Jackson v. Commissioner Social Security Administration

Filing 11

REPORT AND RECOMMENDATION re 1 Complaint - Social Security, filed by Gray Helms Jackson. It is recommended that the Commissioner's decision be REVERSED and the case be REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative action. Objections to R&R due by 2/12/2016. Signed by Magistrate Judge Jacquelyn D Austin on 1/26/2016. (abuc)

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION

Gray Helms Jackson,
Plaintif f,
vs.
Carolyn W. Colvin,
Commissioner of Social Security,
Defendant.

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Civil Action No. 8:14-cv-04906-RMG-JDA
REPORT AND RECOMMENDATION
OF MAGISTRATE JUDGE

This matter is before the Court for a Report and Recommendation pursuant to Local
Rule 73.02(B)(2)(a), D.S.C., and Title 28 U.S.C. § 636(b)(1)(B).1 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 Plaintiff’s
claims for disability insurance benefits (“DIB”) and supplemental security income (“SSI”).2
For the reasons set forth below, it is recommended that the decision of the Commissioner
be reversed and remanded for administrative action consistent with this recommendation,
pursuant to sentence four of 42 U.S.C. § 405(g).

1

A Report and Recommendation is being filed in this case, in which one or both parties
declined to consent to disposition by a magistrate judge.
2

Section 1383(c)(3) provides, “The final determination of the Commissioner of Social
Security after a hearing under paragraph (1) shall be subject to judicial review as provided
in section 405(g) of this title to the same extent as the Commissioner’s final determinations
under section 405 of this title.” 42 U.S.C. § 1383(c)(3).

PROCEDURAL HISTORY
On March 29, 2011, and March 31, 2011, respectively, Plaintiff filed applications for
DIB and SSI, alleging disability beginning February 25, 2011. [R. 192–201.] The claims
were denied initially and upon reconsideration by the Social Security Administration (“the
Administration”). [R. 68–79, 82–109.] Plaintiff filed a request for hearing before an
administrative law judge (“ALJ”), and on June 20, 2013, ALJ Clinton C. Hicks conducted
a hearing on Plaintiff’s claims. [R. 35–65.]
On September 13, 2013, the ALJ issued his decision, finding Plaintiff not disabled.
[R. 18–28.] At Step 13, the ALJ found Plaintiff last met the insured status requirements of
the Social Security Act (“the Act”) on December 31, 2014, and had not engaged in
substantial gainful activity since February 25, 2011, the alleged onset date [R. 20, Findings
1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: viral
hepatitis; hepatic encephalopathy; grade II, stage II to III septal fibrosis; osteoarthritis of
the bilateral knees, status-post right total knee arthroplasty; chronic gastroesophageal
reflux disease; atrial fibrillation status-post pacemaker implantation; sick sinus syndrome
and chronic hypertension. [R. 20, Finding 3.] The ALJ also found Plaintiff had the
following non-severe impairments: other conditions mentioned in the claimant's medical
records; and claimant’s medically determinable mental impairments of generalized anxiety
disorder, major depressive disorder, and bipolar disorder. [Id. at 21.]
At Step 3, the ALJ determined Plaintiff’s impairments or combination of impairments
did not meet or medically equal the severity of one of the listed impairments. [R. 23,

3

The five-step sequential analysis used to evaluate disability claims is discussed in the
Applicable Law section, infra.
2

Finding 4.] The ALJ specifically considered Listings 1.00, 2.00, 4.00, 5.00, 14.00, and
specifically considered the additional effects of the claimant's obesity under Social Security
Ruling 02-1p. [Id.]
Before addressing Step 4, Plaintiff's ability to perform her past relevant work, the
ALJ found that Plaintiff retained the following residual functional capacity (“RFC”):
After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform light
work as defined in 20 CFR 404.1567(b) and 416.967(b) except
the claimant would be precluded from squatting and climbing
ladders, ropes or scaffolds; would be limited to occasional
climbing ramps and stairs and would require the ability to sit
and stand at will.
[R. 23, Finding 5.] Based on this RFC, at Step 4, the ALJ determined Plaintiff was able
to perform his past relevant work as a loan officer. [R. 28, Finding 6.] Thus, the ALJ found
that Plaintiff had not been under a disability, as defined by the Act, from February 25, 2011,
through the date of the decision, nor was he entitled to SSI based on his March 31, 2011,
application. [R. 28.]
Plaintiff filed a request for review of the ALJ’s decision with the Appeals Council,
which denied review on November 13, 2014. [R. 1–6.] Plaintiff commenced an action for
judicial review in this Court on December 31, 2014. [Doc. 1.]
THE PARTIES’ POSITIONS
Plaintiff contends the ALJ’s decision is not supported by substantial evidence and
contains multiple legal errors warranting the reversal and remand of the case. [See Doc.
8.] Specifically, Plaintiff contends the ALJ:
1.

erred by failing to find Plaintiff’s mental impairments severe and by
discounting the opinions of Plaintiff’s treating physicians and the state

3

agency physician based solely on Plaintiff’s activities of daily living [id. at 8-13];
2.

erred by improperly discounting Plaintiff’s credibility with respect to his
testimony regarding the limitations associated with his psychiatric symptoms
[id. at 14–15]; and,

3.

erred by finding Plaintiff could return to his past work without any evidence
that his job had a sit/stand option [id. at 15–16].

