Gillis v. Commissioner of Social Security Administration

Filing 27

ORDER reversing the decision of the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) and remanding the action for further administrative proceedings. Signed by Magistrate Judge Joseph R McCrorey on 12/27/2012. (bshr, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA

JOHN L. GILLIS,
Plaintiff,
v.
MICHAEL J. ASTRUE, COMMISSIONER
OF SOCIAL SECURITY
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Civil Action No. 3:11-1801-JRM

ORDER

Plaintiff, John L. Gillis, filed this action on July 26, 2011. By Order of Reference (Doc. 17)
from the Honorable Terry L. Wooten, 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
Plaintiff filed an application for DIB on October 29, 2008. He alleges disability as of October
29, 2008. See Tr. 35.1 After his claim was denied initially and upon reconsideration, Plaintiff
requested a hearing before an Administrative Law Judge (“ALJ”). A hearing was held on August
11, 2010, at which Plaintiff appeared and testified. On September 23, 2010, the ALJ issued a
decision denying benefits and finding that Plaintiff was not disabled. The ALJ, after hearing the

1

Plaintiff originally alleged an onset date of July 4, 2008, but later amended it to October 29,
2008. See Tr. 10, 35, 115-116.

testimony of a vocational expert (“VE”), concluded that work exists in the national economy which
Plaintiff can perform.
Plaintiff was fifty-three years old at the time of the ALJ’s decision. He has a high school
education with past relevant work as a welder. Tr. 18, 54-55. Plaintiff alleges disability due to
degenerative disc disease and generalized anxiety disorder. See Tr. 12.
The ALJ found (Tr. 12-19):
1.

The claimant meets the insured status requirements of the Social
Security Act through December 31, 2013.

2.

The claimant has not engaged in substantial gainful activity since July
4, 2008, the alleged onset date (20 CFR 404.1571 et seq.).

3.

The claimant has the following severe impairments: degenerative disc
disease and generalized anxiety disorder (20 CFR 404.1520(c)).

4.

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).

5.

After careful consideration of the entire record, I find that the claimant
has the residual functional capacity to lift, carry and handle 20 pounds
occasionally and 10 pounds frequently; occasional stooping, twisting,
crouching, kneeling or crawling; no climbing of ropes or scaffolds and
only occasional climbing of ladders. Further, the claimant is restricted
to the performance of unskilled to low semi-skilled [work] with only
occasional interaction with [the] public.

6.

The claimant is unable to perform any past relevant work (20 CFR
404.1565).

7.

The claimant was born on February 6, 1957, and was 51 years old,
which is defined as an individual closely approaching advanced age,
on the alleged disability onset date (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).

2

9.

The claimant has acquired work skills from past relevant work (20
CFR 404.1568).

10.

Considering the claimant’s age, education, work experience, and
residual functional capacity, the claimant has acquired work skills
from past relevant work that are transferable to other occupations with
jobs existing in significant numbers in the national economy (20 CFR
404.1569, 404.1569(a) and 404.1568(d)).

11.

The claimant has not been under a disability, as defined in the Social
Security Act, from July 4, 2008, through the date of this decision (20
CFR 404.1520(g)).

The Appeals Council denied the request for review in a decision issued June 2, 2011 (Tr. 1-5),
and the ALJ’s decision became the final decision of the Commissioner.
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 EVIDENCE
Plaintiff has a long history of degenerative disc disease, as well as anxiety. See, e.g., Tr. 216.
Lumbar spine x-rays as early as May 16, 2005, revealed degenerative disc disease and facet joint
changes at L4-5 and L5-S1. Tr. 299. Plaintiff underwent chiropractic treatment in March 2006. Tr.
176-178. A lumbar MRI on April 5, 2006, showed diffuse annular bulges at L5-S1 and L4-5 with
3

