Williams v. Commissioner of Social Security Administration

Filing 28

ORDER reversing the decision of the Commissioner pursuant to sentence four of 42 U.S.C. §§ 405(g) and 1383(c)(3) and remanding the action to the Commissioner for further administrative action. Signed by Magistrate Judge Joseph R McCrorey on 07/02/2013. (bshr, )

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

ZACHARY TOBBINS WILLIAMS,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN, ACTING
)
COMMISSIONER OF SOCIAL SECURITY,1)
)
Defendant.
)
)

Civil Action No. 3:12-1422-JRM

ORDER

By Order of Reference (ECF No. 13) from the Honorable Terry L. Wooten, Chief United
States District Judge, pursuant to 28 U.S.C. § 636, Local Civil Rule 73.02(B) 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) and 1383(c)(3) to obtain judicial review of a final
decision
of the Commissioner of Social Security (the “Commissioner”) denying his claim for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”).
ADMINISTRATIVE PROCEEDINGS
Plaintiff filed applications for DIB and SSI on May 7, 2009, alleging disability since April
9, 2009. Tr. 148-157, 171. Plaintiff’s claims were denied initially and upon reconsideration. Plaintiff
requested a hearing before an Administrative Law Judge (“ALJ”). A hearing was held on August
8, 2011 at which Plaintiff appeared and testified. Tr. 28-69. The ALJ issued a decision on August

1

Carolyn W. Colvin became the Acting Commissioner of Social security on February 14,
2013. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin should be
substituted for Commissioner Michael J. Astrue as Defendant in this action.

17, 2011, finding at step five of the sequential evaluation process2 that Plaintiff was not disabled
because work exists in the national economy which Plaintiff can perform.
Plaintiff was forty-seven years old at the time of the ALJ’s decision. He has a high school
education and past work experience as an iron worker helper, delivery truck driver, waiter, appliance
installer, banquet manager, and industrial cleaner. Tr. 20, 172. Plaintiff alleges disability due to reflex
sympathetic dystrophy (“RSD”), a neck injury, headaches, a kidney cyst, depression, and anxiety.
Tr. 171.
The ALJ found (Tr. 12-20):
1.

The claimant met the insured status requirements of the Social
Security Act through September 30, 2010.

2.

The claimant has not engaged in substantial gainful activity since
April 10, 2009, the alleged onset date (20 CFR 404.1571 et seq., and
416.971 et seq.).

3.

The claimant has the following severe impairments: lower back pain,
neck pain, chronic pain syndrome, right wrist impairment, and left
knee impairment (20 CFR 404.1520(c) and 416.920(c)).

4.

The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20
CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and
416.926).

5.

After careful consideration of the entire record, I find that the claimant
has the residual functional capacity to perform a range of light work
as defined in 20 CFR 404.1567(b) and 416.967(b) in that he can lift

2

In evaluating whether a claimant is entitled to disability insurance benefits, the ALJ must
follow the five-step sequential evaluation of disability set forth in the Social Security regulations. See
20 C.F.R. § 404.1520. The ALJ must consider whether a claimant (1) is working, (2) has a severe
impairment, (3) has an impairment that meets or equals the requirements of a listed impairment, (4)
can return to her past work, and (5) if not, whether the claimant retains the capacity to perform
specific jobs that exist in significant numbers in the national economy. See id.
2

and carry up to twenty pounds occasionally and ten pounds frequently;
stand and/or walk for about six hours in a workday; and sit throughout
the workday. He can occasionally stoop, crouch, and climb stairs or
ramps, but never kneel, crawl, or climb ladders or scaffolds. He can
do no more than occasional gross manipulation with the right hand
and no use of foot pedals or other controls with the left lower
extremity. Due to side effects from prescribed medications, he is
further restricted to simple, routine tasks in a supervised environment,
involving no required interaction with the public or team-type
interaction with co-workers.
6.

The claimant is unable to perform any past relevant work (20 CFR
404.1565 and 416.965).

7.

The claimant was born on August 12, 1964, and was 44 years old,
which is defined as a younger individual age 18-49, on the alleged
disability onset date (20 CFR 404.1563 and 416.963). He is now 47
years old.

