KEVIN F. McDONALD, Magistrate Judge.
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a)(D.S.C.), concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B).
The plaintiff brought this action pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. 405(g) and 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying his claims for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act.
The plaintiff filed applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") benefits on May 17, 2012. In both applications, the plaintiff alleged that he became unable to work on April 13, 2012. Both applications were denied initially and on reconsideration by the Social Security Administration. On November 21, 2012, the plaintiff requested a hearing. The administrative law judge ("ALJ"), before whom the plaintiff and Brenda Cartwright, an impartial vocational expert, appeared at a hearing on May 15, 2014, in Charlotte, North Carolina, considered the case de novo, and on June 20, 2014, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 21-30). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on October 8, 2014.
On December 5, 2014, the plaintiff filed a complaint in this court, and on December 21, 2015, this court reversed and remanded the decision for further proceedings to (1) consider whether appropriate consideration of the opinions of the plaintiff's treating physician, Dr. Stone, and the consultative examiner, Dr. Madey, were given in accord with the treating physician rule and (2) give further consideration to the claimant's moderate limitations in concentration, persistence, or pace in the residual functional capacity assessment and, if necessary, in the hypothetical to the vocational expert in accordance with Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015) (Tr. 662; see Tr. 738-58). In an order dated July 18, 2016, the Appeals Council vacated the ALJ's decision and remanded for proceedings consistent with the court's order (Tr. 759-63). The Appeals Council noted that the plaintiff filed a subsequent Title II application on March 30, 2015, and their action with respect to the remanded claim rendered the subsequent claim duplicate. Therefore, the Appeals Council ordered the ALJ to consolidate the claim files and to issue a new decision on the consolidated claims (id.).
On December 1, 2016, the ALJ held another hearing where the plaintiff, who was represented by counsel, and Tonetta Watson-Coleman, an impartial vocational expert testified (Tr. 685-713). On March 6, 2017, the ALJ found that the plaintiff was not disabled (Tr. 662-76). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council "found no reason under our rules to assume jurisdiction" on April 18, 2018 (Tr. 645-48). The plaintiff then filed this action for judicial review.
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(9) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled" whether or not the claimant has transferable job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(A), (H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. §§ 404.1505(a), 416.905(a).
To facilitate a uniform and efficient processing of disability claims, the Social Security Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform his past relevant work, and (5) can perform other work. Id. §§ 404.1520, 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. §§ 404.1520(a)(4), 416.920(a)(4).
A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 192.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Id. In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
The plaintiff was 42 years old on his alleged disability onset date (April 13, 2012) and 47 years old at the time of the ALJ's decision (March 6, 2017). He has a high school education and past relevant work as a carpenter, car salesman, and recreational vehicle salesperson (Tr. 40, 674).
On November 10, 1997, the plaintiff had a CT of the left lower extremity, which showed a comminuted, intra-articular fracture involving the base of the first metatarsal. On November 18, 1997, he underwent open reduction and internal fixation of the left great toe metatarsal base with multiple pins. An x-ray of the left first toe showed multiple metallic pins traversing the left first tarsal metatarsal joint. There was suggestion of a fracture just inferior to the base of the first metatarsal on the intraoperative view (Tr. 906-10). On February 11, 1998, the plaintiff underwent surgery to remove the hardware from his left foot (Tr. 937-38).
On July 29, 1998, Robert Anderson, M.D., evaluated the plaintiff, who reported that he had fallen while working in November 1997. He fell 16 feet onto concrete and landed on his feet. He reported that he had a left foot intra-articular fracture at the medial cuneiform first metatarsal joint for which he had open reduction and internal fixation about two weeks following the injury. He complained of pain in the medial aspect of his foot as well as pain over the lateral aspect of the fifth metatarsal. Dr. Anderson noted that the plaintiff walked mostly on his heel and did not walk down onto his first ray. He tended to invert his foot to unload the medial ray. On examination, the plaintiff was tender directly over the involved joint, and, with loading that joint and rotating it, there was definite crepitus. Laterally over the fifth metatarsal, he had some point pain over the diaphyseal junction. He had early degenerative arthritis of the left first metatarsal medial cuneiform joint, which was post traumatic in nature, and stress reaction over the fifth metatarsal with no fracture. Dr. Anderson arranged for the plaintiff to get inserts for his work boots that would provide some medial arch support. Dr. Anderson also scheduled a steroid injection (Tr. 911-12).
On January 7, 2004, William McCarthy, Jr., M.D., evaluated the plaintiff, who reported a five year history of lower back pain that had been worsening over the last three to four months. He complained of lower back pain with bilateral leg pain. He reported that his symptoms were worse with sitting for an extended period of time, bending, and lifting. Dr. McCarthy referred him to the Spine Center (Tr. 928).
On August 20, 2008, the plaintiff had an MRI of his lumbar spine, which showed a small inferior disc space at S1-S2; loss of normal lumbar lordosis; a massive disc extrusion at L4-5 to the right; and an annular tear and concentric bulge at L5-S1 (Tr. 366-67).
On September 29, 2009, the plaintiff underwent a decompressive laminectomy and microdiskectomy at L4-5 with bilateral posterior instrumented fusion at L4-5 with local bone graft and L4-5 TLIF with PEEK cage (Tr. 384-90).
On January 24, 2012, the plaintiff saw Samuel R. Stone, M.D., of Lowrys Family Medicine Center, regarding his diabetes. Dr. Stone commented that the plaintiff was "just not taking [his diabetes] seriously. He eats junk all the time. He says he is cutting back and not eating anything sugary, but he is just eating anything he can get his hands on." Dr. Stone ordered some testing and raised the possibility of insulin if the plaintiff's lab work was not better (Tr. 420).
On February 21, 2012, the plaintiff underwent an initial clinical assessment through Catawba Mental Health Clinic. He reported being "miserable all the time." He reported poor sleep, decreased energy, and decreased motivation. He explained that he went to work, but it was a struggle. When he wasn't at work, he was in his room in bed. He admitted to a past history of drug abuse but had been clean for four years. He was also noted to have a history of cycling through moods. The plaintiff's attitude was hostile and guarded. His affect was flat, and his mood was depressed and angry. He was appropriately oriented. His remote and immediate memory was poor. He appeared to be of average intelligence. Diagnoses were bipolar disorder NOS, mood disorder NOS, and a Global Assessment of Functioning ("GAF") score of 55 (Tr. 402-07).
