed the record and
testified at the hearing. Tr. at 43–56. The VE categorized Plaintiff’s PRW as
an over-the-road truck driver, Dictionary of Occupational Titles (“DOT”)
number 905.683-014, as requiring medium exertion with a specific vocational
preparation (“SVP”) of 4. Tr. at 45. She identified Plaintiff’s other PRW as a
composite job of tractor trailer driver, DOT number 904.683-010, as requiring
medium exertion per the DOT and heavy exertion as described by Plaintiff
with an SVP of four, and dispatcher, DOT number 184.167-118, as requiring
light exertion with an SVP of 6. Id. The ALJ described a hypothetical
individual of Plaintiff’s vocational profile who could perform work at the light
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exertional level; frequently handle, reach overhead and in all other
directions, finger, and feel; occasionally climb ramps and stairs; never climb
ladders, ropes, or scaffolds; occasionally stoop, balance, kneel, and crouch;
never crawl or work at unprotected heights; and would be off-task no more
than could be accommodated by normal breaks. Tr. at 46. The VE testified
the hypothetical individual would be unable to perform Plaintiff’s PRW. Tr.
at 47. The ALJ specifically asked if the individual could perform the
dispatcher position. Id. The VE testified the individual could perform work as
a dispatcher if the other component of the job were not involved. Id. She
stated there were 2,063,580 dispatcher positions in the national economy. Tr.
at 47–48. The ALJ asked whether there were any other jobs in the national
economy the hypothetical person could perform. Tr. at 48. The VE identified
light jobs with an SVP of 2 as an inspector, DOT number 529.687-058, a
checker, DOT number 221.587-010, and a mounter, DOT number 208.685022, with 434,150, 67,870, and 261,690 positions in the national economy,
respectively. Id.
The ALJ next asked the VE to consider the individual described in the
prior hypothetical question and to further assume that he would be limited to
simple and routine tasks and simple work-related decisions regarding use of
judgment and dealing with changes in the work setting, as well as occasional
interaction with supervisors, coworkers, and the public. Id. The VE confirmed
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the additional restriction would rule out the dispatcher position, but allow for
performance of the other three positions. Id.
For a third hypothetical question, the ALJ asked the VE to consider the
first hypothetical question and to further assume the individual would be
limited to occasional bilateral reaching overhead and in all directions,
handling, fingering, and feeling. Tr. at 49. The VE testified the restriction
would preclude all work. Id.
As a fourth hypothetical question, the ALJ asked the VE to consider
the restrictions in the first hypothetical, except the individual would be
limited to sedentary work. Id. The VE confirmed Plaintiff had no prior
sedentary work. Id. She further testified Plaintiff had acquired no skills in
his PRW that would transfer to sedentary work. Tr. at 50. She identified
work the hypothetical individual could perform to include jobs at the
sedentary exertional level with an SVP of 2 as a stuffer, DOT number
731.685-014, a sorter, DOT number 521.687-086, and a paster, DOT number
249.587-014, with 354,810, 434,170, and 771,210 positions in the national
economy, respectively. Id. The ALJ asked the VE if all the positions would be
eliminated if he were to restrict the individual to occasional bilateral
reaching overhead and in all other directions, handling, fingering, and
feeling. Tr. at 50–51. The VE testified those positions and all other sedentary
positions would be eliminated. Tr. at 51.
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The ALJ asked the VE to consider the first hypothetical question, but
to further consider the individual would be limited to sedentary work, simple
and routine tasks, simple work-related decisions regarding use of judgment,
occasionally dealing with change in the work setting, and occasionally
interacting with supervisors, coworkers, and the public. Id. He asked if the
individual would be able to perform the sedentary jobs the VE previously
identified. Id. The VE confirmed he would. Id. The ALJ later asked the VE if
an individual limited to light work with the mental restrictions identified
above would be able to perform the jobs previously identified. Tr. at 53. She
confirmed he would. Id.
The ALJ asked the VE to consider the jobs previously identified and
added a sit/stand option, defined as a brief postural change at or near the
workstation occurring no more frequently than twice an hour and of no
duration greater than five minutes each. Tr. at 51–52. He asked if the
individual would be able to perform work as a dispatcher. Tr. at 52. The VE
testified he could. Id. The ALJ asked if the other three positions at the light
exertional level would be available. Id. The VE confirmed they would. Id. The
ALJ asked if the three positions at the sedentary exertional level would be
available. Id. The VE testified they would remain available. Id.
The ALJ asked the VE to consider the individual would require a handheld assistive device such as a cane for prolonged ambulation, ascending or
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descending slopes, or traversing over uneven terrain. Id. He questioned the
VE as to the availability of the jobs she previously identified. Id. The VE
testified the individual would be able to perform all the jobs she previously
identified at the sedentary and light exertional levels. Id.
The ALJ next asked the VE to consider the individual would be off-task
for 15% or more of the working day. Tr. at 52–53. The VE testified the
restriction would eliminate all work. Tr. at 53.
The ALJ asked the VE to assume the individual would be absent from
work two or more days per month on a consistent basis. Id. The VE confirmed
the restriction would eliminate all work. Id.
The VE confirmed her testimony had been consistent with the DOT,
except that the DOT did not address sit/stand options, time off-task,
absenteeism, use of an assistive device, the differentiation between overhead
and directional reaching, and the differentiation between extremities. Tr. at
53–54.
The ALJ asked the VE if all work would be eliminated if an individual
had marked loss of ability to perform one of the basic mental demands for
unskilled work. Tr. at 54. The VE confirmed all work would be eliminated. Id.
As a final question, the ALJ asked the VE to consider the individual
would be incapable of work at any exertional level on a consistent basis for
eight hours a day and 40 hours a week. Id. He asked if the restriction would
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render the individual unemployable. Tr. at 54–55. The VE confirmed it
would. Tr. at 55.
The VE again confirmed her testimony was consistent with the DOT
and considered her training, education, and work experience. Id.
Plaintiff’s attorney asked the VE if the individual would be able to
perform the jobs she previously identified if he were required to hold a cane
for balancing and stability while standing in a stationary position. Tr. at 55–
56. The VE testified the restriction would preclude work as a dispatcher and
other light jobs. Tr. at 56. She stated the sedentary positions would remain
available. Id.
2.