8.

The claimant has a high school education and is able to communicate
in English (20 CFR 404.1564 and 416.964).

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.

Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20
CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).

11.

The claimant has not been under a disability, as defined in the Social
Security Act, from April 9, 2009, through the date of this decision (20
CFR 404.1520(g) and 416.920(g)).

The Appeals Council denied the request for review in a decision issued May 11, 2012 (Tr.
1-3), and the ALJ’s decision became the final decision of the Commissioner. Plaintiff filed this
action in the United States District Court on May 29, 2012.

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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 EVIDENCE
Plaintiff was diagnosed with a right wrist ligament tear on December 5, 2005. Tr. 402. On
July 13, 2006, Plaintiff underwent right wrist arthroscopic surgery to repair the ligament. Tr. 407409. X-rays of Plaintiff’s neck and back taken on March 20, 2007, showed mild/early degenerative
disc disease at C5-6 and C6-7, and mild disc space narrowing at L5-S1. Tr. 418, 420. An MRI
performed on August 16, 2007, showed a probable small central tear of the annulus and minimal
subligamentous disc herniation at L5-S1, similar in appearance to a previous study of December 8,
2004. Tr. 422.

On May 5, 2008, Plaintiff was examined by Dr. Richard Wendell, an

emergency room physician, after a motor vehicle accident. On examination, Plaintiff had no joint
deformity and his strength and sensation were intact in his arms and legs. X-rays of Plaintiff’s neck
were negative, and Plaintiff was discharged with pain medications for a cervical strain. Tr. 318-319.
Dr. Woodrow A. Bell examined Plaintiff on May 7, 2008, for complaints dealing with
Plaintiff’s neck, back, right hip, right hand, and both knees as a result of the earlier motor vehicle

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accident. Dr. Bell noted Plaintiff had decreased cervical range of motion and right foot tenderness.
He had no swelling in his right hand. Dr. Bell noted that Plaintiff had decreased right-hand grip
strength, but otherwise had full muscle strength in all his extremities. He had normal gait and
reflexes. Dr. Bell assessed cervicothoracic strain, lumbosacral strain, trapezius strain, and right foot
and lower leg contusion. He prescribed medications and a TENS unit and referred Plaintiff for
physical therapy. Tr. 337-338.
On May 28, 2008, Plaintiff complained to Dr. Bell that his hip was sore. Plaintiff reported
that his neck and upper back felt much better since the initiation of physical therapy. On examination,
Plaintiff moved all his extremities satisfactorily, and it was noted he had decreased strength in his
right leg, but no swelling or edema and much less tenderness. Dr. Bell indicated Plaintiff’s strains
were improved and advised Plaintiff to decrease physical therapy to twice a week. Tr. 346. During
a follow-up on June 9, 2008, Plaintiff requested to be released from Dr. Bell’s care, stating he
(Plaintiff) was doing better and felt he was back to his pre-accident level of functioning. Dr. Bell
noted that Plaintiff’s strains, contusions, and tendinitis had resolved; it was not anticipated there
would be any long-term consequences as a result of Plaintiff’s injuries; and Plaintiff was released to
return to his normal activities and to work without restrictions. Tr. 348, 350. Plaintiff returned to Dr.
Bell on August 11, 2008, with complaints of headaches and lower neck pain. Tr. 351. A CT scan of
Plaintiff’s head showed no acute intracranial abnormality. Tr. 438.
On September 20, 2008, Dr. Green Neal of Richland Community Healthcare Association,
noted that Plaintiff needed some Lyrica, but that it made him “sleepy.” Tr. 455. Plaintiff saw Dr. Jody
Ellison of Richland Community Healthcare Association, on October 6, 2008. She provided Plaintiff
with pain medications for his complaints of chronic back and hand pain. Plaintiff also reported