On May 15, 2012, Dr. Stone evaluated the plaintiff for multiple medical conditions. He complained about his hurting feet and back. Dr. Stone noted that another physician had placed him on insulin, but the plaintiff wanted him to handle this medication. He reported that his feet had been hurting and that his back had not improved since his motor vehicle accident. Dr. Stone indicated that the plaintiff was not watching his diet as well as he should. Dr. Stone diagnosed diabetes mellitus, hypertension, and chronic low back pain. He prescribed NovoLog and metformin and continued the plaintiff's other medications. Dr. Stone referred him for a followup evaluation with an orthopaedic specialist and advised diet and exercise (Tr. 417, 444).
On May 29, 2012, Michael Heinig, M.D., of Carolina Orthopedic Surgery Associates, evaluated the plaintiff who reported being involved in a motor vehicle accident in September 2011, which injured his neck and lower back. He had numbness and tingling down his left arm. He described his neck pain as moderate and his back pain as severe. Dr. Heinig noted that the plaintiff had a history of three prior spinal surgeries as well as prior foot surgeries. On examination, he had decreased sensation on the left first dorsal compartment, middle finger, and little finger compared to the right. He had no notable upper extremity swelling, and his neck range of motion was "near full without encroachment on either side." He was able to change positions "without too much difficulty." Straight leg raising test was negative. Lumbar spine x-rays showed pedicle screws at L3 and L4 bilaterally with fairly well maintained disc spaces. X-rays of his cervical spine showed a wire attaching the spinous processes of C5 and C6 with some narrowing of the disc at C5-6 and a good deal more narrowing of anterior osteophyte formation at C6-7. Dr. Heinig diagnosed left cervical radicular symptoms status post C5-6 fusion with wire and mechanical lower back pain status post pedicle screw fusion at L3-4. Dr. Heinig prescribed diclofenac and prednisone and ordered a six week trial of physical therapy (Tr. 428-31).
In a function report dated June 18, 2012, the plaintiff indicated that he had no problems maintaining his personal care, including dressing, bathing, shaving, and feeding himself. He spent time with his girlfriend daily and went to church weekly. He did not use crutches, a walker, a cane, or a brace/splint (Tr. 302-07).
On July 25, 2012, a psychiatric review technique questionnaire was completed by Craig Horn, Ph.D., a non-examining medical advisor for the Administration. Dr. Horn found that the plaintiff's mental impairments were non-severe (Tr. 112-13).
On August 3, 2012, the plaintiff had lumbar spine x-rays, which showed changes from his L4-5 fusion, successful hardware placement, and no acute abnormality (Tr. 435).
On August 4, 2012, Jason Madey, M.D., performed a consultative examination at the Commissioner's request. Dr. Madey noted the plaintiff's history of multiple musculoskeletal surgeries including left foot surgery, neck surgery, back surgery, and left arm surgery. The plaintiff reported pain in all his previously surgical sites and limitations with carrying, lifting, and mobility in general. He indicated that he could walk independently but required breaks due to pain. Standing greater than 30 minutes caused pain and required him to rest. He had occasional numbness in his right arm with turning his head to the side. In addition to pain, Dr. Madey indicated that the plaintiff had decreased range of motion, but the remainder of his physical examination was essentially unremarkable. He exhibited only slightly decreased cervical and lumbar spine range of motion and no muscle asymmetry or atrophy. His gait was normal. He was able to rise from a sitting position without assistance, stand on his tiptoes and heels, tandem walk without problems, and bend and squat without difficulty. The plaintiff's grip showed 5/5 strength with adequate fine motor movements, dexterity, and ability to grasp objects bilaterally. Neurologically, the plaintiff showed strong neck movement against resistance, good tone, and 5/5 strength bilaterally in all muscle groups. Dr. Madey diagnosed bipolar affective disorder, benign prostatic hyperplasia, hypertension, hyperlipidemia, depression, left foot surgery, back surgery, neck surgery, and left arm surgery. Dr. Madey stated, "Based on today's examination and the objective evidence, I believe the claimant has limitations." He opined that the plaintiff would have limitations in lifting/carrying objects greater than five pounds. He stated that the plaintiff could walk and stand but would require frequent breaks. He indicated that the plaintiff should avoid bending and squatting secondary to medical conditions with decreased range of motion. Dr. Madey stated, "Claimant should be able sit for a full workday. Claimant should be able to hold a conversation, respond appropriately to questions, carry out and remember instructions." (Tr. 436-39).
On August 8, 2012, Dale Van Slooten, M.D., a non-examining medical advisor for the Administration, reviewed the plaintiff's medical records and conducted a residual functional capacity ("RFC") assessment. Dr. Van Slooten concluded that the plaintiff could occasionally lift/carry 50 pounds, frequently lift/carry 25 pounds, and stand/walk about six hours and sit about six hours in an eight-hour workday. Dr. Van Slooten found that the plaintiff had unlimited pushing/pulling abilities (including operation of hand and foot controls) and no manipulative limitations, but was limited to occasional climbing of ladders/ropes/scaffolds and frequent stooping and crouching. (Tr. 114-15).
On August 17, 2012, the plaintiff reported to his physical therapist that he had been riding his motorcycle that day, so his back was a little sore (Tr. 484).
On August 20, 2012, Dr. Stone evaluated the plaintiff for chronic pain from multiple surgeries. He continued to "have lots of hurting all over." Dr. Stone noted that his diabetes was doing better but "still fluctuating up and down, probably when he gets stressed out." The plaintiff reported taking a friend's Soma, which helped along with his hydrocodone, and Dr. Stone indicated that it would be "good to try to cut down on the hydrocodone so he is not taking so much of it all the time." On examination, the plaintiff had tenderness in his neck and back. Dr. Stone diagnosed chronic back pain with cervical pain, lumber disc disease with surgery, and diabetes. Dr. Stone continued the plaintiff's medications and advised him to continue to carefully watch his diet (Tr. 443).
On August 30, 2012, in a one-page letter to the plaintiff's former counsel, Dr. Stone indicated that the plaintiff had been his patient for a little over two years. Dr. Stone stated that "over that period of time, I have treated him for chronic back pain with failed back syndrome secondary to numerous surgeries." Dr. Stone indicated that the plaintiff also had depression, new onset type 2 diabetes, and cervical disc problems. He stated, "During this period of time, he has attempted to work, but due to the pain, numbness and weakness, he has been unable to work, and it is my opinion that over the last 12 months he has been completely and totally disabled." Dr. Stone stated, "He has been very compliant in his medications, he is compliant with his visits, and I feel like . . . he is very motivated to try to improve but unfortunately in spite of all measures he has not shown any improvement" (Tr. 442).
On September 14, 2012, Dr. Stone stated in a two sentence letter that the plaintiff "suffers from failed back syndrome[,] poorly controlled diabetes, and depression. I feel he is totally and permanently disabled." (Tr. 448).
