South Carolina Cases December 16, 2020: Martin v. Saul

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) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his claims for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether he 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 April 2, 2012, Plaintiff filed an application for DIB in which he alleged his disability began on July 21, 2009. Tr. at 161-62. His application was denied initially and upon reconsideration. Tr. at 118-21 and 126-27. On July 28, 2014, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Colin Fritz. Tr. at 29-88 (Hr'g Tr.). The ALJ issued an unfavorable decision on October 30, 2014, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 8-28. 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 an action seeking judicial review of the Commissioner's decision on May 16, 2016. See Tr. at 616.

On February 6, 2017, the court issued an order remanding the case for further administrative proceedings. Tr. at 612-61. The Appeals Council subsequently issued an order remanding the case to the ALJ. Tr. at 662-65.

Plaintiff also filed subsequent applications for SSI on May 10, 2016 and July 24, 2017. Tr. at 837-38, 839-47, 848-55. His claims were denied initially and upon reconsideration. Tr. at 709-12, 713-14, 735-38, 772-73.

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Plaintiff's July 24, 2017 SSI claim was consolidated with his prior DIB claim. Tr. at 465. On October 10, 2018, Plaintiff appeared before the ALJ for a second hearing as to his DIB and SSI claims. Tr. at 504-52 (Hr'g Tr.). The ALJ issued an unfavorable decision on February 12, 2019, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 462-503. On January 29, 2020, the Appeals Council denied Plaintiff's request for review. Tr. at 452-57. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on February 27, 2020. [ECF No. 1].

B. Plaintiff's Background and Medical History

1. Background

Plaintiff was 52 years old at the time of the most recent hearing. Tr. at 509. He completed high school and obtained an industrial maintenance certification. Tr. at 36. His past relevant work ("PRW") was as a die cutter helper, an industrial cleaner, an ingredient handler, and a landscape laborer. Tr. at 63-64. He alleges he has been unable to work since July 21, 2009. Tr. at 34.

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2. Medical History

On May 2, 2011, Plaintiff presented to Heather Esquivel, M.D. ("Dr. Esquivel"), with complaints of allergies, anxiety, and back pain. Tr. at 274-76. He reported his stress had increased due to family issues and unemployment, causing him to be "really ill with everyone" and experience occasional panic symptoms. Tr. at 274. Dr. Esquivel described Plaintiff as pleasant and in no apparent distress, having good attention to hygiene and body habitus, and communicating well. Id . Plaintiff demonstrated full and symmetric muscle strength and normal muscle tone. Tr. at 275. Dr. Esquivel observed tenderness to palpation ("TTP") over Plaintiff's bilateral sacroiliac ("SI") joints and the paraspinous muscles in his lumbosacral spine. Id . A straight-leg raising ("SLR") test was negative and a psychiatric examination was normal. Id . Dr. Esquivel's impressions were generalized anxiety disorder ("GAD"), lumbago, and allergic rhinitis. Id . She prescribed nonsteroidal anti-inflammatory drugs ("NSAIDs"), a muscle relaxer, and Tramadol for chronic low back pain and gave Plaintiff a handout on back exercises. Id . She also prescribed Paxil for anxiety and recommended Plaintiff see a counselor. Id .

On June 30, 2011, Plaintiff reported that his back pain was manageable with Tramadol and Flexeril and that he was doing back exercises at home. Tr. at 277. He indicated he had stopped taking Paxil after two days because it made him feel paranoid. Id . He stated he was engaging in

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some volunteer work and was feeling better and less anxious because he was filling his days with activity and working toward getting a job. Id . Dr. Esquivel observed TTP over Plaintiff bilateral SI joints and paraspinous muscles in his lumbosacral spine, but noted no other abnormalities. Tr. at 278. She refilled Plaintiff's other medications, but discontinued Paxil because Plaintiff denied mental health problems. Id .

Plaintiff followed up with Dr. Esquivel for medication refills on September 29, 2011. Tr. at 280. He reported his back pain was manageable with his medication, but indicated he had run out of it a month earlier. Id . A physical examination was positive for TTP in Plaintiff's bilateral SI joints and lumbosacral paraspinous muscles, but was otherwise normal. Tr. at 280-81. Dr. Esquivel refilled Plaintiff's medications. Tr. at 281.

On January 12, 2012, Plaintiff complained his back pain was worsening because he was caring for his elderly parents and helping them to transfer. Tr. at 283. He reported Flexeril provided some relief, but caused him to feel drowsy. Id . He stated he was taking eight to 10 Tramadol pills per day. Id . Dr. Esquivel observed Plaintiff had full and symmetric muscle strength and normal muscle tone, without atrophy or abnormal movements. Tr. at 284. She noted positive TTP over Plaintiff's bilateral SI joints and lumbosacral paraspinous muscles. Id . She continued Plaintiff's medications, discussed possible injections, and referred Plaintiff to pain management. Id .

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Plaintiff presented to Dwight A. Jacobus, D.O. ("Dr. Jacobus"), at Pain Management Associates for an initial evaluation on February 8, 2012. Tr. at 288. He reported back pain and left lower extremity ("LE") discomfort. Id . He endorsed a history of multiple automobile and motorcycle accidents, but stated his pain had worsened since he had been acting as a caregiver for his parents over the prior several months. Id . He indicated his pain was exacerbated by walking on unlevel grass and gravel, climbing stairs and inclines, getting up and down, and engaging in repetitious activities. Id . Dr. Jacobus observed Plaintiff to move around the office satisfactorily and to have good range of motion ("ROM") of his cervical spine. Tr. at 289. He indicated Plaintiff's back exam was normal and that his posterior thorax was symmetrical. Id . He observed Plaintiff to have some objective myospasm on the left and to have forward flexion to about 80 degrees with pain along the left lateral thigh and into the left foot. Id . He noted right and left side bending were at 10 degrees with pain and back pending was at five degrees. Id . Plaintiff demonstrated normal reflexes and intact pulses. Tr. at 290. Dr. Jacobus observed that extensor halluces motion was intact, but Plaintiff described pain into his left foot. Id . He noted that Plaintiff had some paresthesia via pinwheel method along the left L5 dermatome border. Id . Plaintiff reported subjective discomfort as he reached 170 degrees of extension on the seated Lasegue's test. Id . He complained of discomfort on

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the left side at 60 degrees in the supine position during the SLR test. Id . Bragard's, Faber, and Patrick's tests were intact. Id . Ober's test was negative. Id . A femoral nerve stretch test was negative in the prone position. Id . Plaintiff had no gluteal atrophy. Id . Dr. Jacobus reviewed Plaintiff's x-rays and interpreted them to show osteophytic changes and degenerative osteoarthritis with increased sclerosis, especially at L4-5. Id . He assessed lumbosacral myositis, L5 radiculopathy on the left, and degenerative arthritis of the lumbar spine. Id . He referred Plaintiff for magnetic resonance imaging ("MRI") and electromyography ("EMG"), had Plaintiff sign a pain contract, prescribed Lortab and Tramadol, and discontinued Flexeril. Id .

On March 8, 2012, Plaintiff rated his pain as a 10 out of 10 without medication and a six with medication. Tr. at 293. He denied side effects from his medications, but continued to report pain he described as sharp, shooting, stabbing, aching, and burning. Id . Dr. Jacobus observed TTP throughout Plaintiff's lumbar area. Tr. at 294. He refilled Plaintiff's prescriptions for Lortab and Tramadol and rescheduled his MRI. Tr. at 295 and 297.

On May 8, 2012, electrodiagnostic testing showed evidence of left L5 radiculopathy and possible, but not conclusive, evidence of a right S1 radiculopathy. Tr. at 309.

Plaintiff presented to Julie Moss, FNP-C ("NP Moss"), for refills of Flexeril and Tramadol on May 9, 2012. Tr. at 285. He reported his pain was

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controlled. Id . NP Moss observed Plaintiff to have normal gait and station and an unremarkable inspection and palpation of bones, joints, and muscles. Id .

On June 6, 2012, Dr. Jacobus interpreted the MRI of Plaintiff's lumbar spine to show an extruded paracentral left L4-5 disc herniation within the left L5 lateral recess that compressed the L5 nerve root. Tr. at 323. He stated it also indicated central canal stenosis at L3-4 and L4-5, as well as a right foraminal annular tear at L3-4, without focal disc herniation. Id . Dr. Jacobus noted Plaintiff may be a candidate for surgical decompression and laminectomy, but he desired to pursue other options before scheduling surgery. Tr. at 324. He referred Plaintiff to Robert S. Westrol, M.D. ("Dr. Westrol"), for a consultation and possible injections. Id .

Plaintiff presented to Dr. Westrol on June 26, 2012 who observed him to have normal left LE strength, tone, and bulk and normal gait without the use of mobility aids. Tr. at 325-26. He indicated exaggerated lumbar flexion was painful and that Plaintiff had generalized TTP throughout the lumbar area. Id . He prescribed Neurontin and scheduled Plaintiff for transforaminal epidural steroid injections ("ESIs") at L4 and L5. Tr. at 327.

Plaintiff presented to W. Russell Rowland, M.D. ("Dr. Rowland"), for a disability evaluation on July 9, 2012. Tr. at 314-19. He complained of severe low back pain, arthritis, and depression. Tr. at 314. He reported a two-year

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history of lower back pain and indicated he had been involved in seven motor vehicle accidents. Id . He stated he had been a heavy drinker, but had stopped drinking in 2000. Id . He described his pain as constant and rated it as an eight on average. Id . He indicated he could walk for exercise twice a week for 20 minutes at a time, push a cart through the grocery store for 30 to 60 minutes once a week, stand for one hour, sit for 20 minutes, and mow grass with a riding mower for two-and-a-half hours per week. Tr. at 314-15. He stated his pain was worsened by prolonged sitting and bending. Tr. at 314. He reported pain, occasional swelling, and morning stiffness in his fingers, numbness in his feet, numbness and tremor in his hands, and depression. Tr. at 314-15. Dr. Rowland noted the following objective findings on physical examination: normal gait and station; some mild prominence of the second and third metacarpal phalangeal ("MCP") and proximal interphalangeal ("PIP") joints, without tenderness, synovitis, heat, or redness; normal ROM in the shoulders, elbows, wrists, thumbs, and fingers; 5/5 upper extremity ("UE") strength; 5/5 UE grip strength; 5/5 LE strength; normal squatting; no crepitus, tenderness, joint effusion, or bony enlargement in the knees; loss of lumbar lordotic curve; normal ROM of the cervical spine; lumbar flexion reduced to 45 degrees, lumbar extension reduced to 10 degrees, left lateral flexion reduced to 15 degrees, and right lateral flexion reduced to 20 degrees ;

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negative sitting and supine SLR test to 60 degrees; normal deep tendon reflexes; intact cranial nerves; no tremor; no impairment to fine dexterity, rapid alternative movements, heel walking, toe walking, tandem gait, and finger-to-nose testing; negative Romberg test; normal sensory exam in the bilateral upper extremities and right LE; and mild decreased pinprick sensation of the left foot dorsally over the fifth metatarsal and on the plantar surface. Tr. at 316-17. X-rays of Plaintiff's lumbar spine showed multilevel degenerative disc disease ("DDD") with advanced changes at L3-4 and L4-5, questionable bony spinal encroachment at L5-S1, and loss of the lordotic curvature. Tr. at 313. Dr. Rowland assessed chronic low back pain with pain in the left posterior thigh to the knee and some mild sensory loss in the left foot; mild osteoarthritis of the fingers; chronic cigarette abuse; and situational pain and depression due to pain and unemployment. Tr. at 317.

