South Carolina Cases April 29, 2019: Thompkins v. Berryhill

Case Description

REPORT AND RECOMMENDATION

This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his claim for Disability Insurance Benefits ("DIB"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she applied the proper legal standards. For the reasons that follow, the undersigned recommends the Commissioner's decision be reversed and remanded for further proceedings as set forth herein.

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I. Relevant Background

A. Procedural History

On October 1, 2014, Plaintiff filed an application for DIB in which he alleged his disability began on February 8, 2011. Tr. at 153-54. His applications were denied initially and upon reconsideration. Tr. at 52, 62-63, 75-79, 84-87. On March 14, 2017, Plaintiff had a video hearing before Administrative Law Judge ("ALJ") Carl B. Watson. Tr. at 32-51 (Hr'g Tr.). The ALJ issued an unfavorable decision on July 24, 2017, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 12-28. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-6. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on March 23, 2018. [ECF No. 1].

B. Plaintiff's Background and Medical History

1. Background

Plaintiff was 44 years old at the time of the hearing. Tr. at 37. He dropped out of the ninth grade and subsequently obtained his GED. Id . His past relevant work ("PRW") was as a material handler and maintenance mechanic. Tr. at 37-38. He alleges he has been unable to work since February 8, 2011. Tr. at 153.

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2. Medical History

On December 13, 2011, William L. Mills, M.D. ("Dr. Mills"), at Coastal Orthopedics, prescribed a "spinal bone growth stimulator orthofix lumbar" for Plaintiff. Tr. at 392.

On December 19, 2011, Plaintiff presented to Dr. Mills for a history and physical for his posterior lumbar interbody fusion ("PLIF"). Tr. at 393. Dr. Mills discussed Plaintiff's upcoming surgery, refilled his Neurontin, Klonopin, and Vicodin, and assessed advanced spondylosis at L2-L3 and L5-S1 and prior left laminotomy at L5-S1. Id .

Also on December 19, 2011, a preoperative chest x-ray was unremarkable and reflected no acute intrathoracic process. Tr. at 274, 394.

On January 3, 2012, Dr. Mills performed a PLIF at L5-S1. Tr. at 395-401, 403-06.

On January 11, 2012, Plaintiff presented to Dr. Mills for follow up and reported improved left leg pain, but continued low back and right leg pain. Tr. at 402. Dr. Mills noted he would "keep [Plaintiff] out of work for now," prescribed Nucynta and Neurontin, and recommended follow up in four to six weeks. Id .

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On February 22, 2012, Dr. Mills prescribed physical therapy three times a week for four weeks. Tr. at 407-08.

On March 21, 2012, Plaintiff presented to Dr. Mills and reported low back pain and occasional left thigh numbness. Tr. at 414. A lumbar x-ray reflected Plaintiff's hardware in a good position. Id . Dr. Mills switched Plaintiff's medication to Nucynta, placed him in a work-conditioning program with sessions five times a week for three weeks, and noted "[w]e will keep him on light duty, with no lifting more than 10-15 pounds." Tr. at 371-72, 409-10, 414-18.

On April 2, 2012, Plaintiff presented to Long Bay Rehab for an initial evaluation to participate in a work conditioning program. Tr. at 230-31. Catherine Shelton, M.A.P.T. ("Therapist Shelton"), noted Plaintiff exhibited the ability to perform light work during his initial evaluation and recommended that he participate in the program five times a week for four weeks to perform heavy work. Id .

On May 2, 2012, Plaintiff presented to Dr. Mills and reported he had not filled his Nucynta prescription, but was participating in the work conditioning program. Tr. at 419. Dr. Mills provided Mobic and continued Plaintiff on light duty with the same lifting restriction. Id .

On May 30, 2012, Plaintiff presented to Dr. Mills with complaints of low back pain that radiated to his left hip and buttock. Tr. at 420. Plaintiff

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reported he still attended the work conditioning program. Id . Dr. Mills ordered an updated lumbar magnetic resonance image ("MRI"). Id .

On June 25, 2012, a lumbar MRI showed "[n]o obvious compressive effect" on the nerve roots, mild facet arthrosis at L4-L5, reactive endplate edema at L5-S1, loss of height within the intervertebral disc, and bilateral facet arthrosis at L2-L3. Tr. at 368-69.

On June 29, 2012, Plaintiff presented to Long Bay Rehab with complaints of burning low back pain and pulling and pressure sensations in his left hip. Tr. at 228. Therapist Shelton noted Plaintiff continued to show great effort and was progressing well with a physical demand category ("PDC") of medium. Tr. at 228. Therapist Shelton recommended Plaintiff continue the program to progress towards his PDC goal of heavy. Id .

On July 11, 2012, Plaintiff presented to Dr. Mills with complaints of back and left leg pain. Tr. at 370. Dr. Mills noted a disc space collapse at L2-L3, but no stenosis. Id . Dr. Mills assessed chronic left leg pain and probable sacroiliac ("SI") joint dysfunction, administered a left SI joint injection, and recommended a four-week work conditioning program followed by a functional capacity evaluation ("FCE"). Tr. at 366-67.

On July 23, 2012, Dr. Mills instructed Plaintiff to continue the work conditioning program five times per week for four weeks and subsequently complete an FCE. Tr. at 216.

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On August 17, 2012, Therapist Shelton discharged Plaintiff from the work hardening program, noting Plaintiff was initially evaluated on April 2, 2012, and had completed 82 treatments. Tr. at 217-18. Plaintiff was able to lift 25 pounds, had increased his static test measurements by 20%, performed 40-pound leg presses, pushed or pulled 20 pounds on a sled, stood consecutively for 30 minutes, and walked on a treadmill for 20 minutes at 2.2 miles per hour. Id . Therapist Shelton also noted Plaintiff's diagnoses were status-post PLIF and low back pain, his PDC was medium, and his job required a PDC of heavy. Id . Therapist Shelton noted Plaintiff was scheduled for an FCE. Id .

On August 20, 2012, an FCE reflected Plaintiff could lift 15-45 pounds; carry 40 pounds; push 112 pounds for 5 feet; stand; occasionally walk, bend, squat, kneel, climb stairs, reach overhead, pivot, twist, push, reach forward, and grasp; and frequently sit, alternate between sitting and standing, and use fine motor movement. Tr. at 219-27. Plaintiff achieved a PDC of light to medium. Id .

On August 22, 2012, Plaintiff presented to Dr. Mills and reported 60% relief with a left SI injection and he was "still doing well from [it]." Tr. at 364. Dr. Mills assessed improved left SI dysfunction, recommended a foam roller, noted Plaintiff was "able to work light duty, [with a] 10 to 15 pound lifting restriction," and scheduled a follow up appointment in one month. Id .

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However, Dr. Mills issued a work release that restricted Plaintiff to light duty with no lifting more than 10 pounds. Tr. at 365.

On September 19, 2012, Plaintiff presented to Dr. Mills for follow up. Tr. at 362. Plaintiff reported his SI was "tender again" and he desired another injection. Id . Dr. Mills found left SI tenderness, assessed left SI dysfunction, and administered an injection. Id .

On October 10, 2012, Plaintiff presented to Dr. Mills and reported the first injection "helped, but the second one did not." Tr. at 363. Dr. Mills found left SI tenderness, assessed left SI dysfunction, and recommended Plaintiff see Erin Watson, M.D. ("Dr. Watson"), for "possible S1 ablation." Id .

On January 1, 2013, Plaintiff presented to Doctors Care with complaints of dizziness, weakness, vomiting, nausea, and chest and back pain. Tr. at 233-35. Plaintiff's physical examination revealed he was in mild distress, his lumbar spine was tender, his mood and affect were flat, his thought process was confused, and he required a wheelchair due to dizziness. Id . Plaintiff was diagnosed with chest pain, dizziness, uncontrolled hypertension, transient ischemic attack ("TIA"), and sent to the emergency room via ambulance. Id .

