Opinion
Civil Action No. 8:17-cv-01826-MBS-JDA
11-06-2018
Stanley Francis Ganshow, Plaintiff, v. Nancy A. Berryhill, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636(b)(1)(B). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claim for disability insurance benefits ("DIB"). 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).
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.
PROCEDURAL HISTORY
In November 2012, Plaintiff protectively filed an application for DIB, alleging on onset of disability date of November 16, 2012. [R. 373-74.] The claim was denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 208-15, 218-29.] Plaintiff requested a hearing before an administrative law judge ("ALJ") and, on July 29, 2014, ALJ Peggy McFadden-Elmore conducted a de novo hearing on Plaintiff's claims. [R. 183-207.]
The ALJ issued a decision on September 8, 2014, finding Plaintiff not disabled under the Social Security Act ("the Act") at any time from November 16, 2012, through the date of the decision. [R. 234-45.] Plaintiff sought Appeals Council review and the Appeals Council granted review of the decision, and on December 17, 2015, the Appeals Council vacated the ALJ's hearing decision and remanded the case to the ALJ for resolution of the following issues:
• The hearing decision indicates that great weight is accorded the consultative examiner opinion rendered by Howard L. Brilliant, M.D., dated January 2, 2013 (Exhibit 3F; Decision, page 9). This opinion appears to assess the claimant with greater limitations than those found in the decision. Dr. Brilliant's opinion indicates that claimant appears unable to stand, walk, climb, squat or do any sort of strenuous activity involving the right lower extremity and would be unable to work as a fireman (Exhibit 3F, page 2). The hearing decision, however, only limits the claimant to performing medium work as defined except the claimant is limited to occasional pushing and pulling with the right lower extremity (Finding 5). Further consideration of this opinion evidence with an assessment of the weight accorded the evidence and further consideration of claimant's residual functional capacity is necessary.
• The hearing decision finds that the claimant is able to perform his past relevant work as an emergency medical technician as it is generally performed in the nationally economy, but not as it was actually performed by the claimant (Decision, page 11; Finding 6). Additionally, it appears that the claimant's work as an emergency medical technician was performed as a composite job wherein the claimant simultaneously worked as a firefighter (Exhibit 2E, page 3-4). The decision, however, does not contain an adequate comparison of function by function limitations and the physical demands of the claimant's past relevant work as actually performed by the claimant and as generally performed in the national economy (Social Security Rulings 82-61 and 96-8p).
• The hearing decision finds that the claimant is able to perform his past relevant work as a cook. On July 29, 2014, the claimant testified that he worked as a cook from 1999-2001. The claimant's earnings records indicate that while working as a cook he earned $5,336.95 in 1999, $5,467.33 in 2000 and $2,342.27 in 2001 (Exhibit 7D). The record is not clear regarding how many months the claimant was employed as a cook during each year. Therefore, further development of the claimant's employment history is necessary to determine whether the claimant's past job of cook meets the statutory definition for past relevant work under 20 CFR 404.1565.
Upon remand the Administrative Law Judge will:
• Give further consideration to the claimant's maximum residual functional capacity during the entire period at issue and provide rationale with specific references to evidence of record in support of assessed limitations (Social Security Ruling 96-8p). In so doing, evaluate the nontreating source opinion rendered by Howard L. Brilliant, M.D., dated January 2, 2013 (Exhibit 3F) pursuant to the provisions of 20 CFR 404.1527 and Social Security Rulings 96-2p and 96-5p, and explain the weight given to such opinion evidence. As appropriate, the Administrative Law Judge may request the nontreating source to provide additional evidence and/or further clarification of the opinion (20 CFR 1520b).
• Give further consideration to whether the claimant has past relevant work he could perform in accordance with Social Security Ruling 82-62 and 20 CFR 404.1565(a).
• Obtain evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base (Social Security Ruling 83-14). The hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. The Administrative Law Judge will ask the vocational expert to identify examples of appropriate jobs and to state the incidence of such jobs in the national economy (20 CFR 404.1566). Further, before relying on the vocational expert evidence the Administrative Law Judge will identify and resolve any conflicts between the occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titles (DOT) and its companion
publication, the Selected Characteristics of Occupations (Social Security Ruling 00-4p).[R. 253-54.]