The Commissioner contends the ALJ’s decision should be affirmed because there
is substantial evidence of record that Plaintiff was not disabled within the meaning of the
Act. [See Doc. 9.] Specifically, the Commissioner contends the ALJ:
1.

appropriately determined that Plaintiff did not have a severe mental
impairment and properly weighed the medical evidence related to his mental
illness [id. at 11–17];

2.

performed a proper credibility analysis and reasonably discounted Plaintiff’s
subjective complaints regarding his psychiatric symptoms and resulting
limitations [id. at 18–21]; and,

3.

complied with applicable regulations and rulings in making his Step 4
determination that Plaintiff could return to his past work [id. at 21–23].
STANDARD OF REVIEW

The Commissioner’s findings of fact are conclusive if supported by substantial
evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the
evidence must do more than merely create a suspicion of the existence of a fact and must
include such relevant evidence as a reasonable person would accept as adequate to
support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368
F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687
(S.D.W. Va. 1963)) (“Substantial evidence, it has been held, is evidence which a reasoning
mind would accept as sufficient to support a particular conclusion. It consists of more than
4

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.’”).
Where conflicting evidence “allows reasonable minds to differ as to whether a
claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the
[Commissioner’s] designate, the ALJ),” not on the reviewing court. Craig v. Chater, 76
F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th
Cir. 1991) (stating that where the Commissioner’s decision is supported by substantial
evidence, the court will affirm, even if the reviewer would have reached a contrary result
as finder of fact and even if the reviewer finds that the evidence preponderates against the
Commissioner’s decision). Thus, it 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 so long as the decision is supported by substantial evidence.
See Bird v. Comm’r, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v.
Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner’s decision on plenary review,
however, if the decision applies incorrect law or fails to provide the court with sufficient
reasoning to determine that the Commissioner properly applied the law. Myers v. Califano,
611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep’t of Health & Human Servs., 21
F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner’s decision “is in clear
disregard of the overwhelming weight of the evidence, Congress has empowered the
courts to modify or reverse the [Commissioner’s] decision ‘with or without remanding the
cause for a rehearing.’” Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42
5

U.S.C. § 405(g)). Remand is unnecessary where “the record does not contain substantial
evidence to support a decision denying coverage under the correct legal standard and
when reopening the record for more evidence would serve no purpose.” Breeden v.
Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence
four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir.
1991) (unpublished table decision). To remand under sentence four, the reviewing court
must find either that the Commissioner’s decision is not supported by substantial evidence
or that the Commissioner incorrectly applied the law relevant to the disability claim. See,
e.g., Jackson v. Chater, 99 F.3d 1086, 1090–91 (11th Cir. 1996) (holding remand was
appropriate where the ALJ failed to develop a full and fair record of the claimant’s residual
functional capacity); Brehem v. Harris, 621 F.2d 688, 690 (5th Cir. 1980) (holding remand
was appropriate where record was insufficient to affirm but was also insufficient for court
to find the claimant disabled).

Where the court cannot discern the basis for the

Commissioner’s decision, a remand under sentence four is usually the proper course to
allow the Commissioner to explain the basis for the decision or for additional investigation.
See Radford v. Comm’r, 734 F.3d 288, 295 (4th Cir. 2013) (quoting Florida Power & Light
Co. v. Lorion, 470 U.S. 729, 744 (1985);see also Smith v. Heckler, 782 F.2d 1176,
1181–82 (4th Cir. 1986) (remanding case where decision of ALJ contained “a gap in its
reasoning” because ALJ did not say he was discounting testimony or why); Gordon v.
Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor
the Appeals Council indicated the weight given to relevant evidence). On remand under
sentence four, the ALJ should review the case on a complete record, including any new
6

material evidence. See Smith, 782 F.2d at 1182 (“The [Commissioner] and the claimant
may produce further evidence on remand.”). After a remand under sentence four, the court
enters a final and immediately appealable judgment and then loses jurisdiction. Sargent,
941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be
taken before the Commissioner of Social Security, but only
upon a showing that there is new evidence which is material
and that there is good cause for the failure to incorporate such
evidence into the record in a prior proceeding . . . .
42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the
basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the
determination of disability at the time the application was first filed; (2) the evidence is
material to the extent that the Commissioner’s decision might reasonably have been
different had the new evidence been before him; (3) there is good cause for the claimant’s
failure to submit the evidence when the claim was before the Commissioner; and (4) the
claimant made at least a general showing of the nature of the new evidence to the
reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C.
§ 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d
26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by
amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec’y, Dep’t of
Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991).4 With remand under sentence

4

Though the court in Wilkins indicated in a parenthetical that the four-part test set forth
in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the
Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating
a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152,
7

six, the parties must return to the court after remand to file modified findings of fact.
Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and
does not enter a final judgment until after the completion of remand proceedings. See
Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an
order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C.
§ 405(g) is not a final order).
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured
for benefits, who are not of retirement age, who properly apply, and who are under a
disability. 42 U.S.C. § 423(a). “Disability” is defined 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 consecutive months.
Id. § 423(d)(1)(A).
I.