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On January 9, 2013, Plaintiff presented to Dr. Mills and reported he saw Dr. Watson, but "she didn't feel that SI ablation would be beneficial." Tr. at 359-61. Dr. Mills assessed chronic pain, prescribed a transcutaneous electrical nerve stimulation ("TENS") unit, and prescribed Neurontin. Id ., Tr. at 412. Dr. Mills indicated Plaintiff was permitted to perform light duty, but not lift more than ten pounds. Tr. at 357, 413.

On February 13, 2013, Plaintiff presented to Dr. Mills and reported the TENS unit was not approved and he was "still having quite a bit of back pain." Tr. at 353. Dr. Mills assessed chronic back pain status post lumbar arthrodesis and instructed Plaintiff to see Dr. Watson for consideration of a temporary spinal cord stimulator. Id . Dr. Mills opined Plaintiff was restricted to light duty and could only lift between ten to fifteen pounds. Id . Tr. at 356, 358, 421.

On March 6, 2013, Dr. Mills prescribed a TENS unit for Plaintiff. Tr. at 354-55.

On May 22, 2013, Plaintiff presented to Dr. Mills and reported the TENS unit did not provide relief. Tr. at 351-52. Dr. Mills assessed chronic pain and again noted he thought Plaintiff should try a stimulator trial with Dr. Watson. Id . Dr. Mills opined Plaintiff should be kept at light duty status, and only lift between ten to fifteen pounds. Id ., Tr. at 423.

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On July 16, 2013, Plaintiff presented to Dr. Watson with predominantly left-sided back pain that was throbbing, burning, tingling, and numbing with leg pain of 6/10. Tr. at 346-50. Plaintiff reported he had previously tried Hydrocodone, but it "knock[ed] him out" and he had minimal improvement with Neurontin. Id . Dr. Watson noted Plaintiff's prior fusion and MRI. Id . Dr. Watson also noted Plaintiff had full hip range of motion ("ROM") and a negative straight leg raise ("SLR") test, but had tenderness over L5-S1 and pain with flexion and extension. Id . Dr. Watson assessed chronic lumbar syndrome with persistent axial and radicular pain, refractory to nerve blocks, a trial of opiates, and physical therapy. Id . She increased Neurontin and recommended a psychological assessment to determine whether Plaintiff was a candidate for a spinal cord stimulator. Tr. at 347.

On July 26, 2013, Plaintiff presented to Doctors Care with complaints of dizziness, chest, and back pain. Tr. at 254-69. Plaintiff reported he woke from a nap and felt lightheaded, and his sister noted he slurred his words and had difficulty walking or explaining himself. Id . The attending physician transferred Plaintiff to the emergency room. Id . Plaintiff's examination reflected mild lethargy and slurred speech, dysdiadochokinesia, and an unsteady gait, but no spinal tenderness. Id . The attending physician admitted Plaintiff to Conway Medical Center for observation and ordered various tests. Id . An electrocardiogram ("ECG") was normal, and a head

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computed tomography ("CT") scan showed no acute disease. Tr. at 251-52, 264, 266. Beth L. Cardosi, D.O. ("Dr. Cardosi"), assessed acute delirium or encephalopathy that had resolved on its own, but Plaintiff was admitted due to his family's history of aneurysms. Tr. at 265. Dr. Cardosi also assessed hypertension and chronic pain syndrome of the low back. Id .

On August 19, 2013, Plaintiff presented to Dr. Watson and complained of low back pain of 5/10 that radiated down his left leg, with constant tingling and paresthesias. Tr. at 345. Plaintiff reported the increased Neurontin was helpful, but he continued to have moderate pain and did not sleep the prior night due to pain. Id . Plaintiff reported a higher dosage of Hydrocodone previously caused drowsiness and he could not recall how Nucynta affected him. Id . Plaintiff had tenderness over his lumbar paraspinal muscles and pain with forward flexion, but a negative SLR and full motor strength. Id . Dr. Watson noted Plaintiff was scheduled for a psychologic assessment with Dr. Goldschmidt that week, assessed chronic lumbar syndrome with persistent axial and radicular pain, continued Neurontin, prescribed Hydrocodone 5 mg, and noted Plaintiff's work status was unchanged. Id .

On September 19, 2013, Plaintiff presented to Dr. Watson with complaints of low back pain that radiated down his left leg. Tr. at 344. Plaintiff reported the Hydrocodone would occasionally "only take the edge off

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his pain," but denied any side effects. Id . Plaintiff also reported he saw Dr. Goldschmidt three weeks prior, but the report was not "ready." Id . Plaintiff had tenderness over his lumbar paraspinal muscles and his midline at L4-S1, but a negative SLR and full motor strength. Id . Dr. Watson assessed chronic lumbar syndrome with left lumbar radiculopathy, continued Neurontin, and increased Hydrocodone to 7.5 mg. Id . Dr. Watson noted she would wait for the psychological assessment report. Id .

On October 17, 2013, Plaintiff presented to Dr. Watson with complaints of ongoing low back pain of 6/10 into his left leg that caused numbness and tingling and worsened with prolonged sitting. Tr. at 343. Plaintiff reported his sleep had increased to five hours a night through a combination of Hydrocodone and Neurontin with no daytime somnolence. Id . Dr. Watson noted the Hydrocodone was not helpful at times and 7.5 mg appeared to work better. Id . Dr. Watson also noted the formal report from Dr. Goldschmidt had not been received for the stimulator trial. Id . Dr. Watson found Plaintiff had minimal tenderness over the bilateral lumbar paraspinals and bilateral posterior superior iliac spine ("PSIS") with decreased sensation over the left calf, but full motor strength. Id . Dr. Watson increased Hydrocodone, noted Plaintiff's work status remained unchanged, scheduled a follow-up appointment, and recommended obtaining the report from Dr. Goldschmidt. Id .

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On November 20, 2013, bloodwork reflected Plaintiff was compliant with his medications. Tr. at 342.

On January 14, 2014, Plaintiff presented to Dr. Watson with complaints of low back pain of 5/10 that radiated to his leg and occasionally caused muscle cramps, but Lortab helped. Tr. at 340-41. Plaintiff reported having done "some light cardio at the gym" and inquired whether it was appropriate. Id . Dr. Watson noted she thought "what he [wa]s doing at the gym [wa]s completely reasonable" because Plaintiff previously "was in a work conditioning program lifting a maximum of 50 pounds." Id . Dr. Watson also noted Plaintiff had been psychologically cleared to move forward with a stimulator trial. Id . On examination, Plaintiff had minimal tenderness over the bilateral lumbar paraspinals and PSIS with a positive left SLR test, but full motor strength. Id . Dr. Watson assessed lumbar radiculopathy and chronic pain syndrome, continued Neurontin and Lortab, prescribed Cyclobenzaprine, noted Plaintiff's work status was "unchanged," and recommended a stimulator trial. Id .

On January 23, 2014, Plaintiff presented to Doctors Care for a follow up of his hypertension. Tr. at 237-39, 288-94. Dennis Rhoades, D.O. ("Dr. Rhoades"), noted Plaintiff's hypertension had improved, but he was unable to afford necessary laboratory work. Id . Dr. Rhoades indicated Plaintiff would forward the laboratory results that were obtained during his stimulator

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implantation the following month. Id . Plaintiff's physical examination revealed left-sided facial, arm, and leg weakness. Id . Dr. Rhoades diagnosed benign essential hypertension and TIA. Id .