The ALJ conducted a subsequent hearing on Plaintiff's claims on April 21, 2016 [R. 154-82], and issued a decision on May 25, 2016, finding Plaintiff not disabled under the Act [R. 15-39]. At Step 1, the ALJ determined that Plaintiff met the insured status requirements of the Act through December 31, 2016, and had not engaged in substantial gainful activity during the period from his alleged onset date of November 16, 2012, through the date of the decision. [R. 20, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: early multilevel degenerative disc disease, obesity, mononeuritis, and status post right leg injury. [R. 21, Finding 3.] The ALJ also noted Plaintiff had the following non-severe impairments: hyperlipidemia and diabetes mellitus, hypertension, mild blurred vision, and a mental impairment of depression. [R. 21.] At Step 3, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 22, Finding 4.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
Before addressing Step 4, Plaintiff's ability to perform his past relevant work, the ALJ determined Plaintiff had the following residual functional capacity ("RFC"):
[C]laimant has the residual functional capacity to perform a range of light work as defined in 20 CFR 404.1567(b). The claimant is capable of lifting and/or carrying 20 pounds occasionally and 10 pounds frequently. He is capable of standing and/or walking at least 6 hours in an 8-hour workday and sitting about 6 hours in an 8-hour workday. He is limited
to occasionally pushing and/or pulling with his right lower extremity. He can never climb ladders, ropes and scaffolds; occasionally climb ramps and/or stairs, and crawl, and frequently balance, stoop, kneel, and crouch. He must avoid concentrated exposure to workplace hazards.[R. 24, Finding 5.] At Step 4, the ALJ determined that Plaintiff was unable to perform his past relevant work as a firefighter lieutenant, firefighter, EMT, firefighter engineer, and fire truck driver. [R. 31, Finding 6.] Considering Plaintiff's age, education, work experience, residual functional capacity, and the testimony of the vocational expert ("VE"), however, the ALJ found that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 32, Finding 10.] Consequently, the ALJ determined that Plaintiff had not been under a disability as defined by the Act from November 16, 2012, through the date of the decision. [R. 33, Finding 11.]
Plaintiff again requested Appeals Council review of the ALJ's decision, but the Council declined review. [R. 1-7.] Plaintiff filed this action for judicial review on July 11, 2017. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff argues that the ALJ's decision is not supported by substantial evidence, and, to avoid further unwarranted delay, the Court should reverse the ALJ's decision and award Plaintiff benefits. [Doc. 13 at 13.] Specifically, Plaintiff argues that the ALJ failed to consider the disability determination by the South Carolina Retirement System on December 14, 2015, re-approving his disability determination from November 18, 2012 [id. at 11]; failed to adequately consider the medication side effects in his RFC determination [id. at 11-12]; and failed to give controlling weight to the opinion of Plaintiff's treating physician [id. at 12-13].
The Commissioner, on the other hand, contends that the ALJ's decision is supported by substantial evidence and should be affirmed. [Doc. 15.] The Commissioner argues that the ALJ acknowledged the decision of the South Carolina Retirement System in her summary of Dr. Eller's March 2016 treatment notes and, to the extent the ALJ found Plaintiff was unable to perform his previous employment, the ALJ's decision was not inconsistent with the State's disability determination [id. at 10-11]; the ALJ adequately considered Plaintiff's medication side effects in the RFC and accounted for all limitations credibly established in the record [id. at 11-12]; and the ALJ properly weighed the opinion of Plaintiff's treating physician [id. at 12-15].
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 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 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); Brenem v. Harris, 621 F.2d 688, 690-91 (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 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). With remand under sentence 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).
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, 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.
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" 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. 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); 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)—and gainful—done for pay or profit, whether or not a profit is realized, id. § 404.1572(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. §§ 404.1574-.1575.
B. Severe Impairment
An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. § 404.1521. 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). 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).
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 requirement found at 20 C.F.R. § 404.1509, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. § 404.1520(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 capacity 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).
Residual functional capacity is "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. § 404.1545(a).