The Five Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations

have reduced the statutory definition of disability to a series of five sequential questions.
See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a “need for efficiency”

2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107,
2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm’r of Soc. Sec., No.
2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec’y of Health &
Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W. Va. 1992). Further, the Supreme
Court of the United States has not suggested Borders’ construction of § 405(g) is incorrect.
See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply
the more stringent Borders inquiry.
8

in considering disability claims). The ALJ must consider whether (1) the claimant is
engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the
impairment meets or equals an impairment included in the Administration’s Official Listings
of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents
the claimant from performing past relevant work; and (5) the impairment prevents the
claimant from having substantial gainful employment. 20 C.F.R. §§ 404.1520, 416.920.
Through the fourth step, the burden of production and proof is on the claimant. Grant v.
Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or
before the last day of her insured status to receive disability benefits. Everett v. Sec’y of
Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step
five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the
national economy that the claimant can perform, considering the claimant’s age, education,
and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can
find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. §§
404.1520(a), 416.920(a)(4); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A.

Substantial Gainful Activity

“Substantial gainful activity” must be both substantial—involves doing significant
physical or mental activities, 20 C.F.R. §§ 404.1572(a), 416.972(a)—and gainful—done for
pay or profit, whether or not a profit is realized, id. §§ 404.1572(b), 416.972(b). If an
individual has earnings from employment or self-employment above a specific level set out

9

in the regulations, he is generally presumed to be able to engage in substantial gainful
activity. Id. §§ 404.1574–.1575, 416.974–.975.
B.

Severe Impairment

An impairment is “severe” if it significantly limits an individual’s ability to perform
basic work activities. See id. §§ 404.1521, 416.921. When determining whether a
claimant’s physical and mental impairments are sufficiently severe, the ALJ must consider
the combined effect of all of the claimant’s impairments. 42 U.S.C. §§ 423(d)(2)(B),
1382c(a)(3)(G). The ALJ must evaluate a disability claimant as a whole person and not
in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889
F.2d 47, 49–50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of
impairments on a disability claimant, “the [Commissioner] must consider the combined
effect of a claimant’s impairments and not fragmentize them”). Accordingly, the ALJ must
make specific and well-articulated findings as to the effect of a combination of impairments
when determining whether an individual is disabled. Id. at 50 (“As a corollary to this rule,
the ALJ must adequately explain his or her evaluation of the combined effects of the
impairments.”). If the ALJ finds a combination of impairments to be severe, “the combined
impact of the impairments shall be considered throughout the disability determination
process.” 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G).
C.

Meets or Equals an Impairment Listed in the Listings of Impairments

If a claimant’s impairment or combination of impairments meets or medically equals
the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration

10

requirement found at 20 C.F.R. §§ 404.1509 or 416.909, the ALJ will find the claimant
disabled without considering the claimant’s age, education, and work experience.5 20
C.F.R. §§ 404.1520(d), 416.920(a)(4)(iii), (d).
D.

Past Relevant Work

The assessment of a claimant’s ability to perform past relevant work “reflect[s] the
statute’s focus on the functional capacity retained by the claimant.” Pass v. Chater, 65
F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the
claimant’s residual functional capacity6 with the physical and mental demands of the kind
of work he has done in the past to determine whether the claimant has the residual
functional capacity to do his past work. 20 C.F.R. §§ 404.1560(b), 416.960(b).
E.

Other Work

As previously stated, once the ALJ finds that a claimant cannot return to her prior
work, the burden of proof shifts to the Commissioner to establish that the claimant could
perform other work that exists in the national economy. See 20 C.F.R. §§ 404.1520(f)–(g),
416.920(f)–(g); Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). To meet this burden,
the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines
(the “grids”). Exclusive reliance on the “grids” is appropriate where the claimant suffers

5

The Listing of Impairments is applicable to SSI claims pursuant to 20 C.F.R.
§§ 416.911, 416.925.
6

Residual functional capacity is “the most [a claimant] can still do despite [his]
limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
11

primarily from an exertional impairment, without significant nonexertional factors.7 20
C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); Gory v. Schweiker, 712 F.2d 929, 930–31
(4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving
exertional limitations). When a claimant suffers from both exertional and nonexertional
limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case,
the Commissioner must use a vocational expert to establish the claimant’s ability to
perform other work. 20 C.F.R. §§ 404.1569a, 416.969a; see Walker, 889 F.2d at 49–50
(“Because we have found that the grids cannot be relied upon to show conclusively that
claimant is not disabled, when the case is remanded it will be incumbent upon the
[Commissioner] to prove by expert vocational testimony that despite the combination of
exertional and nonexertional impairments, the claimant retains the ability to perform
specific jobs which exist in the national economy.”). The purpose of using a vocational
expert is “to assist the ALJ in determining whether there is work available in the national
economy which this particular claimant can perform.” Walker, 889 F.2d at 50. For the
vocational expert’s testimony to be relevant, “it must be based upon a consideration of all
other evidence in the record, . . . and it must be in response to proper hypothetical
questions which fairly set out all of claimant’s impairments.” Id. (citations omitted).

7

An exertional limitation is one that affects the claimant’s ability to meet the strength
requirements of jobs. 20 C.F.R. §§ 404.1569a(a), 416.969a(a). A nonexertional limitation
is one that affects the ability to meet the demands of the job other than the strength
demands. Id. Examples of nonexertional limitations include but are not limited to difficulty
functioning because of being nervous, anxious, or depressed; difficulty maintaining
attention or concentrating; difficulty understanding or remembering detailed instructions;
difficulty seeing or hearing. 20 C.F.R. §§ 404.1569a(c)(1), 416.969a(c)(1).
12

II.

Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783

F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant
issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important
when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir.
1980). In such circumstances, “the ALJ should scrupulously and conscientiously probe
into, inquire of, and explore for all the relevant facts, . . . being especially diligent in
ensuring that favorable as well as unfavorable facts and circumstances are elicited.” Id.
(internal quotations and citations omitted).
III.