On February 14, 2014, Plaintiff presented to Dr. Watson with complaints of continued left-sided, moderate, low back pain that traveled down his leg. Tr. at 338-39. Plaintiff reported the pain worsened with lifting and improved with pain medication. Id . Dr. Watson noted a lumbar MRI revealed an uncomplicated fusion without residual stenosis, but there was L4-L5 facet arthritis. Id . Dr. Watson found minimal tenderness over the L4-L5 paraspinals and pain exacerbation with forward flexion at 30 degrees, but a negative SLR. Id . Dr. Watson assessed chronic pain syndrome and chronic lumbar syndrome. Id . Plaintiff agreed to proceed with a stimulator trial, and Dr. Watson performed the procedure. Id .

On February 20, 2014, Plaintiff presented to Dr. Watson with complaints of low back and left leg pain. Tr. at 336-37. Plaintiff reported "the stimulator worked very well" and his "pain level went from a 5 to a 3/10 in severity." Id . Plaintiff also reported it occasionally irritated his legs and caused constant numbness, so he had to decrease the intensity. Id . Dr. Watson recommended a thoracic spine MRI and follow up with Dr. Mills for a permanent stimulator implant. Id .

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On March 3, 2014, a thoracic spine MRI showed minimal degenerative disc disease, a slightly increased kyphosis, without any focal compression deformity, and a mild curvature, but no canal or foraminal stenoses. Tr. at 335.

On March 31, 2014, Plaintiff presented to Dr. Mills for permanent placement of a stimulator. Tr. at 334. Plaintiff reported the trial stimulator worked well, but still complained of low back pain. Id . Dr. Mills noted Plaintiff needed to quit smoking for two weeks before the surgery could be done and scheduled a follow-up appointment. Id .

On April 3, 2014, Plaintiff presented to Dr. Watson with complaints of low back pain of 6/10. Tr. at 333. Dr. Watson noted Plaintiff's medication provided relief, but he continued to have accelerated radicular pain. Id . Plaintiff reported his pain was 50% relieved by the stimulator. Id . Plaintiff's lumbar spine exam showed minimal tenderness over the bilateral lumbar paraspinals and PSIS and worsened pain with forward flexion to 30 degrees, but a negative SLR and full motor strength. Id . Dr. Watson reviewed Plaintiff's thoracic spine MRI and noted mild disc degeneration without protrusions at T5-T6 and T7-T8. Id . Dr. Watson assessed chronic pain syndrome and chronic lumbar syndrome, recommended a permanent spinal cord stimulator, and prescribed pain medication. Id .

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On April 16, 2014, Plaintiff presented to Dr. Mills with complaints of low back pain. Tr. at 329. Plaintiff reported he had quit smoking approximately two weeks prior. Id . Dr. Mills noted, if Plaintiff tested negative for nicotine, he would be placed on the surgery schedule for a permanent stimulator with a battery.

On April 21, 2014, Dr. Watson indicated Plaintiff could return to light duty, but not lift more than ten to fifteen pounds. Tr. at 332.

On May 21, 2014, Plaintiff presented to Dr. Mills and consented to have the stimulator permanently implanted. Tr. at 323. Dr. Mills noted Plaintiff had tested negative for nicotine and scheduled him for surgery. Id .; Tr. at 330-31 (reflecting laboratory results).

Also on May 21, 2014, an ECG was normal. Tr. at 245-46, 253, 272, 278, 287. A chest x-ray reflected no acute intrathoracic process. Tr. at 249, 324. Bloodwork reflected normal results. Tr. at 275-77.

On May 26, 2014, Plaintiff presented to Doctors Care. Tr. at 240-42, 279-86. Plaintiff's physical examination revealed lumbar spine tenderness. Id . Artur Wilkoszewski, M.D. ("Dr. Wilkoszewski"), cleared Plaintiff for back surgery to permanently implant a stimulator. Id .

On May 29, 2014, Dr. Mills inserted a permanent stimulator due to Plaintiff's chronic back pain. Tr. at 247-48, 325-26. A portable thoracic spine

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exam demonstrated various stages of the spinal stimulator placement. Tr. at 250, 328.

On June 3, 2014, Plaintiff presented to Dr. Watson with complaints of ongoing back pain of 7/10 and reported he was "still up every hour without much sleep due to back pain." Tr. at 321. Dr. Watson noted Plaintiff's stimulator would be reprogrammed by Dr. Mills at a future appointment. Id . Plaintiff's physical examination revealed tenderness over the bilateral paraspinal L1-L3 with grossly intact lower extremity motor strength. Id . Dr. Watson assessed chronic pain syndrome and chronic lumbar syndrome, continued Flexeril, and advised Plaintiff that he could take Oxycodone and Hydrocodone, if the Oxycodone was not helpful alone. Id .

On June 11, 2014, Plaintiff presented to Dr. Mills for follow up. Tr. at 322. Dr. Mills removed Plaintiff's staples, aspirated a hematoma at the battery site, and recommended a lumbar compression to prevent another hematoma from forming. Id . Dr. Mills assessed hematoma and status post permanent spinal cord stimulator and noted "Out of work." Id .

On August 11, 2014, Plaintiff presented to Dr. Mills and reported he had "good and bad days." Tr. at 316, 320. Dr. Mills opined Plaintiff was at maximum medical improvement ("MMI"). Dr. Mills signed a South Carolina Workers' Compensation Commission Physician's Statement that indicated

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Plaintiff had a 20% medical impairment due to his lumbar spine, but that he was "able to return to work with the following restrictions: per Dr. Watson." Tr. at 317. Dr. Mills also opined Plaintiff would need future medical care and treatment related this injury based on a reasonable degree of medical certainty and the "treatment, including medication [was] as follows: per Dr. Watson." Id .

On August 26, 2014, Plaintiff presented to Strand Physical Therapy for an FCE of continuous work. Tr. at 295-98. Mary Margaret Heniford, P.T. ("PT Heniford"), reviewed Plaintiff's subjective complaints of persistent low back pain and administered various tests. Id . PT Heniford noted Plaintiff complained of low back and left lower extremity pain when lifting 50 pounds at waist level; was unable to complete the frequency test that required him to lift and lower 15 pounds repeatedly; limped with weightbearing on the left lower extremity while carrying 10 pounds for 150 feet; stood on his right lower extremity while static pushing; held onto an apparatus and pushed on his thigh while frequently lifting 10 pounds, causing pain; could not continuously sit for 15 minutes, as he had 4 or more positional changes and his foot shook constantly or stomped; could not stand for 15 minutes, as he could not keep still and stood on his right lower extremity; and could not continuously walk 500 feet in ten minutes, as his gait was very unstable. Id . However, Plaintiff's isometric strength testing reflected 71 pounds at knee

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level, 50 pounds at waist level, 39 pounds at shoulder level, and 26 pounds at eye level. Id . PT Heniford reviewed the strength demand classifications under the Dictionary of Occupational Titles (" DOT ") and opined Plaintiff did "not meet any of the categories for continuous work," such as sedentary, light, medium, heavy, or very heavy work. Tr. at 299. PT Heniford recommended that Plaintiff should obtain a dietary consult, ride a stationary bike or walk as tolerated, possibly use a cane or attend physical therapy, and consult his pain management doctor, Dr. Watson. Id . PT Heniford noted Plaintiff "gave maximum effort to complete all testing he was asked to do." Id .

Also on August 26, 2014, Plaintiff presented to Dr. Watson with complaints of ongoing low back and leg pain. Tr. at 310-11, 318-19. Dr. Watson noted that Dr. Mills had given Plaintiff a 20% impairment rating and she would obtain a copy of a recent FCE report. Id . Dr. Watson assessed chronic pain syndrome and chronic lumbar syndrome. Id .

