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C/A No. 0:17-1833-TLW-PJG (D.S.C. Jul. 23, 2018)

C/A No. 0:17-1833-TLW-PJG


Patrick Dewhit Cottingham, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.


This social security matter is before the court for a Report and Recommendation pursuant to Local Civil Rule 83.VII.02 (D.S.C.). The plaintiff, Patrick Dewhit Cottingham, brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the defendant, Acting Commissioner of Social Security ("Commissioner"), denying his claims for Disability Insurance Benefits ("DIB"). Having carefully considered the parties' submissions and the applicable law, the court concludes that the Commissioner's decision should be remanded for further consideration as explained below.


Under 42 U.S.C. § 423(d)(1)(A) and (d)(5), 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); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations require the Administrative Law Judge ("ALJ") to consider, in sequence:

(1) whether the claimant is engaged in substantial gainful activity;
(2) whether the claimant has a "severe" impairment;
(3) whether the claimant has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"), and is thus presumptively disabled;
(4) whether the claimant can perform his past relevant work; and
(5) whether the claimant's impairments prevent him from doing any other kind of work.

20 C.F.R. § 404.1520(a)(4). If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.

The court observes that effective August 24, 2012, ALJs may engage in an expedited process which permits the ALJs to bypass the fourth step of the sequential process under certain circumstances. 20 C.F.R. § 404.1520(h).

Under this analysis, a claimant has the initial burden of showing that he is unable to return to his past relevant work because of his impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. § 423(d)(2)(A); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).


In December 2014, Cottingham applied for DIB, alleging disability beginning September 15, 2014. Cottingham's application was denied initially and upon reconsideration, and he requested a hearing before an ALJ. A hearing was held on December 8, 2016, at which Cottingham, who was represented by Sylvia J. Cottingham, Esquire, appeared and testified. After hearing testimony from a vocational expert, the ALJ issued a decision on February 13, 2017, finding that Cottingham was not disabled from September 15, 2014 through the date of the decision. (Tr. 15-23.)

Cottingham was born in 1960 and was fifty-three years old on his alleged disability onset date. He has a high school education and has past relevant work experience as a machinist. (Tr. 193.) Cottingham alleged disability due to lumbar stenosis and disc displacement. (Tr. 292.)

In applying the five-step sequential process, the ALJ found that Cottingham had not engaged in substantial gainful activity since his alleged onset date of September 15, 2014. The ALJ determined that Cottingham's degenerative disc disease status post ACDF was a severe impairment. However, ALJ found that Cottingham had not had an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 ("the "Listings"). The ALJ found, after consideration of the entire record, that Cottingham retained the residual functional capacity to

perform less than the full range of medium work as defined in 20 CFR 404.1567(c). Specifically, the claimant is limited to frequently sitting, standing, and walking; frequently climbing ramps and stairs; no climbing ladders; occasional stooping, kneeling, crouching, and crawling; and no overhead lifting.

(Tr. 19.) The ALJ found that Cottingham was capable of performing past relevant work as a machine operator, and that this work did not require the performance of work-related activities precluded by Cottingham's residual functional capacity. Therefore, the ALJ found that Cottingham had not been disabled from September 15, 2014 through the date of the decision.

The Appeals Council denied Cottingham's request for review on June 3, 2017, making the decision of the ALJ the final action of the Commissioner. (Tr. 1-5.) This action followed.


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); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner's decision is supported by substantial evidence and whether the correct law was applied. See Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017); Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). "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." Craig, 76 F.3d at 589; see also Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015). 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]." Craig, 76 F.3d at 589; see also Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Accordingly, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock, 483 F.2d at 775.


Cottingham raises the following issues for this judicial review:

I. The ALJ's finding that Mr. Cottingham can perform the exertional demands of medium work and return to his past relevant work as a machine operator is not supported by substantial evidence.
II. The ALJ erred in according the opinions of Dr. Tyler, Mr. Cottingham's treating neurologist "little weight" as the ALJ's stated reasons for doing so are deficient.

III. The ALJ reversibly erred by inadequately evaluating Mr. Cottingham's credibility.

(Pl.'s Br., ECF No. 19.)


The court notes that numerous social security regulations and social security rulings (SSRs) have changed effective March 27, 2017. However, these changes specifically state that they are applicable to claims filed on or after March 27, 2017. See, e.g., 20 C.F.R. §§ 404.1513, 404.1527. Because the instant claim was filed prior to that date, all references in the instant Report and Recommendation are to the prior versions of the regulations which were in effect at the time Cottingham's application for benefits was filed, unless otherwise specified.

Although Cottingham raises several issues for this judicial review, the court finds that remand is warranted for further consideration of the second issue, which could impact the remaining issues, and therefore the court addresses this issue first. In this issue, Cottingham argues that the ALJ erred in according little weight to the opinion evidence from Dr. Mike Tyler, Cottingham's treating physician.

The law applicable to Cottingham's application provides that regardless of the source, the Commissioner will evaluate every medical opinion received. 20 C.F.R. § 404.1527(c). Typically, the Social Security Administration accords greater weight to the opinion of treating medical sources because treating physicians are best able to provide "a detailed, longitudinal picture" of a claimant's alleged disability. See id. However, "the rule does not require that the testimony be given controlling weight." Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (per curiam). Instead, a treating physician's opinion is evaluated and weighed "pursuant to the following non-exclusive list: (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 v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (citing 20 C.F.R. § 404.1527). Any other factors that may support or contradict the opinion should also be considered. 20 C.F.R. § 404.1527(c)(6). In the face of "persuasive contrary evidence," the ALJ has the discretion to accord less than controlling weight to such an opinion. Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). Further, "if a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight." Id. (quoting Craig, 76 F.3d at 590).