On September 20, 2012, the plaintiff's Piedmont Medical Center physical therapy records showed that after 12 sessions, he demonstrated increased lumbar spine range of motion and 5/5 lower-extremity strength. The physical therapy notes show that post-treatment pain was consistently reduced to as low as zero (Tr. 488-93).
On October 10, 2012, Dr. Stone completed a physical capacities evaluation. Dr. Stone indicated that, in an eight-hour day, the plaintiff could sit for a total of three hours, could stand for a total of two hours, and could walk for a total of one hour. He could occasionally lift and carry up to five pounds and could never lift or carry over five pounds. He could not use his hands for repetitive actions such as simple grasping, pushing or pulling of arm controls, or fine manipulation. The plaintiff could not use his feet for repetitive movements as in pushing and pulling of leg controls. He was unable to bend, squat, crawl, climb, or reach. He had a total restriction from unprotected heights, from being around moving machinery, from being exposed to marked changes in temperature and humidity, and being exposed to dust, fumes, and gases. Dr. Stone explained that the plaintiff had chronic low back pain due to disc disease plus neuropathy in his hands and feet from diabetes (Tr. 455-57).
On October 25, 2012, a second psychiatric review technique questionnaire was completed by Xanthia Harkness, Ph.D., a non-examining medical advisor for the Administration. Dr. Harkness found that the plaintiff's mental impairments were non-severe (Tr. 136-38). A second non-examining medical advisor for the Administration, William Hopkins, M.D., found that the plaintiff's physical limitations permitted light work. He was limited to occasionally lifting/carrying 20 pounds and frequently lifting/carrying ten pounds (Tr. 139-41).
On December 27, 2012, Dr. Stone evaluated the plaintiff for chronic back and neck pain, depression, and type 2 diabetes. Dr. Stone indicated that the plaintiff was "doing fair at this point," but his sugars were still up and down, he was still depressed, and his back still "hurts a lot," but he had not seen a specialist in awhile. The plaintiff reported eating fairly good and had lost weight. Dr. Stone diagnosed diabetes type 2 with early peripheral neuropathy, chronic back pain with known disc disease, depression, hypertension, and cervical disc and ordered lab work (Tr. 449-50).
The plaintiff participated in physical therapy from June 19 through September 20, 2012. He was discharged with a home exercise program without meeting all of his therapy goals (Tr. 469-93).
On April 29, 2013, Dr. Stone evaluated the plaintiff for followup of diabetes, hypertension, peripheral neuropathy, and depression. He reported that he still "had lots of trouble" and that his back "hurts a lot to the point he cannot get up and get around." He reported that it was "very painful and very frustrating." Dr. Stone indicated that the plaintiff was eating "pretty good," but his "sugars are not controlled unfortunately." The plaintiff reported that he wasn't really working out due to his pain. Dr. Stone noted very poor sensation in the plaintiff's feet and a lot of tenderness in his back. Dr. Stone noted that he was on Abilify and ordered blood work (Tr. 461-62).
On June 27, 2013, the plaintiff was treated in the emergency room for back pain. He had taken several hydrocodone and multiple Soma to relieve his pain and was staggering and dizzy. He was concerned that he had taken too much medication. At the time of discharge, he reported that his back pain was a two out of ten (Tr. 549-50).
On August 29, 2013, Dr. Stone evaluated the plaintiff for followup of multiple chronic conditions. The plaintiff reported back pain from prior surgery with rods and screws and shoulder pain from prior surgery with wire. He also had some depression and was very frustrated. Dr. Stone indicated that they tried to give him "as many medications as we can. We unfortunately have run out of Cymbalta, so I am going to try to give him samples of Viibryd which is similar and see if this does not help." Dr. Stone also gave the plaintiff samples of insulin and advised that he continue to watch his diet and work on the weight (Tr. 463-64).
On October 25, 2013, Dr. Heinig evaluated the plaintiff for low back and left leg pain. He had no weakness, numbness, tingling, or swelling. He reported having about a year's worth of relief following his back surgery in 2010. He reported that he currently had pain going down his left leg. Dr. Heinig noted that the plaintiff was taking hydrocodone and Soma. On examination, he could extend to about 30 degrees and flex to about ten degrees. Straight leg raise was negative bilaterally, and he had good sensation and strength in his lower extremities. X-rays showed a L3-4 fusion with pedicle screws x4 and 2 rods and decreased disc space at L5-S1. Dr. Heinig prescribed prednisone and ordered an MRI (Tr. 504-06, 923-27).
On April 17, 2014, Walter Revell, Jr., M.D., evaluated the plaintiff for a possible pilonidal cyst or abscess. On examination, the plaintiff had firmness and induration on both sides of the inner buttocks all the way down to the anus, but he did not have a formed abscess that could be incised and drained. He told Dr. Revell that he had not taken insulin or metformin in six months and that his blood sugars had been 600 or greater. Dr. Revell recommended that the plaintiff be admitted to the hospital through the emergency department (Tr. 982). At Piedmont Medical Center emergency room, he was treated by Aderonke Jegede, M.D., for uncontrolled blood sugars and cellulitis. He reported that he had stopped taking his diabetes medications eight months earlier because he was "tired of taking medications and sticking himself twice a day." His initial assessment was cellulitis — rule out evolving perirectal abscess, uncontrolled diabetes secondary to noncompliance with medication, and chronic pain syndrome. He was admitted for intravenous medication and stabilization through April 24, 2014. The plaintiff admitted to having occasional chest tightness and some chronic cough with shortness of breath. He also reported chronic back pain with left leg cramps and insomnia (Tr. 561-606).
On April 27, 2014, in a letter to the plaintiff's former counsel, Dr. Stone indicated that the plaintiff had been "battling several medical problems over the past several years." He indicated that he "currently suffered from severe diabetes with peripheral neuropathy, depression, hypertension, and chronic back pain that has been resistant to therapy." Dr. Stone stated, "It is my medical opinion that he is totally and permanently disabled and will be so for at least a period of 12 months. I feel like he has been compliant in his treatments. He does the things that I talk to him about doing. He, unfortunately, continues to have more and more problems with diabetes, back pain and depression" (Tr. 511).
On September 8, 2014, Dr. Stone evaluated the plaintiff for followup of foot pain. Dr. Stone assessed diabetes mellitus, diabetic peripheral neuropathy, hypertension, depressive disorder, foot pain, recurrent genital herpes simplex, and chronic low back pain. Dr. Stone prescribed carisoprodol, hydrocodone, Lexapro, and Neurontin (Tr. 1062-66).