On September 19, 2014, Plaintiff presented to Professional Rehabilitation Services for an FCE upon Dr. Watson's referral. Tr. at 300-05, 378-88. Richard DeFalco, D.P.T., O.C.S., C.S.C. ("PT DeFalco"), noted Plaintiff's medical history and his report that the stimulator "helped some, though his pain [was] still rated at a minimum of 5/10 and increase[d] throughout the day with general activity [and] ADLs." Id . Plaintiff's pain

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caused issues with driving, bathing, cleaning, dressing, cooking, ambulating, bending, and transitioning between prone to supine. Id .

Plaintiff's examination was limited by pain, guarding, and poor tolerance to prolonged positions and transitional movements. Id . PT DeFalco noted Plaintiff's blood pressure, pulse, and gait were abnormal and his lower quarter screen revealed weakness and pain in the left extremity. Id . He assessed "multiple areas of objective deficits leading to functional decline" and noted Plaintiff "demonstrated consistent effort throughout the examination and displayed no inconsistencies in sincerity of effort." Id . During the various tests, Plaintiff could stand for 10 minutes; sit for 5 minutes; walk less than 1/10 of a mile; lift 10 pounds from his waist to shoulder or 5 pounds from his shoulder to overhead, but was unable to perform any other lifting, carrying, pushing, or pulling; was unable to crouch, stoop, kneel, or crawl as required; was able to reach in all directions with both hands; climb up and down one flight of stairs; and seize, hold, grasp, turn, or pick up an object with either hand. Id . PT DeFalco opined Plaintiff could not return to his PRW and stated,

[b]ased on the strength classifications as established by the [ DOT ], [Plaintiff was] currently unable to return to work at any capacity. He [was] not capable of lifting anything at all. He also [was] not capable of carrying anything at all. According to the DOT-California battery, [Plaintiff] must be capable of meeting the Demand Minimum Functional Capacity for both lifting and carrying strength categories in order to return to work at any

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capacity. . . . Plaintiff was unable to complete the functional mobility portion of the exam. . . . Antalgic gait d[id] not allow for [Plaintiff] to complete treadmill (ambulation) portion of examination. Unable to perform lifting from ground level with a safe posture. Pain levels increase and patient is at further risk of injury. Unable to complete carrying portion of exam due to antalgic gait, increased pain, unsafe lifting postures. Unable to perform pushing/pulling portion due to pain and antalgic gait. Able to stand on balance beam, though is primarily bearing weight through the right [lower extremity]. Unable to crouch, knee, or crawl.

Tr. at 303-04.

On September 23, 2014, Dr. Watson completed a questionnaire and indicated she provided pain management to Plaintiff for his low back and leg pain and last saw him on August 26, 2014. Tr. at 312-15. Dr. Watson noted she had reviewed the FCE results dated that day and endorsed them as Plaintiff's permanent restrictions, including he was "unable to work in any capacity." Id . Dr. Watson also noted Plaintiff's radicular and residual symptoms affected his ability to perform work or concentrate and persist at an adequate pace. Id . Dr. Watson opined Plaintiff could not walk, stand, or sit for more than fifteen minutes at a time and should not do these activities for more than four hours per day. Id . Dr. Watson further opined Plaintiff would likely require future medical treatment through office visits, oral medications, physical therapy, and maintenance of his stimulator. Id .

On September 29, 2014, Plaintiff returned to Dr. Watson with complaints of ongoing low back and leg pain of 5/10. Tr. at 306-07, 376-77.

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Plaintiff reported the pain improved with the stimulator on high and lying down with heat, but the Oxycodone "could be a little bit stronger" and, if the stimulator was up too high, he had some numbness in his legs and difficulty ambulating. Id . Dr. Watson observed Plaintiff appeared significantly uncomfortable with frequent position changes and requested to stand during the interview, he had positive tenderness over the L3-S1 paraspinals, his ROM showed forward flexion to 30 degrees only, and he had increased back pain with extension to neutral, but a negative SLR and full motor strength in his lower extremities. Id . Dr. Watson reviewed the recent FCEs, noted Dr. Mills had "previously released the patient from a surgical standpoint," and assessed chronic lumbar syndrome with persistent lumbar radiculopathy. Id . Dr. Watson recommended a trial of OxyContin twice a day with Oxycodone for breakthrough pain, but continued Gabapentin and Naproxen. Id . Dr. Watson further explained,

Initially after reviewing the 8/2[6]/2014 FCE, I had completed a questionnaire for the patient's attorney dated 9/23/2014 in which I stated that the patient could not work in any capacity. Upon review[] of this recommendation, the patient stated that it was his goal to return to work as he is so young. Upon discussion with he and his nurse case manager, along with the other FCE dated 9/19/2014, I think that he could do a trial of sedentary duty no lifting greater than 10 pounds but [he] would have to have the restriction of being able to move positions from sitting to standing at will, no sitting or standing for periods greater than 15 min[utes] duration.

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Tr. at 376-77. Dr. Watson completed a work release with a permanent work restriction that opined Plaintiff could not lift greater than ten pounds, was unable to sit or stand for more than fifteen minutes at one time, and must be able to change positions at will. Tr. at 389.

On October 23, 2014, Dr. Mills confirmed that he first saw Plaintiff on May 2, 2011, and he opined Plaintiff had a 20% impairment on August 11, 2014. Tr. at 308-09.

On October 29, 2014, Plaintiff presented to Dr. Watson with continued back and leg pain of 5/10 with numbness and tingling. Tr. at 375. Dr. Watson noted,

He does get relief from the stimulator however he does have to turn it up quite high which does give him some muscle spasms. He reports relief with leaning to the right. He reports that he is only able to sit at his computer for 15 min[utes] before having to get up and stretch his back. He is only able to sit at the computer for 2-3 hours per day. He reports the pain that causes him to have to stretch [was] a throbbing aching pain with associated back spasm. He reports that the OxyContin gives him 5 hours of relief and denies sedation from that medication.

Tr. at 375. Dr. Watson also noted Plaintiff "appear[ed] uncomfortable with frequent position changes" and found tenderness over the bilateral PSIS and lumbar paraspinals, but full motor strength with intact sensation. Id . Dr. Watson assessed chronic lumbar syndrome with persistent lumbar radiculopathy and increased Oxycontin to 30 mg. Id .

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On November 24, 2014, Plaintiff presented to Dr. Watson with complaints of low back pain at 5/10. Tr. at 374. Plaintiff reported a slight improvement in his overall pain score with increased Oxycontin, but he continued to take four Oxycodone for breakthrough pain every day and took Cyclobenzaprine and Imitrex. Id . Plaintiff also reported some muscle spasms in his back, but denied sedation from pain medication and continued to use his stimulator, with difficulty at times. Id . Dr. Watson found tenderness over the bilateral paraspinals L3-S1 that worsened with extension or flexion, but a negative SLR and full motor strength. Id . Dr. Watson assessed chronic lumbar syndrome with persistent lumbar radiculopathy, continued Neurontin, Naproxen, Oxycontin and Oxycodone, discontinued Cyclobenzaprine, and increased Amrix, with additional modifications to be considered. Id .