facet arthritis and extension of osteophytes causing bilateral neuroforaminal narrowing at the L5-S1
level, but no central canal stenosis. Tr. 309, 378. Moore Orthopaedic Clinic records show that in
April and May 2006, Plaintiff underwent a series of epidural steroid injections and was also
prescribed Vicodin, Ultram, and Percocet for back pain. Tr. 303-308, 314.
After Plaintiff complained of severe lower back pain on February 8, 2008, Dr. Roy Smith (a
family practitioner) ordered an MRI and referred Plaintiff to a pain management clinic. Tr. 217-218.
The MRI demonstrated small disc protrusions and mild facet joint changes at L4-5 and L5-S1, but
no evidence of spinal stenosis. Tr. 228. On February 20, 2008, Dr. Hugh Thompson, an
anesthesiologist and pain management specialist, administered a sacroilliac injection. Tr. 227.
After Plaintiff failed to respond to the sacroiliac injection, Dr. Smith referred Plaintiff to the
Providence Physical Medical Center for an initial evaluation by a spine and rehabilitation specialist.
On March 28, 2008, Plaintiff reported to Dr. Usama Gabr that physical therapy had not provided
relief for his low pain, and that his pain medication was causing nausea and vomiting. Dr. Gabr noted
that Plaintiff’s lumbar spine was tender to palpation and his lumbar flexion was mildly restricted, but
he had normal gait and station, full strength, and normal sensation. Faber (flexion abduction external
rotation) sign2 was negative on the right and positive on the left side. He restricted Plaintiff’s
activities of carrying, lifting, squatting, standing, stooping, and bending for two months, and opined
that Plaintiff was temporarily disabled pending completion of a course of therapy. Tr. 359-361.

2

Fabere or Faber sign or test, also known as Patrick’s test, is a test done while the patient is
supine. “The thigh and knee are flexed and the external malleolus is placed over the patella of the
opposite leg; the knee is depressed, and if pain is produced, arthritis of the hip is indicated.”
Dorland’s Illustrated Medical Dictionary, 1711, 1896 (32nd ed. 2012).
4

Plaintiff returned to Dr. Gabr on April 8, 2008, complaining of increased back pain following
a fall. Dr. Gabr noted that Plaintiff’s lumbar spine was tender to palpation, his lumbar flexion was
mildly restricted, and he had positive Faber signs bilaterally, but Plaintiff had normal gait and station,
full strength, and normal sensation. Tr. 350-352. A CT scan demonstrated minimal disc bulging
without herniation at L1-2 through L3-4, and greater degenerative changes at L4-5 and L5-S1 with
some narrowing of the neural foramen. Tr. 204-205. On April 14, 2008, Plaintiff returned to Dr.
Gabr reporting improved symptoms. On examination, Plaintiff’s spine was not tender; he had
negative Faber signs; and he had a painless full range of motion of his spine, full strength, and intact
sensation. Tr. 345-346.
On July 3, 2008, Plaintiff fell after stepping in a hole in his yard, resulting in an ankle injury.
Tr. 210, 223-224. Dr. James Nichols diagnosed a fracture of Plaintiff’s lateral malleolus and
prescribed a CAM walker. Tr. 210. By September 23, 2008, Plaintiff was able to walk in an athletic
shoe. X-rays showed the malleolar fracture had healed, although he still had degenerative changes
in the mid tarsal and interphalangeal joints. Dr. Nichols gave Plaintiff a note indicating that he could
return to work on October 6, 2008. Tr. 208.
On September 29, 2008, Plaintiff told Dr. Smith that his ankle felt better and his back was
doing “ok.” Tr. 225. Dr. Smith discontinued Plaintiff’s Vicodin prescription. Tr. 226.
On October 9, 2008, Plaintiff returned to Dr. Gabr complaining of low back pain and calf
tingling, weakness, and numbness. On examination, Plaintiff had an antalgic gait, tenderness in his
low back, mildly restricted low back range of motion, full strength, and intact sensation. Dr. Gabr
prescribed Vicodin and Lyrica and opined that it would be a significant challenge for Plaintiff to
return to his job as a welder. Tr. 336-337. On October 29, 2008, Dr. Gabr administered a lumbar

