Gilmore v. Commissioner of Social Security Administration

Filing 25

ORDER RULING ON REPORT AND RECOMMENDATION Accepting 20 Report and Recommendation, Signed by Honorable J Michelle Childs on 3/30/17. (jsmi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Tony Curtis Gilmore,
Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner
of Social Security,
Defendant.

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Civil Action No. 6:16-cv-00059-JMC

ORDER AND OPINION

Plaintiff Tony Curtis Gilmore filed this action seeking judicial review of the final
decision of the Commissioner of the Social Security Administration (the “Commissioner”)
pursuant to 42 U.S.C §§ 405(g), 1383(c)(3). (ECF No. 1.)
This matter is before the court for review of the Report and Recommendation (“Report”)
of United States Magistrate Judge Kevin F. McDonald, issued in accordance with 28 U.S.C. §
636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(a) (D.S.C.). (ECF No. 20.) On January 6, 2017,
Magistrate Judge McDonald recommended that this court affirm the Commissioner’s decision to
deny Plaintiff disability insurance benefits (“DIB”). (ECF No. 20 at 36.) Plaintiff timely filed
Objections to the Report (“Objections”) on January 20, 2017 (ECF No. 22), to which the
Commissioner filed a Reply on February 1, 2017 (ECF No. 23).
For the reasons set forth below, the court ACCEPTS the Magistrate Judge’s Report and
Recommendation (ECF No. 20) and AFFIRMS the decision of the Commissioner denying
Plaintiff’s claim for DIB.
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
The Report contains a thorough recitation of the relevant factual and procedural
background of this matter. (ECF No. 20 at 1-21.) The court concludes, upon its own careful
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review of the record, that the Report’s factual and procedural summation is accurate and adopts
this summary as its own. The court will only reference background pertinent to the analysis of
Plaintiff’s claims.
Plaintiff was born on July 9, 1962, and is presently 55 years old. (ECF No. 11-3 at 4.)
Plaintiff filed an application for DIB on August 11, 2006, which alleged disability since
September 13, 2005. (ECF No. 11-5 at 17.) Plaintiff claimed he suffered from the following
severe impairments: spinal stenosis, epidural fibrosis, degenerative disc disease of the lumbar
spine, failed back syndrome, post lumbar laminectomy syndrome, lumbar spondylosis, left
lumbar facet syndrome, and myofascial pain syndrome between September 13, 2005 and
December 2, 2008. (ECF No. 20 at 3.) Plaintiff’s initial DIB application was denied on
November 2, 2006 (ECF No. 11-3 at 112), and also upon its reconsideration on February 26,
2007 (ECF No. 11-3 at 114). As a result, Plaintiff filed a request for an administrative hearing on
March 3, 2007. (ECF No. 11-4 at 33.) On December 5, 2008, Plaintiff appeared at an
administrative hearing before Administrative Law Judge Robert Egan (“ALJ Egan”). (ECF No.
11-2 at 91-112.) On May 5, 2009, ALJ Egan found that Plaintiff was not under disability as
defined by the Social Security Act (“SSA”) because Plaintiff could perform a significant number
of jobs in the national economy. (ECF No. 11-2 at 12-25 (citing SSA § 1614(a)(3)(A)).) On
March 2, 2011, the Appeals Council remanded the case to ALJ Egan for review because “the
decision does not explain the weight given to a functional assessment by Dr. Ekunsanmi . . . to
the assessments of medical consultants . . . [and] does not explain the weight given to a
vocational opinion.” (ECF No. 11-3 at 18-19.)
Plaintiff appeared at a second administrative hearing before ALJ Egan. (ECF No. 12-1 at
58-113.) After review, ALJ Egan granted Plaintiff a partially favorable decision on October 26,