On December 5, 2014, Joel D. Leonard ("Mr. Leonard"), a vocational consultant, issued an evaluation report after meeting with Plaintiff on December 3, 2014. Tr. at 203-11. Mr. Leonard opined Plaintiff was not capable of work activity and was disabled due to the back injury he sustained while manually shrink-wrapping a pallet of drinks for his employer, Coca-Cola Bottling, that caused pinching and burning pain in his back. Tr. at 205. He noted Plaintiff received medical care under the South Carolina Workers' Compensation Act at a local Doctors Care clinic and underwent an

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independent medical evaluation by Don Johnson, M.D. ("Dr. Johnson"), at Southeastern Spine Institute, who advised Plaintiff to pursue conservative treatment to avoid surgery, noted the absence of MMI, and indicated Plaintiff should not be working in 2011. Tr. at 205-06. Mr. Leonard noted Plaintiff had fusion surgery in January 2012, participated in work conditioning between April and August 2012, was considered for a spinal cord stimulator in 2013, had a permanent stimulator implanted in 2014, received an MMI of 20% in August 2014, underwent FCEs in August and September 2014, and convinced Dr. Watson to allow a trial of sedentary work with restrictions. Tr. at 206-07. Mr. Leonard reviewed Plaintiff's symptomatic allegations, subjective and clinical functional standings, and contributing profile and placement factors. Tr. at 207-10. Mr. Leonard concluded,

I do not believe it is vocationally prudent or proper to endorse work activity—certainly not outside the bounds of a highly benevolent setting. While [Plaintiff] might be capable of working in a marginal manner defined by an "odd lot" of jobs, such employment would most certainly require some degree of benevolence on behalf of the employer and would fall well short of a reasonably stable labor market. Last but not least, I am not convinced that [Plaintiff] would be successful in maintaining such employment—even with the assistance of a benevolent employer. Hence, in light of such circumstances, I maintain an opinion that [Plaintiff] is currently incapable of gainful employment and that he is totally disabled as previously stated.

Tr. at 210.

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On December 11, 2014, Joseph Moore, M.D. ("Dr. Moore"), a state agency physician reviewed the record and opined Plaintiff could lift or carry ten pounds occasionally and less than ten pounds frequently; stand or walk for two hours and sit for six hours in an eight-hour workday; climb ramps or stairs, balance, and stoop occasionally; but not climb ladders, ropes, or scaffolds, kneel, crouch, crawl or push or pull with his upper extremities; and must avoid concentrated exposure to extreme heat, cold, or vibration and moderate exposure to hazards. Tr. at 57-59.

On March 10, 2015, Hugh Wilson, M.D. ("Dr. Wilson"), a state agency physician reconsidered the record and affirmed Dr. Moore's opinion. Tr. at 70-72.

On June 22, 2016, Dr. Watson saw Plaintiff and opined he was "permanently out of work." Tr. at 390.

C. The Administrative Proceedings

1. The Administrative Hearing

a. Plaintiff's Counsel's Opening Statement

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At the hearing on March 14, 2017, Plaintiff's counsel noted Plaintiff had been involved in a work accident on February 8, 2011, that led to a workers' compensation claim. Tr. at 34-35. The injury required a fusion to the L5-S1 of Plaintiff's back that included permanent hardware and, later, a pain control device. Id . Counsel noted Plaintiff took Oxycodone, Oxycontin, Gabapentin and Zolpidem daily and saw Dr. Watson for pain management. Tr. at 35. Counsel noted that Dr. Watson opined Plaintiff was permanently out of work due to his inability to manage the pain on June 22, 2016. Id . Counsel stated Plaintiff had an FCE dated August 26, 2014, in which the physical therapist noted Plaintiff could not complete the test, as he could not lift, walk, or stand as required. Id . Counsel cited another FCE, in which Plaintiff did not meet the minimum classification to stand, sit, or walk for more than ten minutes at a time. Id . Counsel stated orthopedics in 2014 installed a spinal bone gross stimulator. Tr. at 35-36. Counsel noted Plaintiff's orthopedic physician, Dr. Mills, opined in August 2012 and February 2013 that Plaintiff had a very limited lifting restriction and was unable to sleep; that Dr. Watson had been in charge of the spinal cord stimulator since May 22, 2013; that Plaintiff used a brace at times for his

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back; that he had a 20% impairment under the American Medical Association's guide to permanent impairment; and that Dr. Watson opined on September 23, 2014, that Plaintiff was "unable to work in any capacity per his FCES. No standing more than 15 minutes, no sitting more than 15 minutes." Id . Counsel explained Plaintiff wished to work, but was unable to do so. Tr. at 36.

b. Plaintiff's Testimony

Plaintiff testified he was 44 years old, dropped out of the ninth grade, and subsequently obtained his GED. Tr. at 37. He testified having worked since 2008 at the Coca-Cola bottling company warehouse operating an electric pallet jack to load and unload pallets of 20 to 80 pounds for truck deliveries. Tr. at 37-38. Prior to 2008, Plaintiff testified he worked on a golf course as a mechanic servicing equipment. Id . He testified his golf course work required him to lift a maximum of 100-150 pounds. Id . He acknowledged having a driver's license and being able to drive short distances. Tr. at 47. He testified he was able to complete short trips to Wal-Mart, five minutes from his house. Id . Otherwise, he relied on others to shop for his clothes or take him to shop. Id . He testified his sister had moved in with him. Id . He stated he could mow the grass on a riding lawn mower for ten or fifteen minutes, but would take a break to sit for 30 or 40 minutes, such that an hour job would take him five hours. Id .

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In response to questioning by his counsel, Plaintiff described his pain as a throbbing, burning sensation, and felt like a bad toothache that he was unable to address. Tr. at 40. Plaintiff testified he took Oxycontin twice a day, that made him feel groggy, Oxycodone four times a day, Gabapentin for pain, and Zolpidem for sleep. Tr. at 39-41. He stated he slept two or three hours a night. Tr. at 41. He noted having had three back surgeries, including one by Dr. Johnson of Southeastern Spine Institute, the second by Dr. Mills for a fusion, and the third by Dr. Mills to implant the stimulator. Tr. at 41-42. Plaintiff testified he could not sit or stand for long periods of time or do any kind of lifting. Tr. at 42. He stated that after standing for a while, he would have to transfer off his spine to try to relieve the pain. Id . Plaintiff testified he would have to lay down at least three or four times a day, in a recliner or on his bed for 30 to 40 minutes with a heating pad. Id . Plaintiff indicated he never had a sit-down job, and all his prior jobs required his back. Tr. at 42-43. He indicated his pain level was 7/10, with a normal average of 4-7 or 8/10. Tr. at 43. He testified he was usually good for at least two or three days when he did not do very much at all. Id . He stated he had done some farming work when he was young and living on the family farm. Tr. at 43-44. He noted all his experience was manual labor. Tr. at 44. He testified he was unable to complete either FCE, as he was unable to sit or stand for the period required to complete the tests. Id . Plaintiff testified he saw Dr. Watson every

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three months for pain management, including prescriptions for Oxycontin, Oxycodone, Gabapentin, and sleep medicine, and that he had been seeing her for at least three years. Tr. at 44-45.

Plaintiff explained it was "alarming" to hear Dr. Watson provide the FCE results and indicate he would never be able to work again. Tr. at 45. Plaintiff inquired whether there was "any way possible that later on down the line [he would] be able to do something and [Dr. Watson] told [him] that that's when she wrote down [] no sitting, no standing longer than 15 minutes at a time, no lifting more than ten pounds and must be able to switch positions at will." Id . Plaintiff testified he attempted to find "jobs like that," but was unable to locate one. Id . Approximately half-way through the 25-minute hearing, Plaintiff needed to stand up and adjust his position to relieve pain. Tr. at 46.

c. Vocational Expert's Testimony

Vocational Expert ("VE") Dawn Bergren reviewed the record and testified at the hearing. Tr. at 48-50. The VE categorized Plaintiff's PRW as a material handler, DOT No. 929.687-030, with a heavy exertional level, specific vocational preparation ("SVP") 3, and semiskilled, as well as a maintenance mechanic, DOT No. 638.2381-014, with a heavy exertional level,

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SVP 7, and skilled. Tr. at 48. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could perform sedentary work; could not push or pull with either leg, kneel, crawl, crouch, or climb ladders, ropes, and scaffolds; could occasionally climb ramps and stairs; occasionally stoop; must avoid concentrated exposure to vibration and extreme cold or heat; and must avoid working at unprotected heights. Tr. at 48. The VE testified the hypothetical individual could perform the job of order clerk, DOT No. 209.567-014, SVP 2, unskilled; charge account clerk, DOT No. 205.367-014, SVP 2, unskilled; and document preparer, DOT No. 249.287-018, SVP 2, unskilled, with approximately 19,000 positions, 16,000 positions, and 103,000 positions available nationally. Tr. at 49. The VE testified if the hypothetical person were off task for 20% of an eight-hour workday on a consistent basis, no jobs would be available. Id . If the hypothetical person had to use opiates, Oxycontin, and Oxycodone on a daily basis, such that one were unable to maintain attention and concentration to perform even simple, routine, repetitive tasks on a consistent basis throughout the workday, the VE stated no jobs would be available. Tr. at 49-50.