The ALJ’s Findings

In his decision dated May 15, 2019, the ALJ made the following
findings of fact and conclusions of law:
1.
2.
3.
4.

5.

The claimant meets the insured status requirements of the Social
Security Act through December 31, 2021.
The claimant has not engaged in substantial gainful activity
since October 21, 2016, the alleged onset date (20 CFR 404.1571
et seq.).
The claimant has the following severe impairments: degenerative
disc disease (20 CFR 404.1520(c)).
The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) except:
frequent bilateral reaching overhead and in all directions;
frequent bilateral handling, fingering, feeling; occasional
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6.

7.

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climbing ramps and stairs, balance[ing], stooping, kneeling, and
crouching; never climbing ladders, ropes, or scaffolds; never
crawling; never working on unprotected heights; claimant
requires a sit/stand option defined as a brief postural change at
or near the work station, no more frequent than twice in an hour
and a duration of no greater than 5 minutes each; and any time
off task can be accommodated by normal breaks.
The claimant is capable of performing past relevant work as a
dispatcher. This work does not require the performance of workrelated activities precluded by the claimant’s residual functional
capacity (20 CFR 404.1565).
The claimant has not been under a disability, as defined in the
Social Security Act, from October 21, 2016, through the date of
this decision (20 CFR 404.1520(f)).

Tr. at 93–101.
II.

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

the ALJ failed to properly evaluate Dr. Anderson’s opinion in
assessing his RFC; and

2)

the ALJ erred in failing to consider any of his mental
impairments as severe and in failing to include appropriate
mental limitations.

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

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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)

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).
1

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whether such impairment prevents claimant from performing PRW; 2 and (5)
whether the impairment prevents him from doing substantial gainful
employment. See 20 C.F.R. § 404.1520. These considerations are sometimes
referred to as the “five steps” of the Commissioner’s disability analysis. If a
decision regarding disability may be made at any step, no further 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
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).
2

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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 narrowlytailored 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
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the Commissioner’s decision if it is supported by substantial evidence.
“Substantial evidence” is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson, 402 U.S. at 390,
401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court
must carefully scrutinize the entire record to assure there is a sound
foundation for the Commissioner’s findings and that her conclusion is
rational. See Vitek, 438 F.2d at 1157–58; see also Thomas v. Celebrezze, 331
F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the
decision of the Commissioner, that decision must be affirmed “even should
the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773,
775 (4th Cir. 1972).
B.