On October 17, 2014, Dr. Heinig evaluated the plaintiff for complaints of bilateral foot pain. He had not had a recent injury to his feet. His symptoms were aggravated by walking, bending, squatting, and going up and down stairs. He reported that he had fallen 30 years earlier and broke his left first metatarsal and underwent three surgeries to fix that. He had pain along the left medial midfoot and both lateral midfoot. Dr. Heinig noted that the plaintiff had a well-healed scar along the left medial midfoot with some tenderness over the base of the first metatarsal and over the scar itself and mild tenderness over both fifth metatarsal bases. X-ray of the foot showed bilateral short first metatarsals with fusion and first metatarsocuneiform joint with two screws. Dr. Heinig prescribed Voltaren topical gel (Tr. 971-74).
On October 25, 2014, the plaintiff had an x-ray of his lumbar spine, which showed an L3-4 fusion with pedicle screws and rods as well as decreased disc space at L5-S1 (Tr. 927).
On December 23, 2014, Dr. Stone evaluated the plaintiff for knee pain. He reported that he felt something pop in his knee and was not sure if his knee popped out of joint, but it was very painful. He could hardly walk on it. Dr. Stone ordered an MRI and referred the plaintiff to an orthopaedist (Tr. 1056-60).
On January 16, 2015, an x-ray of the plaintiff's right knee was negative (Tr. 978-79). On January 26, 2015, an MRI of his right knee showed discoid meniscus was suggested medially (Tr. 976-77).
On April 8, 2015, Elizabeth Morris, MS, of Catawba Mental Health, evaluated the plaintiff to complete his intake assessment. Ms. Morris noted that due to extensive information and risk, the intake assessment took an extended amount of time to gather pertinent information and to ensure the safety of the plaintiff and of others. The plaintiff reported regular suicidal ideations but denied plans, means, or intent. He reported self-mutilation, violent tendencies, violent thoughts, violent dreams, and lack of empathy or compassion for others. He had auditory hallucinations (Tr. 1003).
On April 9, 2015, Rodney White, MSW, evaluated the plaintiff. The plaintiff expressed that he needed to do something before something bad happened and that he continued to have thoughts of hurting people he knew from his past. He reported that he had done some things in his past that he was not proud of. Mr. White noted that the plaintiff seemed angry. He reported he lost both of his parents the year before in a three-month period and that they had kept him grounded and gave him a reason to live. He expressed that he wanted someone who was not intimidated by him and could help him get a better understanding of himself and gain a sense of control. He admitted to having some psychosis where he was hearing and seeing things. He acknowledged his mood changed easily and that he could be physically aggressive when provoked. Mr. White noted that the plaintiff would see mental health weekly until he was better able to manage himself (Tr. 1004).
On April 15, 2015, Ms. Morris evaluated the plaintiff on followup. His primary care physician had been trying to treat his mental health issues, but the plaintiff did not feel like he could treat his depression, bipolar, and severe mood swings. He reported that he did not have the ability to care about others and that he was a dangerous person. He reported auditory hallucinations where he heard a voice that was negative and derogatory and told him to do bad things. He reported he had mental health issues his entire life. He reported multiple surgeries and always being in pain. He stated he had lost his entire support system, and he did not have anyone to talk to or to talk him down. He expressed that he had nothing to live for, and he did not care if he went to prison. He said he had suicidal ideations every day and a history of suicide attempts. Ms. Morris noted that the plaintiff had been in various treatments throughout his life. His affect was appropriate to the situation, tearful, and expansive. His mood was hopeless, and his speech was pressured. His thought process was racing, indecisive, and disorganized. He had ideas of worthlessness and hopelessness. He had auditory and command hallucinations. The plaintiff had poor decision making that adversely affected himself and others. He had poor remote, recent, and immediate memory. He was able to do simple math and was easily distracted. Ms. Morris recommended that the plaintiff receive individual therapy once a week and be stepped down gradually as progress was noted (Tr. 1005-09).
On April 15, 2015, Amr Khalafallah, M.D., evaluated the plaintiff for complaints of severe depression. He reported being severely depressed due to multiple stressors. He stated that his depression had changed his personality to where he felt heartless, angry, and stressed. Dr. Khalafallah assessed bipolar disorder and antisocial personality disorder. Dr. Khalafallah prescribed Trileptal and Pamelor (Tr. 1010-11).
On April 16, 2015, Mr. White evaluated the plaintiff to establish goals and objectives in his life. Mr. White noted that the plaintiff belonged to a biker lifestyle and he grew up around it. Mr. White noted that the plaintiff operated under a code of conduct conducive to the biker lifestyle. Mr. White noted he would continue to develop the plaintiff's treatment plan and build rapport. Mr. White continued therapy sessions with him until June 22, 2015 (Tr. 1012-23).
On April 27, 2015, Dr. Stone evaluated the plaintiff on followup. Dr. Stone assessed hypertension, diabetes mellitus, diabetic peripheral neuropathy, and radiculitis (Tr. 1046-51).
On May 12, 2015, Dr. Khalafallah evaluated the plaintiff on followup. He reported that he was doing better and that the combination of Pamelor and Trileptal helped. Dr. Khalafallah noted that he would monitor the plaintiff for another two weeks to see the maximum effect of the medication (Tr. 1015-16). On June 2, 2015, the plaintiff reported that he was doing well on Pamelor and Trileptal. Dr. Khalafallah refilled the medications (Tr. 1018-19).