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2011, finding Plaintiff disabled beginning on August 1, 2009. (ECF No. 11-3 at 21-23.) On April
10, 2012, the Appeals Council remanded ALJ Egan’s decision and reassigned the case to a
different administrative law judge to “[f]urther evaluate [Plaintiff’s] subjective complaints . . .
[and] [g]ive further consideration to [Plaintiff’s] maximum residual functional capacity . . . .”
(ECF No. 11-3 at 43.)
Plaintiff appeared at his third administrative hearing held on October 2, 2012, before
Administrative Law Judge Theresa R. Jenkins (“ALJ Jenkins”). (ECF No. 11-2 at 27-43.) ALJ
Jenkins issued a partially favorable decision, finding the plaintiff disabled on December 3, 2008.
(ECF No. 11-2 at 7.) Plaintiff’s appeal was denied by the Appeals Council, which made ALJ
Jenkins’ decision the final decision of the Commissioner for purposes of judicial review at that
time. (ECF No. 11-2 at 2.)
On June 19, 2013, Plaintiff filed an action in the United States District Court for the
District of South Carolina against the Commissioner. (ECF No. 12-3 at 16-22.) On June 11,
2014, the court reversed the decision of the Commissioner and remanded the case back to the
Commissioner for further proceedings. (ECF No. 12-3 at 8-11 (Gilmore v. Colvin, C/A No.
6:13-cv-01443-JMC (D.S.C. June 11, 2014) (ECF No. 43) (recommending that the court affirm
the Commissioner’s decision that Plaintiff was disabled since December 3, 2008 and “further
recommends, upon the [Commissioner’s] motion,1 that the court reverse the [Commissioner’s]
finding that Plaintiff was not disabled prior to December, 3, 2008, and that the action be
remanded for further proceedings”). On August 1, 2014, the Appeals Council informed Plaintiff
that “[the court] . . . has remanded this case to the [Commissioner] . . . in accordance with the
fourth sentence of section 205(g) of the Social Security Act.” (ECF No. 12-3 at 4.) As the
Magistrate Judge in this case points out, “the Appeals Council directed the ALJ to ‘[o]btain

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(ECF No. 37 (“Motion to Remand Pursuant to Sentence Four of 42 U.S.C. § 405(g)”)
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evidence from a medical expert to clarify the date of onset, give further consideration to the
claimant’s maximum residual capacity and provide the rationales, as well as obtain evidence
from a vocational expert.” (ECF No. 20 at 2.)
On November 20, 2014, Plaintiff appeared before ALJ Jenkins for his fourth
administrative hearing. (ECF No. 12-2 at 2-48.) On February 19, 2015, ALJ Jenkins determined
that “[Plaintiff] was not under a disability within the meaning of the [SSA] from September 13,
2005 through December 2, 2008, the relevant period in question.” (ECF No. 12-1 at 20.) The
Appeals Council denied Plaintiff’s appeal on November 5, 2015, which made ALJ Jenkins’
decision the final decision of the Commissioner for purposes of judicial review. (ECF No. 11-2
at 2.) On January 7, 2016, Plaintiff filed a Complaint seeking judicial review pursuant to 42
U.S.C. §§ 405(g), 1383(c)(3). (ECF No. 1.)
II. LEGAL STANDARD
The Magistrate Judge makes only a recommendation to this court, which has no
presumptive weight. Thus, the responsibility to make a final determination remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976.) The court reviews de novo only
those portions of a magistrate judge’s report and recommendation to which specific objections
are filed, and reviews those portions which are not objected to for clear error, including those
portions to which only “general and conclusory” objections have been made. See Diamond v.
Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); See also Camby v. Davis, 718
F.2d 198, 200 (4th Cir. 1983); Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The court
may accept, reject, or modify, in whole or in part, the recommendation of the magistrate judge or
recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).

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The role of the federal judiciary in the administrative scheme established by the Social
Security Act is a limited one. Section 405(g) of the Act provides, “the findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be
conclusive . . . .” 42 U.S.C. § 405(g). “Substantial evidence has been defined innumerable times
as more than a scintilla, but less than a preponderance.” Thomas v. Celebrezze, 331 F.2d 541,
543 (4th Cir. 1964). This standard precludes a de novo review of the factual circumstances that
substitutes the court’s findings for those of the Commissioner. See Vitek v. Finch, 438 F.2d 1157
(4th Cir. 1971). The court must uphold the Commissioner’s decision if it is supported by
substantial evidence. See Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). “From this it
does not follow, however, that the findings of the administrative agency are to be mechanically
accepted.” Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). “The statutorily granted right of
review contemplates more than an uncritical rubber stamping of the administrative agency.” Id.
“[T]he courts must not abdicate their responsibility to give careful scrutiny to the whole record to
assure that there is a sound foundation for the [Commissioner’s] findings, and that this
conclusion is rational.” Vitek, 438 F.2d at 1157–58.
III. ANALYSIS
A. The Magistrate Judge’s Review
In the Report, the Magistrate Judge addressed Plaintiff’s arguments that ALJ Jenkins erred by
“(1) failing to consider the medical expert’s opinion; (2) failing to properly assess medical
evidence; and (3) failing to provide a meaningful assessment of his subjective complaints.” (ECF
No. 20 at 21.)
First, the Magistrate Judge summarized the foundation for his conclusion that substantial
evidence supported ALJ Jenkins’ disability determination:

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As argued by the Commissioner, Dr. Levine did not opine that [P]laintiff’s
restrictions while recovering from surgery would last for at least one full year.
Social Security Ruling (“SSR”) 83-20 provides that “[t]he onset date should be set
on the date when it is most reasonable to conclude from the evidence that the
impairment was sufficiently severe to prevent the individual from engaging in
SGA (or substantial gainful activity) for a continuous period of at least 12 months
or result in death.” [] A close reading of Dr. Levine’s testimony reveals that he
opined that [Plaintiff] would be capable of less than sedentary work on a
sustained basis for one day less than one year (Tr. 876). Then, “allowing for some
back pain of the postoperative fusion, failed back syndrome, and even adjusting
for some epidural fibrosis, . . . from September 13, 2006 through December
2008,” [Plaintiff] was capable of performing a range of light work, including
lifting 20 pounds occasionally and ten pounds frequently; sitting six of eight
hours; standing for three of eight hours, but no longer than 30 minutes at one time
without sitting for one to two minutes; walking for two of eight hours, but no
longer than 20 minutes at one time; avoiding uneven surfaces; occasionally
navigating ramps and stairs with a railing; occasionally kneeling; occasionally
crouching, stooping or bending, but not repetitively; should avoid ladders,
scaffolds, crawling, heavy vibrating machinery, unprotected heights, and extreme
cold exposure; and should avoid repetitive twisting of the lumbar spine or truck;
and only the use of the upper extremities for fine and gross manipulation (Tr. 87778).
(ECF No. 20 at 21-23.)
The Magistrate Judge further addressed Plaintiff’s argument that ALJ Jenkins’ discussion
of Dr. Levine’s testimony was “misleading”:
[W]hile the ALJ’s assessment of . . . Dr. Levine’s opinion could be clearer, the
decision provides sufficient explanation for the RFC finding. The ALJ noted that
Dr. Levine believed [Plaintiff] would be restricted to a less than sedentary
position during his recovery from back surgery. However, the ALJ also noted that
Dr. Levine testified that Dr. Ekunsanmi’s opinion that [Plaintiff] was disabled
starting in January 2005 did not correlate with the objective findings. (Tr. 738; see
Tr. 876). The ALJ also reviewed other medical opinions from that same time
frame and afforded them “significant weight” (Tr. 739). Specifically, the ALJ
assigned “significant weight to the March 8, 2006 opinion of treating surgeon Dr.
Brigham, who opined that [Plaintiff] could do whatever he was comfortable
doing, even heavy lifting (Tr. 739; see Tr. 416) and that he could return to regular
duties at that time . . . [t]he ALJ likewise gave “significant” weight to the opinion
of Dr. Fleischer, who noted in May 2006 that [Plaintiff] was young and should be
able to return to work (Tr. 739; see Tr. 417) . . . .
(ECF No. 20 at 23-24.)