Treating Physicians
If a treating physician’s opinion on the nature and severity of a claimant’s

impairments is “well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence” in the record, the
ALJ must give it controlling weight. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see
Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating
physician’s opinion if it is unsupported or inconsistent with other evidence, i.e., when the
treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but
the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length
of the treatment relationship and the frequency of examination; 2) nature and extent of the
treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with
the record a whole; 5) specialization of the physician; and 6) other factors which tend to

13

support or contradict the opinion, 20 C.F.R. §§ 404.1527(c), 416.927(c). Similarly, where
a treating physician has merely made conclusory statements, the ALJ may afford the
opinion such weight as is supported by clinical or laboratory findings and other consistent
evidence of a claimant’s impairments. See Craig, 76 F.3d at 590 (holding there was
sufficient evidence for the ALJ to reject the treating physician’s conclusory opinion where
the record contained contradictory evidence).
In any instance, a treating physician’s opinion is generally entitled to more weight
than a consulting physician’s opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th
Cir. 1983) (stating that treating physician’s opinion must be accorded great weight because
“it reflects an expert judgment based on a continuing observation of the patient’s condition
for a prolonged period of time”); 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). An ALJ
determination coming down on the side of a non-examining, non-treating physician’s
opinion can stand only if the medical testimony of examining and treating physicians goes
both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is
required to review all of the medical findings and other evidence that support a medical
source’s statement that a claimant is disabled. 20 C.F.R. §§ 404.1527(d), 416.927(d).
However, the ALJ is responsible for making the ultimate determination about whether a
claimant meets the statutory definition of disability. Id.
IV.

Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a

claimant’s medical sources do not give sufficient medical evidence about an impairment

14

to determine whether the claimant is disabled. 20 C.F.R. §§ 404.1517, 416.917; see also
Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a
consultative examination is not required when there is sufficient medical evidence to make
a determination on a claimant’s disability. 20 C.F.R. §§ 404.1517, 416.917. Under the
regulations, however, the ALJ may determine that a consultative examination or other
medical tests are necessary. Id.
V.

Pain
Congress has determined that a claimant will not be considered disabled unless he

furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing
the existence of a medical impairment that could reasonably be expected to produce the
pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). In evaluating claims of disabling
pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App’x 716,
723 (4th Cir. 2005) (unpublished opinion). First, “the ALJ must determine whether the
claimant has produced medical evidence of a ‘medically determinable impairment which
could reasonably be expected to produce . . . the actual pain, in the amount and degree,
alleged by the claimant.’” Id. (quoting Craig, 76 F.3d at 594). Second, “if, and only if, the
ALJ finds that the claimant has produced such evidence, the ALJ must then determine, as
a matter of fact, whether the claimant’s underlying impairment actually causes her alleged
pain.” Id. (emphasis in original) (citing Craig, 76 F.3d at 595).
Under the “pain rule” applicable within the United States Court of Appeals for the
Fourth Circuit, it is well established that “subjective complaints of pain and physical

15

discomfort could give rise to a finding of total disability, even when those complaints [a]re
not supported fully by objective observable signs.” Coffman v. Bowen, 829 F.2d 514, 518
(4th Cir. 1987) (citing Hicks v. Heckler, 756 F.2d 1022, 1023 (4th Cir. 1985)). The ALJ
must consider all of a claimant’s statements about his symptoms, including pain, and
determine the extent to which the symptoms can reasonably be accepted as consistent
with the objective medical evidence. 20 C.F.R. §§ 404.1528, 416.928. Indeed, the Fourth
Circuit has rejected a rule which would require the claimant to demonstrate objective
evidence of the pain itself, Jenkins v. Sullivan, 906 F.2d 107, 108 (4th Cir. 1990), and
ordered the Commissioner to promulgate and distribute to all administrative law judges
within the circuit a policy stating Fourth Circuit law on the subject of pain as a disabling
condition, Hyatt v. Sullivan, 899 F.2d 329, 336–37 (4th Cir. 1990). The Commissioner
thereafter issued the following “Policy Interpretation Ruling”:
This Ruling supersedes, only in states within the Fourth
Circuit (North Carolina, South Carolina, Maryland, Virginia and
West Virginia), Social Security Ruling (SSR) 88-13, Titles II
and XVI: Evaluation of Pain and Other Symptoms:
...
FOURTH CIRCUIT STANDARD: Once an underlying
physical or [m]ental impairment that could reasonably be
expected to cause pain is shown by medically acceptable
objective evidence, such as clinical or laboratory diagnostic
techniques, the adjudicator must evaluate the disabling effects
of a disability claimant’s pain, even though its intensity or
severity is shown only by subjective evidence. If an underlying
impairment capable of causing pain is shown, subjective
evidence of the pain, its intensity or degree can, by itself,
support a finding of disability. Objective 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. Because pain
16

is not readily susceptible of objective proof, however, the
absence of objective medical evidence of the intensity,
severity, degree or functional effect of pain is not
determinative.
SSR 90-1p, 55 Fed. Reg. 31,898-02, at 31,899 (Aug. 6, 1990). SSR 90-1p has since been
superseded by SSR 96-7p, which is consistent with SSR 90-1p. See SSR 96-7p, 61 Fed.
Reg. 34,483-01 (July 2, 1996). SSR 96-7p provides, “If an individual’s statements about
pain or other symptoms are not substantiated by the objective medical evidence, the
adjudicator must consider all of the evidence in the case record, including any statements
by the individual and other persons concerning the individual’s symptoms.” Id. at 34,485;
see also 20 C.F.R. §§ 404.1529(c)(1)–(c)(2), 416.929(c)(1)–(c)(2) (outlining evaluation of
pain).
VI.