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headaches and insomnia, and requested a referral to an eye doctor. Tr. 456. On examination, Plaintiff
had decreased strength and range of motion in his right wrist. Dr. Ellison assessed musculoskeletal
pain and advised Plaintiff to follow up in a month. Tr. 456-457.
Medical notes from Dr. Neal dated October 24, 2008, state that Plaintiff’s examination was
unchanged and Plaintiff was totally disabled. Tr. 458. On that same day, Dr. Neal completed a
medical source statement form on behalf of Plaintiff in which he opined that Plaintiff could lift and
carry less than five pounds with his right hand, and no more than twenty pounds total; stand and walk
thirty minutes at a time and two hours total in an eight-hour workday; sit forty-five minutes at a time
and no more than five hours in an eight-hour workday; never climb, crouch, kneel, or crawl;
occasionally balance and stoop; and had limitations in his ability to reach, handle, feel, push, pull,
and work around hazards and temperature extremes. Tr. 352-354.
On October 27, 2008, Plaintiff presented to Dr. Ellison asking for stronger medications for
pain. Plaintiff reported that Lyrica and Lortab helped with pain, but made him drowsy. Dr. Ellison
continued Plaintiff’s prescriptions for Lyrica and Lortab. Tr. 459.
On December 2, 2008, Dr. R. Joseph Healy (a neurologist), stated he had been treating
Plaintiff for cervical strain and cervicogenic headache since September 24, 2008. He noted that
Plaintiff also had symptoms consistent with right carpal tunnel syndrome. Dr. Healy stated that
Plaintiff had better range of neck motion and less tenderness. Dr. Healy thought Plaintiff had reached
maximum medical improvement and had a five percent whole person impairment to his cervical spine
as a result of the car accident. Tr. 357.
Dr. Ellison saw Plaintiff on January 26, 2009, and it was noted Plaintiff continued to
complain of pain in his neck, back, and legs. Tr. 464. She noted that Plaintiff moved easily from the

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chair to the examination table. Plaintiff had tenderness to minimal touch in his cervical, thoracic, and
lumbar spines. Dr. Ellison assessed musculoskeletal pain, insomnia, and depression. Tr. 464-465.
Plaintiff reported to Dr. Neal that Lyrica was helping somewhat with the pain in his neck on March
13, 2009. Tr. 466. On March 18, 2009, Dr. Ellison noted that Plaintiff had a splint on his right wrist
and assessed that Plaintiff had muscle spasms, slightly improved insomnia, and depression. Tr. 467468.

Plaintiff went to the emergency room on March 30, 2009, complaining of back pain after he

sneezed hard and it felt like something popped in his back. Plaintiff said he was able to walk well and
was not having any weakness in his legs. Plaintiff denied any other issues at that time. Tr. 440.
On April 2, 2009, Plaintiff saw Dr. Ellison and told him that he had received a shot in the
emergency room and was told he had a strain. Dr. Ellison noted Plaintiff was ambulating slowly and
with difficulty. She increased Plaintiff’s pain medications. Tr. 469-470. Treatment notes from Dr.
Neal dated May 8, 2009, indicate Plaintiff was continued on pain medications and referred to a social
worker. Tr. 473.
On May 19, 2009, Plaintiff went to the emergency room complaining of pain shooting down
his legs for the past several days. Plaintiff had positive straight leg raising tests, and it was noted he
had a component of sciatica. It was noted that an MRI from April showed mild disc protrusion with
no nerve impingement. Plaintiff was provided with a prescription for a few days dosage of Vicodin.
Tr. 442-443, see Tr. 441.
Plaintiff had a cervical MRI because of neck pain and limited range of motion on July 22,
2009. The MRI showed a small right paramedian disc protrusion at C6-7. Tr. 449.
On August 21, 2009, Dr. Todd Kolb, a state agency physician, reviewed Plaintiff’s medical
record and opined that Plaintiff retained the ability to lift and carry twenty pounds occasionally and

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ten pounds frequently; stand and/or walk about six hours in an eight-hour workday; sit about six
hours in an eight-hour workday; occasionally climb, balance, stoop, kneel, crouch, and crawl;
frequently reach with his right hand; and work while avoiding concentrated exposure to extreme cold.
Tr. 484- 490.
On September 9, 2009, Plaintiff was examined by Dr. Douglas R. Ritz, a psychologist.
Plaintiff described symptoms of depression secondary to physical problems that he said prevented
him from working. Examination revealed that Plaintiff’s affect was flat; he was alert, logical and
coherent; he had good insight and fair judgment; his remote memory was good, and he showed some
limitations of short-term memory. Dr. Ritz diagnosed mild major depressive disorder and personality
disorder (with narcissistic traits) not otherwise specified. He opined that Plaintiff remained able to
perform work activity and that work would be beneficial for Plaintiff’s depression. Tr. 491-493.
Dr. Ellison continued Plaintiff’s current medications on September 17, 2009. Tr. 518-519.
Plaintiff reported to Dr. Ellison on October 23, 2009 that his pain medications helped some. Dr.
Ellison noted Plaintiff had a splint on his right wrist. Tr. 520-521. On December 2, 2009, Plaintiff
sought mental health treatment for anxiety and depression at his primary care clinic. Samples of
Lexapro and Klonopin, for diagnoses of major depression and insomnia, were given. Tr. 534, 536537. On December 3, 2009, Dr. Ellison continued Plaintiff’s pain medications and noted his
insomnia was stable. Tr. 522-523.
Dr. Mitchell H. Hegquist examined Plaintiff at the request of the Commissioner on March 3,
2010. Plaintiff reported problems with his knees, back, and wrist since a work-related accident five
or six years earlier. He had an injection in his back with no improvement. Plaintiff reported that after
his wrist surgery he could not hold anything and that Dr. Neal told him it was “probably RSD or

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something.” Plaintiff indicated he took Lyrica and Lortab. Plaintiff reported he also had problems
with his neck since the car accident in May 2008. On examination, Plaintiff had tenderness to
palpation in his right wrist and it was noted that he otherwise had no tenderness, swelling, deformity,
or instability and had good range of motion and strength in his other joints. Plaintiff had no muscle
spasm or atrophy. He had normal grip strength on the left and 4/5 grip strength on the right secondary
to complaints of pain. Plaintiff could perform fine and gross manipulations with his hands. He had
no obvious motor or sensory deficits, equal deep tendon reflexes, and a normal gait. Plaintiff
performed all spine range of motion testing slowly and complained of tenderness to palpation with
light touch of the skin overlying all of the lumbosacral spinous processes and lumbar paraspinal
musculature. Straight leg lifting tests on both sides resulted in complaints of increasing low back pain
and posterior neck pain. Dr. Hegquist assessed complaints of chronic neck, low back, and right wrist
pain. Tr. 526-529.
On March 18, 2010, Dr. Elva Stinson, another state agency physician, reviewed the medical
record and opined that Plaintiff retained the ability to lift and carry fifty pounds occasionally and
twenty-five pounds frequently; stand and/or walk about six hours in an eight-hour workday; sit about
eight hours in an eight hour workday; occasionally climb stoop, crouch, and crawl; and frequently
balance and kneel. Tr. 558-565.
At the emergency room on April 15, 2010, Plaintiff complained of increased back pain after
he bent over to pick up something off the floor. On examination, Plaintiff had tenderness to palpation
along the lateral aspects of his neck with no medial neck tenderness and tenderness to palpation of
the paraspinal processes of the lumbar region. He had negative straight leg raising tests, no focal

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neurological deficits, and a normal gait. Plaintiff was administered morphine and discharged to home
with pain medication. Tr. 566-567.
Plaintiff returned in March 2010 for renewal of his medications for anxiety and depression.
Tr. 535. He returned to the psychiatrist on August 4, 2010, reporting he was out of medications. His
Klonopin was increased. Tr. 570.
On July 8, 2011, Dr. Ellison completed a medical source statement form in which she opined
that Plaintiff could not lift or carry any amount of weight because of his right wrist and hand pain,
chronic neck and back pain, shoulder pain, and hip and knee pain. Dr. Ellison also opined that
Plaintiff could not do any prolonged standing, walking, or sitting; could never climb, balance, stoop,
crouch, kneel, or crawl; and his neck, back, hand, and wrist pain would be exacerbated by reaching,
handling, feeling, pushing, and pulling. Tr. 590-591. Dr. Ellison thought Plaintiff was restricted from
working around heights, moving machinery, temperature extremes, and vibration, and that these
limitations were disabling since 2005. She also opined that Plaintiff’s medications caused drowsiness
and impairment in concentration, attention, and coordination. Tr. 590-593.
Plaintiff presented to the emergency room on July 10, 2011, complaining of another
exacerbation of his chronic back pain. On examination, Plaintiff had normal range of motion of his
extremities and no motor or sensory deficits. Plaintiff received morphine and was discharged home.
Tr. 594-599.
HEARING TESTIMONY
At the hearing held on August 8, 2011, Plaintiff testified that he had multiple debilitating side
effects from the medications he was taking including dizziness, nausea, swelling in his legs, dry
mouth, constipation, fatigue, difficulty concentrating, and feeling disorderly. He said he experienced

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these side effects for the last four to six years. Tr. 35-42, 55. Plaintiff said he had severe back pain
and could stand for only about twenty minutes at a time. Tr. 52. He estimated he could sit for about
fifteen to thirty minutes at a time and lift only about three to four pounds. Plaintiff also testified he
had difficulty moving his neck. Tr. 53. He stated he had constant severe pain in his right hand as well
as his left knee. Tr. 54. Plaintiff testified that he did no housework or yard work, and that he did not
prepare meals. Plaintiff reported that he spent the afternoon sitting on the porch, taking a walk, and
watching television, and he sometimes read a book in the evening. Tr. 58-59.
DISCUSSION
Plaintiff alleges that the ALJ erred (1) in evaluating his pain, and (2) in evaluating the opinion
of his treating physician, Dr. Ellison. The Commissioner contends that there is substantial evidence3
to support he Commissioner’s final decision that Plaintiff was not disabled within the meaning of the
Social Security Act.
A.

Treating Physician/Opinion Evidence
Plaintiff alleges that the ALJ violated the treating physician rule by improperly

evaluating the disability opinion of treating physician Dr. Ellison and failing to discuss what weight
he assigned to this opinion. He argues that Dr. Ellison’s opinion is supported by her treatment notes;
her descriptions of why Plaintiff could not perform certain activities; her notation of Plaintiff’s

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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medication side effects; and the October 24, 2008 disability opinion of Dr Neal. She also argues that
the brief references by the ALJ to the findings of Dr. Bell, Dr. Healy, and the consultative examiner
are irrelevant because these treatments ended much earlier than Dr. Ellison’s treatment did and they
only saw Plaintiff briefly for specific purposes. Plaintiff also argues that even though the Agency
opinions were more recent, the ALJ did not accord them controlling weight. The Commissioner
admits that the ALJ failed to explicitly indicate the weight given to Dr. Ellison’s opinion, but appears
to argue that it is harmless error because remanding this action for a statement of the weight assigned
to Dr. Ellison’s opinion would serve no useful purpose as it is a technical error that would not affect
the ultimate result. Additionally, the Commissioner appears to argue that the ALJ reasonably
discounted Dr. Ellison’s opinion because it was not supported by the objective findings contained
in the record, including her own treatment notes, and is not supported by the objective findings of
Drs. Hegquist, Brown, and Bell who all found relatively normal physical findings on examination.
In determining the weight to assign to medical opinions, the adjudicator must consider: (1)
the relationship between the provider and the claimant, including its length, nature, and frequency;
(2) the degree to which the source presents an explanation and relevant evidence to support the
opinion, particularly medical signs and laboratory findings; (3) how consistent the medical opinion
is with the record as a whole; (4) whether the source is a specialist and offers an opinion related to
the area of specialty; and (5) any other factors that tend to support or contradict the opinion. See 20
C.F.R. §§ 404.1527 and 416.927. The ALJ is not, however, required to expressly apply each of these
factors in deciding what weight to give a medical opinion and not every factor applies in every case.
See Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007).

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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 and
416.927; 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.
Here, the ALJ failed to articulate what weight he assigned to the opinion of Plaintiff’s treating
physician (Dr. Ellison) or any of the other opinion evidence. The ALJ must explicitly indicate the
weight given to all the relevant evidence. Murphy v. Bowen, 810 F.2d 422, 437 (4th Cir. 1987).
Further, an ALJ must give specific reasons for the weight given to a treating physician’s medical
opinion. SSR 96-2p.