5

steroid injection. Tr. 331. On November 24, 2008, Plaintiff reported low back pain and numbness.
Dr. Gabr noted that Plaintiff had intact sensation, restricted lower back range of motion, limited
motion in extension and flexion of his spine, and negative Faber signs. He refilled Plaintiff’s
Vicodin prescription, and administered another lumbar spine injection. Tr. 386-387.
On February 4, 2009, Dr. Mitchell Hegquist examined Plaintiff at the request of the state
agency. Plaintiff’s primary complaint was low back pain that occasionally radiated into his lower
left extremity. Plaintiff alleged that he had experienced back problems since 1975. On examination,
Plaintiff had good range of motion and strength in his extremities, no sensory or motor deficits, a
normal gait, and the ability to squat fully with some difficulty. It was noted that Plaintiff had no
tenderness to his spine, was able to flex and extend his back fully, and had a negative straight-leg
raise testing. Tr. 230-233.
A couple of weeks later, Dr. James Weston, a state agency physician, reviewed Plaintiff’s
records and completed a Physical Residual Functional Capacity Assessment in which he opined that
Plaintiff could occasionally lift and/or carry fifty pounds, frequently lift and/or carry twenty-five
pounds, stand and/or walk for six hours in an eight-hour workday, and sit for six hours in an
eight-hour workday. Tr. 235. On February 23, 2009, Dr. Edward Waller, a state agency
psychologist, reviewed Plaintiff’s records and opined that Plaintiff’s anxiety disorder was not severe
and only caused mild degrees of limitation. Tr. 242-255.
On June 3, 2009, Plaintiff returned to Dr. Gabr, continuing to complain of low back pain.
Plaintiff had a restricted low back range of motion. Faber sign was positive on the left and negative
on the right. Dr. Gabr administered trigger point injections. Tr. 384-385.

6

On June 30, 2009, Dr. Gabr completed a form regarding Plaintiff’s work-related abilities. He
opined that Plaintiff could lift less than ten pounds frequently; stand and walk less than two hours
per day; must periodically alternate between sitting and standing; was limited in using his legs; could
never climb, kneel, crouch, or crawl; was limited to occasional reaching; and needed to avoid
temperature extremes, vibrations, and humidity/wetness. Tr. 259-261.
On September 14, 2009, Plaintiff returned to Dr. Smith for a refill of his medications, and
stated he had been out of them for a long time. Plaintiff reported that his world was “falling apart,”
and his panic attacks were getting worse. Dr. Smith noted Plaintiff’s mood and affect were anxious,
and Plaintiff was “choked up, almost tearful at times.” He prescribed Celexa for Plaintiff’s mood and
Ativan for anxiety. Tr. 265-266. On November 2, 2009, Dr. Smith completed a form in which he
opined that Plaintiff had “obvious” work-related limitations due to his depression and anxiety,
although he did not detail what those limitations were. Tr. 264.
Dr. Nicholas DePace conducted a mental status evaluation at the request of the state agency
on December 1, 2009. Plaintiff reported a history of “pretty serious panic attacks” occurring for the
past three to four years. Plaintiff told Dr. DePace that he got together with friends every weekend,
was able to perform all inside and outside chores, although he had to pace himself due to his physical
problems, and was able to cook. On examination, Plaintiff described his mood as “okay,” he was
able to follow directions, and he appeared to be of average intelligence. Dr. DePace diagnosed
probable longstanding generalized anxiety disorder and symptoms consistent with panic disorder.
Tr. 269. Dr. DePace opined that Plaintiff could perform three-step commands with no problems. Tr.
267-270.

7

In December 2009, Dr. Warren Holland, a state agency physician, reviewed Plaintiff’s records
and opined that Plaintiff could occasionally lift and/or carry twenty pounds, frequently lift and/or
carry ten pounds, stand and/or walk six hours in an eight- hour workday, and sit six hours in an
eight-hour workday, except he had some postural limitations. Tr. 286-293. On December 22, 2009,
Dr. Lisa Klohn, a state agency psychologist, reviewed Plaintiff’s records and opined that Plaintiff
could perform simple unskilled work; attend work regularly, although he might miss an occasional
day; make work-related decisions; and accept supervision and interact appropriately with co-workers,
although he might not be suited to work with the general public. Tr. 294-296.
On February 12, 2010, Plaintiff reported to Dr. Smith that he was having difficulty sleeping
due to worry and anxiety at night. Tr. 319. On April 6, 2010, Plaintiff told Dr. Smith he felt best on
Ativan alone (without an anti-depressant medication). Tr. 323.
On July 21, 2010, Dr. Gabr completed a form titled “Clinical Assessment of Pain.” Tr. 324325. He opined that Plaintiff’s pain would be distracting to the adequate performance of daily
activities or work, physical activity would likely greatly increase pain, and Plaintiff’s pain
medications would have significant side effects. Tr. 324-325.
HEARING TESTIMONY
At the hearing (August 2010), Plaintiff testified that he last worked in October 2008, and had
been receiving unemployment benefits from October 2008 until about two weeks before the
administrative hearing. Tr. 39. He previously worked as a welder. Tr. 40. Plaintiff testified that he
could not sit, stand, or walk for very long before he had pain in his back, which radiated down his
left leg causing his leg to become numb, and sometimes caused him to fall. He stated that it was
difficult for him to get up in the morning, and it was very difficult to put on his shoes. Tr. 43.