Credibility
The ALJ must make a credibility determination based upon all the evidence in the

record. Where an ALJ decides not to credit a claimant’s testimony about pain, the ALJ
must articulate specific and adequate reasons for doing so, or the record must be obvious
as to the credibility finding. Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir. 1985).
Although credibility determinations are generally left to the ALJ’s discretion, such
determinations should not be sustained if they are based on improper criteria. Breeden,
493 F.2d at 1010 (“We recognize that the administrative law judge has the unique
advantage of having heard the testimony firsthand, and ordinarily we may not disturb
credibility findings that are based on a witness’s demeanor. But administrative findings
based on oral testimony are not sacrosanct, and if it appears that credibility determinations
are based on improper or irrational criteria they cannot be sustained.”).

17

APPLICATION AND ANALYSIS
Mental Impairment
Plaintiff argues that the ALJ erred in concluding that Plaintiff’s mental impairment
was not severe. [Doc. 8 at 9.] Plaintiff also argues that the ALJ relied solely on his lay
judgement in finding that Plaintiff’s activities of daily living negated the opinions of mental
health professionals who found that he had mental limitations. [Id.] Plaintiff contends the
ALJ made conclusory findings in stating that the opinion of the treating physician Dr. Brian
Mika of Piedmont Behavioral Medicine Associates (“Dr. Mika”) was inconsistent with his
treatment records without any further explanation of the purported inconsistencies. [Id. at
10.]
The Commissioner contends the ALJ properly determined that Plaintiff’s medically
determinable mental impairments of generalized anxiety disorder, major depressive
disorder, and bipolar disorder were non-severe because they resolved with no credible
allegations of continued limitations and they produced only minor or infrequent limitations.
[Doc. 9 at 12.] The Commissioner also points out that Dr. Mika completed a checkbox
opinion in February 2013 indicating that Plaintiff had marked mental functional limitations
after seeing Plaintiff on only two occasions with rather benign findings. [Id. at 15–16.]
The Court agrees with Plaintiff that substantial evidence does not support the ALJ’s
determination that Plaintiff’s mental impairment was non-severe.
Relevant Medical Evidence 8

8

Plaintiff’s objections to the ALJ’s decision appear to be directed to the ALJ’s findings
with respect to Plaintiff’s mental limitations. Thus, the discussion of relevant medical
evidence will be directed to the evidence of record related to Plaintiff’s mental impairment.
18

Plaintiff alleges disability due to coronary artery disease, cardiac arrythmia,
pacemaker, chronic hepetitis C, cirrochis of liver, bipolar and panic disorder, depression,
total knee replacement, and alcoholism. [See R. 68.]
On November 1, 2011, Plaintiff presented to Dr. Joseph P. Goldsmith, ED.D (“Dr.
Goldsmith”) for a mental status examination, on referral by Laurie Hearne, with reported
problems of total knee replacement (“TKA”), coronary artery disease, arrhythmia,
alcoholism, liver disease, and bipolar disease. [R. 330.] Plaintiff advised that his mental
illness dated back to 1980 when he started having panic attacks. [Id.] Plaintiff advised that
he had been to the emergency room on a number of occasions for panic attacks but had
never been to a psychiatric hospital. [Id.] Paxil did stop his panic attacks. [Id.]
Plaintiff relayed ongoing problems with dizziness, blurred vision, anxiety and
depression on a daily basis. [Id.] He advised that he sleeps 14–15 hours daily and can
not function due to his hepatitis and medication, which tires him out. [Id.] Plaintiff indicated
that he had been arrested in the past: 5 times for DUI; twice for possession of drugs; and
once for assault, disturbing the peace, and damaging property. [Id.]
Plaintiff graduated from the University of North Carolina with a B.A. in History and
Political Science. [Id.] He was last employed at Lowe’s until he was terminated on
February 26, 2011, after having excessive write-ups for his inability to perform and interact.
[R. 331.] Plaintiff admitted he missed work, was unable to perform certain jobs, and took
unauthorized breaks, all appearing to be alcohol related. [Id.]
With respect to activities of daily living (“ADL”), Plaintiff stated that he typically took
his son to school, did household duties as much as he could, came back home and slept
at 11:30, checked his mail and watched TV. [Id.] Plaintiff did not have friends or relatives
19

visit, had no group activities, and did not go to Sunday school, church or anything like that.
[Id.]