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2. The ALJ's Findings

In his decision dated July 24, 2017, the ALJ made the following findings of fact and conclusions of law:

1. The claimant last met the insured status requirements of the Social Security Act on September 30, 2016.
2. The claimant did not engage in substantial gainful activity during the period from his alleged onset date of February 8, 2011 through his date last insured of September 30, 2016 (20 CFR 404.1571 et seq ).
3. Through the date last insured, the claimant had the following severe impairment: degenerative disc disease of lumbar spine (20 CFR 404.1520(c)).
4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except the claimant cannot push and/or pull with either lower extremity, cannot climb ladders, ropes or scaffolds but can occasionally climb ramps or stairs. He can occasionally stoop, but cannot crawl, kneel or crouch and must avoid concentrated exposure to cold, heat, and extreme vibration. The claimant must avoid working at unprotected heights.
6. Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on June 26, 1972 and was 44 years old, which is defined as a younger individual age 18-44, on the date last insured (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferrable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

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10. Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569, and 404.1569(a)).
11. The claimant was not under a disability, as defined in the Social Security Act, at any time from February 8, 2011, the alleged onset date, through September 30, 2016, the date last insured (20 CFR 404.1520(g)).

Tr. at 17-24.

II. Discussion

Plaintiff alleges the Commissioner erred for the following reasons:

1) the ALJ did not properly evaluate Dr. Watson's opinion in accordance with the treating physician rule and 20 C.F.R. § 404.1527;

2) the ALJ failed to acknowledge Mr. Leonard's vocational evaluation;

3) the ALJ did not consider the FCEs; and

4) the ALJ failed to recognize the VE's testimony supported Plaintiff's inability to work.

The Commissioner counters that substantial evidence supports the ALJ's findings and the ALJ committed no legal error in his decision.

A. Legal Framework

1. The Commissioner's Determination-of-Disability Process

The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly

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apply, and who are under a "disability." 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:

inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.

42 U.S.C. § 423(d)(1)(A).

To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See , e . g ., Heckler v . Campbell , 461 U.S. 458 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether he has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4)

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whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents him from doing substantial gainful employment. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if the Commissioner can find claimant disabled or not disabled at any step, the Commissioner may make a determination and not go on to the next step).

A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. § 404.1520(a), (b), (f); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).

Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform

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alternative work and that such work exists in the national economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v . Barnhart , 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v . Harris , 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v . Yuckert , 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).

2. The Court's Standard of Review

The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner . . . made after a hearing to which he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See Richardson v . Perales , 402 U.S. 389, 390 (1971); Walls , 296 F.3d at 290 (citing Hays v . Sullivan , 907 F.2d 1453, 1456 (4th Cir. 1990)).

The court's function is not to "try [these cases] de novo, or resolve mere conflicts in the evidence." Vitek v . Finch , 438 F.2d 1157, 1157 (4th Cir. 1971); see Pyles v . Bowen , 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v .

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Schweiker , 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. Richardson , 402 U.S. at 390. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Biestek v . Berryhill , 139 S.Ct. 1148, 1154 (2019) (citation omitted); see also Richardson , 402 U.S. at 390, 401; Johnson v . Barnhart , 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek , 438 F.2d at 1157-58; see also Thomas v . Celebrezze , 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v . Richardson , 483 F.2d 773, 775 (4th Cir. 1972).

B. Analysis

1. Opinion Evidence

Plaintiff argues the ALJ erred in his RFC determination by failing to properly apply the treating physician rule. [ECF No. 15 at 3-6] (referencing Dr. Watson's opinions).

The Commissioner responds the ALJ did not need to assign weight to Dr. Watson's statements that Plaintiff was "unable to work in any capacity" or "permanently out of work" because they were legal conclusions, not

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medical opinions. [ECF No. 16 at 9-11 (citing SSR 96-5p)]. The Commissioner further contends, if the statements were opinions, the ALJ articulated reasons to assign little weight, such as lack of treatment with Dr. Watson after September 2014. Id . at 12.

Plaintiff replies the ALJ did not consider the required factors under 20 C.F.R. § 404.1527, including the length or frequency of treatment, nature of the treating relationship, consistency or supportability of the opinions, and Dr. Watson's specialization. [ECF No. 17 at 2].

The applicable regulations direct ALJs to accord controlling weight to treating physicians' opinions that are well supported by medically-acceptable clinical and laboratory diagnostic techniques and that are not inconsistent

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with the other substantial evidence of record. 20 C.F.R. § 404.1527(c)(2). "[T]reating physicians are given 'more weight . . . since 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 the objective medical findings alone[.]'" Lewis v . Berryhill , 858 F.3d 858, 867 (4th Cir. 2017) (quoting 20 C.F.R. § 404.1527(c)(2)).

If a treating physician's opinion is not well supported by medically-acceptable clinical and laboratory diagnostic techniques or if it is inconsistent with the other substantial evidence of record, the ALJ may decline to give it controlling weight. SSR 96-2p, 1996 WL 374188, at *2 (1996). However, the ALJ's evaluation of the treating source's opinion does not end with the determination that it is not entitled to controlling weight. Johnson , 434 F.3d at 654; SSR 96-2p, 1996 WL 374188, at *4 (1996). The ALJ must proceed to weigh the treating physician's opinion, along with all the other medical

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opinions of record, based on the factors in 20 C.F.R. § 404.1527(c), which include "(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 , 434 F.3d at 654 (citing 20 C.F.R. § 404.1527).

If the ALJ issues a decision that is not fully favorable, his decision "must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reason for that weight." SSR 96-2p, 1996 WL 374188, at *5 (1996). The ALJ must "always give good reasons" for the weight he accords to a treating physician's opinion. 20 C.F.R. § 404.1527(c)(2).

However, "the ALJ holds the discretion to give less weight to the testimony of a treating physician in the face of persuasive contrary evidence." Mastro v . Apfel , 270 F.3d 171, 178 (4th Cir. 2011) (citing Hunter v . Sullivan , 993 F.2d 31, 35 (4th Cir. 1992)). This court should not disturb an ALJ's determination as to the weight assigned "absent some indication that the ALJ has dredged up 'specious inconsistencies,' Scivally v . Sullivan , 966 F.2d 1070, 1077 (7th Cir. 1992), or has not given good reason for the weight

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afforded a particular opinion." Craft v . Apfel , 164 F.3d 624 (Table), 1998 WL 702296, at *2 (4th Cir. 1998) (per curiam). In view of the foregoing authority, the undersigned considers Plaintiff's specific allegations of error.

As discussed in more detail below, Dr. Watson issued several opinions regarding Plaintiff's ability to work. See Tr. at 332 (providing Dr. Watson's opinion that Plaintiff could return to light duty, but not lift more than 10-15 pounds on April 21, 2014), 312-15 (providing Dr. Watson's opinion that Plaintiff could not work in any capacity due to his permanent restrictions, as supported by an FCE, and his symptoms affected his ability to perform work or concentrate and persist at an adequate pace on September 23, 2014), 376-77, 389 (providing Dr. Watson's opinion that Plaintiff could do a trial of sedentary work, but not lift more than 10 pounds, must be able to sit or stand at will, and could not sit or stand for more than 15 minutes at a time on September 29, 2014), 390 (providing Dr. Watson's opinion that Plaintiff was "permanently out of work" on June 22, 2016).