Additionally, SSR 96-2p provides that a finding that

a treating source medical opinion is not well-supported by medically acceptable clinical and laboratory diagnostic techniques or is inconsistent with the other substantial evidence in the case record means only that the opinion is not entitled to "controlling weight," not that the opinion should be rejected. Treating source medical opinions are still entitled to deference and must be weighed using all of the factors provided in 20 CFR 404.1527 and 416.927. In many cases, a treating source's medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight.

SSR 96-2p, 1996 WL 374188, at *5. This Ruling also requires that an ALJ's decision "contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight." Id.

Upon review of the record and the parties' briefs, the court is unable to determine whether the ALJ's evaluation of this evidence is supported by substantial evidence. In this case, the entirety of the ALJ's evaluation of Dr. Tyler's opinions reads as follows:

In February 2016, Dr. Tyler, a treating physician, opined that the claimant was permanently and totally disabled from anything other than light to sedentary type work due to his prostate disease and his back pain. Dr. Tyler further indicated that the claimant may be able to return to work after treatment. (Exhibit 9F) Subsequently, in December 2016 Dr. Tyler opined that the claimant was disabled from heavy physical work. (Exhibit 17F) This opinion is accorded little weight, as

it is inconsistent with and unsupported by the medical evidence of record, the claimant's reported activities, and the clinical findings. I further note that the determination of whether an individual is disabled is clearly reserved to the Commissioner pursuant to 20 C.F.R[.] 404.1527 and 416.927.

(Tr. 21.) Immediately preceding this paragraph, there is a short summary of the medical evidence presented in the record. (Tr. 19-20.) However, it is unclear how Dr. Tyler's opinions are inconsistent with and unsupported by this evidence or the clinical findings. Moreover, it is unclear how Cottingham's reported activities are inconsistent with an opinion that Cottingham was limited to light to sedentary work. While the Commissioner provides extensive argument and possible factual support for the ALJ's conclusions, the ALJ's decision lacks this analysis. Further, Cottingham has directed the court to substantial medical evidence and clinical findings that arguably support Dr. Tyler's opinion. (See Pl.'s Br. at 28-30, ECF No. 19 at 28-30.)

Thus, upon review of the ALJ's decision and the record, the court is unable to determine whether the ALJ's decision to discount the above opinions is supported by substantial evidence. See 20 C.F.R. § 404.1527(c); cf. Mastro, 270 F.3d at 178 (stating that "if a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight") (internal quotation marks and citation omitted). Dr. Tyler's first opinion suggests Cottingham was limited to sedentary to light work and has been for over a year, and a later opinion states Cottingham is unable to perform heavy physical work. Even considering the ALJ's decision in its entirety, it is unclear that the ALJ considered all of the evidence in discounting these opinions. Although Dr. Tyler's later opinion does not appear to be inconsistent with the ALJ's residual functional capacity assessment, the court is constrained to agree with Cottingham that the ALJ's conclusory evaluation of this opinion evidence (and even the state agency opinion indicating Cottingham was limited to light work (Ex. 4A)) leaves the court guessing as to the support for the reasons these opinions were given little weight. Moreover, Cottingham has directed the court to substantial records that arguably support Dr. Tyler's opinions, and it is unclear whether the ALJ considered all of this evidence. See Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) ("An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.") (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)). Where, as here, the record appears to contain conflicting medical evidence, it is the purview of the ALJ to first consider and weigh the evidence, and resolve the conflict. See Craig, 76 F.3d at 589 (stating that the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]"); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (holding that it is the ALJ's responsibility, not the court's, to determine the weight of evidence and resolve conflicts of evidence). Therefore, the court is constrained to recommend that this matter be remanded for further consideration of this opinion evidence.

In the ALJ's summary evaluation of the physical assessments by the state agency reviewers she stated that they were

given little weight because other medical opinions are more consistent with the record as a whole and evidence received at the hearing level shows that the claimant is not as limited as determined by the State agency consultants. (Exhibit 4A) The opinion limits the claimant to light work. However, I find that the claimant has a residual functional capacity of less than a full range of medium work. Given the claimant's allegations of totally disabling symptoms, one might expect to see some indication in the treatment records of restrictions placed on the claimant by the treating doctor. Yet a review of the record in this case reveals no restrictions recommended by the treating doctor.

Accordingly, the court expresses no opinion as to whether further consideration of Dr. Tyler's opinions by the ALJ should necessarily lead to a finding that the opinions are entitled to additional weight or that Cottingham is ultimately entitled to benefits. Further analysis and discussion may well not change the ALJ's conclusion on this point. --------

In light of the court's recommendation that this matter be remanded for further consideration, the court need not address Cottingham's remaining arguments, as they may be rendered moot on remand. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments). Moreover, if necessary, Cottingham may present his remaining arguments concerning the ALJ's alleged errors on remand.


Based on the foregoing, the court recommends that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further consideration as discussed above. July 23, 2018
Columbia, South Carolina


Paige J. Gossett


The parties' attention is directed to the important notice on the next page.

Notice of Right to File Objections to Report and Recommendation

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:

Robin L. Blume, Clerk

United States District Court

901 Richland Street

Columbia, South Carolina 29201

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).

(Tr. 21.) However, the court does observe that as noted by the Commissioner, at least one state agency reviewer opined that Cottingham was limited to medium exertional work. This discrepancy can be cleared up on remand as well.

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