Plaintiff relayed that his father was physically abusive to the point of leaving

cuts/bruises, leaving him with nightmares as a child which appeared to be PTSD in nature;
and he was sexually abused by a neighbor a couple years older than him, which he never
reported. [Id.]
Plaintiff claimed he began drinking at 13 and has “used all drugs out there.” [Id.] He
also claimed he last used drugs 10 years prior and had his last drink eight weeks prior to
his November 1, 2011, visit with Dr. Goldsmith due to his diagnosis of stage III liver
disease. [Id.] Dr. Goldsmith diagnosed Plaintiff with bipolar disorder, not otherwise
specified, and alcohol dependence in remission. [Id.] Dr. Goldsmith indicated that he was
not sure Plaintiff could stay abstinent, that he did not think he could handle funds, and that,
while his reasoning ability is excellent, he would have a difficult time making occupational,
personal, and social adjustments of dealing with the world of work. [R. 332.]
On November 21, 2012, Plaintiff presented to Dr. Mika on referral from Dr. Larry H.
Pennington with Digestive Disease Associates of York Co. [R. 380.] After taking Plaintiff’s
medical history, Dr. Mika completed a mental status exam and found as follows:
*
*
*
*
*
*
*
*
*
*

appropriate dress, grooming and hygiene;
normal gait and station
normal psychomotor
cooperative attitude
normal rate of speech
depressed and anxious mood
congruent affect
logical and coherent thought processes
no hallucinations, delusions, obsessions or homicidal thoughts
insight, memory, attention/concentration, expressive/receptive language,
intelligence/fund of knowledge and judgment intact and oriented to person,
place and time

20

[R. 382.] On the same day, Dr. Mika completed a Psychiatric/Psychological Impairment
Questionnaire based on the clincal exam finding as follows:
*
*
*
*
*
*
*
*
*
*
*
*

poor memory (1/3 recall)
appetite disturbance with weight change;
sleep disturbance
mood disturbance
substance dependence
recurrent panic attacks
anhedonia or pervasive loss of interest
feelings of guilt/worthlessness
social withdrawal or isolation
decreased energy
persistent irrational fears
generalized persistent anxiety

[R. 409.] Dr. Mika described Plaintiff’s symptoms as equally severe and that his symptoms
were reasonably consistent with Plaintiff’s physical and /or emotional impairments. [R.
410.] Dr. Mika also assessed Plaintiff’s mental activities as follows:
*

No evidence of limitation in Plaintiff’s ability to
*

*

Mildly limited (e.g. does not significantly affect Plaintiff’s ability to perform the
activity) in Plaintiff’s ability to
*
*
*
*
*
*
*

*

get along with co-workers or peers without distracting them or
exhibiting behavioral extremes;

understand and to remember one or two step instructions
carry out simple one or two step instructions
sustain ordinary routine without supervision
make simple work related decisions
ask simple questions or request assistance
accept instructions and respond appropriately to criticism from
supervisors
maintain socially appropriate behavior and adhere to basic standards
of neatness and cleanliness

Moderately limited (significantly affects but does not totally preclude Plaintiff’s
ability to perform the activity) in Plaintiff’s ability to
*

remember locations and work-like procedures
21

*
*
*
*
*
*
*

ability to perform activities within a schedule, maintain regular
attendance, and be punctual within customary tolerances
ability to work in coordination with or proximity to others without being
distracted by them
interact appropriately with the general public
respond appropriately to changes in the work setting
to be aware of normal hazards and take appropriate precautions
to set realistic goals or make plans independently

Markedly limited (effectively precludes Plaintiff from performing the activity
in a meaningful manner) in Plaintiff’s ability to
*
*
*
*

*

understand and remember detailed instructions
carry out detailed instructions
maintain attention and concentration for extended periods
complete a normal work week without interruptions from
psychologically based symptoms and to perform at a consistent pace
without an unreasonable number and length of rest periods
set realistic goals or make plans independently

[R. 410– 13.]
Dr. Mika concluded that Plaintiff experienced episodes of deterioration or
decompensation in work or work like setting which caused him to withdraw from that
situation and/or experience exacerbation of symptoms.9 [R. 413.] Dr. Mika opined that
Plaintiff’s symptoms would last about six months with therapy; that his psychiatric condition
does not exacerbate his pain or other physical symptoms; that Plaintiff is capable of “low
stress” work; and that he will have good and bad days due to his persistent symptoms. [R.
414.] Dr. Mika indicated Plaintiff’s symptoms related back to his first evaluation on
November 21, 2012, and that he would be able to manage his own benefits.10 [R. 415.]

9

Dr. Mika’s explanation for this response is illegible as are most of the other supporting
notes he provides. At most, the majority of Dr. Mika’s notes are extremely hard to read.
[See R. 413, 415 and 380–84.]
10

A review of Dr. Mika’s treatment notes dated November 21, 2012, and February 8,
2013, indicate that Plaintiff’s mental status exams generally showed him as depressed and
22

Medical evidence from Lisa Fowler (“Fowler”), Licensed Clinical Social Worker of
Palmetto Counseling Consultants dated January 2 and January 23, 2013, document that,
on mental status examination, Plaintiff had fair eye contact; normal gait and station; normal
appearance, attitude and behavior; normal psychomotor and attitude; anxious mood and
sad affect; normal speech and thought process; unremarkable thought process; and he
was oriented to day, date and month. [See R. 387, 391.] Treatment notes also indicate that
Plaintiff’s attention span was distracted and his judgment, insight and impulse control were
fair. [Id.] Fowler, in summarizing the negative coping mechanisms or barriers to achieving
a proposed treatment plan, found that Plaintiff lacked adaptive coping skills; had an
inadequate social support system; had a history of non-compliance with treatment; and had
co-morbid medical illness. [See R. 388, 392.]
Plaintiff’s Testimony
In his disability report, Plaintiff indicated that he was able to take care of his personal
needs at a slower rate and that his daily activities are limited due to his ongoing conditions.
[R. 267.] With respect to ADL, Plaintiff testified that he is hardly able to do anything around
the house other than make a bed, or something similar; does not grocery shop but does
like to cut out coupons once a week; and can drive. [R. 52–53.] Plaintiff also testified that
during an average day he watches television and listens to the radio; lets the dogs out in
the back yard; has no hobbies to occupy his time; does not attend social functions like
church. [R. 54–55 .]

anxious with congruent affect; logical and coherent in thought processes; no hallucinations,
delusions, obsessions or suicidal thoughts; and intact insight, judgment, memory,
attention/concentration, expressive/receptive language/ and intelligence/fund of knowledge.
[See R. 382, 384.]
23

ALJ’s Assessment of Plaintiff’s Mental Impairment
The ALJ, upon assessing Plaintiff’s mental impairments of generalized anxiety
disorder, major depressive disorder, and bipolar disorder, determined that these
impairments, considered singly and in combination, did not cause more than minimal
limitation in the claimant's ability to perform basic mental work activities and were,
therefore, non-severe. [R. 21.] In considering the four broad functional areas set out in
the disability regulations for evaluating mental disorders and in section 12.00C of the
Listing of lmpairments, the ALJ determined that Plaintiff had mild limitations in his ADL;
mild limitations in social functioning; mild limitations in concentration, persistence or pace;
and no episodes of decompensation for an extended duration. [R. 21.]
In evaluating the medical opinion evidence of record related to Plaintiff’s mental
impairment, the ALJ considered the consultative evaluation of Dr. Goldsmith and assessed
it with little weight finding that:
On November 1, 2011, the claimant was consultatively
evaluated Joseph Goldsmith, Ed.D. The claimant reported a
history of panic attacks and depression adding he had taken
Paxil in the past, which controlled his panic attacks. He stated
he could not function due to his hepatitis adding his medication
made him tired. The claimant reported he had been arrested
in the past for five DUIs, two possession of drug offenses, one
assault, disturbing the peace, and damaging property. On said
date, the claimant was oriented to place and person and his
insight and judgment appeared to be good. He was able to
remember three items after one minute and two items after five
minutes. He was able to spell the word "world" both forward
and backwards. Logical memory indicates he was able to
remember 9of14 information units. The Emery Test for
Syntactic Complexity indicated he was able to understand
syntax. Dr. Goldsmith assessed the claimant with bipolar
disorder not otherwise specified and alcohol dependence in
remission. Dr. Goldsmith opined the claimant's reasoning
ability was excellent but stated that he thought the claimant
24

would have a difficult time making occupational, personal, and
social adjustments of dealing with the world of work (Exhibit
9F). Dr. Goldsmith did not identify the basis for his opinion
regarding the claimant's ability to make occupational, personal,
and social adjustments. As such, I find it is not supported by
the record and is overly broad.
[R. 21.]
The ALJ also considered the opinion of Plaintiff’s treating psychiatrist Dr. Mika and
assessed his opinion with little weight finding that:
[On November 21, 2012, Plaintiff’s] Mental status examination
revealed anxious and depressed mood and congruent and
constricted affect but was within normal limits otherwise. Dr.
Mika assessed the claimant with generalized anxiety disorder,
major depressive disorder and polysubstance abuse in
remission. His Global Assessment of Functioning score was
assessed at 60. The medical evidence of record shows the
claimant did not return until February 8, 2013, at which his
psychotropic medications were adjusted (Exhibit 17F). On
February 8, 2013, Dr. Mika completed a psychiatric impairment
questionnaire wherein he stated the claimant suffered from
anhedonia, appetite disturbance with weight change, sleep
disturbance, decreased energy, feelings of guilt/worthlessness,
former substance dependence, poor memory with 1/3 recall,
social withdrawal/isolation, persistent irrational fears, recurrent
panic attacks, mood disturbance, and generalized persistent
anxiety. Dr. Mika identified multiple areas of marked limitation
regarding concentration, persistence, and pace including Mr.
Jackson's ability to understand, remember, and carry out
detailed instructions; maintain attention and concentration for
extended periods; and complete a normal workweek without
interruptions from psychologically based symptoms and to
perform at a consistent pace without an unreasonable number
and length of rest periods. Dr. Mika also noted marked
limitation of Mr. Jackson's ability to adapt to change as
evidenced by his markedly restricted ability to travel to
unfamiliar places or use public transportation. He noted that
Mr. Jackson suffered from episodes of deterioration or
decompensation in work-like settings due to poor stress
tolerance and coping skills. Dr. Mika stated that Mr. Jackson
was no longer able to manage or pay bills or do other tasks

25

(Exhibit 23F). I find Dr. Mika's opinion is inconsistent with the
claimant's treatment records and activities of daily living.
[R. 22.]
Further, the ALJ considered the opinion of State agency consultant Edward Waller,
Ph.D. and, like wise gave his opinion little weight explaining that:
On November 22, 2011, Edward Waller, Ph.D., a State agency
consultant thoroughly reviewed the claimant's case and opined
the claimant had a mild impairment in activities of daily living
and moderate impairment in maintaining social functioning and
in maintaining concentration, persistence and pace. Dr. Waller
opined the claimant could understand and remember short and
simple instructions, could perform simple tasks without special
supervision, could maintain a regular work schedule but might
miss an occasional workday due to depression, would perform
better in a job setting that did not require ongoing interaction
with the public, could make simple work related decisions,
request assistance from others, and use available
transportation (Exhibit 5A). I find Dr. Waller's opinion is
inconsistent with the claimant's treatment records as well as
his reported activities of daily living, including taking his son to
school, checking his mail, watching television, preparing meals
and shopping in stores, by phone, by mail and by computer
(Exhibits 8F, 9F).
[R. 22.]
Discussion
The ALJ is obligated to evaluate and weigh medical opinions “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) (citing
20 C.F.R. § 404.1527). Courts typically “accord ‘greater weight to the testimony of a
treating physician’ because the treating physician has necessarily examined the applicant
26