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The Magistrate Judge then directed his attention to ALJ Jenkins’ assessment of Plaintiff’s
primary care physician, Dr. Ekunsanmi:
The opinion of a treating physician is entitled to controlling weight if it is wellsupported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence in the case . . . [SSR]
96-2p requires that an ALJ give specific reasons for the weight given to a treating
physician’s medical opinion . . .
The ALJ considered the opinions [of Dr. Ekunsanmi] and gave them “little
weight,” finding that the opinions were not consistent with the other objective
evidence, as discussed by medical expert Dr. Levine, and that as a primary
physician he was not a specialist, and therefore his opinion was entitled to less
weight (Tr. 738) . . .
[Plaintiff] contends that it was in error for the ALJ to assign little weight to Dr.
Ekunsanmi’s December 2008 opinion because the ALJ found this opinion to be
“controlling” in the previous December 14, 2012, decision. The [Plaintiff’s]
argument fails . . . the ALJ never assigned that opinion controlling weight and
only assigned it “persuasive” weight to the extent it dealt with the [Plaintiff’s]
abilities as of December 3, 2008 – a period not at issue in this appeal . . . [and] the
ALJ was to consider all issues de novo, including the weight of the medical
opinion evidence, she was not required to assign Dr. Ekunsanmi’s opinions the
same level of weight in the decision at issue as in the prior decision.
(ECF No. 20 at 28.)
The Magistrate Judge also discussed Plaintiff’s argument that ALJ Jenkins erred by
discounting Dr. Ekunsanmi’s medical opinion because he was not a specialist:
This argument also fails. Pursuant to the [Social Security] regulations, the ALJ is
permitted “to give more weight to the opinion of a specialist about medical issues
related to his area of specialty than to the opinion of a source who is not a
specialist.” [] As discussed at the November 20, 2014 administrative hearing, the
record showed that Dr. Ekunsami was a family practitioner, working in primary
care (Tr. 867) . . . [t]he ALJ also properly discounted Dr. Ekunsanmi’s opinions
on the basis that they were not consistent with the “other objective evidence, as
Dr. Levine, the impartial expert, testified to at the hearing.”
(ECF No. 20 at 28 (citing 20 C.F.R. § 404.1527(c)(5)).)
Next, the Magistrate Judge addressed Plaintiff’s assertion that only his treating physician,
Dr. Ekunsanmi, had a medical opinion during the relevant period:
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This is incorrect, as Dr. Brigham opined on March 8, 2006, that the [Plaintiff] was
capable of doing even heavy work (Tr. 416) and completed a work status report
opining that the [Plaintiff] could return to regular duties (Tr. 450). Also,
orthopedic surgeon Dr. Scott examined the [Plaintiff] during the relevant time
period, and the ALJ gave significant weight to his findings (Tr. 739) . . . While
Dr. Scott did not complete an RFC assessment, the ALJ properly considered Dr.
Scott’s medical findings on examination and afforded them significant weight
along with the other medical evidence and opinions discussed above (Tr. 739).
In regard to the credibility assessment, the Magistrate Judge explained that ALJ Jenkins
properly considered Plaintiff’s subjective complaints and medical records:
A claimant’s symptoms, including pain, are considered to diminish his capacity to
work to the extent that alleged functional limitations are reasonably consistent
with objective medical evidence and other evidence . . . [f]urthermore, “a
formalistic factor-by-factor recitation of the evidence” is unnecessary as long as
the ALJ “sets forth the specific evidence [he] relies on” in evaluation of the
claimant’s subjective symptoms . . . .
The ALJ found that while Plaintiff’s impairments were “at least theoretically
capable of producing at least some of the general subjective symptoms alleged”
by [Plaintiff], his testimony as to the intensity, persistence, and limiting effects of
those symptoms was “not persuasive in view of his daily activities and the
inconsistencies in the record” (Tr. 736-37).
The ALJ considered the following factors in assessing [Plaintiff’s] subjective
complaints: daily activities . . . the location, duration, and frequency of the pain,
precipitating factors, and measures used to relieve pain . . . medication and side
effects . . . and treatment beyond medication.
The ALJ properly considered the inconsistencies in the medical record in
assessing [Plaintiff’s] subjective complaints . . . Plaintiff’s September 15, 2003,
surgery was “minimally invasive” . . . [a] January 2006 CT scan of the lumbar
spine showed good position of hardware and subsidence of his graft . . . [a] March