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 Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992); 20 C.F.R. § 404.1520(f)-(g). 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 primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); see also 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; 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).
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). 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).
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); 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 support or contradict the opinion, 20 C.F.R. § 404.1527(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). 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). 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 to determine whether the claimant is disabled. 20 C.F.R. § 404.1517; 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. 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). Social Security Ruling ("SSR") 16-3p provides, "[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record." SSR 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed. Reg. 49,462, 49,464 (Oct. 25, 2017); see also 20 C.F.R. §§ 404.1529(c)(1)-(c)(2), 416.929(c)(1)-(c)(2) (outlining evaluation of pain).
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); see also SSR 16-3p, 82 Fed. Reg. at 49,463. 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 alleged symptoms. Id. (quoting Craig, 76 F.3d at 594); see SSR 16-3p, 82 Fed. Reg. at 49,463. Second, the ALJ must evaluate "the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . or to function independently." SSR 16-3p, 82 Fed. Reg. at 49,464; see 20 C.F.R. §§ 404.1528, 416.928 (noting that 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).
APPLICATION AND ANALYSIS
Treating Physician's Opinion
Under the regulations of the Social Security Administration, the Commissioner is obligated to consider all medical evidence and the opinions of medical sources, including treating physicians. 20 C.F.R. § 404.1527(b). This regulation, known as the "Treating Physician Rule," requires the Commissioner to "evaluate every medical opinion [the Commissioner] receive[s]." Id. § 404.1527(c). Special consideration is to be given to the opinions of treating physicians of the claimant, based on the view that "these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations." Id. § 404.1527(c)(2).
Under some circumstances, the opinions of the treating physicians are to be accorded controlling weight. Even where the opinions of the treating physicians of the claimant are not accorded controlling weight, the Commissioner is obligated to weigh all medical opinions in light of a broad range of factors, including the examining relationship, the treatment relationship, length of treatment, nature and extent of the treatment relationship, supportability of the opinions in the medical record, consistency, and whether the treating physician was a specialist. Id. § 404.1527(c)(1)-(5). The Commissioner is obligated to weigh the findings and opinions of treating physicians and to give "good reasons" in the written decision for the weight given to a treating source's opinions. SSR 96-2P, 1996 WL 374188 (July 2, 1996).
Background
Plaintiff suffered an injury to his right lower leg when a fire-hose coupling struck his leg after rapidly unwinding from a hydrant on January 7, 2012. [R. 683.] In applying for disability, Plaintiff claims that permanent nerve damage in his right leg limits his ability to work. [R. 424.] Plaintiff reported that he is limited in the amount of weight he can carry, in the time he can stand on his feet, and in the distance he can walk. [R. 431.]
Plaintiff began treatment with Dr. Karen Eller ("Dr. Eller") of Palmetto Pain Center and received treatment from September 2013 through March 2016. [R. 648-69, 697-704, 724-54, and 779-85.] Treatment notes from September 24, 2013, indicate that Plaintiff's pain was being treated with Lyrica and Ultram, but he did not feel the medications were working. [R. 663.] Plaintiff had been seen for a second opinion by Dr. Brilliant, an orthopedist in Charleston, who offered no further treatments. Treatment notes indicate Plaintiff tried to return to work at a parts store but could not tolerate the pain that accompanied his prolonged standing. [Id.] Upon evaluating Plaintiff, Dr. Eller noted that Plaintiff has "clear neuropathic pain." [R. 665.] Dr. Eller recommended trying to maximize Lyrica and converting Tramadol to a 24-hour release formulation; she also discussed considering an injection to the common peroneal nerve. [Id.] Dr. Eller discussed other medications and approaches, and Plaintiff indicated a desire to go to massage therapy. [Id.] Dr. Eller referred Plaintiff to Carey Chiropractic for massage therapy for his right leg pain. [Id.]