and has a treatment relationship with the applicant.” Id. (quoting Mastro, 270 F.3d at 178).
While the ALJ may discount a treating physician’s opinion if it is unsupported or
inconsistent with other evidence, Craig, 76 F.3d at 590, the ALJ must still weigh the
medical opinions based on the factors listed in 20 C.F.R. § 404.1527(c).
In undertaking review of the ALJ's treatment of Plaintiff’s treating sources, the court
focuses its review on whether the ALJ's opinion is supported by substantial evidence,
because its role is not to “undertake to re-weigh conflicting evidence, make credibility
determinations, or substitute [its] judgment for that of the [Commissioner].” Craig, 76 F.3d
at 589. A review of the ALJ’s decision, however, fails to show that the ALJ reviewed the
medical opinions of Plaintiff’s treating physicians in accordance with the factors in 20
C.F.R. § 404.1527(c). In fact, the ALJ fails to address most of these factors set forth in the
Treating Physician Rule.
The ALJ's rejection of the opinions of Dr. Mika, Dr. Goldsmith, and Dr. Waller
appears to be primarily based on the premise that Plaintiff's relatively stable condition in
the home setting and ability to perform certain limited ADL were inconsistent with the
doctors' opinions that Plaintiff’s psychiatric condition rendered him incapable of handling
the social interaction and adjustments of work setting. The ALJ also provided a cursory
conclusion that Dr. Mika’s medical opinion was not supported by his treatment notes, but
provided no further discussion with respect to the treatment notes. Nevertheless, even the
State agency chart reviewers recognized that Plaintiff's psychiatric condition significantly
impacted his social functioning and persistence and pace in the work place [see R. 93],
notwithstanding his relatively stable condition and performance of ADL in the home setting.
The premise of the ALJ—that Plaintiff's relative stability at home and limited ADL rendered
27

the opinions of Drs. Mika, Goldsmith, and Waller that Plaintiff had extreme impairments in
the work setting unworthy of significant weight and consideration—substituted the ALJ's
opinion for those of Plaintiff's treating, examining and non-examining medical sources.
These medical opinions of record regarding the impact of Plaintiff's mental disease process
on his ability to function in the work place draw upon the doctors' special training and
experience and may not be summarily rejected by the ALJ on his personal belief that a
bipolar patient's relative stability at home is inconsistent with the opinion that a patient
cannot function adequately in the work setting. See Wilson v. Heckler, 743 F.2d 218, 221
(4th Cir. 1984) (explaining the ALJ may not substitute expertise that he did not possess in
a filed of medicine for the opinion of a physician regarding the claimant’s functional
limitations). Clearly, the ALJ found Plaintiff’s mental impairment to be irrelevant even in
the face of the medical evidence, and substantial evidence in the record does not support
the ALJ’s decision.
Additionally, the Court finds it bewildering that the evidence of record directed to
Plaintiff’s mental impairment resulted in no associated limitation in Plaintiff’s RFC. Thus,
the ALJ’s Step 2 error was not harmless because the RFC determination did not sufficiently
account for Plaintiff’s mental impairment. See Sawyer v. Colvin, 995 F. Supp. 2d 496, 509
(D.S.C. Feb. 3, 2014) (noting that there is no reversible error where the ALJ erred by
finding an impairment to be non-severe at Step 2 provided the ALJ considered that
impairment in subsequent steps; here the ALJ considered the disorders at issue in
determining the RFC).
This misapplication of the Treating Physician Rule in this case mandates reversal
of the Commissioner's decision and remand for a proper evaluation of the medical opinions
28

contained in the record. On remand, the opinions of Drs. Mika, Goldsmith, and Waller
should be explicitly weighed in light of the treatment history, including the length and extent
of treatment, the area of specialization, and other factors set forth in the Treating Physician
Rule, mindful of the general deference to be afforded the opinions of treating physicians,
as well as in the light of the general deference given examiners when weighed against the
opinions of non-examining experts. The ALJ should likewise address other evidence of
record, including opinions from non-medical sources such as Lisa Fowler, clinical social
worker, who also found Plaintiff lacked adaptive coping skills. [See R. 388.] Any rejection
of these opinions should be based on appropriate evidence in the record and in accord
with the Treating Physician Rule and not simply the substitution of the opinion of the ALJ
for that of the treating and examining medical sources.
Plaintiff's Remaining Arguments
Because the Court finds the ALJ's failure to properly consider the medical opinion
evidence in accordance with the Treating Physician Rule is a sufficient basis to remand the
case to the Commissioner, the Court declines to specifically address Plaintiff's additional
allegations of error by the ALJ. However, upon remand, the Commissioner should take into
consideration Plaintiff's remaining allegations of error.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends the Commissioner’s
decision be REVERSED and the case be REMANDED to the Commissioner pursuant to
sentence four of 42 U.S.C. § 405(g) for further administrative action consistent with this
recommendation.
IT IS SO RECOMMENDED.
29

s/Jacquelyn D. Austin
United States Magistrate Judge
January 26, 2016
Greenville, South Carolina

30