Shipman v. Commissioner of the Social Security Administration

Filing 31

ORDER adopting Report and Recommendations 25 and affirming the Commissioner's decision. Signed by Honorable David C Norton on 9/28/15.(akob, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
JOSETTE M. SHIPMAN,

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Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

No. 5:14-cv-2700-DCN

ORDER

This matter is before the court on United States Magistrate Judge Kaymani D.
West’s Report and Recommendation (“R&R”) that the court affirm Commissioner of
Social Security Carolyn Colvin’s decision denying claimant Josette M. Shipman’s
(“Shipman”) application for supplemental security income (“SSI”) and disability
insurance benefits (“DIB”). Shipman filed objections to the R&R. For the reasons set
forth below, the court adopts the R&R and affirms the Commissioner’s decision.
I. BACKGROUND
Unless otherwise noted, the following background is drawn from the R&R.
A.

Procedural History

Shipman first filed an application for SSI on December 19, 2011 and for DIB on
December 20, 2011, alleging she had been disabled since July 7, 2011. The Social
Security Administration (“the Agency”) denied Shipman’s applications both initially and
on reconsideration. Shipman requested a hearing before an administrative law judge
(“ALJ”), and ALJ Thomas G. Henderson presided over a hearing held on March 28,
2013. In a decision issued on April 16, 2013, the ALJ determined that Shipman was not
disabled. Shipman requested Appeals Council review of the ALJ’s decision. The ALJ’s
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decision became the final decision of the Commissioner when the Appeals Council
denied further review on June 2, 2014.
On July 2, 2014, Shipman filed this action seeking review of the ALJ’s decision.
The magistrate judge issued an R&R on June 26, 2015, recommending that this court
affirm the ALJ’s decision. Shipman filed objections to the R&R on July 10, 2015, and
the Commissioner responded to Shipman’s objections on July 27, 2015. The matter is
now ripe for the court’s review.
B.

Medical History

Because the parties are familiar with Shipman’s medical history, the court
dispenses with a lengthy recitation thereof and instead notes a few relevant facts.
Shipman was thirty-four years old at the time of her alleged disability onset date. She
completed four or more years of college and has past relevant work experience as a social
worker, retail sales person, restaurant hostess, and call center customer service person.
Plaintiff alleges disability due to multiple sclerosis.
C.

ALJ’s Decision

The Social Security Act defines “disability” as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C.
§ 423(d)(1)(A); 20 C.F.R. § 404.1505. The Social Security regulations establish a fivestep sequential evaluation process to determine whether a claimant is disabled. See 20
C.F.R. §§ 404.1520, 416.920. Under this process, the ALJ must determine whether the

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claimant: (1) is currently engaged in substantial gainful activity; (2) has a severe
impairment; (3) has an impairment which equals an impairment contained in 20 C.F.R.
§ 404, Subpt. P, App’x 1, which warrants a finding of disability without considering
vocational factors; (4) if not, whether the claimant has an impairment which prevents him
or her from performing past relevant work; and (5) if so, whether the claimant is able to
perform other work considering both his or her remaining physical and mental capacities
(defined by his or her residual functional capacity) and his or her vocational capabilities
(age, education, and past work experience) to adjust to a new job. See 20 C.F.R.
§ 404.1520; Hall v. Harris, 658 F.2d 260, 264–65 (4th Cir. 1981). The applicant bears
the burden of proof during the first four steps of the inquiry, while the burden shifts to the
Commissioner for the final step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995)
(citing Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992)). “If an applicant’s claim fails
at any step of the [sequential evaluation] process, the ALJ need not advance to the
subsequent steps.” Id. (citing Hunter, 993 F.2d at 35).
To determine whether Shipman was disabled from July 7, 2011 through the date
of his decision, the ALJ employed the statutorily-required five-step sequential evaluation
process. At step one, the ALJ found that Shipman did not engage in substantial gainful
activity during the period at issue. Tr. 23. At step two, the ALJ found that Shipman
suffered from the following severe impairments: multiple sclerosis and cervical
degenerative disease. Id. At step three, the ALJ found that Shipman’s impairments or
combination thereof did not meet or medically equal one of the impairments listed in the
Agency’s Listing of Impairments. Tr. 24. Before reaching the fourth step, the ALJ
determined that Shipman retained the residual functional capacity (“RFC”) to perform