On June 22, 2015, Sushil K. Das, M.D., evaluated the plaintiff at the request of the Commissioner. The plaintiff complained of low back pain and reported having three back surgeries resulting in the placement of rods and screws. He complained of pain that radiated to both legs and difficulty in standing and walking for a long time. He had left foot pain in the first metatarsal bone as a result of multiple surgeries. He also reported that he had a broken neck and a fusion in 1993. Dr. Das noted that the plaintiff had a scar on the back of his neck. He complained of headaches from the scar. He reported that he "axed" his left arm in 2000 and that it was repaired, but repeated movement caused pain because of the scar. He reported being diagnosed with diabetes mellitus three years prior. He also reported being diagnosed with degenerative disc disease and having a discectomy in 2004. He reported that he had a rod in the lower lumbar area. He had diabetic neuropathy and a tingling sensation and numbness in his feet for the past four or five years. He also reported problems with obesity, cellulitis, and acid reflux. Dr. Das noted that the plaintiff appeared to have hypertension. The plaintiff had smoked for the past 30 years, but he did not drink. On examination, the plaintiff's Romberg was positive, his straight leg raising test in the sitting position was within normal limits, his straight leg raising test in the supine position was 75 degrees, but he did not put forth much effort and was somewhat uncooperative. He had no edema; no cyanosis or jaundice; peripheral pulse at 2+ bilaterally; intact cranial nerves; full 5/5 muscle power bilaterally in both upper and lower extremities; he was able to climb up and down off of the examining table without any difficulty; and had intact sensation and negative Babinski's. He walked without any difficulty, and he could enter and leave the building. The plaintiff reported that he could sit, stand, and walk for 30 to 45 minutes each. Dr. Das opined that he was capable of doing much more than that. He reported that he could handle ten pound objects. Dr. Das opined that he was capable of doing much more than that. Dr. Das noted that the plaintiff could push, pull, reach, grasp, and finger objects in order to carry out his activities of daily living without assistance. Dr. Das noted that the plaintiff would not do lumbar spine flexion or heel to toe walking. He had no trigger point tenderness, his tandem gait was good, and he was able to squat very well. He could handle, finger, grip, and feel. He could reach overhead and forward. Overall, the plaintiff was a little uncooperative and did not have any problem. Dr. Das noted that the plaintiff would be able to do normal physical activity, especially his prior sales job (Tr. 996-1001).
On August 31, 2015, Dr. Stone evaluated the plaintiff for followup. The plaintiff reported he was very discouraged. Dr. Stone noted that he had severe diabetic neuropathy in both legs. He had depression, diabetic neuropathy, and chronic back pain (Tr. 1036-40).
On November 20, 2015, Dr. Stone evaluated the plaintiff for an ankle injury. Dr. Stone assessed diabetes mellitus and tendon strain of the foot and ankle. Dr. Stone ordered a walking boot (Tr. 1031-35).
On January 4, 2016, Dr. Stone evaluated the plaintiff on followup. He reported being very frustrated because his neuropathy caused leg pain. He was depressed. Dr. Stone assessed hypertension, depression and neuropathy. Dr. Stone prescribed Levitra. Dr. Stone stated, "We will keep plugging for his disability" (Tr. 1026-30). On February 16, 2016, Dr. Stone evaluated him again on followup and refilled gabapentin (Tr. 1024-26).
On March 5, 2016, Chad Ritterspach, Psy.D., evaluated the plaintiff at the request of the Commissioner. He reported that he applied for disability because of back problems. Dr. Ritterspach questioned him about how his mental impairments would interfere with work. The plaintiff explained that he did not like people and got upset easily. He endorsed a depressed mood most days, low energy, low motivation, disturbance of sleep, loss of interest in formerly enjoyed activities, and social withdrawal. Dr. Ritterspach noted that the plaintiff was not in psychotherapy, had never been psychiatrically hospitalized, and was compliant with prescribed treatment. Dr. Ritterspach listed his social, family, education, legal, substance abuse, and trauma histories. He reported problems maintaining employment in multiple settings. He had been terminated multiples times from employment for problems with the boss. He last worked five years earlier and had to stop because he could not stand on the car lot any longer. He had not tried to return to work. The plaintiff reported that back, leg, and foot pain, as well as nerve pain in his neck and arm, and screws in his left foot all interfered with his ability to work. He reported having difficulty maintaining concentration due to pain and pain medications. He could not perform physical tasks such as lifting, bending, and carrying activities. The plaintiff was angered by supervisor feedback and had frequent conflict with coworkers and supervisors. He reported that he laid in bed most days. He could read and write. He reported that he would have trouble following directions that were complicated. He stated he had trouble with self-care because of back pain. He needed help with shopping. He reported that he was unable to drive for very long because of pain. He had to stop a lot and rest when doing housework. He could manage his finances. Dr. Ritterspach noted that the plaintiff's posture and gait were within normal limits. He was cooperative, informative, and had a positive attitude. His psychomotor activity was within normal limits. He made appropriate eye contact, his speech was articulate and of normal volume, and his mood was mildly anxious and depressed. His affect was mood congruent, and his thought processes were logical and grounded. Dr. Ritterspach noted that the plaintiff's thought content was appropriate for mood and circumstance. His intellectual function was estimated to be in the low average to average range. His memory and concentration were within normal limits, and his insight and judgment were intact. He performed digits forward up to six digits and spelled world backwards. He recalled three words that were presented to him earlier and was able to complete simple math. He reported feeling depressed, irritable, and easily provoked to aggression. He reported sexual abuse as a child. Dr. Ritterspach diagnosed unspecified mood disorder, unspecified depressive disorder, and a history of polysubstance abuse. The plaintiff reported some limitations in activities of daily living due to physical problems. He stated depression interfered with his motivation for daily activities. Dr. Ritterspach noted that from an intellectual perspective the plaintiff was able to complete basic activities of daily living. He had some trouble sustaining attention on mental activities due to chronic pain and emotional distress. He reported that he became anxious or irritable around others and preferred to avoid social situations. Dr. Ritterspach noted that the plaintiff came to the evaluation alone and was able to participate appropriately though mild symptoms of anxiety were noted. Dr. Ritterspach noted that due to anxiety and depression, the plaintiff may not be suited for work with the public and that he may do best in situations in which he is not required to interact much with others. He should have no difficulty protecting himself from workplace safety hazards. He displayed adequate verbal reasoning and mathematical skills, and had the ability to understand, retain, and follow simple work related directions. Dr. Ritterspach noted that due to anxiety and depression, the plaintiff may have some problems tolerating work-related stressors and may be somewhat easily distracted from work tasks, particularly if they are detailed and complex. Dr. Ritterspach noted that overall, due to depression, anxiety, and chronic pain, the plaintiff may have difficulty attending to and performing work tasks reasonably well as long as the tasks are simple and routine in nature. Dr. Ritterspach added that he would have difficulty interacting with co-workers and supervisors and would likely have conflict with them. The plaintiff was able to manage his own finances (Tr. 1084-86).