Analysis
1.

Consideration of Dr. Anderson’s Opinion

On February 3, 2017, Dr. Anderson completed a physical impairment
questionnaire. Tr. at 320–21. He described the nature of his contact with
Plaintiff as monthly office visits since October 2016. Tr. at 320. He identified
Plaintiff’s diagnoses as low back pain, spondylosis, and radiculopathy. Id. He
noted Plaintiff’s symptoms included axial back and bilateral lower extremity
pain. Id. He stated Plaintiff’s symptoms were frequently severe enough to
interfere with attention and concentration required to perform simple workrelated tasks. Id. He denied Plaintiff’s medication-related side effects would
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affect his ability to work. Id. He indicated Plaintiff would need to recline or
lie down during a hypothetical eight-hour workday in excess of the typical 15minute morning and afternoon breaks and 30- to 60-minute lunch break. Id.
He estimated Plaintiff could walk one block without rest or significant pain;
sit for 30 minutes and stand/walk for five minutes at a time; sit for four hours
in an eight-hour workday; and stand/walk for one hour in an eight-hour
workday. Id. He denied that Plaintiff would require unscheduled breaks
during an eight-hour workday. Id. He indicated Plaintiff could occasionally
lift up to 25 pounds. Tr. at 321. He denied that Plaintiff had limitations in
performing repetitive reaching, handling, or fingering. Id. He estimated
Plaintiff would likely be absent from work once or twice a month because of
his impairments. Id. He indicated Plaintiff was not a malingerer. Id. He
noted Plaintiff’s impairments were reasonably consistent with the symptoms
and functional limitations he described in his evaluation. Id. He did not
consider Plaintiff physically capable of working an eight-hour day, five days a
week on a sustained basis. Id. He indicated Plaintiff had been limited as he
described since October 18, 2016. Tr. at 322.
Plaintiff argues the ALJ failed to properly evaluate Dr. Anderson’s
opinion, resulting in improper assessment of his RFC. [ECF No. 18 at 12]. He
maintains the ALJ did not consider the appropriate regulatory factors in
evaluating Dr. Anderson’s opinion. Id. at 15. He notes Dr. Anderson was a
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treating physician who examined him on multiple occasions and provided an
opinion that was consistent with imaging findings, physical therapy
evaluations, and Dr. Henderson’s findings. Id. at 16–18. He claims he is not
asking the court to reweigh the evidence, but is instead arguing that the ALJ
provided a “cursory and conclusory analysis” that does not provide good
reasons for rejecting the treating physician’s opinion. [ECF No. 20 at 1–3].
The Commissioner argues that substantial evidence supports the ALJ’s
weighing of Dr. Anderson’s opinion. [ECF No. 19 at 10]. He maintains the
ALJ gave little weight to Dr. Anderson’s opinion because it was generally
inconsistent with the minimal clinical findings on physical examinations. Id.
at 11–12. He maintains the ALJ considered the diagnostic findings, Plaintiff’s
report of improvement following ESIs, and Dr. Anderson’s documentation of
5/5 strength, normal muscular tone and bulk, normal/non-antalgic gait and
station, and normal coordination. Id. at 12. He contends Dr. Henderson’s
later treatment notes showed no back pain with ROM testing and normal
musculoskeletal ROM; occasional denials of joint, muscle, or back pain; and
advice to exercise at least 30 minutes per day on five days per week. Id. at
12–13. The Commissioner notes that Dr. Ferguson recorded Plaintiff’s gait
and station as normal. Id. at 13. He claims the ALJ properly gave partial
weight to the state agency consultants’ opinions. Id.

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The ALJ must consider all the relevant evidence and account for all of
the claimant’s medically-determinable impairments in the RFC assessment.