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sedentary work, limiting her to “only occasional postural activities; no climbing of
ladders, ropes, and scaffolds; no concentrated exposure to temperature extremes and all
work hazards; and only occasional work.” Id. The ALJ found, at step four, that Shipman
was able to perform her past relevant work as a telephone call center sales representative.
Tr. 28. Finally, at step five, the ALJ determined that Shipman was not disabled during
the period at issue. Tr. 28–29.
II. STANDARD OF REVIEW
This court is charged with conducting a de novo review of any portion of the
magistrate judge’s R&R to which specific, written objections are made. 28 U.S.C.
§ 636(b)(1). This court is not required to review the factual findings and legal
conclusions of the magistrate judge to which the parties have not objected. See id. The
recommendation of the magistrate judge carries no presumptive weight, and the
responsibility to make a final determination remains with this court. Mathews v. Weber,
423 U.S. 261, 270–71 (1976).
Judicial review of the Commissioner’s final decision regarding disability benefits
“is limited to determining whether the findings of the [Commissioner] are supported by
substantial evidence and whether the correct law was applied.” Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990). Substantial evidence is “more than a mere scintilla of
evidence but may be somewhat less than a preponderance.” Id. (internal citations
omitted). “[I]t is not within the province of a reviewing court to determine the weight of
the evidence, nor is it the court’s function to substitute its judgment for that of the
[Commissioner] if his decision is supported by substantial evidence.” Id.

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III. DISCUSSION
Shipman objects to the R&R on the ground that the magistrate judge erred in
finding that the ALJ properly evaluated the opinion evidence. Pl.’s Objections 1.
Specifically, she argues that the ALJ improperly disregarded the opinion of Shipman’s
treating neurologist, Dr. Aljoeson Walker (“Dr. Walker”), while giving more weight to
the opinions of non-examining state agency consultants. Id.
Social Security regulations require the ALJ to consider all of the medical opinions
in a claimant’s case record, as well as the rest of the relevant evidence. 20 C.F.R.
§ 404.1527(c). Medical opinions are evaluated pursuant to the following non-exclusive
list: (1) whether the physician has examined the applicant, (2) the treatment relationship
between the physician and the applicant, (3) the supportability of the physician’s opinion,
(4) the consistency of the opinion with the record, and (5) whether the physician is a
specialist. Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005).
Regulations require that a treating physician’s opinion be given controlling weight
if that opinion “is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence” in the
record. 20 C.F.R. § 404.1527(c)(2); see, e.g., Mastro v. Apfel, 270 F.3d 171, 178 (4th
Cir. 2001). “By 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). In such a
circumstance, “the ALJ holds the discretion to give less weight to the testimony of a
treating physician in the face of persuasive contrary evidence.” Mastro, 270 F.3d at 178.

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If a treating physician’s opinion does not merit controlling weight, the ALJ is to
evaluate it using the following factors: (1) whether the physician has examined the
applicant; (2) the nature and extent of the treatment relationship; (3) the extent to which
the opinion is supported by relevant medical evidence; (4) the extent to which the opinion
is consistent with the record as a whole; (5) the relevance of the physician’s medical
specialization to the opinion; and (6) any other factor that tends to support or contradict
the opinion. 20 C.F.R. § 404.1527(c); see SSR 96–2p; Hines v. Barnhart, 453 F.3d 559,
563 (4th Cir. 2006). However, the Fourth Circuit has not mandated an express discussion
of each factor and another court in this district has held that “an express discussion of
each factor is not required as long as the ALJ demonstrates that he applied the . . . factors
and provides good reasons for his decision.” Hendrix v. Astrue, No. 1:09-cv-1283, 2010
WL 3448624, at *3 (D.S.C. Sept. 1, 2010); see § 404.1527(c)(2) (requiring ALJ to give
“good reasons” for weight given to treating source’s opinion). A district court will not
disturb an ALJ’s determination as to the weight to be assigned to a medical opinion,
including the opinion of a treating physician, “absent some indication that the ALJ has
dredged up ‘specious inconsistencies’ . . . or has not given good reason for the weight
afforded a particular opinion.” Craft v. Apfel, 164 F.3d 624, 1998 WL 702296, at *2 (4th
Cir. 1998) (per curiam) (unpublished table decision) (internal citation omitted).
Here, Dr. Walker opined on March 6, 2013 that Shipman was unable to work. Tr.
410. Specifically, he responded to a questionnaire that Shipman could only lift 10
pounds occasionally, stand or walk for less than two hours in an eight-hour workday, and
sit about two hours in an eight-hour workday. Id. He opined that Shipman could sit for
90 minutes before having to stand or walk and could stand for ten minutes before having

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to sit. Id. He further opined that, based on “an abnormal MRI,” Shipman would
frequently need to lie down at unpredictable intervals during an eight-hour workday. Id.
Dr. Walker also found that Shipman could never reach, push and pull, nor use gross
manipulation skills and fine manipulation skills. Tr. 411. He concluded that Shipman’s
impairments, treatment, or effects from treatment would cause her to miss work more
than four days per month. Id.
In his decision, the ALJ afforded “little weight” to Dr. Walker’s opinion, finding
that Dr. Walker’s treatment notes did not reveal “evidence of any significant clinical
findings to support [the proffered] limitations.” Tr. 28. The ALJ noted that Dr. Walker’s
examinations of Shipman “were essentially benign.” Id. He also questioned Dr.
Walker’s opinion that Shipman could sit only two hours during an eight-hour workday,
noting the following contradictory evidence: (1) Dr. Walker’s opinion that Shipman
could sit 90 minutes at one time; (2) Shipman’s testimony that she could sit for one or
two hours, then stand a minute and return to sitting; and (3) records indicating that
Shipman “was independent in her physical therapy exercises and [] was able to tolerate
five to fifteen minutes of an uninterrupted exercise bout.” Id. The ALJ concluded that
the evidence in the record did not support the limitations opined by Dr. Walker. Id.
The ALJ explained that he afforded “great weight” to the opinions of the
Disability Determination Service (“DDS”) medical consultants, Dr. Angela Saito (“Dr.
Saito”) and Dr. Jim Liao (“Dr. Liao”).1 Tr. 28. The ALJ found that these consultants

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Although the ALJ only cites Dr. Liao’s report, he acknowledges Dr. Saito’s
report by recognizing that “medical consultants reviewed the medical evidence in the
record pertaining to the claimant’s functional limitations.” Tr. 28. The two consultants
made identical RFC findings. Accordingly, the court references the reports from both
consultants.
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also reviewed the medical evidence of record pertaining to the claimant’s
functional limitations. They found that the claimant was limited to light
work activity with no climbing of ladders, ropes and scaffolds; occasional
climbing of ramps and stairs; occasional balancing, stooping, kneeling,
crouching and crawling; and no concentrated exposure to temperature
extremes and hazards. (Exhibit 6A, 7A) I give great weight to this DDS
opinion as it concludes that the claimant is not disabled. However, I have
reduced the exertional level of work to sedentary to address the claimant’s
complaints of pain and fatigue.
Id.
A.

Dr. Walker’s Opinion
1.

RFC Assessment

Shipman argues that “[t]here is no substantial evidence inconsistent with Dr.
Walker’s opinion that [Shipman] could not engage in substantial activity in accordance
with SSR 96-8p. Pl.’s Objections 9; see SSR 96-8p, Titles II and XVI: Assessing
Residual Functional Capacity in Initial Claims, 1996 WL 374184 (July 2, 1996).
Relatedly, she argues that the ALJ erred in finding that Shipman’s activities of daily
living were “inconsistent with allegations of total disability.” Id. at 7–9.
Contrary to Shipman’s assertions, the court finds that the ALJ’s decision to
discount Dr. Walker’s opinion is supported by substantial evidence. When assessing
Shipman’s RFC, the ALJ thoroughly discussed the evidence in the record that he found to
be inconsistent with Dr. Walker’s opinion. Tr. 25–28. For example, Shipman testified at
the ALJ hearing that she could sit “about [an] hour or two,” but would have stand once
her legs began to bother her. Tr. 46. However, she could then “sit back down.” Id. In
addition, Dr. Walker’s neurological examinations consistently revealed that Shipman had
“5/5” motor strength in her upper and lower extremities, her “tone and bulk” were
appropriate for her age, and her gait was “narrow-based.” Tr. 305, 310–311, 350, 360–

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61. According to the ALJ, these examinations “failed to reveal evidence of any
significant functional defects.” Tr. 27.
Further, Shipman’s physical therapy reports indicate that proper treatment
improved her functional abilities. At Shipman’s initial therapy session on January 10,
2013, the physical therapist observed that Shipman could ambulate with a wide base of
support without a device, had a decreased gait velocity, had no spasticity in her muscle
tone, experienced an intact sensation to light touch, and was at a moderate risk for falls.
Tr. 389. The therapist planned to “promote a safe return to [Shipman’s] previous level of
function,” while preventing “future impairments and functional limitations.” Tr. 390.
The therapist gave Shipman a “fair–good” prognosis. Id. Shipman began physical
therapy with the goals to decrease pain, improve balance, and improve lower extremity
function. Tr. 388–90. As noted by the ALJ, the record indicates that Shipman met all of
her therapy goals after nine sessions, on February 21, 2013. Tr. 409.
The ALJ also found that Shipman’s reported activities of daily living were
“inconsistent with allegations of total disability.” Tr. 26. Specifically, he stated that
the evidence reveals that the claimant has reported that she retains the
ability to perform a significant range of activities of daily living. As noted
previously, the claimant was able to take care of her personal needs, clean
the house, do laundry, iron, and prepare meals. She was also able to drive,
shop, attend church, and spend time with her family and friends. She goes
to movies and out to dinner. She can handle her finances, and watch
television. She takes care of her two children, drives them to the bus
stop/school, fixes them breakfast and dinner, helps them with their
homework and occasionally attends their school functions.
Id.; see Tr. 236–39. Shipman cites Hines v. Barnhart, 453 F.3d 559 (4th Cir. 2006), to
argue that the ALJ drew improper conclusions from Shipman’s reported daily activities.
Pl.’s Objections 7–8. In Hines, the court found that the “ALJ selectively cited evidence

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concerning tasks which [the claimant] was capable of performing” to determine that the
claimant had the RFC to perform sedentary work. 453 F.3d at 565. The court recounted
the claimant’s assertions of constant pain, and that fact that he listed church “as his only
social outlet or activity that he attends two or three times a month.” Id. at 566. Here,
there is no indication that the ALJ “selectively cited” Shipman’s reported daily activities.
Accordingly, the court finds that the ALJ properly considered this evidence in
determining Shipman’s RFC. See Mastro v. Apfel, 270 F.3d 171, 179–80 (4th Cir. 2001)
(finding that “[t]he ALJ properly considered [the claimant’] reported activities,” among
other evidence, in concluding that the claimant’s physical impairments did not limit her
ability to work).
For the foregoing reasons, the court finds that the ALJ’s decision to discount Dr.
Walker’s opinion is supported by substantial evidence in the record. As noted by the
ALJ, Shipman’s “self-reported activities and her level of physical functioning” do not
support the opinion that Shipman would “miss one to two days of work per week due to
her [multiple sclerosis] and any related symptoms.” Tr. 26.
Accordingly, Shipman’s first objection fails.
2.

Improper Practice of Medicine

Shipman, relying solely on out of circuit case law, also argues that the ALJ
improperly substituted his opinion for that of Dr. Walker when reviewing Shipman’s
2012 brain MRIs. Pl.’s Objections 4–6.
Shipman’s August 2012 MRI indicated an “interval development of numerous
new lesions, particularly involving the frontal lobe bilaterally,” but there was “no
evidence of acute infarction or other acute abnormalities.” Tr. 342. The October 2012

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MRI likewise did not reveal any “evidence of acute infarction or other acute
abnormality,” although it did indicate “a lesion in the midbrain on the left side” and
“numerous small enhancing lesions bilaterally.” Tr. 346. The ALJ mentioned these
MRIs during his discussion of Dr. Walker’s records, concluding that Dr. Walker’s
records “failed to reveal evidence of any significant functional deficits. Indeed, the
claimant was consistently found to be in no acute distress and she had a narrow based
gait.” Tr. 28.
Courts have generally held that “where there is no competing evidence, the ALJ is
not permitted to substitute his opinions for those of the examining doctors.” Rogers v.
Colvin, No. 1:13-cv-2327, 2014 WL 5474627, at *17 (D.S.C. Oct. 28, 2014) (collecting
cases). In Gallman v. Colvin, No. 5:12-cv-2979, 2014 WL 658002, at *8 (D.S.C. Feb.
19, 2014), the court found that an ALJ was not “free to simply disregard uncontradicted
expert opinions in favor of his own opinion on a subject he is not qualified to render.”
The court noted that that the ALJ “offered little explanation” for his conclusions as to the
expert’s opinion and did not discuss any medical evidence that conflicted with the
opinion. Gallman, 2014 WL 658002, at *8.
Here, the ALJ detailed his reasons for discounting Dr. Walker’s opinion, citing
the substantial contradictory evidence in the medical record. Tr. 25–28. Accordingly,
the court finds that ALJ did not improperly substitute his opinion for that of Dr. Walker
when determining Shipman’s RFC. See Dellinger v. Colvin, No. 6:14-cv-1150, 2015
WL 5037942, at *7 (D.S.C. Aug. 26, 2015) (finding that the ALJ did not improperly
substitute his opinion for that of the treating physician where the “ALJ provided

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numerous reasons why he decided to give “little weight” to [the treating physician’s]
opinion, including the contradictory evidence in the medical record”).
Accordingly, Shipman’s second objection fails.
B.

Opinions of State Agency Consultants
1.

Assessment of Opinions

Shipman also contends that the ALJ improperly assessed the opinions of the state
agency consultants. Pl.’s Objections 1. She first argues that the ALJ erred in affording
great weight to the opinions of the state agency consultants “as [they] conclude[] that the
claimant is not disabled.” Id. at 2. The magistrate judge found that the ALJ’s assessment
was in error because “the determination of whether an individual is disabled is reserved
to the Commissioner.” Powell v. Colvin, 2014 WL 67453, at *5 (D.S.C. Jan. 8, 2014);
R&R 17. However, the magistrate judge found that this error did not “require remand as
the ALJ considered [Shipman’s] subjective complaints and assigned her an even more
restrictive RFC than was suggested by the [s]tate agency consultant opinions.” R&R 17.
Shipman disagrees, arguing that the ALJ’s RFC was not more restrictive than that opined
by the consultants. Pl.’s Objections 2.
The magistrate judge relied in part on Wood v. Colvin, No. 9:14-cv-1684, 2015
WL 3562172, at *10 (D.S.C. June 5, 2015), to find the ALJ’s error harmless. R&R 17.
In Wood, the court found that the ALJ’s decision was “supported by substantial evidence
in the record as a whole . . . . Indeed, it is readily apparent the ALJ gave Plaintiff every
benefit of the doubt in determining his RFC by assigning him an even more restrictive
RFC than was opined to by the state agency physicians.” 2015 WL 3562172, at *10.
Contrary to Shipman’s assertion, courts have found that when an ALJ adopts a lower

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exertional level of work than that opined by a state agency consultant, the ALJ’s RFC
assessment is “more restrictive.” Marquez v. Astrue, 2009 WL 3063106, at *4 (C.D. Cal.
Sept. 21, 2009) (affirming the ALJ’s observation “that his finding of light work gave
Plaintiff every ‘benefit of the doubt’ and was even more restrictive than the exertional
levels suggested by the [the state agency consultants], who both found Plaintiff capable
of medium work activities”); Muir v. Astrue, 2009 WL 799459, at *6, n.9 (M.D. Fla.
Mar. 24, 2009) (noting that the ALJ’s finding of sedentary work was a “more restrictive
RFC” than that opined by the “non-examining, state agency doctors[,]” who separately
found that claimant could perform light and medium work).
Here, the ALJ detailed the evidence in the record that he found supported his RFC
assessment. Tr. 27. Further, the ALJ’s finding that Shipman could perform sedentary
work with certain limitations was indeed more restrictive than the exertional level
suggested by the state agency consultants, who both found that Shipman could perform
light work. Tr. 24–28. The court therefore finds that the ALJ’s assessment of the
opinions of the state agency consultants in this respect does not warrant remand.
Accordingly, Shipman’s third objection fails.
2.

SSR 96-9p

Shipman next argues that the ALJ failed to follow Social Security Ruling 96-6p
by failing to point to an opinion from another specialist that contradicted Dr. Walker’s
opinion. Pl.’s Objections 4. SSR 96-6p provides in part that
the opinions of [s]tate agency medical . . . consultants . . . can be given
weight only insofar as they are supported by evidence in the case record,
considering such factors as the supportability of the opinion in the
evidence including any evidence received at the administrative law judge
and Appeals Council levels that was not before the State agency, the
consistency of the opinion with the record as a whole, including other
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medical opinions, and any explanation for the opinion provided by the
[s]tate agency medical . . . consultant . . . .
Titles II & Xvi: Consideration of Admin. Findings of Fact by State Agency Med. &
Psychological Consultants & Other Program Physicians & Psychologists at the Admin.
Law Judge & Appeals Council, SSR 96-6P, 1996 WL 374180, at *2 (S.S.A. July 2,
1996). SSR 96-p explains that “[i]n appropriate circumstances, opinions from [s]tate
agency medical . . . consultants . . . may be entitled to greater weight than the opinions of
treating or examining sources.” Id. at *3. The ruling cites an example of an “appropriate
circumstance” as when the consultant’s “opinion is based on a review of a complete case
record that includes a medical report from a specialist in the individual’s particular
impairment which provides more detailed and comprehensive information than what was
available to the individual’s treating source.” Id.
Here, the evidence in the record was consistent with the state agency consultants’
RFC findings. See SSR 96-6p, 1996 WL 374180, at *2. Further, the ALJ considered all
of the evidence when making his RFC finding, including evidence that the state agency
consultants did not review. Id.; Tr. 27. Notably, SSR 96-6p does not state that an ALJ
can afford great weight to a consultant’s opinion only when the consultant reviewed a
medical report from a specialist in the claimant’s particular impairment. Rather, this is
merely listed as an example of when such a finding would be appropriate. Because
substantial evidence supports the consultants’ RFC findings and their findings are
consistent with the record, the court finds that the ALJ complied with SSR 96-6p.
Accordingly, Shipman’s fourth objection fails.

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3.

Substantial Evidence

Shipman next argues that the state agency consultants’ opinions cannot constitute
substantial evidence, relying on Spencer on Behalf of Spencer v. Heckler, 765 F.2d 1090,
1094 (11th Cir. 1985). In Spencer, the court found that “reports of physicians who do not
examine the claimant, taken alone, do not constitute substantial evidence on which to
base an administrative decision.” 765 F.2d at 1094. The court noted that the ALJ did not
give any explanation for how she determined that the claimant could perform sedentary
work. Id.
Here, the ALJ’s RFC finding was not based exclusively upon the opinions of the
state agency consultants. Along with the evidence previously discussed, the ALJ noted
that “there is no evidence that the claimant has required emergency room care or
hospitalization for her [multiple sclerosis].” Tr. 27. After summarizing the evidence in
the record, the ALJ recognized that Shipman “has required some treatment and
experienced some limitations” due to her multiple sclerosis. Id. The ALJ stated that he
based Shipman’s RFC on these limitations in the record. Id. Thus, Spencer is inapposite
to this action because the ALJ here explained in detail how he determined Shipman’s
RFC and did not base his decision solely on the opinions of the state agency consultants.
Relatedly, Shipman argues that the opinions of the state agency consultants
cannot be used as substantial evidence to support the ALJ’s RFC assessment when Dr.
Walker’s opinion was submitted into evidence. Pl.’s Objections 6. Shipman relies on
Boineau v. Barnhart, 378 F. Supp. 2d 690, 695 (D.S.C. 2005), to support this argument.
In Boineau, the court found that the inconsistencies between the opinions of the nontreating state physicians and the treating physician were insufficient to discount the

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opinion of the treating physician in favor of those opinions of the state physicians. 378 F.
Supp. 2d at 695. Another court in this district has found Boineau inapposite where the
ALJ’s decision to discount the treating physician’s opinion was supported by substantial
evidence for reasons “unrelated to any opinions of the state consultants” and where the
ALJ’s RFC assessment was not based exclusively upon the assessments of the state
consultants.” Case v. Astrue, No. 806-cv-2293, 2007 WL 6872718, at *7 (D.S.C. Oct. 1,
2007) aff’d, 292 F. App’x 258 (4th Cir. 2008); see also Cromedy v. Colvin, No. 8:12-cv02522, 2014 WL 1093101, at *20 (D.S.C. Mar. 17, 2014) (finding Boineau inapplicable
to the claimant’s case, noting that “[w]ith respect to the agency medical opinions, the
ALJ is entitled to rely on the opinion of a non-examining physician when the opinion is
consistent with the record, and when medical expert testimony conflicts, the ALJ’s
decision siding with the non-examining physician should stand”) (citing Gordon v.
Schweiker, 725 F.2d 231, 235 (4th Cir. 1984)).
Here, as explained above, the ALJ offered numerous reasons for discounting Dr.
Walker’s opinion, unrelated to the opinions of the state agency consultants. Tr. 28. The
ALJ did not base his RFC assessment exclusively on the opinions of these consultants.
Tr. 26–27. Moreover, as explained above, the consultants’ opinions are consistent with
the record. Accordingly, the court finds that the ALJ did not err in finding that the
opinions of the state agency consultants supported his RFC assessment. See Cromedy,
2014 WL 1093101, at *20; Case, 2007 WL 6872718, at *7.
Accordingly, Shipman’s fifth and sixth objections fail.

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4.

Incomplete Record

Finally, Shipman argues that the opinions of the state agency consultants cannot
be afforded great weight because the consultants did not review Shipman’s 2012 MRI
results. Pl.’s Objections 4. Shipman further contends that the consultants’ expectation
that Shipman’s condition would improve with appropriate treatment failed to materialize.
Id. at 5.
Another court in this district has found that an “ALJ may rely on a medical source
opinion that did not have access to the entire medical record, so long as the ALJ accounts
for any subsequent evidence, and substantial evidence supports the ALJ’s decision.”
Putman v. Colvin, No. 6:13-cv-925, 2014 WL 3809492, at *15 (D.S.C. July 30, 2014);
see also Dellinger v. Colvin, No. 6:14-CV-1150-DCN, 2015 WL 5037942, at *6 (D.S.C.
Aug. 26, 2015) (affirming the ALJ’s decision to afford the opinions of the state agency
consultants greater weight, noting that “[a]lthough there are admittedly some differences
in the medical records and opinions that were not reviewed by the state agency
consultants, these records and opinions are largely consistent with the records and
opinions that the consultants were able to review”).
Here, Dr. Saito reviewed records dating through February 16, 2012, tr. 84, and Dr.
Liao reviewed records dating through April 26, 2012. Tr. 124. The ALJ hearing was
held about one year after the consultants rendered their opinions. Tr. 21. The court finds
that the records that were not reviewed by the state agency consultants are largely
consistent with the records and opinions that the consultants were able to review. For
example, Shipman’s physical therapy records dating from January and February 2013
reveal that the limitations caused by Shipman’s multiple sclerosis did not worsen after the

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state agency consultants rendered their opinions. In fact, these records indicate
Shipman’s condition actually improved. The consultants considered treatment notes
stating that Shipman had “relapsing multiple sclerosis,” “some boor balance and [was]
falling more.” Tr. 85, 109. Shipman’s physical therapy records indicate that Shipman
began the therapy program at only a “moderate” risk of falling and had improved her
balance by the end of her therapy sessions. Tr. 388–90, 409. These records support the
consultants’ opinion that Shipman’s condition would improve with appropriate treatment.
The court further finds that the ALJ accounted for the evidence that was not
available for the consultants to review and that substantial evidence supports his
conclusion that Shipman is not disabled. As explained above, the ALJ detailed the
evidence in the record that supported his RFC finding and specifically cited the MRIs at
issue in his decision. Tr. 26–27. Accordingly, the court finds that the fact that the state
agency consultants based their opinions on an incomplete record does not warrant
remanding this action. See Dellinger, 2015 WL 5037942, at *6; Putman, 2014 WL
3809492, at *1.
Accordingly, Shipman’s seventh objection fails.

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IV. CONCLUSION
Based on the foregoing, the court ADOPTS the R&R and AFFIRMS the
Commissioner’s decision.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
September 28, 2015
Charleston, South Carolina

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