On August 10, 2016, Ms. Morris evaluated the plaintiff. Ms. Morris noted that the plaintiff was a previous patient who had returned asking for therapy and medication. He reported that he was angry and depressed and that he could not concentrate or focus. He reported that he began seeing a psychiatrist when he was six years old. He felt that he was a violent person and that he wanted help before something bad happened. He did not have feelings, care, empathy or compassion for others. He had severe mood swings, anger, auditory hallucinations, visual hallucinations, suicidal ideations, and homicidal ideations. He reported a history of suicide attempts, self-mutilation, and risky and reckless behaviors. He had times of mania where he had pressured speech, excessive energy, elevated moods, decreased need for sleep, excessive involvement in activities that have a high potential for painful consequences, and racing thoughts. He currently felt severely depressed, had a loss of interest and motivation, and felt hopeless and worthless. He reported that he had been a victim, witness, and perpetrator of violence his entire life. He reported being molested three different times by different people before the age of ten. He reported that he went to Alcohol Anonymous on three different occasions. Ms. Morris felt the plaintiff was minimizing drug and alcohol use. He reported he had smoked marijuana a month prior and denied alcohol abuse. Ms. Morris noted that the plaintiff was hostile during his interview, his affect was blunted, and his mood was depressed and angry. His speech was loud, and his thought process was racing. He had ideas of hopelessness and worthlessness, and he had visual hallucinations. The plaintiff had poor decision making ability, which adversely affected himself and others. Ms. Morris assessed bipolar I disorder, antisocial personality disorder, and cannabis use disorder. Ms. Morris administered the DLA-20 in which the plaintiff received a modified GAF score of 43.
On August 24, 2016, Mr. White provided a statement on behalf of the plaintiff. Mr. White noted that the plaintiff had been receiving treatment at Catawba Mental Health and had been diagnosed with bipolar disorder with psychotic features and antisocial personality disorder. The plaintiff had a chaotic childhood and early adult life, immersion in the biker culture, and multiple incarcerations, many crimes involving violence that were probably related in part to his environment and in part related to his bipolar condition, which involved uncontrolled outbursts of anger. Mr. White indicated that he had observed the plaintiff in the office, and he had periods when he was emotionally under control but when those spells ended, his mood shifted abruptly, he decompensated, and he lost control of his temper. Mr. White noted that if the plaintiff disagreed with someone, he tended to be inflexible and would rapidly get angry to the point of losing self-control. Mr. White noted that the plaintiff struggled to control his anger and that medication had been somewhat effective but had not controlled his anger problems. Mr. White noted that the plaintiff had been in counseling working on strategies to help control his temper, but his mood would shift abruptly while in the office. Mr. White noted that the plaintiff never smiled and often had a flat affect. He was always on edge and labile and could rapidly become very angry. Mr. White noted that the plaintiff was in serious financial difficulties and had been trying to work with limited success. Mr. White noted that the plaintiff attributed his failed work attempts to his back problems, which flared up regularly. He was sure the plaintiff's problems with emotional control would make it hard for him to maintain normal relationships required to maintain employment (Tr 955).
On September 1, 2016, Samuel Davis, M.D., evaluated the plaintiff for complaints of a herniated disc in the lumbar region. He complained of pain in the right back, buttock, and leg. He reported that the pain radiated down into the right hip, thigh, and leg. He said his symptoms had been present for several weeks but had worsened over the last day. He went to the emergency department the day prior to try to get relief from the pain, but it did not respond to NSAIDs. Dr. Davis noted that the plaintiff had a previous L4-5 transforaminal interbody fusion along with posterior instrumentation and fusion. On examination, the plaintiff had spinous processes tenderness at the level of L4 and L5. He had a positive right straight leg raise. He had normal range of motion in his lumbar spine and intact sensation in his right lower extremity. A CT of the lumbar spine showed that L4-5 instrumented fusion. Dr. Davis was unable to determine whether he had a herniated disc based on the CT. The plaintiff had back pain and right lumbar radiculitis, which he suspected was due to lumbar compression. Dr. Davis ordered an MRI, diagnosed right leg pain, and prescribed prednisone (Tr. 919-22).
On September 12, 2016, Dr. Stone evaluated the plaintiff for complaints of tremendous back pain that radiated down his right leg. Dr. Stone assessed intervertebral disc prolapse, lumbosacral disc disease, neuropathy, and Achilles tendinitis. Dr. Stone prescribed carisoprodol (Tr. 943-46).
On September 13, 2016, Dr. Davis evaluated the plaintiff for complaints of continued right leg pain. He had an MRI the week prior, which showed right L5-S1 herniated disc, which was below the level of his previous instrumentation and fusion. Dr. Davis diagnosed lumbar herniated disc and recommended an epidural injection at the L5-S1 level. (Tr. 916-18).
On September 26, 2016, Manojbhai Patel, M.D., of Catawba Mental Health, evaluated the plaintiff. Dr. Patel noted that the plaintiff had a history of bipolar disorder. Dr. Patel assessed bipolar I disorder, antisocial personality disorder, and cannabis use disorder. His mood was depressed, angry, irritable, and anxious. Dr. Patel prescribed Trileptal, Pamelor, and Prozac, and he gave the plaintiff a sample of Latuda (Tr. 952-53).
At the plaintiff's hearing on May 15, 2014, he testified that he broke his neck in a car accident in the early 1990's, but after neck surgery, he "was doing okay" and only "lost a little mobility." He stated that, as a result of his neck injury, he continued to experience arthritis that was painful when he held his head up. He had two lower-back discectomies to stop shooting leg pain. The last surgery was in 2008. He testified that "the longer I'm up, the more my lower back starts hurting" and it is "hard to bend and lift and pick things up." He stated that his pain got progressively worse until he laid down in his bed. He stated that his pain medication eased up the pain "a little bit" and made his life "a little more manageable" (Tr. 44-45).
The plaintiff testified that he also fell off of a roof at work and broke bones in his feet in 2000. He had surgery, but the screws in his left foot felt like he has "a dagger sticking in the bottom of [his] foot all the time." The plaintiff also testified that he had diabetic neuropathy, which caused "everything from tingling to severe pain in [his] hands and feet." He testified that he took daily shots and pills for his diabetes. He stated that he was getting "better" about watching his diet and taking his medications properly (Tr. 45-48).
The plaintiff testified that he could sit and stand for about 15 minutes at a time without being uncomfortable. He could lift up to eight pounds, but in his function report in June 2012, he indicated that he could lift up to 50 pounds (Tr. 53-54, 306). The plaintiff testified that in a typical day, he got up at 8:00 to 9:00 a.m. after two to four hours of sleep. He took his pain medication (Vicodin) and muscle relaxers (Soma) on an as-needed basis. Without pain medication, he reported that his pain was a nine on a ten-point scale — "almost unbearable," which caused him to stay in his bed and cry. His pain medication reduced his pain to a six. He was able to take short trips to the grocery store, do the laundry, and keep the house "clean and tidy" while working "in spurts" of 30-45 minutes, after which he laid in bed for two to three hours. He prepared meals daily. He drove and went out alone. He stated that lying in bed and watching television "pretty much sums up my whole life right now" (Tr. 50-53, 303-04).
At the second hearing on December 1, 2016, the plaintiff reported that he attempted to drive his girlfriend's truck. He continued to ride motorcycles and lived with his son (Tr. 689-90, 697).