2006 lumbar x-ray[] showed that [Plaintiff’s] fusion had progressed . . . [i]n
March 2006, Dr. Brigham opined that [Plaintiff] would ultimately be released
without permanent restrictions and would not be considered permanently and
totally disabled . . . [i]n May 2006, Dr. Fleischer opined that [Plaintiff’s] whole
person impairment was 10% to 17% to his lumbar spine only . . . [i]n June 2006,
an MRI of the lumbar spine showed post-surgical changes [] but no evidence of
recurrent disc herniation . . . [e]xamination with Dr. Okenneh revealed bilateral
sacroiliac joint tenderness and a positive straight leg test, but a negative axial
loading test and 5/5 (full) strength in all extremities . . . Dr. Scott noted that while
[Plaintiff used a case, he was able to walk well without it and was muscular and
well-developed.
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(ECF No. 20 at 33-35 (citations omitted).)
Based on the forgoing considerations, the Magistrate Judge concluded that the
Commissioner’s decision should be affirmed because it was supported by substantial evidence in
the record. (ECF No. 20 at 36.)
B. Plaintiff’s Objections and the Commissioner’s Response
Plaintiff objects and argues that (1) “the ALJ misinterpreted the medical expert’s
testimony to mean that while the claimant was recovering from surgery (September 2005 to
September 2008) that he was not disabled,” (2) “the ALJ failed to explain why Dr. Ekunsanmi’s
opinion was only accorded little weight,” and (3) this decision fails to consider factors related to
pain and medications in assessing Plaintiff’s credibility. (ECF No. 22 at 1, 5, 7.)
In his first Objection, Plaintiff asserts that “[t]he Commissioner fails to show that the ALJ
properly interpreted the medical expert’s opinion and fails to properly discuss the medical
evidence during the relevant time period.” (ECF No. 22 at 5.) Plaintiff specifically argues that:
[t]he Magistrate Judge states that the ALJ properly rejected the portion of the
medical expert’s opinion when he reviewed other medical opinions and afforded
them significant weight. However, the ALJ also afforded significant weight to the
medical expert’s opinion (except for the opinion of Dr. Benson Hecker). This
final point made by the Magistrate Judge does not support a finding that the ALJ
properly interpreted Dr. Levine’s opinion. The ALJ gave significant weight to all
of the opinions during the relevant time period, but failed to recognize the conflict
between the opinions and properly explain why he incorporated limitations
assigned by one doctor but not another, both of whose opinions were accorded
significant weight.
(ECF No. 22 at 5.)
Next, Plaintiff argues that:
[t]he ALJ failed to properly explain why Dr. Ekunsanmi’s opinion was only
accorded little weight . . . the ALJ stated in the decision at hand that Dr.
Ekunsanmi was not a specialist. However, in a previous Partially Favorable
Decision Dr. Ekunsanmi’s opinion was controlling, despite his note being a
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specialist . . . the ALJ relies on medical evidence from prior to [Plaintiff’s]
surgery and from a time period in which [Plaintiff] has already been found to be
disabled as reasons for according little weight to the opinion . . . [and] the ALJ
fails to explain why a non-treating one-time evaluator’s opinion would be
accorded more weight than [Plaintiff’s] treating opinion.
(ECF No. 22 at 5 (referencing (ECF No. 11-3 at 18-20)).)
In his third Objection, Plaintiff asserts that:
[Plaintiff] pointed out that the Appeals Council Remand Order directed the ALJ to
provide rationale in support of the credibility finding . . . the [court] found that the
ALJ’s previous finding lacked a proper discussion of daily activities, location,
duration, frequency, and intensity of the pain; factors that precipitated and
aggravated the symptoms, the type, dosage, effectiveness, and side effects of any
medications . . . [t]he Magistrate Judge responds that the ALJ discussed Plaintiff’s
daily activities, Plaintiff’s pain levels and his side effects . . . [and] argues that the
ALJ properly considered the objective evidence. [Plaintiff] asserts that while [sic]
the Magistrate Judge can point to the ALJ’s reference to activities of daily living,
but there is no discussion by the ALJ as to why those activities are inconsistent
with a finding of disability. Furthermore, the list of objective evidence cited in the
[Report] is primarily from 2005 to 2006, a time period when Dr. Levine testified
that despite that objective evidence he opined that [Plaintiff] would not be capable
of sedentary work 8 hours a day, five days a week.
(ECF No. 22 at 7-8 (referencing the Appeals Council Remand Order (ECF No. 11-3 at 16-23)
(vacating and remanding ALJ Robert Egan’s disability determination)).)