See 20 C.F.R. §§ 404.1545(a), 416.945(a). He must include a narrative
discussion describing how all the relevant evidence supports each conclusion
and must cite “specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations). SSR 96-8p, 1996 WL
374184 at *7. He must explain how he resolved any material inconsistencies
in the record. SSR 16-3p, 2016 WL 1119029, at *7.
Medical opinions are among the evidence that must be considered in
assessing a claimant’s RFC. See 20 C.F.R. § 404.1527(b) (“In determining
whether you are disabled, we will always consider the medical opinions in
your case record together with the rest of the relevant evidence we receive.”).
Because Plaintiff’s application for benefits was filed prior to March 27, 2017,
the ALJ was to evaluate the medical opinions based on the rules in 20 C.F.R.
§ 404.1527 and SSRs 96-2p, 96-5p, and 06-03p. See 20 C.F.R. § 404.1520c
(stating “[f]or claims filed before March 27, 2017, the rules in § 404.1527
apply”); see also 82 Fed. Reg. 15,263 (stating the rescissions of SSRs 96-2p,
96-5p, and 06-03p were effective for “claims filed on or after March 27, 2017”).
The treating physician rule dictates that an ALJ should accord controlling
weight to a treating physician’s opinion if it is well supported by medicallyacceptable clinical and laboratory diagnostic techniques and is not
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inconsistent with the other substantial evidence of record. 20 C.F.R. §
404.1527(c)(2). “[T]reating physicians are given ‘more weight . . . since these
sources are likely to be the medical professionals most able to provide a
detailed, longitudinal picture of [the claimant’s] medical impairment(s) and
may bring a unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone[.]’” Lewis v. Berryhill, 858
F.3d 858, 867 (4th Cir. 2017) (quoting 20 C.F.R. § 404.1527(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 174 (4th Cir. 2011) (citing Hunter v. Sullivan, 993
F.2d 31, 35 (4th Cir. 1992)). If the ALJ declines to issue a fully favorable
decision, his decision “must contain specific reasons for the weight given to
the treating source’s medical opinion, supported by the evidence in the case
record” and must be “sufficiently specific to make clear” to the court “the
weight [he] gave to the . . opinion and the reason for that weight.” SSR 96-2p,
1996 WL 374188, *5 (1996).
An ALJ cannot simply reject a treating physician’s opinion upon
concluding it is not entitled to controlling weight. SSR 96-2p, 1996 WL
374188, at *4. He must evaluate and weigh the opinion based on the factors
in 20 C.F.R. § 404.1527(c), which include “(1) whether the physician has
examined the applicant, (2) the treatment relationship between the physician
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and the applicant, (3) the supportability of the physician’s opinion, (4) the
consistency of the opinion with the record, and (5) whether the physician is a
specialist.” Johnson, 434 F.3d at 654 (citing 20 C.F.R. § 404.1527(c)).
The ALJ “must always give good reasons” for the weight he allocates to
a treating physician’s opinion. 20 C.F.R. § 404.1527(c)(2). However, “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), the
court should not disturb the ALJ’s weighing of the medical opinions of record.
The ALJ summarized Dr. Anderson’s opinion and gave it little weight,
explaining as follows:
The undersigned notes that the evidence of record documents 4
treatment visits with Dr. Anderson from October 2016 through
February 2017. Although Dr. Anderson’s responses on this
questionnaire are consistent with his recommendation that the
claimant should stay out of work documented in treatment notes,
his opinions are generally inconsistent with the minimal clinical
findings on physical examinations by Dr. Anderson and other
treatment providers throughout the relevant period.
Tr. at 97–98.
Thus, the ALJ declined to accord controlling weight to Dr. Anderson’s
opinion and gave it “little weight” instead, as he considered it to be
unsupported by his physical examinations and inconsistent with other
providers’ physical examinations.
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A review of the ALJ’s decision shows that he considered the relevant
factors in 20 C.F.R. § 404.1527 and adequately supported his decision to
accord little weight to Dr. Anderson’s opinion. Prior to having discussed Dr.
Anderson’s opinion, the ALJ summarized his examining and treatment
history with Plaintiff in accordance with 20 C.F.R. § 404.1527(c)(1) and (2).
Tr. at 97. In accordance with 20 C.F.R. § 404.1527(c)(5), he noted that Dr.
Anderson was a “spine specialist” who first evaluated Plaintiff in October
2016 and saw him “on three more occasions through February 2017.” Id. He
wrote:
The claimant was treated with injections and a back brace.
Examinations consistently revealed 5/5 strength in the upper and
lower extremities, normal muscular tone and bulk, and normal
gait and station. Sensory exams were intact. A lumbar MRI
revealed degenerated discs at L4–5 with L5–S1, with a small to
moderately sided left paracentral herniation at L4–5 with
deflection of his L5 root on the left. There was a central small
herniation at L5–S1 between the nerve roots. The claimant
stated that his low back pain was exacerbated by bending,
twisting, lifting, or prolonged sitting. Treatment notes indicate
that Dr. Anderson advised the claimant to stay out of work, rest,
and avoid heavy or repetitive bending, lifting, and twisting. Dr.
Anderson recommended conservative therapy, including weight
loss and physical therapy, rather than surgery (Exhibit 3F).