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Although he appears to have discounted Dr. Ellison’s opinion, it is unclear from the ALJ’s
decision what weight he assigned to it. The ALJ appears to have discounted the opinion of treating
physician Dr. Neal (who also opined that Plaintiff was disabled), because the opinion was rendered
approximately six months prior to Plaintiff’s alleged onset date in April 2009, but inconsistently
appears to have discounted Dr. Ellison’s opinion in part based on the findings of Dr. Bell, who last
treated Plaintiff approximately six months before the alleged onset date. The ALJ also appears to
have discounted Dr. Ellison’s opinion based on findings of the State agency consultants, but it is
unclear the weight placed on their opinion evidence.
This action is remanded to the Commissioner to evaluate the opinion of Dr. Ellison, Plaintiff’s
treating physician, in light of all of the evidence and applicable law. On remand, the Commissioner
should also consider Plaintiff’s remaining allegations of error concerning the evaluation of opinion
evidence in this case.
B.

Pain/Credibility
Plaintiff alleges that the ALJ erred in evaluating his pain by making confusing and

contradictory findings regarding the side effects of his medications, failing to find his complaints of
pain credible, and improperly interpreting his activities of daily living to discount his pain. The
Commissioner contends that the ALJ reasonably evaluated Plaintiff’s reports of medication side
effects, subjective complaints, and daily activities.
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.

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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 or she 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 does not appear to have properly evaluated Plaintiff’s credibility as he failed to fully
consider the side effects of Plaintiff’s medications. SSR 96–7p specifically requires consideration
of the “type, dosage, effectiveness, and side effects of any medication the individual takes or has
taken to alleviate pain or other symptoms” in assessing the credibility of an individual's statements.
SSR 96-7p; see also 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[.]”).
The ALJ noted Plaintiff’s testimony about medication side effects including that Lexapro,
Lortab, and Lyrica make him constipated; Lexapro and Lortab make him dizzy; Lexapro makes his
legs swell; Lyrica and Lortab keep him from focusing and concentrating; Lyrica and Klonopin make
him tired and sleepy; Klonopin makes him want to avoid people; and he has dry mouth resulting
generally from his prescribed medications. Tr. 15. In discounting Plaintiff’s credibility, the ALJ does
not explain what if any of these side effects he found credible, but merely concluded it was unlikely

15

that Plaintiff’s physicians would give the same medications without change for several years if they
were ineffective and gave such side effects. The ALJ also stated that “the evidence does not show
any effort at treatment of the side effects he alleged, which is clearly possible if other medications
are not available for him.” Tr. 19. It is unclear the basis for this statement. Although the ALJ may
have reduced Plaintiff’s residual functional capacity based on his medication side effects, it is unclear
from the decision what side effect are credible and to what extent they reduced his RFC. Further, the
ALJ does not appear to have acknowledged that Plaintiff’s physicians noted medication side effects
on a number of occasions. Plaintiff’s physicians noted sleepiness as a medication side effect. Tr. 455,
459. Although not specifically noted as a side effect, there are numerous references to constipation
in the medical notes. Tr. 464, 467, 469, 471, 474, 477, 479, 518, 520, 522-523, 524. Dr. Ellison
identified side effects of drowsiness, concentration, and attention and coordination impairment as
side effects of Plaintiff’s medications. Tr. 593. Upon remand, the ALJ should evaluate Plaintiff’s
credibility based on all of the evidence, including the alleged side effects of his medications.
CONCLUSION
The Commissioner’s decision is not supported by substantial evidence. This action is
remanded to the Commissioner to consider the opinion of Plaintiff’s treating physician (Dr. Ellison)
and other opinion evidence, and to evaluate Plaintiff’s credibility (including the side effects of his
medications), in light of all of the evidence and applicable law.
Based on the foregoing, the Commissioner’s decision is reversed pursuant to sentence four

16

of 42 U.S.C. §§ 405(g) and 1383(c)(3) and the case is remanded to the Commissioner for further
administrative action as set out above.
IT IS SO ORDERED.

Joseph R. McCrorey
United States Magistrate Judge
July 2, 2013
Columbia, South Carolina

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