In response, the Commissioner asserts that (1) Plaintiff’s objections reargue the same
issues raised in his initial brief, (2) substantial evidence supports the ALJ’s assessment of the
medical expert’s opinion, (3) “substantial evidence supports the ALJ’s discounting of Dr.
Ekunsanmi’s opinions.” In the ALJ’s 2015 decision, the ALJ was entitled to review Dr.
Ekunsanmi’s opinion de novo following remand; Dr. Ekunsanmi was not a specialist; and [Dr.
Ekunsanmi’s] opinion was inconsistent with the evidence of record,” and (4) “substantial
evidence supports the ALJ’s credibility analysis, where the ALJ considered plaintiff’s subjective
complaints of pain in light of the objective medical record and Plaintiff’s reported activities.”
(ECF No. 23 at 1, 3, 7, 11.)
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C. The Court’s Ruling
Upon review of the Report, the court finds that the Magistrate Judge performed a
thorough analysis of the record. Plaintiff argues that the Magistrate Judge’s Report is improper
because (1) the ALJ failed to include testimony from Dr. Levine concerning Plaintiff’s disability,
(2) the ALJ failed to explain why Dr. Ekunsanmi’s opinion was given little weight, and (3) the
Magistrate Judge failed to consider evidence in favor of Plaintiff’s credibility. (ECF No. 22.)
1. Whether the ALJ Properly Evaluated Dr. Levine’s Expert Opinion
As a first Objection, Plaintiff claims the court should overrule the Report because (1)
“[t]he Commissioner’s argument and the Magistrate Judge’s conclusions are not based on the
testimony of Dr. Levine, are not mathematically correct, nor are they acceptable given the post
hoc rationale,” and (2) Dr. Levine’s expert opinion was disregarded improperly. (ECF No. 22 at
2, 3.)
In general, a claimant is disabled if they “are unable 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 expected to last for a continuous period of not less than
12 months.” 20 C.F.R. § 404.1527 (“Evaluating opinion evidence”). Plaintiff claims that “Dr.
Levine specifically stated that [Plaintiff] would be less than sedentary capable from 9/13/05 until
9/13/06.” (ECF No. 22 at 2 (Tr. 876).) However, Dr. Levine testified verbatim:
Now, Your Honor, that being said, in my opinion, a fusion, spinal fusion takes
approximately 12 months to become radiographically, clinically and functionally
healed or totally solvent. And it’s my opinion that during that period, an
individual really is not capable of even sedentary work on a sustained basis, six
out of eight hours a day, five days a week. So that in my opinion, I feel he would
be less than sedentary capable from 9/13/05 until 9/13/06. So that, from what I
understand now, leaves the question of between 9/13/06 and December 2008, is
that correct?
(ECF No. 12-2 at 35 (emphasis added).)
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The court agrees with the Magistrate Judge’s finding that “[a] close reading of Dr.
Levine’s testimony reveals that he opined that [Plaintiff] would be capable of less than sedentary
work on a sustained basis of one day less than one year.” (ECF No. 20 at 22.)
Next, ALJ Jenkins did not disregard Dr. Levine’s expert testimony improperly. See Hines
v. Barnhart, 453 F.3d 559, 562–63 (4th Cir. 2006). “[Residual functional capacity]2 is to be
determined by the ALJ only after [the ALJ] considers all relevant evidence of a claimant's
impairments and any related symptoms (e.g., pain).” Further, “the ALJ may give great weight to
expert’s opinion without including every finding, limitation, and assessment contained in the
expert’s record.” Cook v. Colvin, No. 2:13-cv-30155, 2015 WL 430880, at *12 (S.D. W. Va.
Sept. 23, 2013). In her review, ALJ Jenkins also relied on other medical opinions in the record:
I give significant weight to Craig Brigham, M.D., his orthopedic surgeon, who
reviewed the claimant’s computerized tomography, or CT scan, of the lumbar
spine, as showing good position of hardware and subsidence of his graft . . . Dr.
Brigham noted that although [Plaintiff] feels bitterly that he has some pain, Dr.
Brigham told him as he instructed him before surgery that he would allow him to
do whatever he feels comfortable doings [sic], including heavy lifting (Exhibit
2F). Dr. Brigham opined that [Plaintiff] would ultimately be released without any
permanent restrictions and he would not be considered permanently and totally
disabled (Exhibit 2F).
I give significant weight to Thomas G. Fleischer, M.D., an orthopedist who was
consulted for a second opinion, opined that [Plaintiff] was at maximum medical
improvement and that his whole person impairment was ten to seventeen percent
his lumbar spine only and that [Plaintiff] was able to ambulate using a cane, on
May 15, 2006, as well as his opinion that [Plaintiff] could return to the work
force, and discontinue narcotics (Exhibit 22F).