Id. Thus, ALJ found that although Dr. Anderson’s specialization weighed in
favor of his opinion, the fact that he only examined Plaintiff on four occasions
and noted benign findings during each of his exams did not. See Tr. at 97–98.
The ALJ considered the length of the treatment relationship, the frequency of

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examination, and the nature and extent of the treatment relationship in
accordance with 20 C.F.R. § 404.1527(c)(2)(i) and (ii).
In discussing his allocation of little weight to Dr. Anderson’s opinion,
ALJ cursorily stated that it was inconsistent with the minimal clinical
findings during other providers’ examinations. However, a review of the
entire decision shows the ALJ adequately considered the consistency of Dr.
Anderson’s opinion with the other evidence in accordance with 20 C.F.R. §
404.1527(c)(4). He noted Plaintiff had increased ROM of the lumbar spine,
increased lower extremity strength, and decreased subjective pain reports on
a physical therapy reevaluation in February 2017. Tr. at 98. He wrote “[t]he
minimal clinical findings on examinations throughout the relevant period
[were] inconsistent with the claimant’s allegations of symptoms of disabling
severity,” and discussed records from Dr. Henderson from November 2016
through July 2018 that showed “generally unremarkable” examinations with
“[n]o mental status abnormalities, strength deficits, or sensory deficits.” Id.
Although imaging reports revealed significant impairment to Plaintiff’s
lumbar spine and some findings during physical therapy evaluations and
other exams arguably supported Dr. Anderson’s opinion, such evidence does
not render the ALJ’s weighing of the opinion invalid. The ALJ considered
such evidence in his decision. Tr. at 97 (discussing an MRI of the lumbar
spine), Tr. at 98 (noting Dr. Henderson “routinely prescribed Norco for
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treatment of the claimant’s chronic low back pain” and observed “decreased
range of motion of the low back . . . on several visits”). However, he
reasonably concluded that evidence was outweighed by the evidence cited
above.
The ALJ considered and gave partial weight to the state agency
consultants’ opinions in assessing an RFC for light work with additional
restrictions, as opposed to the RFC Dr. Anderson indicated in his opinion. See
Tr. at 99. He explained that Plaintiff’s DDD was “well documented by
medical imaging and reasonably limits him to the performance of work
activities at no more than the light exertional level.” Id. He stated he gave
Plaintiff “some benefit of the doubt in finding that he [was] limited to
frequent reaching, handling, fingering, and feeling,” noting he had testified
“he could use his hands and arms, but not constantly.” Id. He stated “[t]he
combined effect of” DDD and Plaintiff’s non-severe impairments “reasonably
support[ed] the need for the postural limitations, environmental limitations,
and sit/stand option” he included in the RFC assessment. Id. However, he
concluded use of a cane was not medically necessary, as “examinations
consistently revealed normal gait, normal strength and muscle tone, and no
sensory deficits.” Id.
The ALJ weighed Dr. Anderson’s opinion based on the relevant factors
in 20 C.F.R. § 404.1527(c), did not “dredge[] up ‘specious inconsistencies,’”
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and gave good reasons for the weight he allocated to it. He cited the evidence,
resolved inconsistencies, and provided an adequate explanation for the RFC
he assessed. Therefore, the undersigned finds substantial evidence supports
the ALJ’s allocation of little weight to Dr. Anderson’s opinion and his
assessment of an RFC for light work with additional restrictions.
2.