Plaintiff presented to Todd Morton, Ph. D. ("Dr. Morton"), for a mental status evaluation on July 24, 2012. Tr. at 320-22. Dr. Morton observed Plaintiff to be casually dressed, adequately groomed, fully oriented, and alert. Tr. at 320. He indicated Plaintiff was able to speak in a clear and organized manner; had intact short- and long-term memory; was able to recall three of three items after 10 minutes; and was able to complete serial threes. Id . He

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described Plaintiff's mood as neutral-to-depressed, but indicated he displayed a normal range of affect. Id . He estimated Plaintiff's intelligence to be in the average range. Id . Plaintiff denied taking psychotropic medications. Id . He endorsed significant signs of depression because he was not able to provide for his family and complete chores. Id . He reported staying in bed all day and night; being short-tempered and irritable; crying frequently; and feeling helpless and worthless. Id . He denied suicidal ideation and attempt. Id . He reported feeling anxious in social settings with too many people around. Id . Dr. Morton stated it did not appear that Plaintiff had participated in significant mental health treatment, and therefore, it was unknown how well he would respond to treatment. Tr. at 321-22. He indicated that "[g]iven his current level of functioning he would have difficulty maintaining a pace of work that would be required due to his low energy from being depressed." Tr. at 322. He further stated that Plaintiff would "likely have poor relationships with coworkers of [sic] the public due to his irritability and emotional volatility." Id . He indicated there were no signs of malingering or significant exaggeration of symptoms and Plaintiff would likely be able to manage his own funds. Id . He assessed major depressive disorder ("MDD") and a global assessment of functioning ("GAF") score of 59. Id .

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On August 2, 2012, Plaintiff complained of a lot of myospasm in his lumbar region. Tr. at 328. Dr. Jacobus confirmed the myospasm on examination, but observed Plaintiff had good motion, was able to walk on his tiptoes and heels, and had normal and equal reflexes. Id . He discussed the scheduled injections and refilled Plaintiff's medications. Id .

Dr. Westrol administered lumbosacral transforaminal ESIs at Plaintiff's bilateral L5 level on August 21, 2012. Tr. at 330.

On September 5, 2012, state agency consultant Anna P. Williams, Ph. D. ("Dr. Williams"), reviewed the record and completed a psychiatric review technique form ("PRTF"). Tr. at 94-95. She considered Listing 12.04 for affective disorders and found Plaintiff had no restriction of activities of daily living ("ADLs"); moderate difficulties in maintaining social functioning and concentration, persistence, or pace; and no episodes of decompensation of an extended duration. Tr. at 94. She determined the evidence did not establish the presence of the paragraph C criteria under the Listing. Id . Dr. Williams

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also completed a mental residual functional capacity ("RFC") assessment. Tr. at 97-99. She determined Plaintiff had the following moderately limited abilities: to carry out detailed instructions; to maintain attention and concentration for extended periods; and to interact appropriately with the general public. Id . Xanthia Harkness, Ph. D. ("Dr. Harkness"), assessed the same level of impairment and limitations on a PRTF and mental RFC on February 22, 2013. Tr. at 109-10.

On September 11, 2012, state agency medical consultant Ted Roper, M.D. ("Dr. Roper"), reviewed the record and assessed Plaintiff's physical RFC as follows: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for about six hours in an eight-hour workday; sit for about six hours in an eight-hour workday; frequently climbing ramps/stairs, balancing, stooping, kneeling, and crouching; occasionally climbing ladders/ropes/scaffolds and crawling; and must avoid concentrated exposure to hazards. Tr. at 95-97. Seham El-Ibiary, M.D. ("Dr. El-Ibiary"), assessed the same physical RFC on February 13, 2013. Tr. at 110-12.

On October 3, 2012, Dr. Jacobus indicated Plaintiff had violated office policy by failing to bring his medication bottles to the appointment. Tr. at 331. Plaintiff reported having less discomfort, but Dr. Jacobus noted positive

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myospasm. Id . He observed Plaintiff to have intact reflexes and extensor halluces activity and maintained function. Id .

On October 25, 2012, Plaintiff reported increased pain to Dr. Esquivel. Tr. at 336. He stated he planned to request a surgical referral from Dr. Jacobus. Id . Dr. Esquivel referred Plaintiff for blood work; refilled Flexeril, Meloxicam, and Tramadol; and prescribed Nystatin cream for cutaneous candidiasis. Tr. at 337. She recommended Plaintiff discuss with Dr. Jacobus whether use of Tramadol and Flexeril was appropriate, as he was also taking Lortab and Neurontin. Id .

On November 1, 2012, Dr. Jacobus noted he had instructed Plaintiff to try some Williams' flexion exercises and that Plaintiff's activity levels had improved. Tr. at 334. He indicated Plaintiff continued to be very proactive in his pain management. Id . He observed Plaintiff to be able to come up on his tiptoes and heels; to back and side bend to 10 degrees; and to forward flex to 80 degrees. Id . Plaintiff demonstrated normal and equal reflexes bilaterally. Id . Dr. Jacobus renewed Plaintiff's prescriptions, but noted he was required to sign a violation form because he had again neglected to bring his prescription bottles to the appointment. Id .

Dr. Jacobus observed Plaintiff to have myospasm on December 3, 2012. Tr. at 335. He indicated Plaintiff's urine drug screen ("UDS") was consistent with the prescribed medications and he was doing satisfactorily. Id . He

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refilled Plaintiff's medications and indicated he would request his insurance carrier approve a back brace. Id .

On March 6, 2013, Plaintiff reported some tingling and numbness, but stated he had improved somewhat and had been up, down, and moving about. Tr. at 363. Dr. Jacobus observed Plaintiff's ROM had improved and he had no myospasm. Id . He noted Plaintiff had a lot of bladder complaints with a positive Valealva-type history. Id . He stated Plaintiff was making good progress and should continue on a conservative course. Id .

Plaintiff followed up with Brant Turner, PA-C ("PA Turner"), in Dr. Jacobus's office on April 15, 2013. Tr. at 360. He complained of low back pain, but denied side effects from his medications and stated his sleep was good. Id . PA Turner refilled Plaintiff's prescriptions and instructed him to use ice for inflammation. Tr. at 361.

On May 22, 2013, Dr. Jacobus noted Plaintiff showed no abhorrent behavior and was getting up and down and moving about. Tr. at 356. Plaintiff reported pain in his neck, lower back, left knee, and left ankle, but denied side effects from medications. Tr. at 357. Dr. Jacobus observed Plaintiff to have a lot of myospasm, pain when standing on his tiptoes and heels, and to demonstrate forward flexion to 70 degrees. Tr. at 356. He stated he would renew Plaintiff's medications and continue conservative treatment. Id .

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On July 24, 2013, Plaintiff reported no negative side effects from his medications, but continued to endorse pain in his neck, back, hands, and knees. Tr. at 353. Dr. Jacobus noted Plaintiff's gait was intact and he did not use mobility aids. Tr. at 354. He referred Plaintiff for an updated EMG study. Tr. at 352.

Plaintiff presented to Jay Patel, M.D. ("Dr. Patel"), for electrodiagnostic testing on July 30, 2013. Tr. at 351. Dr. Patel indicated the EMG showed median neuropathy across Plaintiff's bilateral wrists and was consistent with severe bilateral carpal tunnel syndrome ("CTS"). Tr. at 351.

On August 22, 2013, Dr. Jacobus explained to Plaintiff the EMG results indicated the CTS was more severe on the left than the right. Tr. at 350. Plaintiff stated he would prefer to pursue injections and would only consider surgery as a last resort. Id . Dr. Jacobus scheduled for Plaintiff to return in a month for a carpal tunnel injection, but advised him the injections would only provide temporary relief and surgery would still be indicated. Id .

Plaintiff returned to Dr. Jacobus for a carpal tunnel injection on September 25, 2013. Tr. at 347. He reported increased pain in his back and lower extremities. Id . Dr. Jacobus noted Plaintiff's gait was intact and he did not use a mobility aid. Tr. at 348.

Plaintiff underwent nerve conduction studies ("NCS") and EMG of his lower extremities on September 30, 2013. Tr. at 372. David S. Rogers, M.D.

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("Dr. Rogers"), indicated the EMG was normal, but the electrophysiologic evidence was "suggestive but not conclusive of left S1 distribution compromise as evidenced by H-reflex symmetry." Tr. at 372.

On November 20, 2013, Plaintiff reported Gabapentin, Oxycodone, and Tramadol were working well to control his pain. Tr. at 368. He endorsed improvement in his left wrist and expressed a desire to proceed with carpal tunnel injection in his right wrist. Id . He reported a significant change in his posture and stated he was having difficulty getting up and down. Id . Dr. Jacobus noted Plaintiff was using a cane. Id . He observed Plaintiff to have swollen joint borders, a lot of pain, and reduced ROM with abduction, adduction, and internal and external rotation of his left hip. Id . He administered a right carpal tunnel injection and referred Plaintiff for blood work and an MRI of his left hip. Id .

Plaintiff followed up with Dr. Jacobus on December 12, 2013, to discuss the results of the MRI of his left hip. Tr. at 367. Dr. Jacobus indicated Plaintiff had mild degenerative changes in his bilateral hips, but no abnormalities. Id . He instructed Plaintiff on exercises and advised him to follow up in a month. Id .

On February 20, 2014, Dr. Jacobus prescribed a walking cane. Tr. at 373. He observed Plaintiff was getting up and down and was proactive. Tr. at 383. He noted Plaintiff "was still even able to work." Id . He stated Plaintiff

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was able to forward flex to 90 degrees and bend on the right and left sides to 20 degrees. Id . He indicated Plaintiff had some myospasm in his lumbar region, but had normal patellar, Achilles, and plantar reflexes and no paresthesia or lymphadenopathy. Id . Plaintiff complained Tramadol was not providing much relief. Id . Dr. Jacobus discontinued Tramadol and renewed Plaintiff's prescriptions for Gabapentin and Oxycodone. Id .

On March 31, 2014, Plaintiff's EMG results were abnormal and were most consistent with an old left L5 radiculopathy with reinnervation potentials and no acute denervation. Tr. at 381. Dr. Westrol indicated the EMG findings were not impressive when viewed in isolation, but were significant when interpreted with the March 23, 2012 MRI of the lumbar spine and correlated with Plaintiff's complaints. Id . He recommended Plaintiff consider additional lumbar ESIs. Id .