8

Plaintiff reported that he suffered from panic attacks for several years, had been on medicine for the
attacks for ten years, and the attacks were debilitating without medication. Tr. 44. He stated that he
did not like crowds and did not go out of the house much. Tr. 45. Plaintiff testified that he drove and
occasionally went to the grocery store, but often did not leave his house for three or four days in a
row. Tr. 33. Plaintiff testified that he took Vicodin and Percocet, but had not taken it the day of the
hearing, and only took it on bad days and at night. Tr. 46. According to Plaintiff, he did not do any
lifting. Tr. 49. Plaintiff stated that he had a back brace which he wore on occasion. He testified that
Vicodin made him nauseous the day after he took it. Tr. 52. He testified that he used a riding lawn
mower to mow his lawn, but could only use it for about an hour at a time. Tr. 51. Plaintiff further
testified that he could cook, but could only stand to do so for thirty minutes at a time. Tr. 51.
DISCUSSION
Plaintiff alleges that: (1) the ALJ’s decision is not supported by substantial evidence and is
not correct under controlling law; (2) the ALJ erred in evaluating his credibility; and (3) the ALJ
erred in disregarding the opinion of his treating physician (Dr. Gabr). The Commissioner contends
that the final decision that Plaintiff is not disabled within the meaning of the Social Security Act is
supported by substantial evidence3 and free of harmful 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).
9

Plaintiff alleges that the ALJ erred in evaluating the opinion of disability of his treating
physician, Dr. Gabr.4 Specifically, he argues that the ALJ erred in relying on the February 2008
MRI, rather than the more recent (April 2008) CT scan, which showed signs of stenosis, in
discounting Dr. Gabr’s opinion. He also argues that the ALJ improperly discounted Dr. Gabr’s
opinion based on Dr. Gabr’s March 2008 opinion projecting that Plaintiff would be temporarily
disabled for two months, as this opinion was rendered prior to Plaintiff’s amended alleged disability
onset date, was before he stopped working, and his condition deteriorated after the opinion was
rendered. Plaintiff also claims that the ALJ failed to support her theory that good strength, tone, and
negative straight leg raise testing was inconsistent with Plaintiff’s claims of disabling pain where the
CT scan documented stenosis and disc disease and Plaintiff had other clinical abnormalities including
severe restriction of motion, altered sensation, and an antalgic gait. The Commissioner contends that
the ALJ reasonably discounted Dr. Gabr’s opinion because it was inconsistent with the February
2008 MRI which demonstrated only small protrusions and mild facet joint changes, with no evidence
of spinal stenosis; it was inconsistent with Dr. Gabr’s March 2008 opinion in which Dr. Gabr opined
that Plaintiff could return to work two months later; and it was inconsistent with clinical findings