In his decision, the ALJ only assigned weight to Dr. Watson's last opinion and stated,

[Plaintiff's] treating physician, Dr. Erin Watson completed a work/school release statement dated June 22, 2016, indicating [Plaintiff] is permanently out of work (Exhibit 9F). The undersigned gives this statement little weight, as it is not consistent with Dr. Watson's treatment notes nor her earlier opinion in September 2014 that [Plaintiff] could do sedentary work with restrictions. The medical record does not contain any

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treatment notes from Dr. Watson after September 2014 and [Plaintiff] has not indicated that he has seen this treating source since that time. The undersigned further notes that in September 2014, [Plaintiff] indicated that his condition was improving with the implantation of the spinal cord stimulator.

Tr. at 21.

Because Dr. Watson was Plaintiff's treating physician, her opinions were presumptively entitled to controlling weight. See 20 C.F.R. § 404.1527(c) and SSR 96-2p. In its review, the court focuses on whether the ALJ's opinion is supported by substantial evidence or there was legal error, 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 v . Chater , 76 F.3d 585, 589 (4th Cir. 1996) (citation omitted). Nevertheless, the undersigned recommends the court find the ALJ did not adequately consider these opinions in accordance with the provisions of 20 C.F.R. § 404.1527(c) and SSR 96-2p for several reasons. Although the ALJ provided a few reasons to support his decision to accord little weight to Dr. Watson's June 22, 2016 opinion, the reasons provided did not adequately consider or accurately reflect the record and he failed to assign weight to or discuss all of her other opinions.

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a. Frequency and Length of Relationship

Although the ALJ acknowledged a treatment relationship existed with Dr. Watson (Tr. at 21), his decision does not reflect consideration of the frequency and length of Dr. Watson's treatment relationship as required by 20 C.F.R. § 404.1527(c)(2)(i). "Generally, the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source's medical opinion." 20 C.F.R. § 404.1527(c)(2)(i).

Plaintiff began treatment with Dr. Watson by July 16, 2013, and saw her at least twelve times before she rendered her September opinions. See Tr. at 346-50 (July 16, 2013), 345 (August 19, 2013), 344 (September 19, 2013), 343 (October 17, 2013), 340-41 (January 14, 2014), 338-39 (February 14, 2014), 336-37 (February 20, 2014), 333 (April 3, 2014), 321 (June 3, 2014), 316 (August 11, 2014), 310-11 (August 26, 2014), 306-07 (September 29, 2014). Plaintiff also saw Dr. Watson on October 29, 2014, and November 24, 2014, and testified she had treated him for pain management every three months for at least three years. Tr. at 44-45, 374-75.

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Of additional concern, the ALJ stated, "[t]he medical record does not contain any treatment notes from Dr. Watson after September 2014 and the claimant has not indicated that he has seen this treating source since that time." Tr. at 21. However, the record and the ALJ's own decision directly refute this statement, as Plaintiff indicated he had seen Dr. Watson since September 2014 and the record contained additional treatment notes. See , e . g ., Tr. at 375 (providing Plaintiff's visit with Dr. Watson on October 29, 2014), 374 (same on November 24, 2014), 213 (providing Plaintiff's response to the Agency regarding his recent medical treatment as including visits to Dr. Watson on January 25, 2016, April 25, 2016, June 22, 2016, September 22, 2016, and October 22, 2016), 44-45 (providing Plaintiff's testimony that he had been seeing Dr. Watson every three months for at least three years), 27 (reflecting the ALJ received Plaintiff's form relaying his recent treatment with Dr. Watson), and 20 (acknowledging earlier in the ALJ's decision that Plaintiff saw Dr. Watson in November 2014).

b. Nature and Extent of Relationship

The ALJ failed to acknowledge the nature and extent of the treatment relationship, as Dr. Watson was Plaintiff's treating physician for his pain management and recommended his permanent stimulator. See Tr. at 312-15, 333. "Generally, the more knowledge a treating source has about your impairment(s) the more weight we will give to the source's medical opinion.

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We will look at the treatment the source has provided . . . ." 20 C.F.R. § 404.1527(c)(2)(ii). Here, the ALJ failed to do so.

c. Supportability and Consistency

"The more a medical source presents relevant evidence to support a medical opinion," "the better an explanation a source provides," and "the more consistent a medical opinion is with the record as a whole, the more weight we will give to that medical opinion." 20 C.F.R. § 404.1527(c)(3)-(4). Here, the ALJ summarily assigned little weight to Dr. Watson's June 22, 2016 opinion because "it was not consistent with Dr. Watson's treatment notes nor her earlier opinion in September 2014 that [Plaintiff] could do sedentary work with restrictions" and "in September 2014, [Plaintiff] indicated that his condition was improving with the implantation of the spinal cord stimulator." Tr. at 21.

The ALJ's reference to Dr. Watson's September 29, 2014 opinion is misleading and fails to acknowledge she issued two opinions that week based upon her visits with Plaintiff and recent FCEs.

On September 23, 2014, Dr. Watson noted she had reviewed the FCE results and endorsed them as Plaintiff's permanent restrictions, including he was "unable to work in any capacity." Tr. at 312-15. Dr. Watson also noted Plaintiff's radicular and residual symptoms affected his ability to perform work or concentrate and persist at an adequate pace. Id . Dr. Watson opined

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Plaintiff should not walk, stand, or sit for more than fifteen minutes at a time or do these activities for more than four hours per day. Id . Dr. Watson further opined Plaintiff would likely require future medical treatment through office visits, oral medications, physical therapy, and maintenance of his stimulator. Id .

On September 29, 2014, Plaintiff returned to Dr. Watson with complaints of ongoing low back and leg pain. Tr. at 306-07, 376-77. Dr. Watson observed that Plaintiff appeared significantly uncomfortable, with frequent position changes and requested to stand during the interview, he had positive tenderness over the L3-S1 paraspinals, his ROM showed forward flexion to 30 degrees only, and he had increased back pain with extension to neutral. Id . Dr. Watson reviewed the recent FCEs, noted Dr. Mills had "previously released the patient from a surgical standpoint," and assessed chronic lumbar syndrome with persistent lumbar radiculopathy. Id . Dr. Watson recommended a trial of Oxycontin twice a day, with Oxycodone for breakthrough pain, but continued Gabapentin and Naproxen. Id . Dr. Watson further explained,

Initially after reviewing the 8/2[6]/2014 FCE, I had completed a questionnaire for the patient's attorney dated 9/23/2014 in which I stated that the patient could not work in any capacity. Upon review[] of this recommendation, the patient stated that it was his goal to return to work as he is so young. Upon discussion with he and his nurse case manager, along with the other FCE dated 9/19/2014, I think that he could do a trial of sedentary duty no

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lifting greater than 10 pounds but [he] would have to have the restriction of being able to move positions from sitting to standing at will, no sitting or standing for periods greater than 15 min[utes] duration.

Tr. at 376-77. Dr. Watson completed a work release that stated Plaintiff had permanent work restrictions and could not lift greater than ten pounds, was unable to sit or stand for more than fifteen minutes at a time, and must be able to change positions at will. Tr. at 389.

In his RFC discussion, the ALJ referenced Dr. Watson's September 29, 2014 opinion and noted she had opined Plaintiff "co[u]ld not return to his previous employment but could do sedentary work with the restrictions of being able to sit or stand at will, no sitting or standing for periods of 15 minutes at a time and no lifting greater than 10 pounds." Tr. at 19-20. Later, when discounting the recent FCEs from 2014 with one conducted in 2012, the ALJ referenced the opinion and stated, "[Plaintiff's] treating physician noted [he] could perform work at the sedentary level with some restrictions which have been incorporated in the aforementioned residual functional capacity." Tr. at 21.