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“Your impairment(s), and any related symptoms, such as pain, may cause physical and mental
limitations that affect what you can do in a work setting. Your residual functional capacity is the
most you can still do despite your limitations. We will assess your residual functional capacity
based on all the relevant evidence in your case record . . . In assessing the total limiting effects of
your impairment(s) and any related symptoms, we will consider all of the medical and
nonmedical evidence, including the information described in § 404.1529(c).” 20 C.F.R. §
404.1545(a)(1), (e) (“Your residual functional capacity”).

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I give significant weight to Glenn Scott, M.D., an orthopedist, who opined on
October 23, 2007 that [Plaintiff] is a muscular, well-developed male, who walks
with the use of a cane, but who ambulates well without the cane (Exhibit 26F).
(ECF No. 12-1 at 26.)
Upon consideration of the summaries above, the court is persuaded that ALJ Jenkins’
conclusions sufficiently meet the requirements of 20 C.F.R. § 404.1527 and 20 C.F.R. §
404.1545. The court is not convinced by Plaintiff’s Objection and agrees with the Magistrate
Judge that substantial evidence supports ALJ Jenkins’ evaluation of Dr. Levine’s testimony.
2. Whether the ALJ Properly Considered Dr. Ekunsanmi’s Opinion
If a treating source’s medical opinion is “well-supported and not inconsistent with the
other substantial evidence in the case record, it must be given controlling weight; i.e., it must be
adopted.” Social Security Ruling (“SSR”) 96–2p, 1996 WL 374188, at *1 (S.S.A. July 2, 1996);
see also 20 C.F.R. § 416.927(c)(2). Section 416.927(c) provides that, if a treating source’s
opinion is not accorded controlling weight, the ALJ is required to consider “all of the following
factors in deciding the weight we give to any medical opinion”: (1) examining relationship
(“[g]enerally, we give more weight to the opinion of a source who has examined you than the
opinion of a source who has not examined you”); (2) treatment relationship, including length of
treatment relationship, frequency of examination, and the nature and extent of the treatment
relationship; (3) supportability (“[t]he more a medical source presents relevant evidence to
support an opinion . . . the more weight we will give that opinion”); (4) consistency; (5)
specialization; and (6) other factors. Id. “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.” Kirby v. Colvin, No. 4:13-cv-3138-DCN,
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2015 WL 1038036, at *3 (D.S.C. Mar. 10, 2015) (quoting Hendrix v. Astrue, No. 1:09-cv-1283,
2010 WL 3448624, at *3 (D.S.C. Sept. 1, 2010)); see 20 C.F.R. § 416.927(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.” Id. (quoting Craft v. Apfel, No. 97-2551, 1998 WL 702296, at *2 (4th Cir. Oct. 6,
1998) (per curiam) (unpublished table decision) (internal citation omitted).
In her decision, ALJ Jenkins stated, “I give little weight to Bamidele Ekunsanmi, M.D.,
who is not a specialist, but a family practitioner, whose opinion, which supports a finding of
‘disability’ is not consistent with the other objective evidence, as Dr. Levine, the impartial expert
testified to at the hearing.” (ECF No. 12-1 at 25.)
Dr. Levine testified that:
[I]n discussing an RFC, as I mentioned, I didn’t feel a [1.04B] listing would be
met. Dr. Ekunsanmi, as I said I think is a family practitioner, opined that the
claimant was, quote, disabled from any work. And he mentioned in one note that
this was since 2005 and he was able to work during that time, so I’m not sure how
valid that opinion is. It would appear to me that he’s basing his opinion primarily
on the subjective complaints of pain and/or statements of limitations of the
claimant. But I felt the objective findings did not correlate with a total disability.
And the reference to the 2F, page one, dated 3/8/06 from Dr. Brigham, who was
the operating surgeon, who stated at the time there was no objective, quote, no
objective reason to even restrict heavy lifting and that was on 3/8/06. And Dr., as
I mentioned, Dr. Ekunsami declared the claimant totally disabled since the first
visit on 1/1/05 and he expressed that in Exhibit 39F, page one, dated 8/6/2012.
And as I mentioned, the claimant was working during that time and in fact, in
Exhibit 2F, page seven, dated 8/5/05, he was noted that he was working 12 hour
shifts, and the doctor limited him to six hours after that. So I, allowing for some
back pain of the postoperative fusion, failed back syndrome, and even adjusting
for some epidural fibrosis, orthopedically and objectively, I felt during that
period, from September 13, 2005 through December 2008, he should have been
capable of lifting occasionally 20 pounds, frequently 10. And I’m talking about
objectively and orthopedically now . . . .
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(ECF No. 12-2 at 35-36.)
After considering the aforementioned summary explaining the weight rendered to Dr.
Ekunsami’s opinion, the court is persuaded that ALJ Jenkins’ conclusions sufficiently met the
requirements of SSR 96-2p and 20 C.F.R. § 416.927(c). In her review, ALJ Jenkins indicated,
albeit imprecisely, that the opinions of the specialists were granted more weight in accordance
with section 416.927(c)(5) (“Specialization”) because “[w]e generally give more weight to the
opinion of a specialist about medical issues related to his or her area of specialty than to the
opinion of a source who is not a specialist.” Accordingly, the court agrees with the Magistrate
Judge’s determination that substantial evidence supports ALJ Jenkins’ decision.
3. Whether the ALJ Properly Considered Plaintiff’s Credibility
As a third Objection, Plaintiff claims that the Magistrate Judge supported the ALJ’s
consideration of the objective evidence, but omits a justification as to “why” Plaintiff’s daily
activities, pain levels, medications, and affiliated side effects are inconsistent with a finding of
disability. (ECF No. 22 at 7-8.) However, it seems that Plaintiff confuses an ALJ’s requirement
to provide clear reasons in his determination as a requirement for the Magistrate Judge. (ECF