In a hypothetical to the vocational expert that corresponded to the RFC assessment, the vocational expert testified that the plaintiff could not perform his past relevant work but could perform the requirements of representative unskilled, sedentary occupations such as document preparer, final assembler, and toy stuffer (Tr. 702-03). The plaintiff's attorney asked if there would be any jobs if a person needed to rest several hours during the working portion of the work day. The vocational expert responded that there would be no jobs. Next, the attorney asked:
The vocational expert indicated that there would be no work (Tr. 711-12).
The plaintiff argues that the ALJ erred by improperly rejecting the opinions of treating physician Dr. Stone and consultative examiner Dr. Madey (doc. 13 at 28-38).
The plaintiff's treating primary care physician, Dr. Stone, stated on August 30, 2012, that the plaintiff had been his patient for a little over two years and "[d]uring this period of time, he has attempted to work, but due to the pain, numbness and weakness, he has been unable to work, and it is my opinion that over the last 12 months he has been completely and totally disabled." Dr. Stone further stated, "He has been very compliant in his medications, he is compliant with his visits, and I feel like . . . he is very motivated to try to improve but unfortunately in spite of all measures he has not shown any improvement" (Tr. 442). On September 14, 2012, Dr. Stone stated that the plaintiff "suffers from failed back syndrome[,] poorly controlled diabetes, and depression. I feel he is totally and permanently disabled" (Tr. 448).
On October 10, 2012, Dr. Stone completed a physical capacities evaluation stating that the plaintiff could sit for three hours at one time, stand for two hours at one time, and walk for one hour at a time. He further opined that the plaintiff could occasionally lift and carry up to five pounds and could never lift or carry over five pounds. Dr. Stone indicated that the plaintiff could not use his hands for repetitive actions such as simple grasping, pushing or pulling of arm controls, or fine manipulation. He indicated that the plaintiff could not use his feet for repetitive movements as in pushing and pulling of leg controls; was unable to bend, squat, crawl, climb, or reach; and had a total restriction from unprotected heights, from being around moving machinery, from being exposed to marked changes in temperature and humidity, and being exposed to dust, fumes, and gases (Tr. 455-57).
On April 27, 2014, Dr. Stone stated, "It is my medical opinion that he is totally and permanently disabled and will be so for at least a period of 12 months. I feel like he has been compliant in his treatments. He does the things that I talk to him about doing. He, unfortunately, continues to have more and more problems with diabetes, back pain and depression" (Tr. 511). Lastly, on January 4, 2016, Dr. Stone evaluated the plaintiff and stated, "We will keep plugging for his disability" (Tr. 1030).
The ALJ found as follows regarding Dr. Stone's opinions:
(Tr. 671-72).
The plaintiff first argues that Dr. Stone's opinions "were not solely issues reserved to the Commissioner" (doc. 13 at 31). The undersigned agrees with the plaintiff's premise, but disagrees that the ALJ erred in this regard. The ALJ correctly noted that Dr. Stone's multiple statements that the plaintiff was "totally and permanently disabled," or variations thereof, were not medical opinions — and thus were not entitled to controlling weight — but were instead issues reserved for the Commissioner. See 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1). The ALJ then correctly acknowledged that he must nonetheless consider the statements to determine the extent to which they were supported by the record as a whole or contradicted by persuasive evidence (Tr. 671-72). The ALJ then considered the statements along with the particular limitations provided by Dr. Stone and determined that the opinions were entitled to little weight, as discussed below (Tr. 672). The undersigned finds no error in the ALJ's findings in this regard.
The plaintiff next argues that his "non-compliance with diabetes medication does not prove Dr. Stone incredible" (doc. 13 at 32-33). The ALJ noted that Dr. Stone "wrote that the claimant had done everything he could do to get better but was not improving," which the ALJ found was contrary to treatment notes stating that the plaintiff "has not followed a diabetic diet and has largely been noncompliant with his prescribed medications" (Tr. 672; see also Tr. 669-70). The undersigned finds no error. The record indicates the following evidence of the plaintiff's noncompliance: (1) on January 24, 2012, Dr. Stone commented that the plaintiff was "just not taking [his diabetes] seriously. He eats junk all the time. He says he is cutting back and not eating anything sugary, but he is just eating anything he can get his hands on" (Tr. 420); (2) on May 15, 2012, Dr. Stone commented that the plaintiff was "not watching his diet as well as he should" (Tr. 444); (3) on August 20, 2012, Dr. Stone advised the plaintiff to "eat right," which "hopefully will get him better" (Tr. 443); (4) on June 27, 2013, the plaintiff went to the Piedmont Medical Center because he took more pain medication than prescribed and had not taken his insulin (Tr. 540, 560); and, (5) on April 17, 2014, the plaintiff reported to emergency room providers that he stopped taking his diabetes medication about eight months prior because "he was tired of taking medications and sticking himself twice a day" (Tr. 562).
As noted by the Commissioner, the plaintiff's argument that his noncompliance was confined to his diabetes treatment (doc. 13 at 32-33) misses the point. Dr. Stone's statement that the plaintiff was compliant with medications and treatment is inconsistent with his own contemporaneous records and those of other providers showing the plaintiff's pattern of noncompliance with his diabetes treatment, including not taking his medication for a period of eight months, which resulted in his hospitalization.
The plaintiff further argues that the ALJ "cherry-picked the evidence to find Dr. Stone incredible" (doc. 13 at 33-34). The undersigned disagrees. The ALJ acknowledged abnormal findings and positive objective evidence, including the plaintiff's x-ray and MRI findings and examination findings showing positive straight leg raise and lumbar spine tenderness (Tr. 665, 669). Further, the ALJ found that the plaintiff had "a history of degenerative disc disease of the lumbar spine with right sided radiculopathy causing tenderness to palpation, reduced range of motion, and decreased sensation of the right lower extremity on physical examination," "a history of neck pain with a remote cervical fusion," and post-traumatic arthritis of the left foot, along with other severe impairments (Tr. 665-66). Additionally, the ALJ noted the plaintiff's subjective complaints of pain but found that his statements regarding the intensity, persistence, and limiting effects of the pain was not entirely consistent with the evidence of record (Tr. 668-69).
Based on all the evidence, the ALJ found that the plaintiff had the RFC for only a limited range of sedentary work (Tr. 667-74). However, the ALJ found that the extreme limitations opined by Dr. Stone were inconsistent with objective findings showing that the plaintiff had full range of motion of his cervical spine, no hip tenderness, negative straight leg raising, normal strength and sensation in the upper and lower extremities, a normal gait, and was able to get up and down from a seated position without too much difficulty (Tr. 672) (citing Tr. 506, 915, 996-97, 999-1000). Substantial evidence supports this finding.
