Lance v. Commissioner of Social Security Administration

Filing 25

ORDER re 1 Complaint - Social Security, filed by Victor Lance, the Commissioner's decision is reversed pursuant to sentence four of 42 USC § 405(g) and the case is remanded to the Commissioner for further administrative action. Signed by Magistrate Judge Joseph R McCrorey on 8/28/2012. (ydav, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
VICTOR LANCE,
Plaintiff,
v.
MICHAEL J. ASTRUE, COMMISSIONER
OF SOCIAL SECURITY
Defendant.

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Civil Action No. 3:11-802-JRM

ORDER

Plaintiff, Victor Lance, filed this action on April 4, 2011. By Order of Reference (Doc. 7)
from the Honorable Cameron McGowan Currie, United States District Judge, pursuant to 28 U.S.C.
§ 636, Local Civil Rules 73.02(B)(2)(a) and 83.VII.02, et seq., DSC, and the consent of the parties,
the case is before the undersigned Magistrate Judge for a final order. Plaintiff brought this action
pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision of the Commissioner of
Social Security (“Commissioner”) denying his claim for Disability Insurance Benefits (“DIB”).
ADMINISTRATIVE PROCEEDINGS
In a decision dated January 28, 1999, the claimant was awarded benefits effective June 1,
1996. As part of a continuing disability review, it was determined that Plaintiff was no longer
disabled as of August 1, 2004. Plaintiff challenged the decision that he was no longer disabled,
which was upheld upon reconsideration after a disability hearing by a state agency disability hearing
officer. Plaintiff requested and received a hearing before an ALJ, who issued a decision of denial
on January 26, 2007.

Thereafter, on June 2, 2009, Plaintiff filed the current application for DIB alleging disability
as of July 1, 1992.1 Plaintiff’s claim was denied initially, and upon reconsideration. A hearing
before an Administrative Law Judge (“ALJ”) was held on May 26, 2010, at which Plaintiff
(represented by counsel) appeared and testified. On June 25, 2010, the ALJ issued a decision
denying benefits and finding that Plaintiff was not disabled. The ALJ, after hearing the testimony
of the vocational expert (“VE”), concluded that work exists in the national economy which Plaintiff
can perform.
Plaintiff was forty-nine years old at the time of the ALJ’s decision. He has a high school
education with one year of college and has past relevant work as a machine operator. Tr. 178, 182.
Plaintiff alleges disability due to lumbar and cervical degenerative disc disease, osteoarthritis of the
right knee, and Type II diabetes mellitus.
The ALJ found (Tr. 18-25):
1.

The claimant last met the insured status requirements of the Social Security
Act on September 30, 2008.

2.

The claimant did not engage in substantial gainful activity during the period
from January 27, 2007 through his date last insured of September 30, 2008
(20 CFR 404.1571 et seq.).

3.

Through the date last insured, the claimant had the following severe
impairments: lumbar and cervical degenerative disc disease, osteoarthritis of
the right knee, and Type II diabetes mellitus (20 CFR 404.l520(c)).

1

The ALJ determined that the period at issue in the current application for benefits is from
January 27, 2007 through September 30, 2008 (Plaintiff’s last date insured). The ALJ in the present
case specifically noted that the theory of res judicata applies to the time period of July 1, 1992
(Plaintiff’s alleged onset date) to January 26, 2007 (the date of the ALJ’s prior decision), due to the
fact that the same parties, material facts, and issues were involved in the prior final decision. Tr. 16.
Plaintiff has not disputed this finding.
2

4.

Through the date last insured, the claimant did 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).

5.

After careful consideration of the entire record, the undersigned finds that,
through the date last insured, the claimant had the residual functional
capacity to perform sedentary work2 as defined in 20 CFR 404.1567(a) except
no overhead reaching, occasional postural activities, a sit/stand option, and
avoiding workplace hazards.

6.

Through the date last insured, the claimant was unable to perform any past
relevant work (20 CFR 404.1565).

7.

The claimant was born on October 16, 1990 and was 47 years old, which is
defined as a younger individual age 45-49, on the date last insured (20 CFR
404.1563).

8.

The claimant has at least a high school education and is able to communicate
in English (20 CFR 404.1564).

9.

Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled,” whether or not the claimant has
transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P,
Appendix 2).

10.

Through the date last insured, considering the claimant’s age, education, work
experience, and residual functional capacity, there were jobs that existed in
significant numbers in the national economy that the claimant could have
performed (20 CFR 404.1569 and 404.1569(a)).

11.

The claimant was not under a disability, as defined in the Social Security Act,
at any time from January 27, 2007, the alleged onset date, through September
30, 2008, the date last insured (20 CFR 404.1520(g)).

On February 4, 2011, the Appeals Council denied Plaintiff’s request for review of the ALJ’s decision,
thereby making the determination of the ALJ the final decision of the Commissioner. Tr. 1-5.

2

Sedentary exertional work is described by the Commissioner of the Social Security
Administration as requiring lifting and carrying no more than 10 pounds at a time, sitting for six
hours in an eight-hour workday, and standing and walking for two hours in an eight-hour workday.
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STANDARD OF REVIEW
The only issues before this Court are whether correct legal principles were applied and
whether the Commissioner’s findings of fact are supported by substantial evidence. Richardson v.
Perales, 402 U.S. 389 (1971); Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1972). Under 42 U.S.C.
§§ 423(d)(1)(A) and 423(d)(5) pursuant to the Regulations formulated by the Commissioner, Plaintiff
has the burden of proving disability, which is defined as “the inability to do 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 a continuous period of
not less than 12 months.” 20 C.F.R. §§ 404.1505(a), 416.905(a).
MEDICAL RECORD
Prior to the relevant time period, Plaintiff was treated at the Carolina Spine Institute from
October 18, 1994 through August 8, 1996, for complaints of muscular-type pain following back
surgery. Tr. 266-271. Notes from St. James-Santee Family Health Center (“SJSFHC”) indicate that
Plaintiff was treated there from January 1997 to January 2007 for hypertension, back pain, neck pain,
hyperlipidemia, carpel tunnel syndrome, and headaches. Tr. 280-309. On December 10, 1997,
Plaintiff was treated at SJSFHC for swelling in his neck, hands, and ankles, as well as complaints of
tightness in his fingers and ankles. Tr. 308. On September 13, 2004, it was noted that Plaintiff was
depressed and continued to suffer with pain and swelling to the back of his neck and pain in his right
and left shoulders, arms, and lower back. Tr. 287. Plaintiff was diagnosed with Type-II diabetes in
May 2006. Tr. 284.

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During the relevant time period, Plaintiff continued treatment at SJSFHC from January 2007
to September 2008. He was treated for various impairments including hypertension, diabetes, neck
pain, back pain, right knee pain, and hyperlipidemia. Tr. 278-279, 322-326, 407-414.
Plaintiff was examined by Dr. Leonard Forrest of Southeastern Spine Institute in June 2007.
Plaintiff reported a history of back and neck problems since the early 1990s and two prior back
surgeries. His medications for pain at the time were Flexeril and Relafen. Dr. Forrest’s examination
revealed tenderness over Plaintiff’s neck, upper back, and lower back, but did not reveal any definite
weakness or definite neurological deficits in Plaintiff’s arms or legs. X-rays of Plaintiff’s cervical
and lumbar spine revealed degenerative changes with disc narrowing at several levels of the cervical
spine, and mild spondylosis changes. Dr. Forrest recommended new lumbar and cervical MRIs as
well as EMG and nerve conduction studies. He thought that “in terms of extremity symptoms, it is
going to be somewhat confusing no matter what we find on the scans because [Plaintiff] also has
diabetes and, therefore...an additional factor of peripheral polyneuropathy is very reasonable.” Tr.
312-314.
In conjunction with Dr. Forrest’s June 2007 examination, Plaintiff reported on a chart that
his pain was very close to the top of the chart indicating that his pain was almost as bad as it could
be on that date. Tr. 470. Plaintiff completed a questionnaire in which he checked that due to back
pain on that day, he could not bend over a sink for ten minutes, move a table, push or pull heavy
doors, carry two bags of groceries, or lift forty pounds; he found it somewhat difficult to get out of
bed; he found it minimally difficult to sleep for at least eight hours, turn over in bed, travel one hour
in a car, walk a few blocks, walk several miles, throw a ball, take food out of the refrigerator, make

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his bed, and put on socks; and he did not find it difficult at all to stand for four hours, climb one flight
of stairs, reach up to high shelves, and run two blocks. Tr. 469-470.
Subsequent EMG and nerve conduction studies in July 2007 showed no evidence for
radiculopathy or definite peripheral polyneuropathy, although there was early ulnar neuropathy on
the left. Tr. 310, 445-450. On June 26, 2007, an MRI of Plaintiff’s neck revealed abnormalities at
the C4-5 and C5-6 levels of Plaintiff’s cervical spine. At C4-5 there was a diffuse osteophyte
resulting in moderate to severe right and moderate left exit foraminal stenosis and at C5-6 there was
a central protrusion of disc material accompanied by osteophytes with moderate foraminal stenosis,
and moderate spinal cord compression with probable myelopathic signal changes. Dr. Forrest
thought that Plaintiff’s left upper extremity symptoms were predominantly coming from his neck and
most likely from C5-6. Tr. 310, 318-319. An MRI of Plaintiff’s lumbar spine the same day showed
Plaintiff’s previous interbody fusions at L4-5 and L5-S1 with granulation tissue, but no evidence of
recurrent herniation and no sign of active nerve root compression. Dr. Forrest noted that Plaintiff’s
surgical fusion looked good on the MRI and found that there was no evidence for new or chronic
radiculopathy. With regard to Plaintiff’s low back and leg symptoms, Dr. Forrest opined that it was
likely related to granulation tissue and nerve irritation in Plaintiff’s lower lumbar spine. Tr. 310,
316-317. Dr. Forrest recommended that Plaintiff receive an epidural steroid injection for his neck
problems (which Plaintiff underwent in July 2007, September 2007, and February 2008 - Tr. 459461). Tr. 310.
In August 2007, Plaintiff reported to Dr. Forrest that his symptoms improved following his
July 2007 epidural steroid injection, but his back and neck problems were returning. Plaintiff also
reported right knee problems. Dr. Forrest recommended a second epidural steroid injection and

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referred Plaintiff to another doctor for evaluation of his knees. Tr. 353. On September 17, 2007,
x-rays of Plaintiff’s knees revealed no abnormalities. Tr. 327.
In October 2007, Plaintiff told Dr. Forrest that he still had significant neck and upper back
symptoms following a second epidural steroid injection, but his lower back symptoms were “minor.”
Dr. Forrest opined that physical therapy might be more effective than another injection, and he
prescribed physical therapy two times a week. Tr. 352, 361.
On September 20, 2007, Audrey Hunter, a state agency consultant, opined that Plaintiff had
no severe mental impairments. Tr. 330-342. On September 25, 2007, Dr. Jean Smolka, a state
agency physician, completed a physical residual functional capacity (“RFC”) assessment. Dr.
Smolka opined that Plaintiff was limited to occasionally lifting and/or carrying up to twenty pounds;
frequently lifting and/or carrying up to ten pounds; standing and/or walking about six hours in an
eight hour workday; sitting about six hours in an eight-hour workday; could only occasionally climb
ramps and stairs, kneel, crouch, or crawl; could never climb ladders, ropes, or scaffolds; and was
limited to frequent (not continuous) overhead reaching (because of neck pain). Tr. 344-351.
Although Dr. Forrest authorized twenty physical therapy sessions, Plaintiff only attended
three sessions in late October and early November 2007. Tr. 362. During his last appointment,
Plaintiff was described as belligerent by the physical therapist. Plaintiff complained that his prior
session resulted in swelling, but the physical therapist was unable to corroborate this as she did not
observe any swelling in the indicated areas. Tr. 366. On November 15, 2007, Plaintiff was
discharged from physical therapy for lack of attendance or compliance. Tr. 365. Plaintiff later told
Dr. Forrest that his symptoms were worse as a result of physical therapy. In light of Plaintiff’s
report, Dr. Forrest decided to try another epidural steroid injection in February 2008. Tr. 383.

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In March 2008, Plaintiff reported to a nurse practitioner at SJSFHC that he had pain and a
crackling sound in his knee. Tr. 404. Plaintiff reported that he walked two miles for exercise three
days a week in March and June 2008, and he reported he walked regularly in September 2008. Tr.
407-408, 414.
In April 2008, Plaintiff was examined by Dr. Wright Skinner, III, of Bay Orthopaedic
Associates. Dr. Skinner noted that Plaintiff had some effusion and tenderness in his knee, but no
gross instability. X-rays revealed a moderate amount of osteoarthritis and a possible meniscal tear.
Dr. Skinner recommended arthroscopic surgery. Tr. 403. A care provider at SJSFHC subsequently
noted that Plaintiff would follow up with Dr. Skinner if his pain increased. Tr. 407.
Plaintiff was next treated by Dr. Forrest on February 2, 2010 (approximately two years after
his last examination by Dr. Forrest in February 2008 and more than a year after his date last insured).
Plaintiff reported in February 2008 that his pain was eight to nine out of ten. Tr. 433-434, 436-437.
He reported “gradually worsening symptoms involving his neck and upper extremities and also his
low back and lower extremities...then about a month ago he fell in the shower.” Plaintiff stated that
since the fall his symptoms were much worse, he had pain in his neck and both arms, and also had
pain in his low back and buttocks with some tingling in his legs. Dr. Forrest noted that Plaintiff’s
blood sugar had been out of control which he thought was a “potentially complicating factor for the
lower extremities.” Dr. Forrest noted that Plaintiff’s muscle strength was at least four plus out of
five. Dr. Forrest opined that Plaintiff’s most recent scan findings from June 2007 indicated that both
the lumbar and cervical studies showed some abnormalities of significance. Tr. 435.
On February 11, 2010, Dr. Forrest reviewed Plaintiff’s latest cervical and lumbar MRIs
(completed the same day - Tr. 451-454). He noted that the lumbar MRI indicated mild disc bulging

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at L3-4, L4-5, and L4-S1; the presence of fusion changes and some granulation tissue; and no
evidence of nerve compression. Dr. Forrest noted that Plaintiff’s cervical MRI showed:
multilevel abnormalities that are primarily degenerative with disc/osteophyte
complexes present at C4-5 and C5-6 ....[with questionable] early myelopathic signal
change....The combination of the degenerative abnormalities at C4-5 and C5-6 is
producing a central stenosis as well as forminal stenosis which is worse on the right
side at C4-5 and worse on the left at C5-6.
*****
It is going to be best if we are able to treat Mr. Lance non-operatively given the
multilevel nature of his findings. Fortunately, he does not have definite neurologic
deficit. The only deficits that I find clinically are decreased sensation distally and that
is in the feet and the hands bilaterally. This is almost certainly related to his diabetes.
Tr. 432; see Tr. 451-454. Dr. Forrest instructed Plaintiff to check with his primary care doctor with
regard to whether or not he was a candidate for cervical epidural injection due to his history of
increased blood sugars. Tr. 432.
After the ALJ’s decision, Plaintiff submitted an Attending Physician’s Statement of Disability
form for Primerica Life Insurance Company dated September 23, 2010. It was noted on the form that
Dr. Forrest last examined Plaintiff on February 11, 2010. Tr. 478. Dr. Forrest opined that Plaintiff
was “permanently disabled & unable to work.” Tr. 480. He listed Plaintiff’s diagnoses and
symptoms as: lumbar and cervical pain with the objective findings of cervical MRI showing nerve
root compression at C4/5 and C5/6 and lumbar MRI showing compression at the L3/L4 level. Tr.
478. Dr. Forrest estimated that Plaintiff’s disability began in 1992 and noted that Plaintiff began
receiving treatment for his condition with Dr. Poletti in the “early 90's due to back injury.” Tr. 478.
Dr. Forrest opined that Plaintiff was permanently disabled from any type of work and would never
recover from his condition. Tr. 480.

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HEARING TESTIMONY/REPORTS OF CONTACT
In an August 2007 Report of Contact, Plaintiff stated that he was able to handle his own
self-care needs and that he was able to cook, drive, shop, visit family members, and attend church.
He acknowledged that his medication helped his pain. Plaintiff reported that he could only stand for
thirty minutes at a time. Tr. 184. In a September 2007 Report of Contact, Plaintiff stated that he
participated in church-related activities (Sunday School and Bible classes), worked crosswords and
puzzles, and ran errands. Tr. 185.
At the hearing before the ALJ, Plaintiff testified that he worked as a machine operator prior
to 1992, and as a material handler. He said he was put on light duty for a short time after back
surgery. Tr. 35-36, 40. Plaintiff testified about problems with his lower back, bad discs in his neck,
spasms in his lower back and neck, problems with his knees, and carpal tunnel syndrome in his
wrists. Tr. 37, 42, 44. Plaintiff stated that he had high blood pressure, and was diagnosed with
diabetes three years prior to the hearing. Tr. 42. He said that it was difficult for him to stoop or
bend, lift or carry things, bend his knee, or stand in one position. Plaintiff testified that symptoms
in his neck made it difficult for him to look around quickly, which affected his ability to drive. Tr.
45-46. He stated that he had TMJ syndrome which caused him headaches and pain. Tr. 46-47.
Plaintiff said his carpal tunnel syndrome made it difficult for him to pick up things and hold them.
Tr. 47-48. He reported that he had to lie down approximately three to four times a day for about
fifteen minutes each time to relieve pain (which he described as a ten out of ten). Tr. 48. He stated
that he was unable to lift his arms above his shoulders and could not use his hands for repetitive
movements. Tr. 49. Plaintiff estimated that he could only stand for fifteen minutes without feeling
uncomfortable and said he had trouble walking because he would fall and lose his balance. Tr. 49.

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Plaintiff stated that the medication he takes for high blood pressure is also taken for his depression
and anxiety. Tr. 51. Plaintiff testified that he was able to cook, wash, windows, take out the
garbage, and wash clothes “some,” but is not able to mop, mow the yard, vacuum, dust, rake leaves,
or garden. Tr. 53-54. Plaintiff said he was able to lift and carry a gallon of milk and a bag of sugar
for short distances. He reported that had trouble with concentration sometimes due to his medication,
but watched television sometimes and attended church regularly. Tr. 54-55.
DISCUSSION
Plaintiff alleges that: (1) the Appeals Council erred in failing to remand this case to consider
the retrospective opinion of Dr. Forrest, his treating pain management specialist; (2) the ALJ erred
by improperly evaluating his credibility; and (3) the VE testimony, which did not consider all of the
limitations supported by the record (particularly given the new evidence submitted to the Appeals
Council), does not provide substantial evidence to support the ALJ’s finding that there is other work
in the national economy that he can perform. The Commissioner contends that the final decision that
Plaintiff was not disabled within the meaning of the Social Security Act is supported by substantial
evidence3 and free from reversible legal error.

3

Substantial evidence is:
evidence which a reasoning mind would accept as sufficient to support a
particular conclusion. It consists of more than a mere scintilla of evidence but
may be somewhat less than a preponderance. If there is evidence to justify a
refusal to direct a verdict were the case before a jury, then there is “substantial
evidence.”
Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984); Laws v. Celebreeze, 368 F.2d 640, 642 (4th
Cir. 1966). It must do more, however, than merely create a suspicion that the fact to be established
exists. Cornett v. Califano, 590 F.2d 91, 93 (4th Cir. 1978).
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Plaintiff contends that the Appeals Council erred in failing to remand this action to consider
the retrospective opinion of Dr. Forrest, his treating pain management specialist. The Commissioner
contends that the Appeals Council was not required to articulate reasons for declining Plaintiff’s
request for review of the ALJ’s decision, substantial evidence in the record as a whole (including the
evidence presented to the Appeals Council) supports the ALJ’s decision, and Dr. Forrest’s September
2010 opinion does not show that the ALJ’s finding that Plaintiff was not disabled between January
27, 2007 and September 30, 2008 is contrary to the weight of the evidence.
When the Appeals Council considers additional evidence offered for the first time on
administrative appeal and denies review, courts must consider the record as a whole, including the
new evidence, in determining whether the ALJ’s decision is supported by substantial evidence.
Meyer v. Astrue, 662 F.3d 700, 707 (4th Cir. 2011); see Wilkins v. Secretary Dep’t of Health and
Human Servs., 953 F.2d 93, 96 (4th Cir.1991)(en banc). In Meyer, the Fourth Circuit held that it is
not necessary for the Appeals Council to state reasons for its decision not to review the ALJ decision.
When the Appeals Council receives additional evidence and denies review, the issue for the
reviewing court becomes whether the ALJ’s decision is supported by substantial evidence or whether
a remand is necessary for the ALJ to consider the new evidence. In Meyer, the plaintiff’s treating
physicians had a policy not to provide opinion evidence for Social Security proceedings. Therefore,
the ALJ was not provided with any opinions by treating physicians. After the issuance of the ALJ’s
decision, the claimant was able to obtain an opinion letter from his treating physician, and the
Appeals Council made the letter a part of the record but found that it did not provide a basis for
changing the ALJ’s decision. The Fourth Circuit remanded the case for further fact-finding because

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“no fact finder has made any findings as to the treating physician’s opinion or attempted to reconcile
that evidence with the conflicting and supporting evidence in the record.” Id. at 707.
This action needs to be remanded to the Commissioner to consider the new evidence
submitted to the Appeals Council in light of all of the evidence. The Appeals Council in this case
stated, without explanation, that it “found that this information does not provide a basis for changing
the Administrative Law Judge’s decision.” Tr. 2. Here, similar to the situation in Meyer, Plaintiff’s
treating physicians did not give any opinions as to his limitations or as to disability prior to the ALJ’s
decision. The ALJ specifically stated in his opinion that the record did not contain any information
from any treating source as to Plaintiff’s RFC. Tr. 22.
The evidence submitted to the Appeals Council is from Plaintiff’s treating pain specialist.4
Although it is arguably a conclusory opinion, it is based on objective evidence in the record and may
provide further information concerning Plaintiff’s cervical and lumbar spinal impairments and Dr.
Forrest’s interpretation of Plaintiff’s 2007 MRIs. Dr. Forrest stated that the objective findings

4

The medical opinion of a treating physician is entitled to controlling weight if it is
well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in the record. See 20 C.F.R. §§ 404.1527(c)(2) and
416.927(c)(2); Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). Thus, “[b]y negative implication,
if a physician's opinion is not supported by clinical evidence or if it is inconsistent with other
substantial evidence, it should be accorded significantly less weight.” Craig v. Chater, 76 F.3d 585,
590 (4th Cir. 1996). Under such circumstances, “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 at 178 (citing Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir.1992)).
Under § 404.1527, if the ALJ determines that a treating physician’s opinion is not entitled to
controlling weight, he must consider the following factors to determine the weight to be afforded the
physician’s opinion: (1) the length of the treatment relationship and the frequency of examinations;
(2) the nature and extent of the treatment relationship; (3) the evidence with which the physician
supports his opinion; (4) the consistency of the opinion; and (5) whether the physician is a specialist
in the area in which he is rendering an opinion. 20 C.F.R. § 404.1527. Social Security Ruling 96-2p
provides that an ALJ must give specific reasons for the weight given to a treating physician's medical
opinion. SSR 96-2p.
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included MRI evidence of nerve root compression at the C4/5 and C5/6 level. The Commissioner
argues that this is based on Plaintiff’s February 2010 MRI which is not applicable to the relevant
time period. The opinion, however, does not identify which MRI(s) are relied upon. Although the
February 2010 cervical MRIs may show a worsening of Plaintiff’s condition, the June 2007 cervical
MRI indicated “diffuse osteophyte production resulting in moderate to severe right and moderate left
exit foraminal stenosis” at C4-5 and “a central protrusion of disc material....accompanied by
osteophytes.....[with] moderate foraminal stenosis....[with] moderate spinal cord compression with
probable myelopathic signal change.” Tr. 318 (emphasis added). It is unclear whether the ALJ’s
opinion is supported by substantial evidence in light of the evidence submitted to the Appeals
Council.
Additionally the evidence presented to the Appeals Council may have an impact on the ALJ’s
credibility determination, as the ALJ discounted Plaintiff’s credibility in part because no limitations
were placed on him by his treating physicians to substantiate his subjective complaints. Tr. 23. The
evidence presented to the Appeals Council may also be pertinent to the hypothetical posed to the
VE.5
In light of this new evidence, it is possible that there are further limitations on Plaintiff’s ability to
manipulate. Thus, upon remand, the Commissioner should consider Plaintiff’s allegations of error
concerning the ALJ’s credibility determination and the hypothetical to the VE.

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In order for a VE’s opinion to be relevant or helpful, it must be based upon a consideration
of all the other evidence on the record and must be in response to hypothetical questions which fairly
set out all of the plaintiff’s impairments. Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989). The
questions, however, need only reflect those impairments that are supported by the record. Chrupcala
v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987).
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CONCLUSION
The Commissioner’s decision is not supported by substantial evidence and correct under
controlling law. This action is remanded to the Commissioner to consider the evidence submitted
to the Appeals Council and to consider Plaintiff’s remaining allegations of error.
It is, therefore, ORDERED that the Commissioner’s decision is reversed pursuant to
sentence four of 42 U.S.C. § 405(g) and that the case is remanded to the Commissioner for further
administrative action as set out above.

__________________________
Joseph R. McCrorey
United States Magistrate Judge

August 28, 2012
Columbia, South Carolina

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