Mental Limitations

Plaintiff argues the ALJ erred in failing to assess a severe mental
impairment, despite his use of multiple mental health medications and Dr.
Henderson’s assessment of marked and moderate mental limitations. [ECF
No. 18 at 18–21]. He maintains the ALJ failed to include provisions in the
RFC assessment to address evidence of significant, ongoing, and worsening
depression and anxiety and more frequent panic attacks for which he
received significant medication. [ECF No. 20 at 3].
The Commissioner argues substantial evidence supports the ALJ’s
evaluation of Plaintiff’s mental impairments as non-severe at step two. [ECF
No. 19 at 13]. He maintains the ALJ considered the four broad areas of
mental functioning in concluding Plaintiff’s mental impairments were nonsevere. Id. at 14. He contends Plaintiff’s impressions in the Adult Function
Report, his reports to his medical providers, and the medical providers’
impressions

supported

the

ALJ’s

conclusion

that

Plaintiff’s

mental

impairments were non-severe. Id. He maintains the ALJ properly gave little
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weight to Dr. Henderson’s opinion that Plaintiff had moderate-to-marked
mental limitations because the opinion was inconsistent with observations in
his treatment notes. Id. at 15–16. He claims the ALJ properly credited the
state agency psychologist’s opinions that Plaintiff had only mild limitations
and that his depression was non-severe. Id. at 16. He notes the ALJ also
rejected Plaintiff’s claim that he could not afford treatment as inconsistent
with his receipt of long-term disability benefits. Id. at 18.
A severe impairment “significantly limits [a claimant’s] physical or
mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). “An
impairment or combination of impairments is found ‘not severe’ and a finding
of ‘not disabled’ is made at [step two] when medical evidence establishes only
a slight abnormality or a combination of slight abnormalities which would
have no more than a minimal effect on an individual’s ability to work even if
the individual’s age, education, and work experience were specifically
considered (i.e., the person’s impairment(s) has no more than a minimal
effect on his or her physical or mental ability(ies) to perform basic work
activities 3).” SSR 85-28.

“[B]asic work activities are the abilities and aptitudes necessary to do most
jobs.” SSR 85-28. Examples include: walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying or handling; seeing, hearing, and
speaking; understanding, carrying out, and remembering simple instructions;
use of judgment, responding appropriately to supervision, coworkers, and
usual work situations; and dealing with changes in a routine work setting.”
SSR 85-28.
3

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ALJs are required to use the special technique in 20 C.F.R. § 404.1520a
to evaluate the severity of alleged mental impairments. After determining a
claimant has a medically-determinable mental impairment, the ALJ must
rate the degree of the claimant’s functional limitation as none, mild,
moderate, marked, or extreme based on “the extent to which [his]
impairment(s) interfere with [his] ability to function independently,
appropriately, effectively, and on a sustained basis” in the broad functional
areas of understanding, remembering, or applying information; interacting
with others; concentrating, persisting, or maintaining pace; and adapting or
managing oneself. 20 C.F.R. § 404.1520a(b), (c)(2), (3), (4). If the ALJ rates
the degree of the claimant’s limitations as “none” or “mild,” he will generally
conclude the impairment is non-severe, unless the evidence otherwise
indicates there is more than a minimal limitation in the claimant’s ability to
do basic work activities. 20 C.F.R. § 404.1520a(d)(1). If the ALJ rates the
degree of Plaintiff’s limitations as moderate, marked, or extreme, he should
conclude the impairment is severe and assess whether it meets or equals a
listing. 20 C.F.R. § 404.1520a(d)(2). If the claimant’s impairment is severe,
but does not meet or equal a listing, the ALJ should consider it in assessing
the RFC. 20 C.F.R. § 404.1520a(d)(3).
Because an ALJ’s recognition of a single impairment at step two
ensures that he will proceed to subsequent steps, this court has found no
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reversible error in ALJs’ erroneous assessments of impairments as nonsevere, provided the impairments were considered at subsequent steps. See

Washington v. Astrue, 698 F. Supp. 2d 562, 580 (D.S.C. 2010) (collecting
cases); Singleton v. Astrue, C/A No. 9:08-1982-CMC, 2009 WL 1942191, at *3
(D.S.C. July 2, 2009). However, the ALJ is required to show in his decision
“the significant history, including examination and laboratory findings, and
the functional limitations that were considered in reaching a conclusion
about the severity of the mental impairment(s).” 20 C.F.R. § 404.1520a(e)(4).
His “decision must include a specific finding as to the degree of limitation in
each of the functional areas.” Id.
The ALJ addressed Plaintiff’s mental impairments as follows:
The claimant’s medically determinable impairment of depression
does not cause more than minimal limitation in the claimant’s
ability to perform basic mental work activities and is therefore
nonsevere.
In making this finding, the undersigned has considered the four
broad areas of mental functioning set out in the disability
regulations for evaluating mental disorders and in the Listing of
Impairments (20 CFR, Part 404, Subpart P, Appendix 1). These
four areas of mental functioning are known as the “paragraph B”
criteria.
In understanding, remembering, or applying information, the
claimant has no limitations. The claimant stated that he could
perform simple household chores and prepare meals within the
constraints of his physical condition, go to doctor’s appointments,
take medications, and drive. In addition, the record shows that
the claimant was able to provide information about his health,
describe his prior work history, follow instructions from
healthcare providers, comply with treatment outside of a doctor’s
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office or hospital, and respond to questions from medical
providers.
In interacting with others, the claimant has mild limitations.
Here, the claimant alleged that he has difficulty engaging in
social activities. However, according to his statements, the
claimant is able to spend time with friends and family and live
with others. Finally, the medical evidence shows that the
claimant had a good rapport with providers, was described as
pleasant and cooperative, had good interactions with non-medical
staff, and appeared comfortable during appointments.
The next functional area addresses the claimant’s ability to
concentrate, persist, or maintain pace. For this criterion, the
claimant has mild limitations. The claimant contended that he
had limitations in maintaining a regular work schedule. On the
other hand, the claimant said that he is able to drive, prepare
meals, and handle his own medical care.
Finally, the claimant has no limitations in his ability to adapt or
manage himself. The claimant did not allege any symptoms or
limitations that relate to this criterion. Furthermore, the
claimant stated he is able to handle self-care and personal
hygiene. Meanwhile, the objective evidence in the record showed
the claimant to have appropriate grooming and hygiene, no
problem getting along well with providers and staff, normal mood
and affect, and no problems with temper control.
Because the claimant’s medically determinable mental
impairment causes no more than “mild” limitation in any of the
functional areas, it is nonsevere (20 CFR 404.1520a(d)(1)).
Tr. at 94–95. Thus, the ALJ applied the special technique in 20 C.F.R. §
404.1520a, specifying the evidence he considered in reaching his conclusion
as to the severity of Plaintiff’s mental impairments and setting forth specific
findings as to the degree of limitation in each of the functional areas.