As the ALJ discussed in his decision, the plaintiff has not required any additional surgeries; his prior surgeries were about six, 15, and 20 years ago (Tr. 669) (citing Tr. 377). Moreover, the plaintiff's most recent back x-ray showed good alignment of his hardware without complications (Tr. 669) (citing Tr. 376, 398, 435). The ALJ also correctly stated that the plaintiff's condition improved after physical therapy (Tr. 669). (citing Tr. 532) The plaintiff's Piedmont Medical Center physical therapy records showed that after 12 sessions, the plaintiff demonstrated increased lumbar spine range of motion and 5/5 lower-extremity strength (Tr. 488). The physical therapy notes showed that post-treatment pain was consistently reduced to as low as zero (Tr. 492-93).
Moreover, as the ALJ noted, the plaintiff's treating orthopedic specialist, Dr. Heinig, did not find that the plaintiff had any significant functional limitations, either before or after physical therapy (Tr. 669) (citing Tr. 915, 925). Specifically, on May 29, 2012, Dr. Heinig's examination revealed that the plaintiff had some decreased left hand sensation, but no notable upper extremity swelling; his neck range of motion was "near full without encroachment on either side"; he was able to get up and down from the seated position without much difficulty; and the straight leg-raising test was negative (Tr. 915). Likewise, on October 25, 2013, Dr. Heinig's examination showed a negative straight leg-raising test, good lower extremity sensation, and good lower extremity strength (Tr. 925). Furthermore, the ALJ found that Dr. Stone's notes that the plaintiff had poor sensation in his hands and feet due to diabetic neuropathy were not supported by objective examinations (Tr. 669) (citing Tr. 437, 915, 921, 925, 996-1002).
Further, in the plaintiff's June 2015 consultative examination, which was given some weight by the ALJ, Dr. Das opined that the plaintiff could lift "much more than" the five to ten pounds the plaintiff claimed he could do and could carry, push, and pull "much more than" the ten pounds the plaintiff claimed he could do (Tr. 672) (citing Tr. 1000). The ALJ also gave some weight to the opinion of state agency physician Dr. Hopkins who found that the plaintiff's physical limitations permitted light work with occasional climbing of ladders and frequent stooping and crouching (Tr. 673) (citing Tr. 139-41). However, the ALJ found that, based on additional evidence, the cumulative effects of the impairments in combination further limited the plaintiff to lifting ten pounds occasionally and five pounds frequently; sitting up to six hours per day, standing/walking up to two hours per day with the allowance to change positions every hour, and frequent fingering and handling (Tr. 673-74).
The ALJ properly considered the entire record and weighed the conflicting evidence. The plaintiff seeks to have this court reweigh the evidence to reach a different outcome. However, the scope of judicial review by the federal courts is specific and narrow under Section 205(g) of the Act, which provides that "the findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g). "The fact that the record as a whole might support an inconsistent conclusion is immaterial, for the language of § 205(g). . . requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by `substantial evidence.'" Blalock, 483 F.2d at 775 (citation omitted). The court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (citation omitted). "Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)." Walker, 834 F.2d at 640 (citation omitted). Based upon the foregoing, the court cannot agree that the ALJ selectively considered the record such that his opinion is unsupported by substantial evidence.
The plaintiff contends that his "daily activities do not prove Dr. Stone incredible" (doc. 13 at 35). As set forth above, the ALJ determined that the limitations imposed by Dr. Stone were "inconsistent with the claimant's activities of daily living," which the ALJ noted included attending to his personal needs, preparing simple meals, doing laundry, driving, shopping, handling his finances, watching television, spending time with his girlfriend, attending church, and riding his motorcycle (Tr. 671-72). The ALJ also noted that in March 2015 the plaintiff passed a health examination to obtain a two-year Department of Transportation commercial driver certificate (Tr. 671) (citing Tr. 985-93). The undersigned finds no error in the ALJ's consideration of the plaintiff's daily activities in his consideration of Dr. Stone's extreme opinions.
Based upon the foregoing, the undersigned recommends that the district court find that the ALJ's consideration of Dr. Stone's opinions was based upon substantial evidence and without legal error.
The plaintiff next argues that the ALJ failed to provide adequate reasons for rejecting Dr. Madey's opinion that he would have difficulty lifting over five pounds (doc. 13 at 36-37). The undersigned disagrees.
On August 4, 2012, Dr. Madey performed a consultative examination of the plaintiff at the Commissioner's request. Dr. Madey noted that the plaintiff had decreased range of motion, but the remainder of his physical examination was essentially unremarkable. Dr. Madey opined that the plaintiff would have limitations in lifting/carrying objects greater than five pounds, could walk and stand but would require frequent breaks, and should avoid bending and squatting secondary to medical conditions with decreased range of motion. Dr. Madey stated, "Claimant should be able sit for a full workday. Claimant should be able to hold a conversation, respond appropriately to questions, carry out and remember instructions" (Tr. 436-39).
The ALJ found as follows with regard to Dr. Madey's
(Tr. 672).
As the ALJ noted, Dr. Madey's examination showed strong neck movement against resistance, good tone, 5/5 strength bilaterally in all muscle groups, 5/5 grip strength, and adequate fine motor movements, dexterity, and ability to grasp objects bilaterally (Tr. 672) (citing Tr. 437). Based on the foregoing, the undersigned finds no error in the ALJ's conclusion that Dr. Madey's objective findings did not support a limitation to lifting less than five pounds. The supportability of a physician's opinion, as well as length of the treatment relationship and the frequency of the examinations, which in this case was a one-time consultative examination, are appropriate considerations for the ALJ in weighing medical opinions. 20 C.F.R. §§ 404.1527(c)(1)-(5), 416.927(c)(1)-(5). Moreover, the ALJ's finding that the plaintiff could lift up to ten pounds occasionally and five pounds frequently is supported by substantial evidence, including Dr. Das' consultative examination in June 2015, the opinions of the State agency medical consultants, the plaintiff's activities of daily living, and objective examination findings (see Tr. 667-74).
Based upon the foregoing, the undersigned recommends that the district court find that the ALJ's consideration of Dr. Madey's opinion was based upon substantial evidence and without legal error.
The Commissioner's decision is based upon substantial evidence and is free of legal error. Now, therefore, based upon the foregoing,
IT IS RECOMMENDED that the Commissioner's decision be affirmed.
IT IS SO RECOMMENDED.
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:
