Dandridge v. Commissioner of Social Security Administration

Filing 23

ORDER adopting Report and Recommendations re 17 Report and Recommendation and affirming the Commissioner's decision. Signed by Honorable David C Norton on 8/12/2014.(cahe, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
RONNIE SHANE DANDRIDGE,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,1
Defendant.

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No. 9:12-cv-03066-DCN

ORDER

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

Procedural History

Plaintiff Ronnie Shane Dandridge (“Dandridge”) filed an application for SSI and
DIB on March 16, 2009, alleging disability beginning on August 11, 2006. The Social
Security Agency denied Dandridge’s claim initially and on reconsideration. Dandridge
requested a hearing before an administrative law judge (“ALJ”), and ALJ Augustus C.

1

Carolyn W. Colvin became the Acting Commissioner of Social Security on
February 14, 2013. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure,
Carolyn W. Colvin should be substituted for Michael J. Astrue as the defendant in this
lawsuit.
1

Martin held a hearing on January 7, 2011. The ALJ issued a decision on January 14,
2011, finding Dandridge not disabled under the Social Security Act. Dandridge
requested Appeals Council review of the ALJ’s decision. The Appeals Council declined
to review the decision, rendering the ALJ’s decision the final action of the
Commissioner.
On October 24, 2012, Dandridge filed this action seeking review of the ALJ’s
decision. The magistrate judge issued an R&R on April 1, 2014, recommending that this
court affirm the ALJ’s decision. Dandridge filed objections to the R&R on April 30,
2014 and the Commissioner responded to Dandridge’s objections on May 16, 2014. The
matter is now ripe for the court’s review.
B.

Medical History

Dandridge was born on January 6, 1973 and was 33 years old on the alleged onset
date. Tr. 49. He has an eleventh grade education and past relevant work experience as a
sheet metal mechanic and construction worker. Tr. 51, 198. Dandridge first complained
of back pain during a January 23, 2006 visit to Dr. Michael Smith, his family physician.
Tr. 236. At that time, radiographic studies noted no abnormalities, id., although an x-ray
showed a mild decreased disc height at L5-S1. Tr. 237.
On August 22, 2006, Dandridge returned to Dr. Smith complaining that he had a
sharp pain in his back while doing some heavy lifting and that since then, he had been
experiencing severe low back pain and stiffness. Tr. 235. Dr. Smith noted that
Dandridge was able to ambulate without difficulty and diagnosed him with low back pain
with associated muscle spasm. Id. Around that same time Dr. Smith performed an MRI,

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which showed disc desiccation and disc space narrowing at the L5-S1 level, with broad
disc protrusion. Tr. 232.
Dandridge was referred by Dr. Smith to the Southeastern Spine Institute, where he
was evaluated by Dr. Steven Poletti on September 13, 2006. Tr. 241. Dandridge told Dr.
Poletti that he had back pain off and on since his early 20s and complained of pain in his
low back, buttocks, hip and leg, with pain on his left side being greater than the right
side. Id. Dr. Poletti diagnosed Dandridge with disc herniation left L5-S1, and noted that
he did not consider Dandridge as a surgical candidate. Id. Dr. Poletti also gave
Dandridge an epidural injection. Id. On the same day, Dr. Poletti completed a patient
status report indicating that Dandridge “cannot work.” Tr. 459.
On October 24, 2006, Dandridge returned to Dr. Poletti for a follow-up
appointment. Tr. 238. Dr. Poletti noted that the epidural injection had “helped him,”
although he was “far from 100%.” Id. Dr. Poletti recommended “observation” of
Dandridge’s condition and noted that Dandridge should follow-up on an “as needed
basis.” Id.
On November 22, 2006, state agency physician Dr. Jean Smolka reviewed
Dandridge’s medical records and completed a residual functional capacity (“RFC”)
assessment. Tr. 242-49. In her assessment, Dr. Smolka opined that Dandridge could:
occasionally lift twenty pounds and frequently lift ten pounds; stand or walk for six hours
in an eight-hour workday; sit for six hours in an eight-hour workday; and occasionally
balance, stoop, crouch, crawl, and climb ladders, ropes, and scaffolds. Id.
Seven months later, on June 18, 2007, Dr. Ifeanyi Nwaekwu performed a
consultative examination. Tr. 250-53. Dandridge told Dr. Nwaekwu that he had a

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constant, dull pain at level five on a ten-point scale and that his symptoms become worse
when standing for long periods of time. Tr. 250. On examination, Dr. Nwaekwu found
Dandridge to not be in painful distress, as well as having normal muscle tone and reflexes
and full strength in both his upper and lower extremities. Tr. 251. Dr. Nwaekwu noted
that Dandridge had a normal gait, was able to get on and off the examination table
without assistance, and ambulated without any assistive devices. Tr. 252. Dandridge
was able to squat and get up without assistance, although there was some associated back
pain. Id. An x-ray showed no significant change from his January 2006 x-ray. Id. Dr.
Nwaekwu diagnosed Dandridge with lumbosacral spine disc herniation at L4-S1 with
evidence of central disc herniation at L4-L5 and left-sided disc herniation at L5-S1. Id.
Dr. Nwaekwu opined that Dandridge would be “unable to return to his previous job as a
heating and air repairman because that involves heaving lifting that may aggravate his
disc herniation,” but noted that “he will benefit from retraining in another occupation that
does not require heavy lifting or prolonged standing.” Tr. 252-53.
On August 28, 2007, Dandridge had another epidural steroid injection at
Southeastern Spine Institute. Tr. 262. The following month, a second state agency
physician, Dr. Jim Liao, completed an RFC assessment after reviewing Dandridge’s
records. Tr. 263-70. Dr. Liao opined that Dandridge could: occasionally lift twenty
pounds and frequently lift ten pounds; stand or walk for six hours in an eight-hour
workday; sit for six hours in an eight-hour workday; and occasionally stoop and climb
ladders, ropes, and scaffolds. Tr. 264-65.
On July 15, 2008, Dr. Poletti completed another patient status report, again
indicating that Dandridge “cannot work” due to “severe lumbar disc disorder.” Tr. 458.

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On September 9, 2008, Dr. Sanjay Kumar performed a vocational rehabilitation
examination. Tr. 272-74. Dr. Kumar found Dandridge to have no edema, cyanosis, or
deformity; no swelling in either knee; and full range of motion in all joints. Tr. 273.
Dandridge also had full strength in both his lower and upper extremities. Id. Dr.
Kumar’s detailed orthopedic examination found normal results with the exception that
Dandridge complained of lower back pain when he rotated 60 degrees on both sides
while in the supine position. Id. Dr. Kumar noted that Dandridge had no difficulty
getting on and off the examination table, had no gait disturbances, and was not using any
ambulatory assistive devices. Id.
On September 16, 2008, Dr. Liao completed a new RFC assessment. Tr. 277-84.
Dr. Liao opined that Dandridge retained the capacity for medium work and that he could:
occasionally lift 50 pounds, frequently lift 25 pounds, and occasionally climb ladders,
ropes, or scaffolds. Tr. 278-79. Dr. Liao removed his previous limitation on stooping.
Tr. 279.
Dandridge returned to Dr. Poletti for a follow-up appointment on October 23,
2008. Tr. 287. Dandridge complained of back pain and extreme weakness in his legs,
told Dr. Poletti that he could not feel his legs, and asked for another steroid injection. Id.
Dr. Poletti noted that x-rays showed moderately severe spondylosis in the paracervical
region. Id. Dr. Poletti opined that Dandridge would not be able to return to “exertional
level work,” but remained hopeful that he would respond to non-operative care. Id. He
also noted that Dandridge may be a candidate to pursue long-term disability. Id.
Dandridge received another steroid injection on November 25, 2008. Tr. 286.

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On December 9, 2008, Dandridge saw Dr. Poletti again. Tr. 285. Dr. Poletti
noted “mild spondylosis but nothing significant.” Id. Dr. Poletti recommended an
updated MRI scan. Id. On the same day, Dr. Poletti again completed a patient status
report indicating that Dandridge could not work. Tr. 456. Dandridge underwent an MRI
on January 7, 2009, which showed evidence of protruding disc material at two levels with
potential nerve root compression at levels L4-5 and L5-S1. Tr. 288-89. On the same
day, Dr. Poletti completed another patient status report indicating that Dandridge could
not work. Tr. 455.
Dandridge saw Dr. Smith again on April 8, 2009 and again complained of back
pain. Tr. 290. On May 7, 2009, Dr. Poletti completed another patient status report
stating that Dandridge “cannot work.” Tr. 454. The same month, Dr. Liao completed an
updated RFC assessment in which he opined that Dandridge could: occasionally lift
twenty pounds and frequently lift ten pounds; stand or walk for six hours in an eight-hour
workday; and occasionally stoop, crouch, crawl, and climb ramps and stairs. Tr. 299300.
On June 10, 2009, Dr. Poletti completed a physician’s report, opining that
Dandridge was “permanently and totally disabled” and “not able to work in his[] usual
occupation.” Tr. 453. Dandridge subsequently visited Dr. Poletti for a follow-up
examination on July 23, 2009. Tr. 396. Dandridge complained of severe pain radiating
into his leg, and Dr. Poletti opined that he had increased sequestration of his disc. Id. Dr.
Poletti noted that Dandridge was walking with a cane. Id. Dandridge then underwent an
MRI, which Dr. Poletti noted showed “sequestered disc herniation lateralized into the left

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of the L5-S1 level.” Tr. 397. Dr. Poletti also noted that Dandridge was at risk of reherniation and continued back pain, and recommended him for surgery. Id.
Dandridge underwent a laminectomy-discectomy L5-S1 on August 20, 2009. Tr.
345, 394. At a post-operative visit to Southeastern Spine Institute on September 4, 2009,
physician assistant Amanda Thurber noted that Dandridge was “doing fairly well,” had
some increased swelling in his left foot, and used a brace and cane for assistance. Tr.
393. Dandridge was taking Lortab two to three times a day and Soma three times a day
to help alleviate his pain. Id. At a second post-operative visit on October 1, 2009,
physician assistant Justin Swain noted that Dandridge reported having “difficulty walking
secondary to pain in his leg,” but stated that “it does feel different than it did before
surgery.” Tr. 408. Dandridge also complained of worsening dysesthesia into his leg. Id.
On examination, Dandridge was ambulatory with an antalgic gait, left side favored, with
subjective dysesthesia to his lower left extremity and slight diminished Achilles tendon
reflex. Id.
On November 19, 2009, Dandridge returned to Southeastern Spine Institute for a
follow-up examination with Thurber. Tr. 409. Dandridge reported that Lyrica was
helping with the burning sensation down his left hip and buttock region, although he still
had some muscle spasms and left-sided hip pain. Id. He was ambulatory with cane
assistance. Id. At a visit with Thurber on January 7, 2010, Dandridge reported that
therapy had “gone fairly well” and that his strength was improving in his left lower
extremity, although he had “pretty intense spasms on his left leg and across his lower
back.” Tr. 424. He noted that Lyrica helped with his leg pain. Id. Thurber found him to
be ambulatory with an antalgic gait and Dandridge was still using a cane for assistance.

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Id. On a March 4, 2010 visit to Swain, Dandridge reported being “no better [and] no
worse.” Tr. 436. He stated that his continued back pain and radiating buttock, hip, and
leg pain was “not intractable,” but that he was concerned with it. Tr. 436.
An MRI of the lumbar spine on March 23, 2010 noted signal loss and a central
protrusion of disc material with annular tearing at L4-5, as well as a “previous left-sided
laminectomy with some granulation tissue” and mild displacement of the left S1 nerve
root at L5-S1. Tr. 438. Dandridge was seen by Swain six days later, and Swain noted
that the MRI confirmed that he had degenerative disc disease at L5-S1 with a history of
laminectomy for disc herniation. Tr. 437. Although Dr. Poletti had discussed an anterior
fusion surgery with Dandridge in the past, Swain opined that it should not be considered
at this time. Id.
On April 7, 2010, state agency physician Dr. Tom Brown reviewed Dandridge’s
medical records and completed an RFC assessment. Tr. 440-47. Dr. Brown opined that
Dandridge could: occasionally lift twenty pounds and frequently lift ten pounds; stand or
walk for two hours in an eight-hour workday; sit for six hours in an eight-hour workday;
occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; and never
climb ladders, ropes, or scaffolds. Tr. 441-42. He also opined that Dandridge was
limited in reaching in all directions, including overhead. Tr. 443. Dr. Brown expected
Dandridge to be able to perform a wide range of sedentary work by August 2010. Tr.
447.
Dandridge was seen by Thurber again on August 2, 2010. Tr. 452. He continued
to have “significant left-sided back, buttock, hip, and leg pain.” Id. Thurber noted that
Dandridge’s physical examination was “unchanged.” Id. On September 21, 2010,

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Dandridge was seen by Dr. William Richardson for a consultative examination on
referral from Dr. Poletti. Tr. 472-74. Dandridge reported that on the day of examination,
his pain was a seven out of ten, but that it fluctuated between six and ten out of ten
depending on his level of activity. Tr. 472. Dr. Richardson noted that Dandridge had a
slightly antalgic gait, four out of five strength in his lower left extremity, and mild muscle
wasting on the left compared to the right. Tr. 473. Dr. Richardson referred Dandridge
for rhizotomy and increased his pain medication. Tr. 474.
On December 6, 2010, Dandridge again saw Swain. Tr. 469. Dandridge
continued to “have pain in his low back, buttock, hip, and left leg,” and his pain had
increased because he fell over his son and dog in the yard. Id. Swain noted that
Dandridge had a loss of range of motion in his lumbar spine with significant antalgic gait
and that he favored his left lower extremity. Id. Swain recommended that Dandridge “be
out of work secondary to his physical limitations as well as his analgesic needs,” and
noted that “[c]ertainly any type of construction or exertional job would be out of the
question for him.” Id.
C.

ALJ’s Decision

The ALJ employed the statutorily-required five-step sequential evaluation process
to determine whether Dandridge was disabled from March 16, 2009 through January 14,
2011. The ALJ first determined that Dandridge had not engaged in substantial gainful
activity since August 11, 2006, the alleged onset date. Tr. 27. At the second step, the
ALJ found that Dandridge suffered from the following severe impairment: disorders of
the back. Id. At step three, the ALJ determined that Dandridge’s impairment did not
meet or equal one of the listed impairments in the Agency’s Listing of Impairments (“the

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Listings”). Tr. 28; see 20 C.F.R. Part 404, Subpt. P, App’x 1. Before reaching the fourth
step, the ALJ determined that Dandridge had the residual functional capacity (“RFC”) to
perform sedentary work, as defined by 20 C.F.R. §404.1567(a). Id. Specifically, the ALJ
found that Dandridge could: lift and carry up to ten pounds occasionally and lesser
amounts frequently; sit for six hours in an eight-hour workday; and stand and walk
occasionally. Id. The ALJ further determined that Dandridge could not climb ladders,
ropes, or scaffolds, could only occasionally perform other postural movements and reach
overhead, and must be able to alternate positions at will. Id. The ALJ found, at step four,
that Dandridge was unable to perform any of his past relevant work. Tr. 34. Finally, at
the fifth step, the ALJ that considering Dandridge’s age, education, work experience, and
RFC, he could perform jobs existing in significant numbers in the national economy, and
therefore concluded that he was not disabled during the period at issue. Id.
II. STANDARD OF REVIEW
This court is charged with conducting a de novo review of any portion of the
magistrate judge’s R&R to which specific, written objections are made. 28 U.S.C. §
636(b)(1). A party’s failure to object is accepted as agreement with the conclusions of
the magistrate judge. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985). The
recommendation of the magistrate judge carries no presumptive weight, and the
responsibility to make a final determination rests with this court. Mathews v. Weber, 423
U.S. 261, 270-71 (1976).
Judicial review of the Commissioner’s final decision regarding disability benefits
“is limited to determining whether the findings of the [Commissioner] are supported by
substantial evidence and whether the correct law was applied.” Hays v. Sullivan, 907

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F.2d 1453, 1456 (4th Cir. 1990). Substantial evidence is “more than a mere scintilla of
evidence but may be somewhat less than a preponderance.” Id. (internal citations
omitted). “[I]t is not within the province of a reviewing court to determine the weight of
the evidence, nor is it the court’s function to substitute its judgment for that of the
[Commissioner] if his decision is supported by substantial evidence.” Id. Where
conflicting evidence “allows reasonable minds to differ as to whether a claimant is
disabled, the responsibility for that decision falls on the [ALJ],” not on the reviewing
court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (internal citation omitted).
III. DISCUSSION
Dandridge objects to the R&R on two grounds: (1) the magistrate judge erred in
finding that substantial evidence supports the ALJ’s rejection of “virtually all of the
opinion evidence regarding Mr. Dandridge’s mobile impairments;” and (2) the magistrate
judge erred in finding that the ALJ had properly followed the treating physician rule.
Because Dandridge’s first objection deals almost entirely with the weight given to Dr.
Poletti’s opinions, the court will consider both objections together to determine whether
the ALJ properly applied the treating physician rule.2

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To the extent that Dandridge asserts a general objection that substantial evidence
does not support the ALJ’s decision as a whole, it is not the province of this court to
reweigh conflicting evidence. Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005)
(“In reviewing for substantial evidence, we do not undertake to reweigh conflicting
evidence. . . .” (citing Craig, 76 F.3d at 589)). In this case, reasonable minds could
disagree concerning whether Dandridge is disabled – there was evidence that Dandridge
could perform light work and evidence that he could perform no work. The ALJ gave
Dandridge “the benefit of the doubt” by reducing his RFC to sedentary work. Tr. 33.
Therefore, the court finds that the ALJ’s decision is supported by substantial evidence
and the court will not reweigh the evidence.
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Regulations require that a treating physician’s opinion be given controlling weight
if that opinion “is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence” in the
record. 20 C.F.R. § 404.1527(c)(2); see, e.g., Mastro v. Apfel, 270 F.3d 171, 178 (4th
Cir. 2001). “By negative implication, if a physician’s opinion is not supported by clinical
evidence or if it is inconsistent with other substantial evidence, it should be accorded
significantly less weight.” Craig, 76 F.3d at 590. In such a circumstance, “the ALJ holds
the discretion to give less weight to the testimony of a treating physician in the face of
persuasive contrary evidence.” Mastro, 270 F.3d at 178.
If a treating physician’s opinion does not merit controlling weight, the ALJ is to
evaluate it using the following factors: (1) whether the physician has examined the
applicant; (2) the nature and extent of the treatment relationship; (3) the extent to which
the opinion is supported by relevant medical evidence; (4) the extent to which the opinion
is consistent with the record as a whole; (5) the relevance of the physician’s medical
specialization to the opinion; and (6) any other factor that tends to support or contradict
the opinion. 20 C.F.R. § 404.1527(c); see SSR 96–2p; Hines, 453 F.3d at 563. However,
the Fourth Circuit has not mandated an express discussion of each factor and another
court in this district has held that “an express discussion of each factor is not required as
long as the ALJ demonstrates that he applied the . . . factors and provides good reasons
for his decision.” Hendrix v. Astrue, No. 1:09-cv-1283, 2010 WL 3448624, at *3 (D.S.C.
Sept. 1, 2010); see also § 404.1527(c)(2) (requiring ALJ to give “good reasons” for
weight given to treating source’s opinion). A district court will not disturb an ALJ’s
determination as to the weight to be assigned to a medical opinion, including the opinion

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of a treating physician, “absent some indication that the ALJ has dredged up ‘specious
inconsistencies’ . . . or has not given good reason for the weight afforded a particular
opinion.” Craft v. Apfel, 164 F.3d 624, 1998 WL 702296, at *2 (4th Cir. 1998) (per
curiam) (unpublished table decision) (internal citation omitted).
Dandridge argues that the ALJ erred in failing to afford great weight to the
opinions of Dr. Poletti. Pl.’s Objections 3. When considering Dr. Poletti’s opinions, the
ALJ first noted that the determination of whether an individual is disabled is reserved for
the Commissioner and that such an opinion is not given any special significance on the
issue of disability. Tr. 33; see 20 C.F.R. § 404.1527(d)(1), (3) (“A statement by a
medical source that you are ‘disabled’ or ‘unable to work’ does not mean that we will
determine that you are disabled. . . . We will not give any special significance to the
source of an opinion on issues reserved to the Commissioner . . . .”). The ALJ then gave
“some weight” to Dr. Poletti’s opinion that Dandridge would not be able to return to
exertional level work activity. Tr. 33. However, the ALJ afforded Dr. Poletti’s opinions
that Dandridge could not work “little weight,” determining that “they are inconsistent
with the other evidence of record,” “[s]pecifically, examinations from June 2007 and
September 2008 were essentially normal.” Id.
Dandridge argues that the ALJ’s characterization of the June 2007 and September
2008 examinations is a “gross exaggeration” and that “there does not exist persuasive
contradictory evidence to rebut the opinion of Dr. Poletti.” Pl.’s Objections 2-3. As
discussed above, in June 2007 Dandridge was examined by Dr. Nwaekwu. Dr. Nwaekwu
noted full strength in both of Dandridge’s lower extremities, normal muscle tone and
reflexes in both lower extremities, and a normal gait. Tr. 251-52. Dr. Nwaekwu noted

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that Dandridge was not in acute pain, and that while he could not return to his job as a
heating and air repairman, he could be trained in another occupation that does not require
heavy lifting. Tr. 252-53. It is readily apparent that Dr. Nwaekwu’s examination was
inconsistent with Dr. Poletti’s opinions that Dandridge would be unable to return to work.
In September 2008, Dandridge was examined by Dr. Kumar. Dr. Kumar found
“no edema, cyanosis, or deformity” of Dandridge’s extremities. Tr. 273. He also noted
full strength in Dandridge’s lower extremities. Id. A detailed orthopedic examination
resulted in generally normal results, with the exception of the straight leg raising test
while Dandridge was in the supine position, which resulted in pain in his lower back. Id.
Again, it is apparent why the ALJ classified Dr. Kumar’s examination as “essentially
normal” and found it to be inconsistent with the opinions of Dr. Poletti. Tr. 33.
The ALJ gave good reasons – inconsistency with the other evidence of record,
specifically two examinations which were essentially normal – for discounting Dr.
Poletti’s opinions. There is no indication that the ALJ dredged up specious
inconsistencies in discounting Dr. Poletti’s opinions. Moreover, the ALJ gave one of Dr.
Poletti’s opinions some weight and based his RFC in part on that opinion. Therefore, the
court will not disturb the ALJ’s determination as to the weight to be assigned to Dr.
Poletti’s opinions.3

3

This case is distinguishable from the court’s decision in Barringer v. Colvin, No.
5:12-cv-353, 2014 WL 798410 (D.S.C. Feb. 27, 2014). In Barringer, the ALJ discounted
the treating physician’s opinion, saying only that such opinion was “not supported by the
evidence or by his own findings.” Id. at *3. In that case, it was the ALJ’s utter failure to
explain the inconsistencies that demanded remand to the ALJ. Here, the ALJ’s analysis
of Dr. Poletti’s opinion, although not overly-detailed, specifically mentions other
evidence in the record to support his conclusion.
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Dandridge also argues that the ALJ erred in failing to afford great weight to
Swain’s opinion. Pl.’s Objections 3. The court first notes that Swain’s opinion is not
subject to the treating physician rule because he is a physician assistant. In order to
qualify for the treating physician rule, a physician’s report must be a “medical opinion.”
See 20 C.F.R. § 404.1527(c) (discussing treating physician rule in subsection titled “How
we consider medical opinions”). “Medical opinions are statements from physicians and
psychologists or other acceptable medical sources that reflect judgments about the nature
and severity of your impairment(s), including your symptoms, diagnosis and prognosis,
what you can still do despite impairment(s), and your physical or mental restrictions.” 20
C.F.R. § 404.1527(a)(2) (emphasis added). “Acceptable medical sources” include
licensed physicians, psychologists, or other medical providers; however, physician
assistants are not considered “acceptable medical sources,” but rather “other sources.” 20
C.F.R. § 404.1513(a), (d). Therefore, to the extent that Dandridge includes the ALJ’s
treatment of Swain’s opinion under the heading “The ALJ erred in failing to follow the
treating physician rule,” Dandridge’s objection fails.
Even though evidence from sources other than acceptable medical sources are not
subject to the treating physician rule, such evidence may be used to show the severity of a
claimant’s impairments and how it affects the claimant’s ability to work. 20 C.F.R. §
404.1513(d). “The evaluation of an opinion from a medical source who is not an
‘acceptable medical source’ depends on the particular facts in each case.” SSR 06-03p.
“Each case must be adjudicated on its own merits based on a consideration of the
probative value of the opinions and a weighing of all the evidence in that particular case.”
Id. When evaluating such a source, “the adjudicator generally should explain the weight

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given to opinion[] . . . or otherwise ensure that the discussion of the evidence in the
determination or decision allows a claimant or subsequent reviewer to follow the
adjudicator’s reasoning, when such opinions may have an effect on the outcome of the
case.” Id.
Swain opined that Dandridge “is someone who is recommended to be out of work
secondary to his physical limitations as well as his analgesic needs. Certainly any type of
construction or exertional job would be out of the question for him.” Tr. 469. After
considering Swain’s opinion, the ALJ afforded it limited weight because “it is not
specific and it appears to contain inconsistencies.” Tr. 34. The ALJ noted that “[t]he
opinion is not clear as to whether Mr. Swain opined that the claimant could not work at
all or if the claimant was not capable of only exertional occupations.” Id. Although
Dandridge argues that Swain’s opinion “plainly indicated that Mr. Dandridge is unable to
work in any capacity,” Pl.’s Objections 4, the court agrees with the ALJ that Swain’s
opinion is ambiguous. While Dandridge asserts that the first sentence quoted above
indicates that he is unable to work in any capacity, it appears just as likely that Swain is
recommending that Dandridge be held out of the construction job he was working in at
the time of his injury and that the next sentence confirms that he would not be able to go
back to such a job. Additionally, the use of the word “certainly” in reference to
exertional jobs suggests that Swain may have considered it possible for Dandridge to
work at a less strenuous job. Because Swain’s opinion is ambiguous, the ALJ adequately
explained the weight given to the opinion.

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

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
August 12, 2014
Charleston, South Carolina

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