4

Plaintiff also appears to argue that the ALJ erred in concluding that the ALJ’s RFC
assessment was consistent with Dr. Smith’s November 2009 opinion. Plaintiff’s Brief at 14. The
ALJ’s determination that Dr. Smith’s mental status findings (which included that Plaintiff had
adequate attention, concentration, and memory, but an anxious and depressed mood, and that Plaintiff
had “obvious” work-related limitations - Tr. 264) were consistent with the RFC is supported by
substantial evidence. Dr. Smith’s limitations only concern Plaintiff’s mental impairments. As noted
by the parties, Dr. Smith did not specify the limitations, such that there is nothing inconsistent with
the RFC found by the ALJ. Although Plaintiff obtained medications from his family physician for
his mental impairments, there is no evidence of any mental health hospitalization or ongoing
treatment with a mental health specialist. Additionally, in light of Plaintiff’s mental impairments and
his testimony that his panic attacks are triggered by crowds, the ALJ limited Plaintiff to unskilled or
low semi-skilled work (instead of his skilled past relevant work) and only occasional interaction with
the public.
10

including physical examinations which routinely showed good strength and tone, and negative
straight raise testing (test for nerve root compression). The Commissioner appears to argue that the
CT scan does not support Dr. Gabr’s opinion because it only showed mild stenosis, and Dr. Gabr’s
opinion was based on the MRI findings rather than the CT findings. The Commissioner argues that
the ALJ reasonably discounted Dr. Gabr’s later opinion based on Dr. Gabr’s earlier opinion, as the
later opinion was more restrictive than the earlier opinion, there was no explanation for the change,
and there was no apparent change in Plaintiff’s condition.
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

11

provides that an ALJ must give specific reasons for the weight given to a treating physician’s medical
opinion. SSR 96-2p.
The ALJ’s decision to give little weight to Dr. Gabr’s opinions5 is not supported by
substantial evidence. The ALJ discounted Dr. Gabr’s June 30, 2009 statement (which included the
restrictions that Plaintiff could lift less than ten pounds and could stand/walk less than two hours),
at least in part, because Plaintiff’s February 2008 MRI showed no spinal stenosis. Tr. 17. Dr. Gabr,
however, wrote that he based his opinion concerning Plaintiff’s exertional limitations
(lifting/carrying and standing/walking) on Plaintiff’s “significant lumbar spondylosis with back
myofascial symptoms,” not stenosis.6 Tr. 259. Further, the April 2008 CT scan (which Dr. Gabr
ordered after Plaintiff complained of increased back pain after a fall) did show at least some spinal
stenosis. As noted above, the CT scan showed some narrowing of the neural foramen. Tr. 204-205.

Additionally, the ALJ’s decision to discount Dr. Gabr’s June 2009 opinion based on this
physician’s March 2008 statement does not appear to be supported by substantial evidence.
Although the Commissioner states that Dr. Gabr opined in March 2008 that Plaintiff could return to
work two months later, review of this medical record indicates that Dr. Gabr recommended activity
restrictions for two months and stated that Plaintiff was temporarily disabled pending completion of

5

The ALJ wrote that she gave little weight to Dr. Gabr’s June 30, 2009 statement because she
found that his opinion was not supported by the overall evidence which did not support the overall
limitation noted by Dr. Gabr; the MRI showed degenerative changes, but no spinal stenosis; on
March 28, 2008, Dr. Gabr estimated only temporary limitations of two months; and physical
examinations showed good strength, tone, negative straight leg raising, and inconsistent Faber signs.
Tr. 17.
6

Spondylosis is defined as “degenerative spinal changes due to osteoarthritis.” Dorland’s at
1754. Stenosis is defined as “an abnormal narrowing of a duct or canal.” Id. at 1769.
12

a course of physical therapy. Tr. 360-361. Less than two weeks after Dr. Gabr’s March 2008
opinion, Plaintiff sought treatment from Dr. Gabr after falling and experienced increased back pain.
The April 2008 CT scan appears to show at least some worsening of Plaintiff’s condition.
Additionally, the ALJ did not address Dr. Gabr’s July 2010 opinion that Plaintiff’s pain would
be distracting to the adequate performance of daily activities or work, physical activity would likely
greatly increase his pain, and his pain medications would have significant side effects. Tr. 324-325.
This action is remanded to the Commissioner to consider all of Dr. Gabr’s opinions in light of all
of the evidence of record.
Plaintiff also alleges that the ALJ erred in discounting his credibility. Specifically, he argues
that the ALJ inaccurately summarized his testimony regarding his pain and limitations; inaccurately
commented about his use of medications and receipt of unemployment benefits; made no evaluation
of his medication side effects including nausea and drowsiness; did not reference the clinical
abnormalities noted by his treating physicians (including diminished patellar reflexes, recurrent
spasms, marked tenderness in the paraspinal muscles, limited range of motion, and positive Faber
signs); failed to evaluate his history of receiving repeated lumbar and trigger point injections; and
made no reference to his use of a back brace, his obvious discomfort during the hearing, the
observation of an agency employee that he “seemed uncomfortable sitting” during an interview, and
his excellent thirty-three year work history. The Commissioner contends that the ALJ reasonably
discounted Plaintiff’s subjective complaints. Specifically, the Commissioner argues that medical
evidence showed Plaintiff’s mental impairments were fairly well controlled; there is no evidence that
Plaintiff received ongoing treatment by a mental health specialist; Plaintiff’s testimony was less than
credible because he alleged he performed few chores, but he lived alone and there is no evidence he