Treatment notes from a follow up appointment on October 22, 2013, indicate Plaintiff complained of right ankle pain radiating into his right calf, as well as numbness, poor sleep, and weakness. [R. 661.] Plaintiff reported that Tramadol made him sleepy but helped with pain; that Lyrica was helping; and that his insurance denied coverage for the massage therapy. [Id.] Dr. Eller discussed with Plaintiff continuing his current medication treatment; converting Tramadol to a low-dose, sustained-release opioid or increasing Lyrica; or utilizing a spinal cord stimulator ("SCS"). [R. 662.] During his visit in November 2013, Plaintiff continued to report right calf pain radiating from his right ankle; numbness, weakness and poor sleep. [R. 659.] Plaintiff reported that Tramadol had not helped over the past two weeks and that, after reviewing the SCS video, he was not ready to take that step. [Id.] Dr. Eller discussed with Plaintiff the mechanism of his new medication (Nucynta ER) and the side effect profile. [R. 659-60.]
On December 11, 2013, Plaintiff saw Dr. Eller again on follow up with complaints of pain in his right calf. [R. 657.] Plaintiff reported that the Nucynta helped with the pain, but he did not like the way it made him feel dizzy and nauseous and gave him headaches. [Id.] Dr. Eller started Plaintiff on Opana extended release, stopped the Nucynta, and discussed with Plaintiff the mechanism and side effects of the new medication. [R. 658.] On January 8, 2014, Plaintiff returned to Dr. Eller for his right calf pain and reported that the Opana and Lyrica were helping and that he was sleeping better at night. However, he reported still experiencing pain in the right lower extremity, described as intense stabbing pain from just touching it at times. [R. 656.] On a medication-check visit in March 2014, it was noted that Plaintiff was tolerating medications without difficulty and that he reported no nausea, constipation, or grogginess. [R. 652.] On April 7, 2014, Plaintiff returned to Dr. Eller with pain in his right knee and leg radiating to his toes. [R. 650.] Plaintiff was frustrated that Clonazepam did not help much and he asked questions about other options, including medications, injections, and the SCS trial. [R. 650.] Plaintiff described the pain as aching, burning, stabbing, throbbing, and tingling; he also reported numbness, weakness and poor sleep. [Id.] Plaintiff reported that his pain was aggravated by activity, standing, walking, and nothing in particular. [Id.] Dr. Eller increased Plaintiff's dosage of Lyrica and Clonazepam and continued him on Opana ER. [R. 651.] Dr. Eller advised Plaintiff that the SCS trial was a good idea, although Plaintiff was anxious about cost and possible effects on his umpire season. [Id.] Dr. Eller also discussed with Plaintiff the issues associated with using chronic opioids in the management of moderate to severe chronic pain. [Id.] On May 5, 2014, Plaintiff saw Dr. Eller again and continued to complain of right calf pain, reporting that the increase in Lyrica was helping and indicating no side effects. [R. 648.] During a medication-check on June 9, 2014, Plaintiff reported he was tolerating his medication without difficulty, and he reported no nausea or constipation. [R. 668.] On July 9, 2014, however, Plaintiff returned to Dr. Eller complaining of pain in his right foot and reporting that Opana was not helping as much as it had when he first started taking it. [R. 666.] Plaintiff reported that Lyrica was making him feel sedated and that he was experiencing a new burning sensation in his left leg, which was affecting his sleep. [Id.] Plaintiff also expressed frustration with his job situation, reporting that he could not do manual work and could not stand for any length of time on his own, and that his pain was aggravated by standing, walking, touch, pressure and activity in general. [Id.] Plaintiff reported applying for a security job at K-Mart but being turned down because he could not run after anyone. [Id.] Dr. Eller increased Plaintiff's Opana dosage. [Id.]
On August 6, 2014, Plaintiff was seen for a medication check and was noted to be tolerating medications without difficulty and with no nausea, constipation, or grogginess reported. [R. 703.] On August 28, 2014, Plaintiff saw Dr. Eller with complaints of an acute onset of right hip pain which started out of the blue with no inciting event. [R. 700.] Plaintiff described the pain as being in the upper iliac crest region. [Id.] Walking helped, but it eventually increased the pain in his foot. [Id.] Plaintiff complained of feeling unsteady because of this hip pain. [Id.] He also indicated the pain was worse when sitting and driving, and was aggravated by lying down and sitting. [Id.] Dr. Eller expected that this pain was a variation of posterior SI joint complex pain, and she discussed trying an SI joint injection to see how he responded. [Id.] Dr. Eller also sent him to see Tom Hetherington for a gait assessment and lumbosacral evaluation to see if the pain was from his altered gait. [R. 701.]
On September 4, 2014, Plaintiff presented to Dr. Eller for a previously scheduled injection, complaining of pain in the right lateral hip area radiating to the lateral hip, anterior thigh, and then into the foot. [R. 697.] Plaintiff rated the pain at a 10 out of 10, complained of poor sleep, and indicated that the aggravating factors including lying down and sitting. [Id.] Plaintiff exhibited pain to palpation over the right lateral bursa region and in the deep buttock area. [R. 698.] Plaintiff underwent an SI joint injection and, if it did not help, agreed to consider an MRI of the lumbar spine and right hip. [Id.]
On November 6, 2014, Plaintiff saw Dr. Eller, complaining that Opana extended release helps some but provides only a few hours of relief. [R. 752.] Plaintiff indicated he had not noticed any side effects but had some drowsiness and had to be careful driving. [Id.] Plaintiff reported his pain seemed to be worsening in the right lower leg, he had increased sensitivity in the left calf, he was not sleeping well, and was generally miserable. [Id.] Plaintiff indicated that the SI joint injection helped the right hip area, but that he noticed spontaneous spasms in his leg as well. [Id.] On examination, Plaintiff exhibited pain to palpation over the right lateral bursa region and in the deep buttock area. [R. 753.] Dr. Eller recommended that Plaintiff consider the SCS trial. [Id.] Plaintiff wanted to meet with billing before discussing SCS, and also wanted to discuss switching medications; Dr. Eller, however, was worried that a higher dose of Opana ER would cause more side effects. [Id.] Dr. Eller started Plaintiff on Exalgo extended release to address Plaintiff's pain. [Id.]
On December 3, 2014, Plaintiff was seen for pain in the left lower extremity that he described as continuous aching, burning, stabbing, and tingling. [R. 750.] Plaintiff reported the Exalgo allowed him to function better but did not last throughout the day, with pain returning in the afternoons and aggravated by activity, standing, and walking. [Id.] Plaintiff reported his interest in pursuing the SCS and expressed a desire to be weaned off of opioids. [Id.] On exam, Plaintiff had pain to palpation over the right lateral bursa region and in the deep buttock area. [R. 751.] Due to her concern about sedation at higher dosages, Dr. Eller discussed keeping Plaintiff on his medications "as is" even though they were not optimized. [Id.] Dr. Eller noted Plaintiff was a good candidate for SCS due to the injury to his leg with increased pain with sensation, atrophy of muscles, and clear neuropathic pain. [Id.] Dr. Eller noted that Plaintiff
is on chronic opioids with side effects and does not want to continue with this. To a reasonable degree of medical certainty as a board certified physician in Anesthesiology and Pain Management, it is my opinion that he is an excellent candidate for a SCS trial at this point.[Id.]
On January 26, 2015, Plaintiff presented to Dr. Eller for a SCS trial after failing all conservative and operative treatments for pain. [R. 747.] Plaintiff reported continuous pain down the right lower extremity from the knee to the foot; poor sleep; weakness and numbness; and aggravation of pain with activity. [Id.] On examination, Plaintiff had pain to palpation over the right lateral bursa region and in the deep buttock area. [R. 748.] On January 29, 2015, Plaintiff was seen for reprogramming of the SCS which was "getting to the right leg, but []not helping with the pain." [R. 745.] Plaintiff explained that the pain radiated down the right lower extremity from the knee to the foot and felt like burning, aching, stabbing, tingling, throbbing pain and/or numbness. [Id.] On January 30, 2015, Plaintiff reported to Dr. Eller, complaining that he did not feel he was getting much benefit from the SCS. [R. 744.]
On February 3, 2015, Plaintiff reported to Dr. Eller, again complaining that the SCS did not help with improving his pain. [R. 742.] Plaintiff indicated that his medication provided reasonable pain relief with no side effects; however, his pain was aggravated by activity, standing, and walking. [Id.] On examination, Plaintiff exhibited pain to palpation over the right lateral bursa region and in the deep buttock area. [R. 743.]
On March 25, 2015, Plaintiff presented to Dr. Eller complaining of pain to the left buttock which was similar to the pain he had on the right when he had SI joint pain. [R. 740.] Plaintiff indicated having reasonable pain relief on his medication, but wanted to proceed with an injection on the left SI and continue with his present therapy. [Id.]
On April 8, 2015, Plaintiff presented to Dr. Eller for a planned injection for the left leg after developing pain in an L5 distribution. [R. 736.] Plaintiff indicated his primary pain was in the lower back radiating down to the left lower extremity continuously in sharp, stabbing sensations. [Id.] Plaintiff also reported weakness, numbness, and poor sleep. [Id.] Plaintiff was continued on Exalgo, extended release, Clonazepam, Lyrica, Janurnet, extended release, Caduet, and Ibuprofen. [Id.] Plaintiff was also given a transforaminal epidural steroid injection in the left L5-S1 joint due to an indication of lumbar radiculopathy. [R. 737.] Plaintiff indicated that his previous injection helped the left lower back pain some but not the left leg pain. [R. 738.] Plaintiff also went through physical therapy for 6 weeks but did not improve. [Id.] Dr. Eller noted that Plaintiff had failed physical therapy, SI joint injection, and other conservative treatment. [R. 739.] She recommended an MRI of the lumbar spine without contrast to further evaluate his complaints and symptoms. [Id.]
On June 2, 2015, Plaintiff was seen with complaints of pain in the right lower extremity radiating to the right knee and right foot. [R. 732.] Treatment notes indicate Plaintiff had been taking two Clonazempan at night and that he had been very off balanced, running into walls. [Id.] Plaintiff indicated he had not seen Dr. Jones since he was transferred to pain management and that the SCS trial did not help. [Id.] Plaintiff complained of continued pain in his left leg after the SCS trial, but indicated that pain medication helped some. [Id.] Plaintiff asked about going to the Mayo Clinic, but Dr. Eller indicated that there was not much they could do now but manage symptoms. [Id.] Dr. Eller recommended acupuncture with Cheryl McCarthy; she also refilled his medications with no changes. [R. 733.]
On July 1, 2015, Plaintiff was seen by Dr. Eller with complaints of pain in the right lower extremity radiating to the right knee and right foot, and described as aching, burning, stabbing, throbbing, numbess, and tingling. [R. 730.] Plaintiff had an EMG that showed continued nerve damage with no improvement. [Id.] Treatment notes indicate that "it is apparent that this is permanent nerve damage and [Plaintiff] just needs to deal with it the best that he can." [Id.] At that point, Plaintiff's pain was noted to be manageable with his present medication regimen. [R. 731.]
Treatment notes from September 30, 2015, indicates Plaintiff's complaint of a pain sensation above his right knee, which he feels in his foot, in addition to the usual pain which he feels, has worsened a little. [R. 724.] Plaintiff noted having reasonable pain relief and reported no side effects. [Id.] He reported staying relatively active but having problems mainly at night. [Id.] Plaintiff was continued on Exalgo tablet, extended release, and his medications were refilled with no changes or additions. [R. 725.]
On December 15, 2015, Plaintiff was seen by Dr. Eller with complaints of pain in his right shin which worsened over the prior week such that not even the Exalgo was helping with the pain. [R. 784.] Plaintiff described the pain as continuous, deep, aching, burning, and throbbing. [Id.] Dr. Eller increased his dosage of Exalgo extended release. [R. 785.]
On January 27, 2016, Plaintiff saw Dr. Eller with complaints of pain in the right lower extremity radiating from the right knee to the foot, as well as having more issues with the right calf muscle. [R. 782.] Plaintiff reported that the Exalgo was helping to make the pain more manageable and allowing him to sleep better, but that some mornings he was groggy, but he could deal with it. [Id.] Plaintiff indicated that his lower back pain bothered him when driving for distances, sitting for too long, or lying in bed too long. [Id.]
On March 23, 2016, Plaintiff was seen by Dr. Eller, complaining of hot flashes over the past month, pain in the right calf and ankle, and increased pain in the toes. [R. 778.] Plaintiff indicated that his pain was constant such that he felt he could not work, he could not sit for more than an hour before having to move around, he could not stand for more than an hour, and he could walk around for a little longer than that. [Id.] His medications helped his pain, but they made him tired and groggy, and he worried about making decisions on his medication. [Id.] Dr Eller noted as follows:
I am glad that [Plaintiff] is doing ok in terms of his pain. Unfortunately I do not think that he will be able to return to the workplace. He could sit at a desk functionally, but his medications do interfere with his ability to concentrate and make decisions intelligently and responsibly. I support his attempt for disability.[R. 779.]
ALJ's Weighing of Treating Physician Opinion
In weighing the opinion of Dr. Eller, the ALJ briefly summarized Plaintiff's medical records and explained as follows:
Dr. Eller indicated that she supported the claimant's attempt for disability. His medications were refilled with no changes (Exhibit 26F). Significantly, although both the claimant and Dr. Eller noted in March 2016 that he had side effects of tiredness and grogginess affecting his ability to concentrate, pain management treatment notes through February 2016 consistently indicated that the claimant reported no side effects, including no grogginess, other than mentioning some sedation in July 2014, some drowsiness in November 2014, and manageable grogginess in January 2016. His medications were adjusted and treatment records document no further side effects until March 2016, when the claimant was specifically discussing his claim for disability benefits. Dr. Eller's March 2016 opinion appears to be based largely on the claimant's subjective reports during that particular visit, as prior treatment records showed that the claimant generally denied medication side effects during pain management follow up visits. Further, she noted that "he has pain constantly such that he feels he
cannot work." (Emphasis added.) The portion of her opinion regarding the effects of the claimant's medications on his ability to work is therefore accorded little weight. The determination of whether an individual is disabled or unable to work is clearly reserved to the Commissioner pursuant to 20 CFR 404.1527. Statements that a claimant is disabled are not given any special significance on the issue of disability. Therefore, Dr. Eller's statement that she supports the claimant's attempt for disability is given little weight. However, I have given some weight to Dr. Eller's opinion that the claimant would be capable of sitting at a desk, which is consistent with the sitting requirements included in the residual functional capacity. I note that Dr. Eller's opinion is otherwise vague and offers little insight into the claimant's specific work-related abilities and limitations.[R. 30.]
Upon review and consideration of the ALJ's decision, the Court is struck by the ALJ's apparent willingness to ignore years worth of treatment by Dr. Eller of Plaintiff's moderate to severe chronic pain, the type and amount of medication Plaintiff is taking to function as a result of the pain, and Plaintiff's testimony regarding the effect of his pain and medication on his ability to work. Under § 404.1527, if an ALJ determines that a treating physician's opinion is not entitled to controlling weight, he must then consider the weight to be given to the physician's opinion by applying five factors identified in the regulation: (1) the length of the treatment relationship and the frequency of examinations; (2) the nature and extent of the treatment relationship; (3) the evidence with which the physician supports his opinion; (4) the consistency of the opinion; and (5) whether the physician is a specialist in the area in which he is rendering an opinion. 20 C.F.R. § 404.1527(d)(2)(iii) and (d)(3)-(5). The Treating Physician Rule obligates the Commissioner to weigh all medical opinions under standards which provide special deference to the opinions of treating, examining, and specialist physicians. 20 C.F.R. § 404.1527(c). ALJs are further prohibited from substituting their medical opinions for those of medical providers, which the Fourth Circuit recently referred to as the prohibited practice of the ALJ "playing doctor." Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017).
A review of the ALJ's decision shows no indication of the ALJ's recognition or consideration of the factors associated with the Treating Physician Rule. The ALJ failed to provide any discussion of how he weighed the factors outlined in 20 C.F.R. § 404.1527(c). Dr. Eller, who treated Plaintiff for approximately two and a half years for his chronic pain, and is a board certified specialist in anesthesiology and pain management, concluded that she did not think Plaintiff could work due to his medications interfering with is ability to concentrate. [R. 779.] Dr. Eller obviously found Plaintiff's pain complaints to be credible because she treated him, constantly changed and adjusted his medication to find good relief, and even advised him to try the SCS trial to possibly wean Plaintiff off the opioids he was prescribed due to her concern about him being "on chronic opioids with side effects." [R. 751.] The ALJ dismissed Dr. Eller's opinion, however, because he found that her treatment records failed to note side effects from the numerous opioid medications she prescribed him, and her opinion was "otherwise vague and offer[ed] little insight into the claimant's specific work-related abilities and limitations." [R. 30.] The ALJ's conclusion could not be more vague. Accordingly, remand is proper in this case so that the ALJ may properly weigh all medical opinions under the standards promulgated by the applicable regulations and to explain in the written decision the weight given to the treating source's opinions.
Remaining Allegations of Error
With respect to the remainder of Plaintiff's complaints concerning the decision, on remand the ALJ will be able to reconsider and re-evaluate the medical evidence, specifically opinions provided by Plaintiff's treating physicians. Harris v. Asture, No. 9:09-cv-0028-HFF, 2009 WL 5125215, *4 (D.S.C. 2009) (citing Hancock v. Barnhart, 206 F. Supp. 2d 757, 763-64 (W.D.Va. 2002)) (explaining that, on remand, the ALJ's prior decision has no preclusive effect, as it is vacated and the new hearing is conducted de novo). The ALJ should specifically consider the effect of Plaintiff's chronic pain on his RFC, and also develop the record related to the disability finding of the South Carolina Retirement System and explain his weighing of the same.
It is unclear whether the ALJ applied the two-part analysis provided in Morgan v. Barnhart, 142 F. App'x 716, 723 (4th Cir. 2005) (unpublished opinion) for evaluating claims of disabling pain, or evaluated the effect of Plaintiff's pain on his ability to work. Plaintiff testified that he cannot work due to his chronic pain, and both his treating pain physician and Dr. Brilliant agreed that he is unable to work. While the record is replete with evidence of Plaintiff's many chronic pain complaints, and the number of medications he takes for pain, his attempts to alleviate pain through failed conservative methods, including a SCS trial, the ALJ failed to offer any explanation as to how this evidence informed any portion of his decision or how he reconciled Plaintiff's testimony regarding his limitations with the RFC (e.g., Plaintiff's alleged inability to stand for long periods of time; the fact that his pain is aggravated by standing, walking and general activity; or grogginess or tiredness associated with the numerous opioids he takes to manage his pain).
The ALJ made no mention of the disability determination made by the South Carolina Retirement System. Although an ALJ is required to evaluate all evidence in the record that may have a bearing on the determination of disability, 20 C.F.R. § 404.1520(a)(3), "there is a distinction between what an adjudicator must consider and what the adjudicator must explain in the disability determination or decision." SSR 06-03p, 2006 WL 2329939, at *6 (2006). In accordance with SSR 06-03p, in evaluating decisions on disability by other governmental and nongovernmental agencies, the Commissioner is
required to evaluate all the evidence in the case record that may have a bearing on our determination or decision of disability, including decisions by other governmental and nongovernmental agencies (20 CFR 4 04.1512(b)(5) and 416.912(b)(5)). Therefore, evidence of a disability decision by another governmental or nongovernmental agency cannot be ignored and must be considered.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and that the case be REMANDED to the Commissioner for further administrative action consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge November 6, 2018
Greenville, South Carolina
[Id.] The ALJ need only provide a reviewing court "with sufficient reasoning for determining that the proper legal analysis has been conducted." Aytch v. Astrue, 686 F. Supp. 2d 590, 602 (E.D. N.C. 2010). Therefore, the ALJ's opinion must reflect that he has considered and discussed the evidence supporting his decision, "the uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects." Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996). And, while neither the opinion of a treating physician, nor the determination of another governmental entity, are binding on the Secretary, at a minimum, the disability determination of a state agency is entitled to consideration by the Secretary. See, DeLoatche v. Heckler, 715 F.2d 148 (4th Cir. 1983); see also Worthington, 2012 WL 4026067, at *4 (finding that once the plaintiff testified about a state disability decision, which was not otherwise evidenced by the record, the ALJ had a duty to develop the record).