Contrary to the ALJ's statement, the RFC does not contain restrictions regarding Plaintiff's need to sit or stand at will or his inability to sit or stand for more than 15 minutes at a time. Tr. at 18 (stating Plaintiff had the RFC to perform sedentary work as defined in the regulations with other postural

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and environmental limitations). Nor does the hearing transcript reflect the restrictions were discussed with the VE to ensure the provided jobs accounted for them. Tr. at 48-51. For a VE's opinion to support a finding that the claimant can perform specific jobs "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 [the] claimant's impairments." Walker v . Bowen , 889 F.2d 47, 50 (4th Cir. 1989). A VE's testimony cannot constitute substantial evidence in support of the Commissioner's decision if the hypothetical fails to conform to the facts. See Swaim v . Califano , 599 F.2d 1309, 1312 (4th Cir. 1979). Likewise, the DOT does not address whether the jobs listed could account for these restrictions. See DOT , 1991 WL 671794, 1991 WL 672349, 1991 WL 671715.

The ALJ also makes no reference to Dr. Watson's September 23, 2014 opinion that stated Plaintiff could not work based on permanent restrictions and he did not address Dr. Watson's reason for modifying the opinion, but the record and Plaintiff's testimony reflect he desired to work and inquired what limitations he should follow as he searched for employment. Tr. at 376-77 (conveying Dr. Watson's reasoning she completed an opinion based on the August 2014 FCE that opined Plaintiff could not work in any capacity, but "[u]pon review[] of this recommendation, the patient stated that it was his goal to return to work as he [wa]s so young" and, after a discussion with

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Plaintiff and his nurse case manager, along with the September 2014 FCE, she thought "he could do a trial of sedentary duty" with restrictions), 45 (providing Plaintiff's testimony that he was alarmed when told he could not work again and he inquired whether there was "any way possible that later on down the line [he would] be able to do something and [Dr. Watson] told [him] that that's when she wrote down [] no sitting, no standing longer than 15 minutes at a time, no lifting more than ten pounds and must be able to switch positions at will," and he attempted to find "jobs like that," but was unable to locate one). When referencing Dr. Watson's September 29, 2014 opinion, the ALJ also did not acknowledge that she specified Plaintiff could do a "trial of sedentary duty" which, if failed, supports her opinion that Plaintiff was permanently out of work. Tr. at 377, 389.

Within his RFC discussion, the ALJ stated, "[f]urther, no treating or examining medical source has provided sufficient objective evidence to support a recommendation that [Plaintiff] restrict his activities or reported limitations regarding the capacity for work-related tasks that are inconsistent with the assessment of residual functional capacity in this decision." Tr. at 22. This statement ignores the FCEs conducted in August and September 2014 that provided pages of objective documentation regarding Plaintiff's limitations and that were relied upon by Dr. Watson. See Tr. at 295-98, 300-05, 376-77. It also ignores that the regulations provide,

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Generally, we give more weight to medical opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations.

20 C.F.R. § 404.1527(c)(2) (emphasis added).

After her September 29, 2014 opinion, Dr. Watson's treatment notes reflect Plaintiff's improvement was limited. For example, on October 29, 2014, Plaintiff presented to Dr. Watson with continued back and leg pain with numbness and tingling. Tr. at 375. Dr. Watson noted,

He does get relief from the stimulator however he does have to turn it up quite high which does give him some muscle spasms. He reports relief with leaning to the right. He reports that he is only able to sit at his computer for 15 min[utes] before having to get up and stretch his back. He is only able to sit at the computer for 2-3 hours per day. He reports the pain that causes him to have to stretch [was] a throbbing aching pain with associated back spasm.

Id . Dr. Watson noted Plaintiff "appear[ed] uncomfortable with frequent position changes," found tenderness over the bilateral PSIS and lumbar paraspinals, assessed chronic lumbar syndrome with persistent lumbar radiculopathy, and increased Oxycontin to 30 mg. Id . On November 24, 2014, Plaintiff reported continued back pain with only a "slight improvement" in his overall pain score while taking increased Oxycontin, Oxycodone four times a day for breakthrough pain, Cyclobenzaprine, and Imitrex. Tr. at 374.

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Plaintiff also reported some muscle spasms in his back and he had difficulty using his stimulator at times. Id . Dr. Watson found tenderness over the bilateral paraspinals that worsened with extension or flexion, assessed chronic lumbar syndrome with persistent lumbar radiculopathy, and adjusted Plaintiff's medications. Id . Yet, the ALJ failed to discuss the scope of Plaintiff's limited improvement. See Holohan v . Massanari , 246 F.3d 1195, 1205 (9th Cir. 2011) ("That a person . . . makes some improvement does not mean that the person's impairments no longer seriously affect her ability to function in a workplace." (citing Kellough v . Heckler , 785 F.2d 1147, 1153 (4th Cir. 1986)).

d. Specialty

The ALJ did not acknowledge Dr. Watson specializes in physical medicine and rehabilitation. See Tr. at 312; see also 20 C.F.R. §§ 404.1527(c)(5), 416.927(c)(5) ("We generally give more weight to the medical opinion of a specialist about medical issues related to his or her area of specialty than to the medical opinion of a source who is not a specialist.").

e. Other Factors

The ALJ also did not address other factors that tended to support Dr. Watson's opinions. See 20 C.F.R. § 404.1527(c)(6) ("When we consider how much weight to give to a medical opinion, we will also consider any factors

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you or others bring to our attention, or of which we are aware, which tend to support or contradict the medical opinion.").

For example, the ALJ failed to discuss Mr. Leonard's vocational evaluation report, issued on December 5, 2014, that reviewed Plaintiff's medical history, symptomatic allegations, subjective and clinical functional standings, and contributing profile and placement factors before opining Plaintiff was incapable of gainful employment due to his limitations. Tr. at 203-11. Even Dr. Mills, Plaintiff's back surgeon, modified his prior opinions regarding Plaintiff's ability to work and necessary treatment to defer to Dr. Watson's determinations in August 2014. Tr. at 317. The ALJ also did not acknowledge that Plaintiff received workers' compensation benefits from his employer from 2011 to 2014. See , e . g ., Tr. at 155, 205-06. These factors lend further support to Dr. Watson's findings.

In sum, the ALJ failed to consider all of the pertinent factors in 20 C.F.R. § 404.1527(c) or properly apply the treating physician rule, and the undersigned recommends that the court find it is unable to determine whether substantial evidence supports the ALJ's determination and remand this case. See Bilton v . Berryhill , No. 5:17-cv-2443-RMG-KDW, 2019 WL

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288162, at *9 (D.S.C. Jan. 3, 2019), adopted by 2019 WL 286964 (D.S.C. Jan. 22, 2019).

2. Additional Allegations of Error

Because the RFC assessment is to be based on all the relevant evidence in the case record (20 C.F.R. § 404.1545(a)(1)), and the undersigned has recommended the court find that some of the relevant evidence was not adequately considered, the undersigned declines to address Plaintiff's additional allegations of error.

III. Conclusion and Recommendation

The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the

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undersigned recommends, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative proceedings.

IT IS SO RECOMMENDED.

April 29, 2019
Columbia, South Carolina

/s/
Shiva V. Hodges
United States Magistrate Judge

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The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v . Colonial Life & Acc . Ins . Co ., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).

Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v . Arn , 474 U.S. 140 (1985); Wright v . Collins , 766 F.2d 841 (4th Cir. 1985); United States v . Schronce , 727 F.2d 91 (4th Cir. 1984).