13

had any problems maintaining his residence; Plaintiff reported to Dr. DePace that he got together
with friends weekly, and was able to perform all inside and outside chores (although he had to pace
himself due to his physical problems); and Plaintiff applied for and received unemployment benefits
until only weeks before the administrative hearing. The Commissioner argues that the ALJ did not
inaccurately summarize Plaintiff’s testimony. Additionally, the Commissioner argues that just
because the ALJ did not explicitly discuss a specific area of testimony does not mean the ALJ did
not consider it, the ALJ was not required to discuss every piece of evidence, and the ALJ explicitly
stated he considered the entire record.
In assessing credibility and complaints of pain, the ALJ must: (1) determine whether there
is objective evidence of an impairment which could reasonably be expected to produce the pain
alleged by a plaintiff and, if such evidence exists, (2) consider a plaintiff’s subjective complaints of
pain, along with all of the evidence in the record. See Craig v. Chater, 76 F.3d 585, 591-92 (4th Cir.
1996); Mickles v. Shalala, 29 F.3d 918 (4th Cir. 1994). Although a claimant’s allegations about pain
may not be discredited solely because they are not substantiated by objective evidence of the pain
itself or its severity, they need not be accepted to the extent they are inconsistent with the available
evidence, including objective evidence of the underlying impairment, and the extent to which the
impairment can reasonably be expected to cause the pain the claimant alleges he suffers. A claimant’s
symptoms, including pain, are considered to diminish his or her capacity to work to the extent that
alleged functional limitations are reasonably consistent with objective medical and other evidence.
20 C.F.R. §§ 404.1529(c)(4) and 416.929(c)(4).
The ALJ’s credibility determination does not appear to have considered the side effects of
Plaintiff’s pain medications. Although the ALJ noted that Plaintiff complained of the medication side

14

effect of nausea (Tr. 17), there is no indication that the ALJ considered this side effect or Plaintiff’s
alleged medication side effect of drowsiness in his credibility determination.7 See 20 C.F.R.
§ 404.1529(c)(3)(listing “other evidence” to be considered when “determining the extent to which
[claimant’s] symptoms limit [claimant’s] capacity for work,” including, “(iv) The type, dosage,
effectiveness, and side effects of any medication you take or have taken to alleviate your pain or
other symptoms[.]”). This action should be remanded to the ALJ to fully evaluate Plaintiff’s
credibility in light of all of the evidence.
Because this case must be remanded to the Commissioner for the evaluation of the opinions
of treating physician Dr. Gabr and to consider the side effects of Plaintiff’s medications, the
undersigned declines to specifically address Plaintiff’s additional allegations concerning his
credibility. However, upon remand, the Commissioner should take into consideration Plaintiff’s
remaining allegations of error.
CONCLUSION
The Commissioner’s decision is not supported by substantial evidence and correct under
controlling law. This action is remanded to the Commissioner to evaluate the opinions of treating
physician Dr. Gabr in light of all the evidence, consider the side effects of Plaintiff’s medications,
and consider Plaintiff’s remaining allegations of error regarding his credibility.

7

It is unclear whether the ALJ considered Plaintiff’s alleged medication side effect of
drowsiness. On some medication lists, Plaintiff noted that Ativan caused him drowsiness (Tr. 154
166), but he stated in another report that he had no side effects from Ativan (Tr. 192).
15

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
December 27, 2012
Columbia, South Carolina

16