On April 17, 2014, Plaintiff stated he was doing well and was using his cane less. Tr. at 382. He indicated his back brace had made a significant difference—particularly when he drove or engaged in repetitious activities. Id . Dr. Jacobus observed Plaintiff continued to show radicular changes down the left side. Id . He renewed Plaintiff's prescriptions and instructed him to follow up in a month. Id .

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Plaintiff complained of lumbar and LE pain on May 21, 2014. Tr. at 1109. Dr. Jacobus refilled Gabapentin, Tramadol, and Oxycodone. Tr. at 1111.

Plaintiff presented to Carlee Groomes, PA-C ("PA Groomes"), on June 26, 2014, for medication refills. Tr. at 400. He reported his medications were working okay, but requested Oxycodone be reduced from 15 milligrams three times a day to 10 milligrams three times a day. Id . He also requested PA Groomes prescribe medication to improve his sleep. Id . He endorsed pain in his hands, back, buttocks, hips, legs, and feet. Tr. at 402. PA Groomes described Plaintiff as ambulating normally; having an active and alert mental status and a normal mood; demonstrating no edema; and having normal ROM of all extremities. Tr. at 403. She prescribed Ambien and instructed Plaintiff to break his Oxycodone tablets in half and to take them up to six times per day. Tr. at 404. She stated Plaintiff should consider an ESI consultation for his L5 radiculopathy. Id .

Plaintiff requested medication for anxiety and depression on July 2, 2014. Tr. at 1176. He complained of lower back pain, muscle aches and spasms, anxiety, and depression. Id . He requested a change from Citalopram to another medication and asked for medication for muscle spasms. Id . Barbara C. Ray, M.D. ("Dr. Ray"), noted normal findings on physical exam.

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Tr. at 1177. She prescribed Flexeril 5 mg, Lortab 7.5-500 mg, Wellbutrin XL 150 mg, and Diazepam 5 mg. Id .

On July 24, 2014, Plaintiff reported pain in his hands, back, buttocks, hips, legs, and feet. Tr. at 396. PA Groomes observed Plaintiff to be ambulating normally; to have good judgment; to demonstrate an active, alert, and normal mood; to be oriented to time, place, and person; to have no edema; and to have normal musculoskeletal ROM and adequate ROM of all extremities. Tr. at 397. She refilled Plaintiff's medications. Tr. at 399.

On August 8, 2014, Plaintiff complained of back symptoms and requested Diazepam. Tr. at 1175. Dr. Ray noted TTP and muscle spasm in Plaintiff's back, but no other abnormalities on physical exam. Tr. at 1175-76. She prescribed Tramadol 50 mg and Diazepam 5 mg. Tr. at 1176.

Plaintiff presented to psychologist C. David Tollison, Ph.D. ("Dr. Tollison"), for a diagnostic evaluation on September 2, 2014. Tr. at 408-12. Dr. Tollison observed Plaintiff to ambulate with the assistance of a straight cane. Tr. at 408. Plaintiff endorsed chronic pain in his lower back and left LE and admitted to a remote history of alcohol abuse. Tr. at 408-09. He described symptoms of depression and anxiety that had remained constant since 2010 or 2011. Tr. at 409. He indicated he had always been shy in social situations, but his anxiety and depression had progressed to the point that he was unable to relax even while at home. Id . He noted he was unable to

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control his irritability and frustration. Id . He described autonomic nervous system hyperactivity. Id . He stated he often withdrew from his family and spent time alone. Id . He endorsed feelings of guilt, worthlessness, and poor self-esteem. Id . He reported sleep disturbance, crying spells, low energy, weakness, fatigue, and difficulty with memory, concentration, and focus. Tr. at 409-10. He described his usual activities as sitting on the sofa, watching television, and speaking with his children. Tr. at 410. He said he occasionally took brief trips to the store, visited his elderly parents, prepared simple foods, and put clothing in the washer and dryer. Id . He said he had not attended church in four months and indicated his wife and daughter performed most of the household chores and his son attended to the yardwork. Id .

Dr. Tollison described Plaintiff as alert and oriented to time, place, person, and situation. Tr. at 411. He noted Plaintiff had intact associations and thought processes and exhibited mild psychomotor agitation. Id . He stated Plaintiff's thought content was strongly somatic. Id . He observed Plaintiff to have intact memory, fluid verbalizations, blunted affect, anxious mood, constricted facial expressions, and average intelligence. Id . He noted Plaintiff's abilities to recite the days of the week and months of the year in reverse order, to mentally calculate 100 minus seven, and to spell "world" forwards and backwards. Id . Dr. Tollison administered the Patient Pain Profile ("P-3") test and considered valid Plaintiff's scores in the top seventh

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percentile for anxiety, top sixteenth percentile for depression, and top twelfth percentile for somatization. Tr. at 410-11. He also administered the Minnesota Multiphasic Personality Inventory-2 ("MMPI-2") and considered valid results suggesting Plaintiff was "a highly anxious, overly reactive, and clinically depressed individual." Tr. at 411.

Dr. Tollison diagnosed MDD, GAD, and somatoform disorder and provided a GAF score of 45-50. Tr. at 412. He wrote the following:

It is my opinion Mr. Martin suffered a severe intensity of depression and anxiety prior to June 30, 2013, and this opinion is consistent with the diagnoses and treatments of Regenesis and the diagnosis made by Dr. Morgan. It is further my opinion that prior to June 30, 2013, Mr. Martin would have been unable to maintain concentration over time due to the distracting nature of pain and psychological symptoms and also unable to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances. It is further my opinion that prior to June 30, 2013, Mr. Martin would have been unable to function productively without frequent and unscheduled rest periods and breaks. Subsequent to June 30, 2013, it is my professional opinion that the aforementioned limitations and restrictions continued to apply. In addition, the patient is no longer able to tolerate work pressures, stresses, and demand situations without deterioration both in physical and psychological functioning.

Id . He further noted Plaintiff's condition was expected to continue over the next 12 or more months and that he was capable of managing funds on his own behalf. Id .

Plaintiff complained of lumbar and left leg pain on September 4, 2014. Tr. at 1105. He reported his pain was stable and his sleep had improved on

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Ambien. Tr. at 1108. PA Groomes reviewed Plaintiff's UDS that was positive for a significant level of unprescribed Hydrocodone and its metabolites. Tr. at 1108. She noted Plaintiff had no explanation other than noting he might have taken an old prescription. Id . She reviewed the treatment agreement, repeated the UDS, and instructed Plaintiff to follow up in 10 days for UDS results and further care plan. Id .

On September 11, 2014, PA Groomes stated Plaintiff's UDS dated September 4, 2014 was positive for Hydrocodone and negative for prescribed Oxycodone. Tr. at 1103, 1104. Plaintiff claimed he had taken medication that had previously been prescribed. Tr. at 1104. PA Groomes reminded Plaintiff that, pursuant to the treatment agreement, he was required to bring in any unused medications for disposal. Id . Plaintiff also admitted to overtaking Oxycodone and claimed he was not aware that it presented a problem. Tr. at 1104. PA Groomes repeated the UDS and it was positive for methadone and methamphetamine. Tr. at 1103. She declined to refill Oxycodone, but increased Tramadol to four times a day and refilled Gabapentin. Tr. at 1104. She noted Plaintiff would need to be evaluated by an opiate counselor prior to receiving more Oxycodone. Id .

On October 21, 2014, Plaintiff complained of pain in his bilateral hands, lumbar spine, left leg, and bilateral feet. Tr. at 1095. PA Groomes

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noted normal findings on physical exam. Tr. at 1097. She stated Plaintiff had not yet participated in the required narcotics counseling. Tr. at 1098.

Plaintiff followed up with PA Groomes for medication management on October 27, 2014. Tr. at 1091. PA Groomes noted normal findings on exam. Tr. at 1092-93. She reviewed the opiate agreement with Plaintiff and refilled his medications. Tr. at 1094.

Plaintiff complained of right knee pain and requested medication refills on November 10, 2014. Tr. at 1173. Dr. Ray noted TTP and muscle spasm in Plaintiff's back, positive SLR, and minimal swelling, joint line tenderness, and painful valgus stress to the right knee. Tr. at 1174. She aspirated Plaintiff's knee, administered a knee injection, removed 10 skin tags, and refilled Diazepam 5 mg, Wellbutrin XL 300 mg, and Abilify 5 mg. Id .

Plaintiff presented to PA Groomes for medication follow up on December 2, 2014. Tr. at 1087. He complained of worsening pain in his hands, buttocks, hips, legs, feet, and throughout his back. Tr. at 1088. PA Groomes noted normal findings on exam. Tr. at 1089. She prescribed Oxycodone 15 mg and Gabapentin 300 mg. Id .

On January 8, 2015, Plaintiff endorsed pain in his bilateral hands, buttocks, hips, legs, feet, and throughout his back. Tr. at 1082. He noted pain medication provided him little relief and he had last taken pain medication on December 26. Id . He endorsed muscle aches, weakness, arthralgia/joint

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pain, back pain, weakness, numbness, sleep disturbance, restless sleep, and fatigue. Tr. at 1082-83. PA Groomes noted Plaintiff was ambulating normally and had adequate ROM in all extremities, but appeared agitated and had poor insight. Tr. at 1083. Plaintiff's UDS was positive for unprescribed drugs on in-office testing. Tr. at 1086. He denied taking unprescribed medication and stated he had a lot of family issues that prevented him from attending his appointments as scheduled. Id . PA Groomes discussed Plaintiff's case with Dr. Jacobus and they concluded Plaintiff was no longer a candidate for opiate therapy. Id . Upon being informed by PA Groomes that she would no longer prescribe Oxycodone, Plaintiff became upset and indicated he would seek care elsewhere. Id .

Plaintiff presented to Roxie Watts, NP ("NP Watts"), for anxiety, depression, and medication refills on March 20, 2015. Tr. at 1172. He indicated he was no longer participating in pain management, as he had failed a drug test. Id . NP Watts noted normal findings on physical exam and refilled Plaintiff's medications. Tr. at 1172-73.

On June 23, 2015, Plaintiff presented to Carla Diffenderfer, NP ("NP Diffenderfer"), for follow up on anxiety and depression and medication refills. Tr. at 1121. NP Diffenderfer noted normal findings on physical exam. Tr. at 1122. A depression screen was positive. Tr. at 1123. NP Diffenderfer

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discontinued Wellbutrin XL 150 mg and prescribed Cymbalta 60 mg. Id . She continued Plaintiff's other medications. Id .

Plaintiff presented to Rene Brown, D.O. ("Dr. Brown"), for anxiety and depression and sought medication refills on October 7, 2015. Tr. at 1119. He felt his depression had increased on Cymbalta and desired to restart Wellbutrin. Tr. at 1120. He endorsed decreased concentration, anxiety with persistent worry, insomnia, anhedonia, loss of interest in friends and family, and low self-esteem. Id . Dr. Brown recorded normal findings on physical exam. Tr. at 1120-21. She discontinued Cymbalta and prescribed Wellbutrin SR 150 mg. Tr. at 1121.