No. 23 at 11 n.5 (“Plaintiff attempts to impose an articulation requirement that is simply not
listed in 20 C.F.R. § 404.1529”).)
When determining credibility, “[f]irst, there must be objective medical evidence showing
the existence of a medical impairment(s) which results from anatomical physiological, or
psychological abnormalities and which could reasonably be expected to produce pain or other
symptoms alleged.” Craig v. Chater, 76 F.3d 585, 594 (4th Cir. 1996) (citing 20 C.F.R. §§
416.929(b), 404.1529(b)). Once the threshold determination has been met, the intensity and
persistence of a plaintiff’s pain and the extent it affects their ability to work are then evaluated.
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Id. at 595. “Under the regulations, this evaluation must take into account not only the claimant’s
statements about her pain, but also ‘all available evidence,’ including the claimant’s medical
history, medical signs, and laboratory findings . . . any objective medical evidence of pain (such
as evidence of reduced joint motion, muscle spasms, deteriorating tissues, redness, etc.), . . . and
any other evidence relevant to the severity of the impairment, such as evidence of the claimant’s
daily activities, specific descriptions of the pain, and any medical treatment taken to alleviate it,
see 20 C.F.R. § 416.929(c)(3) & 404.1529(c)(3).” Id. at 595. “Credibility is the providence of the
ALJ.” Hamilton v. Sec’y of Health and Human Servs., 961 F.2d 1495, 1499 (10th Cir. 1992).
When an ALJ has given specific, legitimate reasons for disbelieving a plaintiff’s testimony, the
reviewing court should “generally treat credibility determinations made by an ALJ as binding
upon review.” Gossett v. Bowen, 862 F.2d 802, 907 (10th Cir. 1988).
In this case, the Magistrate Judge outlined that the Fourth Circuit Court of Appeals has a
“two-step process . . . [f]irst, there must be objective medical evidence showing the existence of
a medical impairment(s) which results from anatomical, physiological, or psychological
abnormalities and which could reasonably be expected to produce the pain or other symptoms
alleged…” (ECF No. 20 at 31-32 (citing Chater, F.3d 585 at 594-95).) In addition, the
Magistrate Judge explained:
[A Fourth Circuit] panel held, ‘[h]aving met this threshold obligation of showing
by objective medical evidence a condition reasonably likely to cause the pain
claimed, [the claimant] was entitled to rely exclusively on subjective evidence to
prove the second part of the test . . . [but] [o]bjective medical evidence of pain, its
intensity or degree (i.e. manifestations of the functional effects of pain such as
deteriorating nerve or muscle tissue, muscle spasm, or sensory or motor
disruption, if available should be obtained and considered . . . [a]lthough a
claimant’s allegations about her 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 that impairment can reasonably be expected to cause the pain the
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claimant alleges she suffers.
(ECF No. 20 at 32 (citing Hines, 453 F.3d at 565 (4th Cir. 2006)).)
In the Report, the Magistrate Judge disclosed the factors3 that ALJ Jenkins used in her
comparison of the medical records and Plaintiff’s subjective complaints:
The ALJ considered the following factors in assessing Plaintiff’s subjective
complaints . . . daily activities (Tr. 736 (noting that [Plaintiff] reported living at
home; drove; did not cook because he did not know how; and did no cleaning,
though he helped wash dishes); the location, duration, and frequency of the pain,
precipitating factors, and measures used to relieve pain (Tr. 736 (reviewing
[Plaintiff’s] testimony regarding his alleged back pain and that [Plaintiff] asserted
that he was unable to stand longer than 30 minutes to one hour, and that he could
not sit for longer than two hours because his legs go numb); medication and side
effects (Tr. 736-38 (nothing that [Plaintiff’s] medication at various times included
Valium Lyrica, Lortab, and Duragesic, and that [Plaintiff] testified that his
medication made him drowsy); and treatment beyond medication (Tr. 737-38
(noting that following his September 2005 L5-S1 fusion, [Plaintiff] was
prescribed physical therapy and a [transcutaneous electrical nerve stimulation]
unit, and later underwent lumbar injections on an intermittent basis.
(ECF No. 20 at 34-35.)
After a thorough review of the summaries above, the court finds that the ALJ provided
specific and legitimate reasons for her decision related to Plaintiff’s credibility. Plaintiff’s
Objection does not suggest any new arguments that would cause the court to reject the Report.
See e.g., Felton v. Colvin, C/A No. 2:12-cv-558, 2014 WL 315773, at *7 (E.D. Va. Jan. 28,
2014) (quoting Gonzalez-Ramos v. Empresas Berrios, Inc., 360 F. Supp. 2d 373, 376 (D.P.R.
2005) (“[t]he court may reject perfunctory or rehashed objections to [Reports] that amount to a

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(1) the individual’s daily activities; (2) the location, duration, frequency, and intensity of the
individual’s pain or other symptoms; (3) factors that precipitate and aggravate the symptoms; (4)
the type dosage, effectiveness, and side effects of any medication the individual takes or has
taken to alleviate pain or other symptoms; (5) treatment, other than medication, the individual
receives or has received for relief of pain or other symptoms; (6) any measures other than
treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his
or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and (7) any other
factors concerning the individual’s functional limitations and restrictions due to pain or other
symptoms. (ECF No. 20 at 33-34 (citing 20 C.F.R. § 404.1529(c)).)
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‘second opportunity to present the arguments already considered by the [Magistrate Judge]’”)
IV. CONCLUSION
For the reasons above, the court ACCEPTS the Report (ECF No. 20) and AFFIRMS the
decision of the Commissioner denying Plaintiff’s claim for DIB.
IT IS SO ORDERED.

United States District Judge
March 30, 2017
Columbia, South Carolina

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