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In evaluating the severity of Plaintiff’s mental impairments, the ALJ
gave great weight to the state agency psychological consultants’ opinions that
Plaintiff had mild limitations in his abilities to interact with others and
concentrate, persist, or maintain pace; no limitations in the other broad
functional areas of mental functioning; and that his depression was nonsevere. Tr. at 95.
Plaintiff cites the restrictions Dr. Henderson included in his opinion as
suggesting his mental impairments were severe and his RFC was more
restricted than the ALJ recognized. [ECF No. 18 at 19–22]. Although he notes
his subjective reports, he fails to cite any objective evidence to support the
degree of functional limitations Dr. Henderson suggested. See id.
The ALJ addressed Dr. Henderson’s opinion as to Plaintiff’s mental
abilities as follows:
In March 2017, Frampton Henderson, M.D., the claimant’s
primary care provider, completed a mental capacity assessment,
indicating that the claimant had marked to moderate limitations
in his ability to perform many work-related mental activities.
However, this opinion is inconsistent with Dr. Henderson’s prior
and contemporaneous treatment notes, which reflect no objective
clinical findings of mental abnormalities (Exhibits 4F and 5F).
Although he is the claimant’s treating physician, the record
shows that Dr. Henderson had seen the claimant only twice
before completing the questionnaire. Mental status examinations
documented in the treatment record were unremarkable. It
appears that this opinion was based solely on the claimant’s
subjective allegations. It is also inconsistent with the routine and
conservative nature of the claimant’s mental health treatment,
which is provided by his primary care provider. Prescribed
medications appear to control his mental symptoms adequately.
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There is no indication that the claimant was ever referred to a
psychiatrist or psychotherapist. The undersigned therefore gives
little weight to this opinion.
Tr. at 95. Thus, the ALJ considered Dr. Henderson’s opinion in evaluating
the severity of Plaintiff’s mental impairments, but concluded the opinion was
not supported by his treatment notes and inconsistent with the type of
treatment Plaintiff received.
The ALJ declined to include any mental restrictions in the RFC
assessment. See Tr. at 96. He noted Dr. Henderson provided “routine refills
for medications the claimant took for . . . depression/panic disorder.” Tr. at
98. He indicated “[n]o mental status abnormalities . . . were documented.” Id.
A review of the record as a whole supports the ALJ’s allocation of little
weight to Dr. Henderson’s opinion and his assessment of non-severe mental
impairments. It further supports his impression of Plaintiff’s treatment
history with Dr. Henderson.
Progress notes from Plaintiff’s visits with Dr. Henderson provide an
inconsistent picture as to his complaints regarding the severity of his mental
impairments. Upon presentation to Dr. Henderson on November 28, 2016,
Plaintiff’s mood was at his “baseline” and his anxiety was “doing well and
without complaints.” Tr. at 342. He denied suicidal ideation, depression, and
anxiety. Tr. at 342, 343. On March 31, 2017, a depression screen was
negative, but Plaintiff complained of worsening anxiety and panic attacks
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occurring more frequently. Tr. at 337. Records from Plaintiff’s June 30, 2017
visit with Dr. Henderson indicate “depression is doing ok but anxiety and
panic attacks are getting worse” and “more frequent panic attacks.” Tr. at
487. However, they also note “[a]nxiety follow-up doing well and without
complaints” and “[d]enies depression, anxiety.” Tr. at 487, 488. Records from
Plaintiff’s visit with Dr. Henderson on September 29, 2017, indicate
“depression and anxiety getting worse,” “more frequent panic attacks,” and
“pt has been irritable lately,” but “[a]nxiety follow-up doing well and without
complaints” and “[d]enies depression, anxiety.” Tr. at 472, 473. A progress
note from Plaintiff’s January 2, 2018 visit with Dr. Henderson states
“depression and anxiety getting worse” and “more frequent panic attacks,”
but “[a]nxiety follow-up doing well and without complaints” and “[d]enies
depression, anxiety.” Tr. at 463, 464. Plaintiff “denie[d] depression and
anxiety” on January 31, 2018. Tr. at 459. On March 30, 2018, progress notes
reflect “depression and anxiety getting worse” and “more frequent panic
attacks,” but also provide “[a]nxiety follow-up doing well and without
complaints and “[d]enies depression, anxiety.” Tr. at 448, 449. On July 2,
2018, Plaintiff’s responses to a depression screening were consistent with
mild depression. Tr. at 438. He indicated “depression and anxiety [were]
getting worse” and panic attacks were “more frequent,” but the notes

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inconsistently state “[a]nxiety follow-up doing well and without complaints”
and “[d]enies depression, anxiety.” Tr. at 439, 440.
Although treatment records contain some reports as to increased and
worsened anxiety, depression, and panic attacks and show two adjustments
to Plaintiff’s medications, Tr. at 340–41 (increasing Celexa from 20 to 40 mg
on March 31, 2017) and Tr. at 478 (stopping Celexa and prescribing
Cymbalta 30 mg twice a day), they generally reflect the lack of mental status
abnormalities the ALJ cited. Progress notes for all visits show unchanged
stressors, normal concentration and energy, and no anhedonia, change in
appetite, hallucinations, racing thoughts, paranoia, sleep disturbance,
suicidal ideations, or weight change. Tr. at 337, 439, 448, 463, 472, 487. They
reflect Plaintiff was not engaging in counseling or seeing a psychiatrist. See

id. Every visit also includes Dr. Henderson’s observations of “normal mood
and affect” on psychiatric exam. Tr. at 340, 344, 436, 444, 453, 461, 469, 477,
491. Dr. Henderson continued Plaintiff’s medications at the same dosages
during most visits, suggesting stable symptoms. Tr. at 445, 454, 469, 491,
492.
As the ALJ evaluated Plaintiff’s mental impairments in accordance
with the applicable regulations and the record supports his explanations and
conclusions, the court finds that substantial evidence supports his

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assessment of non-severe mental impairments and his decision not to include
mental restrictions in the RFC assessment.
III.

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

Commissioner, but to determine whether her decision is supported as a
matter of fact and law. Based on the foregoing, the undersigned affirms the
Commissioner’s decision.
IT IS SO ORDERED.
January 7, 2021
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

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