Plaintiff sought medication refills and referral to a neurologist on February 17, 2016. Tr. at 1117. He complained of arthritis, tremors in his bilateral arms and hands, and pain that radiated from his left inner thigh to his neck and head. Tr. at 1117-18. Dr. Brown noted no edema, full and symmetric muscle strength, normal muscle tone, normal gait and station, euthymic mood, normal memory, and normal affect. Tr. at 1118-19. However, she stated Plaintiff's motor exam showed dysfunction and involuntary movements/intention tremor. Tr. at 1119. She assessed benign essential tremor, anxiety disorder, depression, right knee joint pain, and nicotine dependence. Id . She encouraged Plaintiff to follow a low fat, low cholesterol diet and to engage in regular exercise and prescribed Tramadol 50 mg,

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Gabapentin 300 mg, Wellbutrin SR 150 mg, Diazepam 4 mg, and Propranolol 80 mg. Id .

Plaintiff presented to Danielle Towns, M.D. ("Dr. Towns"), for medication refills on June 29, 2016. Tr. at 1164. He described pain in his neck and lower back that radiated down his left leg. Tr. at 1165. He complained of feeling stressed and down as a result of caring for his mother, who had Parkinson's disease. Id . He noted no improvement in his tremors since starting Propranolol. Id . Dr. Towns refilled Plaintiff's medications and referred him for a neurology consultation. Tr. at 1166.

On August 30, 2016, Plaintiff presented to Lary Korn, D.O. ("Dr. Korn"), for an orthopedic consultative exam. Tr. at 1130-33. He endorsed constant pain in his lumbosacral spine that radiated down his left lateral thigh to his foot. Tr. at 1130. He stated his pain increased upon standing for longer than 15 minutes, bending, and stooping. Id . He also complained of neck stiffness and CTS. Id . Dr. Korn described Plaintiff's affect as slightly blunted and noted an occasional error while performing serial threes. Tr. at 1131. He noted significant flattening of the lumbar curve. Id . He stated Plaintiff was able to squat and perform tandem and heel-toe walks normally. Tr. at 1132. He observed a minimal limp on the left and noted Plaintiff used a cane in his right hand upon arrival and in his left hand upon departure. Id . He noted no sensory loss or muscle weakness, but found Plaintiff to have

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absent reflexes in the triceps and reduced reflexes in the biceps, forearms patellae, and Achilles. Id . He could confirm no atrophy, but noted 4/5 extensor hallucis longus ("EHL") strength with some giving way. Id . He found Plaintiff's left calf circumference to be slightly less than his right. Id . He observed a tremor, but considered Plaintiff's fine dexterity to be fairly normal. Id . Dr. Korn noted reduced cervical and lumbar ROM, increased paracervical tone, negative SLR, and positive Waddell signs. Id . He found positive Phalen's sign in the left wrist, a lateral compartment click with McMurray's maneuver in the left knee, and a very subtle lateral compartment click in the right knee with McMurray's maneuver. Id . He considered Plaintiff's hands unremarkable, aside from mild degenerative changes in some of the phalangeal joints. Id . X-rays of Plaintiff's lumbar spine showed loss of lordotic curvature, multilevel DDD with moderately advanced DDD at the L4-5 level, and bony spinal encroachment at the L4-5 and L5-S1 levels. Tr. at 1126. X-rays of Plaintiff's right knee were normal. Tr. at 1127. X-rays of his left foot were unremarkable, aside from a calcaneal enthesophyte. Tr. at 1128. Dr. Korn diagnosed chronic low back pain with left leg symptoms and could not rule out the possibility of significant spondylosis, as Plaintiff had an abnormal curve. Id . He further assessed CTS, per stated history, and possible spondylosis of the cervical spine. Id .

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Plaintiff presented to James N. Ruffing, Psy.D. ("Dr. Ruffing"), for a consultative mental status examination on August 31, 2016. Tr. at 1135-38. He endorsed depression, anger, volatility, and paranoia. Tr. at 1135. He indicated he spent most of his time watching television. Tr. at 1136. However, he stated he went across the street to his parents' house for three hours every other day to feed his mother, change her diapers, and clean her linens. Id . Plaintiff said he cared for his personal needs, shopped, paid his bills, used a telephone, ordered food, prepared light meals, cleaned dishes, vacuumed, and cut grass using a riding mower. Id . Dr. Ruffing observed Plaintiff to be adequately groomed and casually dressed. Tr. at 1137. He stated Plaintiff remained calm, showed no acute emotional distress, and maintained appropriate eye contact and speech. Id . Plaintiff endorsed crying spells once a week and indicated he typically slept for four to five hours over a 24-hour period. Id . He complained of low energy and low libido. Id . He denied anhedonia, suicidal ideation, self-mutilation, homicidal ideation, and a history of psychiatric hospitalization. Id . Dr. Ruffing described Plaintiff as fully oriented with an adequate stream of consciousness. Id . He stated Plaintiff showed no evidence of psychosis or lack of reality contact and had linear, logical, relevant, coherent, and goal-directed thoughts. Id . He noted Plaintiff attended and focused without distractibility, demonstrated normal processing speed, showed no evidence of psychomotor retardation, had good

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immediate and distracted memory, and scored 30 of 30 on the Folstein Mini-Mental Status exam. Id . He suspected adjustment disorder with depressed mood versus persistent depressive disorder of mild intensity. Tr. at 1137-38. He noted Plaintiff "seem[ed] able to understand and respond to the spoken word," "appear[ed] capable of managing concentration, persistence and pace," and "appear[ed] capable of managing his finances if awarded benefits." Tr. at 1138.

Plaintiff presented to Charles Bounds, M.D. ("Dr. Bounds"), for medication refills on September 7, 2016. Tr. at 1149. He reported neck pain, tingling in his arms and legs, and numbness. Id . Dr. Bounds recorded normal findings on physical exam. Tr. at 1149-50. He refilled Plaintiff's medications and referred him to a neurologist. Tr. at 1150.

On September 7, 2016, state agency psychological consultant Samuel Goots, Ph.D. ("Dr. Goots"), reviewed the record and considered Listing 12.04. Tr. at 589. He assessed no restriction of ADLs or repeated episodes of decompensation and mild difficulties in maintaining social functioning and concentration, persistence, or pace. Id . State agency psychological consultant Rebekah Jackson, Ph.D. ("Dr. Jackson"), reviewed the record and reached the same conclusions on November 7, 2016. Compare Tr. at 89, with Tr. at 603-04.

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Also on September 7, 2016, state agency medical consultant Marcus Whitman, M.D. ("Dr. Whitman"), reviewed the record and provided the following physical RFC assessment: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for a total of about six hours in an eight-hour workday; sit for a total of about six hours in an eight-hour workday; occasionally balancing, stooping, kneeling, crouching, crawling, and climbing ramps and stairs; never climbing ladders, ropes, or scaffolds; frequently lifting overhead with the bilateral upper extremities; frequently handling and fingering; and avoid concentrated exposure to extreme cold, humidity, vibration, and hazards. Tr. at 590-93. State agency medical consultant Matthew Fox, M.D. ("Dr. Fox"), assessed the same physical RFC on November 7, 2016. Compare Tr. at 590-93, with Tr. at 605-07.

Plaintiff followed up for depression, anxiety, and medication refills on February 15, 2017. Tr. at 1147. He endorsed arthralgias and joint stiffness, motor disturbance, anxiety, depression, and sleep disturbance. Id . Dr. Brown noted normal findings on exam, aside from an intention tremor. Tr. at 1147-48. She continued Plaintiff's medications. Tr. at 1148.

On September 8, 2017, Plaintiff complained Wellbutrin was no longer effective. Tr. at 1159. He reported problems with sciatica. Id . Dr. Bounds noted tender lower paraspinal muscles with loss of lumbar lordosis. Tr. at

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1160. He ordered consultations with a psychiatrist and an orthopedist and refilled Plaintiff's medications. Tr. at 1160-61.

Plaintiff presented to Caleb Loring, Psy.D. ("Dr. Loring"), for a consultative mental status exam on October 31, 2017. Tr. at 1182. He reported depression, a herniated disc and nerve damage in his back, leg pain, and CTS. Id . Dr. Loring noted Plaintiff was pleasant, cooperative, and did not appear to be promoting symptoms. Id . He considered the results of testing to be valid. Id . Plaintiff denied social contacts, aside from his parents, wife, and children. Id . He reported sweating and feeling nervous in crowds. Id . He endorsed poor sleep, crying spells, and variable weight and appetite. Tr. at 1183. Dr. Loring observed Plaintiff to ambulate with a cane, to appear to have some difficulty on his feet, to have good grooming and hygiene, and to demonstrate good eye contact and normal speech and language. Id . He stated Plaintiff showed a linear and goal-directed thought process and endorsed no problems with thought content. Id . He noted Plaintiff "did not come across as particularly anxious or significantly depressed." Id . He described Plaintiff as "tough" and "stoic," but pleasant. Id . He noted Plaintiff was alert and oriented, spelled "world" forwards and backwards, and repeated three words immediately and after a delay. Id . He stated Plaintiff had good insight and judgment and at least low-average intellectual ability. Id . Although Plaintiff admitted to suicidal ideation, he indicated he had no suicidal intent or plan.

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Id . He stated he cared for his personal hygiene, performed some outdoor chores, shopped "sometimes," and was capable of managing his money. Id . Dr. Loring noted Plaintiff was "not really dealing with any psychological problems that would inhibit his ability to engage in activities of daily living." Id . He stated Plaintiff could perform activities like shopping off hours to avoid crowds, but generally appeared to be capable of independent functioning. Id . He indicated Plaintiff would likely perform best in a job with limited public contact and was capable of learning simple and complex vocational tasks. Id . He diagnosed persistent depressive disorder, unspecified anxiety disorder, and some issues with chronic pain. Tr. at 1184.

On October 31, 2017, x-rays of Plaintiff's cervical spine showed degenerative listhesis. Tr. at 1180.

Plaintiff presented to Gordon Early, M.D. ("Dr. Early"), for a consultative medical exam on November 1, 2017. Tr. at 1186. He complained of depression and lower back pain and left-sided sciatica that had worsened over the prior year or two. Id . Dr. Early observed Plaintiff to be "very depressed." Tr. at 1187. He noted a mild tremor that was worse in the left, as opposed to the right, hand and evidence of CTS in both hands. Id . He found decreased ROM in Plaintiff's back and weakness in the left side of the left flexor hallucis longus ("FHL") and EHL. Id . He assessed lower back pain with left sciatica and significant leg weakness and adjustment disorder. Id .

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Dr. Fox again reviewed the record and assessed a similar RFC on December 19, 2017, except he did not impose environmental limitations. Compare Tr. at 675-77, with Tr. at 605-07. James Taylor, D.O. ("Dr. Taylor"), affirmed Dr. Fox's later assessment on February 28, 2018. Tr. at 692-94.

On December 20, 2017, state agency psychological consultant Silvie Ward, Ph.D. ("Dr. Ward"), reviewed the record and considered Listings 12.04 and 12.06 for anxiety and obsessive-compulsive orders. Tr. at 673. She considered Plaintiff to have no difficulty understanding, remembering, or applying information; mild difficulty interacting with others; mild difficulty concentrating, persisting, or maintaining pace; and no difficulty adapting or managing oneself. Id . Dr. Jackson again reviewed the record and affirmed Dr. Ward's opinion on February 28, 2018. Compare Tr. at 673, with Tr. at 689-91.

Plaintiff complained of left leg pain and dry patches under his eyes and requested medication refills on January 2, 2018. Tr. at 1199. He indicated he had been unable to make prior appointments with a psychiatrist and neurologist because he was helping his mother to settle into a nursing home. Id . Jason Hennessey, NP ("NP Hennessey"), noted normal findings on physical exam. Tr. at 1199-1200. He continued Plaintiff's medications and referred him for consultations with a neurologist, a physical therapist, and a

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mental health provider. Tr. at 1201. He added Buspirone to address increased anxiety. Id .

3. Supplemental Vocational Assessment

On November 19, 2014, Plaintiff's attorney obtained a sworn statement from Benson Hecker, Ph. D. ("Dr. Hecker"). Tr. at 423. Dr. Hecker stated he was "self-employed as a consultant to State and Federal Agencies in the areas of vocational psychological evaluation" and that he also had his "own practice working directly with people who have a variety of physical and/or emotional problems." Tr. at 424-25. He confirmed he engaged in "testing, evaluation, training, research and placement of handicapped individuals." Tr. at 425. He explained his testimony had been accepted by the Social Security Administration's ("SSA's") Office of Disability Adjudication and Review on thousands of occasions. Tr. at 425-26. Dr. Hecker confirmed Plaintiff's attorney had provided him with medical exhibits, a copy of the ALJ's first decision, and information regarding Plaintiff's age, education, and PRW. Tr. at 428.

Dr. Hecker indicated he had evaluated Plaintiff's ability on the Purdue Pegboard test, which evaluates an individual's ability to use the bilateral hands "in an assembly type situation in an industrial setting." Tr. at 432. He found Plaintiff to score in the fifth percentile when using only his right hand; below the fifth percentile when using only his left hand; and in the fifty-fifth

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percentile when using both hands in coordination. Id . However, he noted Plaintiff scored in less than the first percentile when asked to do assembly work. Id . He stated Plaintiff's scores were "at the lowest level that we can identify with regard to requirements for successful work or successful use of the extremities." Tr. at 433. He indicated it was his opinion Plaintiff "would not be able to perform work successfully in an industrial work setting where he had to use his hands for assembly, disassembly, fine or gross motor." Id . He further indicated Plaintiff had no fine or gross motor skills. Id .

Plaintiff's attorney asked Dr. Hecker to identify any problems that may be caused by a requirement to use a cane in one hand. Tr. at 436. Dr. Hecker stated use of a cane would have no impact on Plaintiff's ability to perform light or sedentary jobs if he only required use of the cane "for ambulation to and from work or to the bathroom or on slippery surfaces, if that is the only use or climbing steps, if that's the only use for that cane." Tr. at 436-37. However, he stated Plaintiff would be unable to perform the identified jobs if he were required to hold the cane in one hand to balance while standing. Tr. at 437.

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C. The Administrative Proceedings

1. The Administrative Hearing

a. Plaintiff's Testimony

i. July 28, 2014

At the hearing on July 28, 2014, Plaintiff testified he lived in a mobile home with his wife, his 17-year-old daughter, and his 14-year-old son. Tr. at 35.

Plaintiff testified he last worked in 2009. Tr. at 39. He indicated he received unemployment benefits after being laid off from his job. Tr. at 40. He stated he realized he was unable to perform any work after he exhausted his employment benefits. Id . He admitted he had assisted his uncle to build a deck at a rental home in February 2014. Tr. at 41. He stated he had retrieved wood and handed it to his uncle and had held up vinyl siding while his uncle hammered it in place. Id . He estimated he worked for two to three hours at a time on three days per week over a two-and-a-half month period. Tr. at 53. He indicated he informed his uncle he was unable to continue the work because it increased his back pain and the numbness in his hands. Tr. at 41 and 54.

Plaintiff testified pain in his lower back and left leg were the most significant problems that prevented him from being able to work. Tr. at 42. He indicated his leg pain had resulted from his back injury and denied

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having sustained a separate injury to his leg. Tr. at 42. He stated he experienced numbness in his left leg when he walked and tried to bend or lift items. Tr. at 48. He indicated he had not pursued back surgery because of problems with Medicaid. Tr. at 59. Plaintiff endorsed CTS in both hands that resulted in left hand numbness and difficulty opening jars and buttoning buttons. Tr. at 42, 49, and 56-57. He indicated the injections he had received had only provided relief for a short period. Id . He stated he had "a little depression," but his medications had improved his symptoms. Tr. at 43-44. He indicated his pain medication reduced his pain from an eight to a six and helped him to better communicate with his family members. Tr. at 52 and 55. Plaintiff stated an ESI had been ineffective at reducing his back pain. Id .

The ALJ observed Plaintiff was using a cane and asked if it had been prescribed by a physician. Tr. at 38. Plaintiff stated Dr. Jacobus had prescribed it between May and July of 2013. Id . The ALJ pointed out the prescription for the cane was dated February 20, 2014, and Plaintiff admitted that he was initially using a non-prescribed cane. Tr. at 39.

Plaintiff testified Valium made him "feel a little bit loopy." Tr. at 44. He stated a back brace had provided some relief and indicated he typically wore it when he rode in the car for 45 minutes or more. Tr. at 45.

Plaintiff estimated he could lift nothing heavier than a 10-pound bag of potatoes. Tr. at 48. He indicated he was unable to bend to pick up items from

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the ground. Id . He stated he could walk through Walmart for no longer than 20 minutes. Tr. at 49. He testified he could stand for less time than he could walk. Tr. at 50. He indicated he would need to rest for 10 to 15 minutes before he could continue to walk. Id .

Plaintiff stated his driver's license has been suspended in 2000 because of convictions for driving under the influence and he had been unable to afford to have it reinstated. Tr. at 37. He testified on a typical morning, he would take his medication, eat breakfast, and sit for a couple of hours. Tr. at 46. He indicated he walked across the street to visit his parents. Id . He stated he fed his mother because she trembled and was unable to hold a spoon. Tr. at 54. He indicated he had done yard work in the past, but that his son had assumed that responsibility. Tr. at 55. He testified he was no longer able to work on cars or hunt quail. Tr. at 57-58. He indicated he smoked one to one-and-a-half packs of cigarettes per day. Tr. at 58.

ii. October 10, 2018

At the second hearing, Plaintiff testified he crossed the street to visit his father daily. Tr. at 512. He said he often rode his lawnmower to his father's house because he had difficulty walking. Id . He noted he spoke to his children, who both had jobs. Id . He said he visited the grocery store once a week. Id . He denied being able to lift anything heavier than a gallon of milk.

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Tr. at 514-15. He said he lifted it with his right hand, as his left hand gave out more often, causing him to drop items. Tr. at 516.

Plaintiff testified his left leg had worsened over the prior six to eight months. Tr. at 515. He said he could not lift his left foot to put on his sock. Id . He noted he sometimes tumbled upon bending forward. Tr. at 517. He described excruciating pain from his left knee through his left foot, as well as numbness. Id . He denied current use of a cane, as his father had run over his cane with a lawnmower. Tr. 518-19. He said he felt like he needed a replacement cane for walking. Tr. at 519.

Plaintiff denied engaging in typing and said his writing was illegible because his hand would shake. Tr. at 518. He estimated he shifted positions every 15 to 20 minutes while sitting, as he felt uncomfortable. Tr. at 519. He stated he had to get up after sitting for an hour. Tr. at 520.

Plaintiff described pain that radiated from his lower back to the inside of his thigh and down to his foot. Id . He stated it was a constant, knife-like, burning pain. Id . He said he used Tramadol and Tylenol, which caused him to feel dizzy and sleepy. Tr. at 521.

Plaintiff testified he took Wellbutrin, Valium, and Propranolol for depression. Tr. at 521-22. He said he had seen a therapist twice, but no longer saw a mental health professional because he did not have Medicaid. Tr. at 522. He noted he had last seen Dr. Jacobus soon after the first hearing,

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but had stopped seeing him when he moved to another office. Tr. at 524. He indicated he subsequently saw a nurse practitioner, but had been terminated from pain management after he took Hydrocodone from an earlier prescription while being prescribed Oxycontin. Tr. at 525-26. He said the nurse practitioner gave him a warning over that incident, but a subsequent UDS had shown another substance in his system and she refused to show him a copy of the UDS. Tr. at 526-27.

Plaintiff stated his current weight was 171 pounds. Tr. at 527. The ALJ questioned him about his weight loss. Tr. at 527-28. Plaintiff stated he had lost weight because of anxiety and was closer to his normal weight, after having weighed as much as 202 pounds. Tr. at 528. He said had reduced his cigarette consumption to four cigarettes every day or two. Tr. at 529.

b. Vocational Expert Testimony

i. July 28, 2014

Vocational Expert ("VE") Robert Brabham reviewed the record and testified at the hearing. Tr. at 60-86. The VE categorized Plaintiff's PRW as a die cutter helper as semiskilled and requiring medium exertion per the Dictionary of Occupational Titles (" DOT "), but light as actually performed; an industrial cleaner as unskilled and requiring heavy exertion; an ingredient handler as unskilled and requiring medium exertion; and a landscape laborer as unskilled and requiring heavy exertion. Tr. at 63-64. The ALJ described a

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hypothetical individual of Plaintiff's vocational profile who could perform work at the light exertional level with the following restrictions: only occasional use of the left LE to operate foot controls; able to sit or stand at will while remaining at the workstation; never climbing ladders, ropes, or scaffolds; occasionally climbing ramps and stairs, balancing, stooping, kneeling, and crouching; frequently handling and fingering with the bilateral hands; less than occasionally being exposed to hazards associated with unprotected, dangerous machinery and unprotected heights; and limited to simple, routine, repetitive tasks in a low stress, predictable work environment, free from fast-paced or team-dependent production requirements, and performed with less than occasional interaction with the general public. Tr. at 65-66. The VE testified the hypothetical individual would be unable to perform Plaintiff's PRW. Tr. at 66. The ALJ asked whether there were any other jobs in the economy that the hypothetical person could perform. Id . The VE identified light jobs with a specific vocational preparation ("SVP") of 2 as a machine tender or operator, DOT number 689.685-130, with 10,000 positions in South Carolina and 400,000 positions in the national economy; a production inspector, DOT number 739.687-102, with 5,000 positions in South Carolina and 200,000 positions in the national economy; and a laundry worker, DOT number 302.685-010, with

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2,000 positions in South Carolina and 80,000 positions in the national economy. Tr. at 66-67.

The ALJ then asked the VE to consider a hypothetical individual of Plaintiff's vocational profile who was limited as described in the first question, but to further assume the individual would be limited to standing and walking for four hours in an eight-hour workday. Tr. at 68. The VE testified the individual could perform the jobs as a machine tender or operator and a production inspector, but could not perform the job as a laundry worker. Tr. at 68-69. He stated the individual could perform a light and unskilled job as an office helper, DOT number 239.567-010, with 2,000 positions in South Carolina. Tr. at 70-71.

The ALJ next asked the VE to consider a hypothetical individual of Plaintiff's vocational profile who was limited as described in the first hypothetical question, but to further assume the individual was limited to sedentary work. Tr. at 71. The VE testified the individual could perform sedentary jobs with an SVP of 2 as a medical products assembler, DOT number 739.687-086, with 2,000 positions in South Carolina and 80,000 positions in the national economy and a general hand worker, DOT number 589.687-014, with 5,000 positions in South Carolina and 200,000 positions in the national economy. Tr. at 71-72.

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The ALJ asked the VE to consider a hypothetical individual of Plaintiff's vocational profile who was limited as described in the previous questions, but to further assume the individual required use of a handheld assistive device to ambulate over narrow, slippery, or erratically moving surfaces and for ascending and descending slopes. Tr. at 72-73. The VE testified the hypothetical individual could perform the jobs identified in response to the previous hypothetical questions. Tr. at 73-74.

The ALJ asked the VE to consider a hypothetical individual of Plaintiff's vocational profile who was limited as described in the previous questions, but to further assume the individual could never stoop. Tr. at 74. The VE testified that stooping would not be a factor that would affect the jobs identified in response to the previous hypothetical questions. Tr. at 75.

The ALJ asked the VE to consider a hypothetical individual of Plaintiff's vocational profile who was limited as described in the first three questions as modified to allow for only occasional bilateral handling and fingering. Id . The VE testified the individual could perform the jobs identified at the light exertional level, but would be unable to perform the jobs identified at the sedentary exertional level. Tr. at 76.

Plaintiff's attorney asked the VE to explain the implication of a limitation to lifting 10 pounds for one-third of a workday. Tr. at 78-79. The VE confirmed that the limitation would preclude work at the light exertional

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level. Tr. at 79. Plaintiff's attorney asked the VE to assume a hypothetical individual was restricted to occasionally lifting no more than 10 pounds; could do no stooping; could sit for up to six hours in an eight-hour workday; could stand and walk for up to six hours in an eight-hour workday; would have to avoid pushing, pulling, pronation, or twisting of his hands; and could not work on an assembly line or put things together using small tools all day. Tr. at 82-84. The VE indicated the limitations in the hypothetical question would preclude work. Tr. at 84-85.

Plaintiff's attorney asked the VE to further assume the individual's capacity for maintaining concentration, persistence, or pace would be reduced by 20 percent because of pain. Tr. at 85. The VE testified the individual would not be productive enough to maintain employment. Tr. at 85-86.

ii. October 10, 2018

VE Warren Sparrow reviewed the record and testified at the hearing. Tr. at 530-51. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could, over the course of an eight-hour workday, in two-hour increments with normal and acceptable work breaks, perform work at the light exertional level as defined in the rules and regulations, with the following restrictions: never climb ladders, ropes, or scaffolds; occasionally crouch, crawl, and climb ramps and stairs; occasionally stoop to lift within the exertional level from floor to waist; frequently stoop to lift within the

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exertional level from waist-height and above; frequently balance and kneel; frequently perform bilateral reaching, handling, and fingering within the exertional level; occasionally be exposed to hazards associated with dangerous machinery or unprotected heights; concentrate, persist, and maintain pace to understand, remember, and carry out unskilled, routine tasks in a low-stress work environment, defined as being free of fast-paced, team-dependent production requirements and involving the application of commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form; dealing with several concrete variable in or from standardized situations; and adapting to occasional workplace changes. Tr. at 532-33. The VE testified that the hypothetical individual would be unable to perform any of Plaintiff's PRW. Tr. at 533. The ALJ asked whether there were any other jobs in the economy that the hypothetical person could perform. Id . The VE identified light jobs with an SVP of two as a small products assembler, DOT number 706.684-022, a bakery worker, DOT number 524.687-022, and a carwash attendant, DOT number 915.667-010, with 62,725, 165,270, and 311,940 positions available in the national economy, respectively. Tr. at 533-34.

For a second hypothetical question, the ALJ asked the VE to consider the restrictions in the first, but to also consider that the individual would require a handheld assistive device such as a cane to ambulate and balance

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over narrow, slippery, or erratically moving surfaces or for ascending or descending slopes. Tr. at 535. He further limited the individual to only superficial interaction with the general public and a job with duties that could be completed independently from coworkers. Id . He clarified the individual would not require the assistive device while standing at the workstation, would not require physical isolation, and could respond appropriately to reasonable and customary supervision. Id . He asked if the VE could identify jobs that may be performed with the specified restrictions. Tr. at 536. The VE identified light jobs with an SVP of 2 as a parking lot attendant, DOT number 915.473-010, and an agricultural produce sorter, DOT number 529.687-186, with 130,190 and 4,870 jobs in the economy, respectively. Id . He also cited a sedentary job with an SVP of 2 as a semiconductor bonder, DOT number 726.685-066, with 168,005 positions in the national economy. Tr. at 537.

For a third hypothetical question the ALJ asked the VE to consider an individual limited as described in the first question, except that the individual would be further limited to sedentary work. Tr. at 537-38. He asked if the individual would be able to perform any work. Tr. at 538. The VE stated the individual could perform the job of semiconductor bonder. Id . He further identified sedentary jobs with an SVP of 2 as a lens inserter, DOT number 713.687-026, and a surveillance system monitor, DOT number

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379.368-010, with 9,420 and 152,000 positions available in the national economy, respectively. Tr. at 539.

The ALJ asked the VE to consider the additional restrictions provided in the second hypothetical question and the restriction to sedentary work. Tr. at 540. The VE stated he had considered those restrictions in identifying the jobs as a semiconductor bonder, a lens inserter, and a surveillance system monitor. Id .

For a final hypothetical question, the ALJ asked the VE to consider the individual described in the prior questions, but to further assume the individual would be off-task for an average of 25% of the workday and absent from work three or more days per month. Tr. at 541. The VE testified the individual would be able to perform no work. Id .

The ALJ clarified the VE's responses that were not directly addressed in the DOT were based on his professional experience. Tr. at 541-43. The VE stated there were no direct or apparent conflicts between his testimony and the information in the DOT . Tr. at 544.

Plaintiff's attorney asked the VE to consider an individual limited to sedentary work with only occasional handling and fingering. Id . He asked if the individual would be able to perform competitive employment. Id . The VE indicated the job of surveillance system monitor would remain. Id . Plaintiff's attorney questioned how the VE determined the number of surveillance

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system monitor positions available in the economy. Tr. at 545. The VE stated he used a service called SkillTRAN that was based on United States Department of Labor statistics. Id . Plaintiff's attorney asked the VE to produce the evidence he relied on following the hearing. Tr. at 546-47. The ALJ informed Plaintiff's counsel that he should have made the request prior to the hearing. Tr. at 547. Plaintiff's attorney stated he was unaware prior to the hearing that the VE would testify the hypothetical individual could perform jobs as a surveillance system monitor. Id . After a lengthy discussion, the ALJ informed Plaintiff's counsel that he could obtain information about the availability of jobs on his own, but that he was not going to have the VE provide that information. Tr. at 547-50.

Plaintiff's attorney asked the VE to assume the individual would be limited to sitting for less than six hours per day and asked if the individual could perform the job. Tr. at 550. The VE stated the individual could perform the job sitting and standing. Id .

Plaintiff's attorney asked the VE to assume the individual would be unable to adapt to changes in the workplace. Tr. at 551. He asked if any jobs would be available. Id . The VE testified there would be no jobs. Id .

Plaintiff's attorney asked the VE if the individual would be able to perform any jobs if he were unable to stoop. Id . The VE testified the individual could perform some of the jobs previously identified. Id .

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2. The ALJ's Findings

In his decision dated February 12, 2019, the ALJ made the following findings of fact and conclusions of law:

1. The claimant meets the insured status requirements of the Social Security Act through June 30, 2013.
2. The claimant has not engaged in substantial gainful activity since July 21, 2009, the alleged onset date (20 CFR 404.1571 et seq ., and 416.972 et seq .).
3. The claimant has the following severe impairments: cervical degenerative disc disease, lumbar degenerative disc disease, left hip degenerative joint disease, bilateral carpal tunnel syndrome, tremors, depression, anxiety disorder and somatoform disorder (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, I find that over the course of an eight-hour workday, in two-hour increments with normal and acceptable work breaks, the claimant can perform work at the light exertional level as defined in 20 CFR 404.1567(b) and 416.967(b) except that he requires a hand-held assistive device (such as a cane) to ambulate and balance over narrow, slippery or erratically moving surfaces, or for ascending or descending slopes. A hand-held assistive device would not be necessary for standing at the workstation. He can never climb ladders, ropes and scaffolds. He can occasionally climb ramps and stairs, crouch and crawl. He can occasionally stoop to lift within the exertional level from the floor to the waist and can frequently stoop to lift within the exertional level from waist height and above. He can frequently balance and kneel. Bilateral reaching, handling, and fingering can be performed frequently within the exertional level. He can occasionally be exposed to hazards associated with unprotected dangerous machinery or unprotected heights. He can concentrate, persist and maintain pace to understand, remember and carry out unskilled, routine tasks, in a low stress work environment (defined as being free of fast-

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paced or team-dependent production requirements), involving the application of commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form. He can deal with problems involving several concrete variables in or from standardized situations. He can adapt to occasional work place changes. He can perform jobs with only superficial interaction with the general public. He can perform jobs where the work duties can be completed independently from coworkers; however, physical isolation is not required. He can respond appropriately to reasonable and customary supervision.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on April 23, 1966, and was 45 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. The claimant subsequently changed age category to closely approaching advanced age (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because applying the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569a, 416.969, and 416.969a).
11. The claimant has not been under a disability, as defined in the Social Security Act, from July 21, 2009, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

Tr. at 467-91.

II. Discussion

Plaintiff alleges the Commissioner erred because the ALJ did not properly evaluate his treating physician's opinion. The Commissioner

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counters that substantial evidence supports the ALJ's findings and that 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 apply, and who are under a "disability." 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability 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 at least 12 consecutive 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, 460 (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

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impairment meets or equals an impairment included in the Listings; (4) 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, 416.920. 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), 416.920(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).

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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. Subpart P, §§ 404.1520(a), (b), 416.920(a), (b); 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 alternative work and that such work exists in the 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

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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 id .; 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, 1157-58 (4th Cir. 1971); see Pyles v . Bowen , 849 F.2d 846, 848 (4th Cir. 1988) ( citing Smith v . 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. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." 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 his 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).

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B. Analysis

In an interview conducted on July 9, 2014, Dr. Jacobus stated he first examined Plaintiff on February 8, 2012, and last saw him on April 17, 2014. Tr. at 384. He described Plaintiff as having "a lot of spasticity in his back" and demonstrating signs of L5 radiculopathy. Id . He stated the diagnosis of L5 radiculopathy was confirmed by nerve conduction studies on May 8, 2012. Id . He indicated a March 2012 MRI showed an L4-5 disc herniation and a ruptured disc that extended into the left L5 area. Tr. at 385. He described Plaintiff's limitations that resulted from his back impairment as follows:

He needs to avoid repetitious pushing, pulling, and lifting. He needs to be able to change positions at least every two hours. He must avoid unlevel grass, gravel, stairs, inclines, and scaffolds. Bending, stooping, lifting is not going to be well tolerated. He needs to limit his activities so that through the day he can sit, get up, and maneuver. I don't think he is going to be able to walk distances for a long period of time because it is going to irritate his back.

Tr. at 386. Dr. Jacobus indicated Plaintiff would be unable to lift 20 pounds "repetitiously" or for up to one-third of a day. Id . He stated Plaintiff "may be able to lift 10 [pounds] for 1/3 of a day." Id . He indicated Plaintiff would be unable to engage in stooping, as defined as "bending at the waist." Id . Dr. Jacobus confirmed Plaintiff had been diagnosed with CTS, but that surgery was not indicated at the time. Tr. at 386-87. He stated Plaintiff would be compromised in his ability to frequently move his index finger, middle finger,

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and thumb. Tr. at 387. He indicated Plaintiff should avoid pushing, pulling, pronation, and twisting his hand, as if opening a doorknob. Id . He stated repetitious activities such as handling objects for long periods, working on an assembly line, and putting things together using small tools would exacerbate the pain in Plaintiff's low back and upper and lower extremities. Id . He reported Plaintiff's pain would interfere with concentration, work pace, and persistence for an eight-hour workday and five-day workweek. Id . Finally, he confirmed he would be willing to answer questions posed by SSA. Id .

Plaintiff argues the ALJ provided only a conclusory statement rejecting Dr. Jacobus's opinion and declined to provide specific reasons for the weight he assigned, as required by the regulations. [ECF No. 12 at 31-32]. He contends the ALJ took Dr. Jacobus's singular indication that he was able to work out of context and failed to consider it given the entire treatment record. Id . at 32-33. He claims the ALJ did not adequately consider Dr. Jacobus's observations and testing with the diagnoses and restrictions in his opinion. Id . at 33. He maintains the ALJ impermissibly discounted Dr. Jacobus's opinion based on unfounded speculation as to collusion between his former attorney and Dr. Jacobus. Id . at 33-34. He argues the fact that Dr. Jacobus was not a vocational expert did not disqualify him from assessing Plaintiff's exertional and non-exertional limitations given the medical

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findings. Id . at 34. He contends that, to the extent the ALJ considered Dr. Jacobus's opinion to be vague, he could have sought clarification. Id . at 34-35. He claims his impairments support the lifting restrictions Dr. Jacobus provided. Id . at 35. He maintains the evidence the ALJ cited does not refute Dr. Jacobus's opinion that he should do no stooping. Id .

The Commissioner argues the ALJ was not required to accept Dr. Jacobus's opinion and complied with the regulations in weighing it. [ECF No. 13 at 29-35]. He maintains the ALJ appropriately gave greater weight to the state agency evaluators' opinions. Id . at 29. He contends the ALJ provided a nine-page summary of the medical findings that supported his opinion prior to indicating the weight he accorded Dr. Jacobus's opinion. Id . at 30. He notes the ALJ considered Dr. Jacobus's specialization and the treatment relationship, but explained how his opinion was unsupported by his observations and inconsistent with the consultative examiners' findings. Id . at 30-32. He claims the ALJ merely considered that Dr. Jacobus's statement was prepared by Plaintiff's attorney for the litigation as one of many factors in weighing the opinion. Id . at 32. He maintains the ALJ was not required to contact Dr. Jacobus for clarification because the evidence in the record allowed him to decide the issue of disability. Id . at 33.

A "treating physician rule" is "clearly established by both SSA policy and Fourth Circuit precedent." Arakas v . Commissioner , Social Security

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Administration , ___ F.3d ___, 2020 WL 731494, at *16 (4th Cir. Dec. 14, 2020) (citing Hines v . Barnhart , 453 F.3d 559, 563 (4th Cir. 2006)). "[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)). Because Plaintiff filed his claim for benefits prior to March 27, 2017, the ALJ was required to evaluate the medical opinions of record based on the rules in 20 C.F.R. § 404.1527 and § 416.927 and SSRs 96-2p, 96-5p, and 06-3p. Pursuant to these rules and regulations, a treating physician's opinion shall be accorded controlling weight, provided it is well supported by medically-acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence of record. See id .

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An ALJ may give less than controlling weight to a treating physician's opinion that is not well supported by medically-acceptable clinical and laboratory diagnostic techniques or is inconsistent with the other substantial evidence of record. SSR 96-2p, 1996 WL 374188, at *2 (1996). However, his assessment of the medical opinion does not end with the determination that it does not deserve controlling weight, as the ALJ is required to weigh all medical opinions of record based on the factors in 20 C.F.R. § 404.1527(c) and § 416.927(c). Johnson , 434 F.3d at 654; 1996 WL 374188, at *4 (1996). Pursuant to 20 C.F.R. § 404.1527(c) and 416.927(c), the ALJ must weigh the medical opinions of record based on "(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 654 (citing 20 C.F.R. § 404.1527).

The ALJ's discretion permits him "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). However, if the ALJ declines to issue a decision that is fully favorable to the claimant, 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

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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 allocates to a treating physician's opinion. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).

Here, the ALJ declined to accord controlling weight to Dr. Jacobus's opinion because he considered it "not well-supported by medically acceptable clinical or laboratory diagnostic techniques, including his own exam findings showing improvement with treatment and a lack of positive exam findings," "inconsistent with the other substantial evidence in the record," and "in conflict with his February 2014 notation that the claimant was able to work." Tr. at 485.

He further wrote the following:

I give some weight to this opinion from a specialized (pain management) treating source. The opinion appears to have been guided, drafted and edited by the claimant's attorney, ostensibly from ex parte communications with the treating physician. There is no transcript of the entire communication between the representative (or his agents) and the physician, which appears to be in violation of 20 CFR 404.1512 that requires the submission of "all evidence known to you that relates to whether or not you are disabled" [20 CFR 404.1512(a); see also corresponding 20 CFR 416.912]. Such evidence from medical sources includes medical history, opinions, and statements about treatment. 20 CFR 404.1512(b)(1)(ii)j, and is expressly not excepted by Attorney Work Product Doctrine or Attorney-client privilege (20 CFR 404.1512(b)(2)(iv)).

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Additionally, absent an explanation of the statement's etiology, the attorney-submitted evidence also violates the Rules of Conduct and Standards of Responsibility for Representatives (20 CFR 404.1740 and 20 CFR 416.1540; see also 20 CFR 404.1512; CFR 416.912). The lack of required full disclosure raises the specter of collusion between the representative and the treating physician, which compromises the integrity of the opinion.

Id .

The ALJ also wrote:

As to the substance of the opinion, Dr. Jacobus is not a vocational expert. Many of the limitations (e.g. walking, handling, "protective activity") are vague. The limitation on lifting is not supported in the medical evidence, including Dr. Jacobus's own exam findings of normal gait/station and normal muscle strength, bulk and tone. His total prohibition on stooping is unsupported in the medical evidence and also by the claimant's daily activities such as shopping, lawn mowing, turning his mother, and assisting his uncle in building a deck. The effects of pain are only vaguely described. Consequently, I find the longitudinal treatment reports, including imaging, diagnostic results, and exam findings are more informative and persuasive.

Id .

He stated Plaintiff's "ability to assist his uncle in building a deck, in addition to his testimony of being able to shop and place a 10 pound bag of potatoes into a shopping cart, negate[d] Dr. Jacobus's total prohibition on stooping." Tr. at 483.

The Commissioner urges the court to examine not only the ALJ's specific discussion as to Dr. Jacobus's opinion, but his prior summary of the record as explanation for his conclusions that the opinion was unsupported by

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Dr. Jacobus's exam findings and inconsistent with the other evidence of record. In his summary, the ALJ emphasized the evidence he considered more consistent with the assessed RFC than with Plaintiff's allegations and Dr. Jacobus's opinion. See generally Tr. at 473-77, 481-83 (reports that back pain was manageable with medication and improved following injection; full and symmetric muscle strength on multiple exams; normal muscle tone without atrophy or abnormal movements on multiple exams; normal motor function and reflexes during multiple exams; unremarkable gait and station during multiple exams; normal musculoskeletal and neurological exams on multiple occasions; no indication of use of an assistive device during multiple exams; no muscle spasm or tenderness; no SI tenderness; negative SLR; normal heel and toe walking, tandem gait, and finger-to-nose; "fairly good" motion; improved ROM; normal EMG of lower extremities; MRI showed only mild left hip degenerative joint changes and normal right hip; Dr. Jacobus noted Plaintiff was "still even able to work"; Plaintiff indicated he was getting up and down, using his cane less, and was able to drive better with use of a back brace; release from pain management for noncompliance with opiate contract; normal fine and gross dexterity; generally unremarkable hands; abilities to sweep, cut grass with a riding mower weekly, prepare food, perform light chores, care for hygiene needs, shop in stores, and provide care for elderly parents).

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Despite such emphasis, the ALJ also referenced evidence that presumably supported Plaintiff's allegations and Dr. Jacobus's opinion. See Tr. at 473 (report of worsening pain and drowsiness caused by Flexeril, observation of tenderness over SI joint and lumbar paraspinous muscles); Tr. at 474 (complaint of worsening pain following injection; report of sciatica; TTP and lower lumbar paraspinous muscle spasm with loss of lumbar lordosis; complaints of back pain and lower extremity discomfort; objective myospasm on the left and pain along left thigh into left foot; discomfort with SLR on the left at 60 degrees); Tr. at 475 (lumbar x-rays revealed degenerative osteoarthritis, especially at L4 and L5, with increased sclerosis and osteophytic changes; diagnoses of lumbosacral myositis, left L5 radiculopathy, and degenerative osteoarthritis of the lumbar spine; hip pain and tenderness throughout the lumbar area in March 2012; May 2012 electrodiagnostic studies showed left L5 radiculopathy and possible right SI radiculopathy; July 2012 MRI showed extruded paracentral left L4-5 disc herniation that compressed areas of L5 nerve root, central canal stenosis at L4-5, and right L3-4 annular tear without focal disc herniation; lumbar x-rays in July 2012 showed multilevel DDD with advanced changes at L3-4 and L4-5, questionable bony encroachment at L5-S1, and loss of lordotic curvature; mildly decreased sensation in the left foot; reports of increased back pain in October 2012 and September 2013; NCS and EMG that

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suggested left L5-S1 distribution compromise; reported "significant change in ability to get up and down" and was utilizing a cane; endorsed "a lot of pain in left hip and a lot of discomfort with abduction and internal and external rotation"; Tr. at 476 (abnormal EMG in March 2014 with findings most consistent with old left L5 radiculopathy with reinnervation potentials and no acute denervation that "were most likely significant and correlated with his complaints"); Tr. at 477 (August 2016 lumbar x-rays showed loss of lordotic curvature, multilevel DDD with moderately advanced DDD at L4-5 and bony spinal encroachment at L4-5 and L5-S1 levels; significant flattening of the lumbar curve; minimal limp on the left; absent reflexes in triceps and reduced reflexes in biceps, forearms, patellae, and Achilles; 4/5 bilateral EHL strength with some giving way; apparent tremor; increased paracervical tone; decreased hip and sacral ROM; mild degenerative changes in some phalangeal joints); Tr. at 481 (mild tremor in right greater than left hand that was not marked); Tr. at 482 (decreased ROM of back; weakness in the left EHL and FHL; reported progressively worsening back pain and significant left leg weakness; electrodiagnostic findings consistent with severe bilateral CTS; unspecified carpal tunnel findings in both hands during Dr. Early's October 2017 exam).

The ALJ's emphasis on the normal findings to the exclusion of the abnormal findings appears to be inconsistent with the applicable rules and

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regulations. A treating physician's opinion " must be given controlling weight unless it is based on medically unacceptable clinical or laboratory diagnostic techniques or is contradicted by the other substantial evidence in the record." Arakas , 2020 WL 7331494, at *17 (emphasis in original) (citing 20 C.F.R. § 404.1527(c)(2); Coffman v . Bowen , 829 F.2d 514, 517 (4th Cir. 1987). In citing significant abnormal findings on x-rays, MRIs, and EMG reports, the ALJ acknowledged that Dr. Jacobus's opinion was based on medically acceptable clinical and laboratory diagnostic techniques. He pointed to evidence that he considered inconsistent with the restrictions Dr. Jacobus imposed based on his lay opinion, but did not consider the evidence in light of Dr. Jacobus's impressions that Plaintiff's spasticity and L5 radiculopathy symptoms would impose such restrictions, a greater than two-year treatment history that included at least 17 examinations, and Dr. Jacobus's pain management specialization. "An ALJ may not substitute his own lay opinion for a medical expert's when evaluating the significance of clinical findings." Id . at *18 (citing Wilson v . Heckler , 743 F.2d 218, 22 (4th Cir. 1984). Thus, the ALJ relied on faulty logic to support a conclusion that Dr. Jacobus's opinion was contradicted by the other substantial evidence in the record.

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The ALJ also cited Dr. Jacobus's February 2014 notation that Plaintiff "was still even able to work" as inconsistent with his July 2014 opinion. However, the undersigned notes that such an impression is not necessarily in conflict with Dr. Jacobus's opinion. Although he provided significant restrictions on Plaintiff's ability to work, Dr. Jacobus did not state in his July 2014 opinion that Plaintiff could not work. Plaintiff testified that at the time of Dr. Jacobus's February 2014 note, he had assisted his uncle to build a deck by retrieving wood, handing it to his uncle, and holding up vinyl siding while his uncle hammered it in place. Id . He estimated he worked for two to three hours at a time on three days per week over a two-and-a-half month period, but was unable to continue the job because it increased his back pain and the numbness in his hands. Tr. at 41, 53-54. Dr. Jacobus's reference in the February 2014 record to Plaintiff being "able to work" does not indicate whether he could work at a level consistent with substantial gainful activity or specify what type of work he could perform, and Plaintiff's testimony as to the work he was performing at the time suggests it was not substantial gainful activity.

The ALJ also failed to provide an adequate explanation as to how Plaintiff's ADLs conflicted with the restrictions Dr. Jacobus imposed in his opinion. He did not explain how the referenced ADLs showed that Plaintiff

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was capable of performing functions necessary to complete a normal workday and workweek on a regular and continuing basis.

The ALJ committed several additional errors in evaluating Dr. Jacobus's opinion. He erred to the extent that he accorded reduced credibility to the opinion based on his impression that Plaintiff's attorney colluded with Dr. Jacobus to acquire the opinion. The undersigned notes that Plaintiff's former attorney, George H. Thomason ("Attorney Thomason"), provided as evidence a summary from his interview with Dr. Jacobus. See Tr. at 384. Dr. Jacobus presumably reviewed Attorney Thomason's summary and signed the following statement on July 23, 2014:

This is an accurate summary of my professional qualifications and the substance of an interview conducted in my office on July 9, 2014. I am a licensed physician in the State of South Carolina, I am engaged in the full time practice of medicine, and I have no financial interest in the outcome of Mr. Martin's claim. This statement consists of FIVE pages.

Tr. at 388.

In Putnam v . Saul , C/A No. 2:18-3524-DCN-MGB, 2020 WL 562960, at *7 (D.S.C. Feb. 5, 2020), the court considered an ALJ's rejection of a medical opinion procured by the plaintiff's counsel and explained as follows:

The purpose for which medical reports are obtained does not provide a legitimate basis for rejecting them. The Ninth Circuit

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has found that "[a]n examining doctor's findings are entitled to no less weight when the examination is procured by the claimant than when it is obtained by the Commissioner." Lester v . Chater , 81 F.3d 821, 832 (9th Cir. 1995), as amended (Apr. 9, 1996). In so holding, the Ninth Circuit stated that "[t]he [Commissioner] may not assume that doctors routinely lie in order to help their patients collect disability benefits." Id . (quoting Ratto v . Secretary , 839 F. Supp. 1415, 1426 (D. Or. 1993). This court, like others in this district, agrees. See Cureton v . Astrue , 2011 WL 903032, at *17 (D.S.C. Jan. 28, 2011), report and recommendation adopted, 2011 WL 900118 (D.S.C. Mar. 15, 2011) ("The mere fact that a claimant's representative or attorney arranged to have a medical examination performed should not determine the consideration the ALJ gives that opinion."). Therefore, the fact that Dr. Miller's opinions were obtained through an attorney-drafted questionnaire does not give the ALJ a basis for discrediting his opinion.

Similarly, the mere fact that Dr. Jacobus's opinion appears in Attorney Thomason's summary of his interview did not give the ALJ a basis for discrediting the opinion.

The ALJ cited Attorney Thomason's submission of less than "the entire communication between the representative (or his agents) and the physician" as being in violation of 20 C.F.R. § 404.1512, § 416.912, §404.1740, and § 416.1540. Tr. at 485. However, the ALJ was relying on versions of the regulations that were not applicable at the time that Attorney Thomason procured Dr. Jacobus's opinion.

Although the current versions of 20 C.F.R. § 404.1512(a) and 416.912(a) provide that the claimant "must inform us about or submit all evidence known to you that relates to whether or not you are blind or disabled," the

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prior versions of the regulations required that the claimant "bring to our attention everything that shows that you are blind or disabled." Compare 20 C.F.R. § 404.1512(a) and § 416.912(a) (effective Mar. 27, 2017), with 20 C.F.R. 404.1512(a) and § 416.912(a) (effective Jun. 12, 2014 to Apr. 19, 2015). Thus, the versions of the regulations applicable at the time of Attorney Thomason's interview with Dr. Jacobus only required submission of evidence that supported the claim for disability, whereas the current version requires submission of evidence that both supports and refutes the disability claim. Moreover, the current versions of 20 C.F.R. § 404.1512(a) and § 416.912(a) require that "[w]hen you submit evidence received from another source, you must submit that evidence in its entirety, unless you previously submitted the same evidence to us or we instruct you otherwise," but the prior versions did not address the completeness of the evidence to be submitted. Compare 20 C.F.R. § 404.1512(a) and § 416.912(a) (effective Mar. 27, 2017), with 20 C.F.R. 404.1512(a) and § 416.912(a) (effective Jun. 12, 2014 to Apr. 19, 2015).

The undersigned finds similar error in the ALJ citation of perceived violations of 20 C.F.R. § 404.1740 and § 416.1540. See Tr. at 485. The ALJ did not explain, and it is not evident from review of the regulations, how Attorney Thomason's submission of a summary of his interview with Dr. Jacobus violated 20 C.F.R. § 404.1740 and § 416.1540, particularly given Attorney Thomason's candor as to the circumstances under which the

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interview took place. See Tr. at 384 (providing "SUMMARY OF INTERVIEW WITH DWIGHT JACOBUS, DO, ON JULY 9, 2014 AT HIS OFFICE, 1330 BOILING SPRINGS ROAD, SUITE 2100 SPARTANBURG, SOUTH CAROLINA. INTERVIEW WAS CONDUCTED BY GEORGE H. THOMASON, ATTORNEY, BOX 6187, SPARTANBURG, SOUTH CAROLINA 29304, SUBJECT OF INTERVIEW: ROBERT ALAN MARTIN"), Tr. at 388 (containing Dr. Jacobus's confirmation that the prior statement consisting of five pages was an accurate summary of the substance of the interview conducted in his office on July 9, 2014). Furthermore, the undersigned notes that the versions of these regulations applicable at the time of the interview imposed different requirements on claimants' representatives. Compare 20 C.F.R. § 404.1740 and § 416.1540 (effective Jan. 23, 2012 to Apr. 19, 2015), with 20 C.F.R. § 404.1740 and § 416.1540 (effective Aug. 1, 2018). The prior versions required a representative "[a]ct with reasonable promptness to obtain the information and evidence that the claimant wants to submit in support of his or her claim , and forward the same to us for consideration as soon as practicable." 20 C.F.R. § 404.1740(b)(1) (effective Jan. 23, 2012 to Apr. 19, 2015) (emphasis added). The current version requires that representative "help obtain the information the claimant must submit under our regulations, and forward the information or evidence to us for consideration as soon as possible." 20 C.F.R.

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§ 404.1740(b)(1) (effective Aug. 1, 2018). The prior version contained fewer affirmative duties for representatives and no prohibited actions. Compare 20 C.F.R. § 404.1740(b)(1) (effective Jan. 23, 2012 to Apr. 19, 2015), with 20 C.F.R. § 404.1740(b)(1) (effective Aug. 1, 2018).

Thus, the versions of the regulations that pertained to attorneys' roles in submitting evidence at the time Attorney Thomason obtained Dr. Jacobus's statement emphasized attorneys' advocacy roles, and substantial evidence does not support the ALJ's conclusion that Attorney Thomason failed to comply with the applicable regulations in submitting the opinion. In addition, the ALJ points to no evidence that Attorney Thomason withheld any relevant information as to his interview with Dr. Jacobus. His speculation as to collusion between Attorney Thomason and Dr. Jacobus is just that—speculation.

In addition, the ALJ erred to the extent that he discounted Dr. Jacobus's opinion because he was "not a vocational expert." See Tr. at 485. The Fourth Circuit recently reiterated "that ALJs may not disregard such opinions when offered by a treating physician." Arakas , 2020 WL 731494, at *19 (citing Hines , 453 F.3d 563 (4th Cir. Dec. 14, 2020). Although the ALJ suggests Dr. Jacobus's opinion was vague as to vocational restrictions, it is unclear whether the opinion is so vague that a VE could not opine as to whether jobs would be available given the restrictions.

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In light of the foregoing errors, the undersigned recommends the court find that substantial evidence does not support the ALJ's evaluation and weighing of the treating physician's opinion.

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 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.

December 16, 2020
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).