United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION/OPINION
MICHAEL JOHN ALOI, UNITED STATES MAGISTRATE JUDGE
Todd Stump (“Plaintiff”) brought this action
pursuant to 42 U.S.C. §§ 405(g) for judicial review
of the final decision of the defendant, Commission of the
Social Security Administration (“Defendant, ” and
sometimes “the Commissioner”), denying
Plaintiff's claim for disability insurance benefits
(“DIB”) under Title II of the Social Security
Act. The matter is awaiting decision on cross motions for
summary judgment and has been referred to the undersigned
United States Magistrate Judge for submission of proposed
findings of fact and recommended disposition. 28 U.S.C.
§§ 636(b)(1)(B); Fed.R.Civ.P. 72(b); L.R. Civ. P.
September 25, 2012, Plaintiff filed a Title II application
for a period of disability and DIB, alleging disability
beginning May 21, 2012. Plaintiff's claims were denied on
January 3, 2013, at the initial level and on January 23,
2013, at the reconsideration levels. Plaintiff thereafter
requested a hearing, which Administrative Law Judge Peter
Jung (“ALJ”) held on March 10, 2014, and at which
Plaintiff, represented by Jan Dils generally, and at the
hearing by non-attorney representative Shannan Hinzman, and
Nancy Shapero, an impartial Vocational Expert
(“VE”) testified. On April 9, 2014, the ALJ
entered a decision finding Plaintiff was not disabled.
Plaintiff appealed this decision to the Appeals Council and,
on January 13, 2015, the Appeals Council denied
Plaintiff's request for review, making the ALJ's
decision the final decision of the Commissioner.
administrative hearing held on March 10, 2014, Plaintiff
testified that he was born on October 15, 1966 (R. 32),
making him forty-seven (47) years old at the time of the
hearing. Plaintiff obtained his GED, the highest level of
education he has completed. Id. Plaintiff resides
with his wife and son, who is in school (R. 260).
Medical History Summary
Medical History prior to May 21, 2012
on Plaintiff's cervical cord and spine on November 6,
2003 showed sparring at ¶ 4-5 (R. 301). Plaintiff's
spinal cord was observed to be mildly indented by a moderate
size right paracentral disc protrusion at ¶ 5-6.
Id. A similar paracentral disc protrusion was also
observed at ¶ 6-7, without direct indentation of the
spine. Id. Moderate central canal stenosis was also
observed at ¶ 4-5 and C6-7. Id. Chiropractic
Treatment Records from Johnson Chiropractic Clinic from
August 23, 2011 to April 13, 2012 generally reflect ongoing
treatment and issues with his cervical, dorsal, lumbar, and
lumbosacral spine (R. 223).
was admitted to the hospital in October 2011 after a venous
ultrasound revealed evidence of deep (left popliteal) vein
thrombosis in Plaintiff's left leg (R. 253). Plaintiff
was started on Warfarin therapy, began wearing support
stockings, and reported feeling better at the end of October
2011 (R. 288). However, his leg was still warm to the touch
and often swelled with prolonged standing (R. 288, R. 290).
In November 2011, Plaintiff complained of night sweats,
dizziness, and high blood pressure (R. 287) In addition to
Lasix, Toprol, and Lisinopril, Plaintiff also began taking
Xanax for Generalized Anxiety Disorder noted by Dr. Humphrey
(R. 217). On April 3, 2012, Plaintiff reported frequent
headaches, for which he was prescribed Vicodin (R. 278, 282).
Medical History from May 21, 2012
21, 2012, Plaintiff had to leave work due to lightheadedness
and dizzy spells (R. 279). Emergency Medical Services
transported him to the hospital, where an EKG conducted at
that time was normal. Id.
5, 2012, Plaintiff complained again of dizziness, for which
an MRI was done on June 26, 2012 (R. 249). The MRI showed
mild microvascular ischemic changes in Plaintiff's brain,
a chronic infarct in the right cerebellar hemispbauhere, and
a chronic lacunar infarct in the left cerebellum.
Id. Plaintiff was diagnosed with a cerebral embolism
with cerebral infarction, late effects of cerebrovascular
disease (ataxia), and primary hypercoagulable state (R. 218).
26, 2012, a carotid Doppler ultrasound was completed, showing
largely normal limits for results and “no
hemodynamically significant carotid arterial stenosis”
(R. 251). Under “Findings, ” it was noted that
“[d]ue to patient large body habitus, there is [sic]
some technical difficulties.” Id.
August 2, 2012, Plaintiff was referred to Dr. Charles Levy
for review of this abnormal MRI of his brain (R. 227). Dr.
Levy noted that Plaintiff complained of throbbing headaches
and dizziness that began about 3 months ago, with no known
injury, and usually began in the occipital region travelling
superiorly to the frontal region of the brain. Id.
Plaintiff's headaches were “aggravated with nothing
in particular, and alleviated with medications and
rest.” Id. Plaintiff also complained of
dizziness, vision changes, and speech difficulty; he denied
problems with gait, coordination, or bowel and bladder
dysfunction at that time. Id. The MRI showed a
“small encephalomalacic focus in the right cerebellar
hemisphere, possibly from chronic ischemic disease, possibly
post-traumatic.” Id. Dr. Levy ordered an MRI
of Plaintiff's brain including MRA of the cerebral
vasculature, and a referral to neurology (R. 230).
August 9, 2012, Plaintiff had a Magnetic Resonance
Angiography (MRA) pursuant to Dr. Levy's orders (R. 231).
Dr. Meyers noted, in relevant part for the MRA, “[n]o
significant abnormalities identified to explain the right
cerebellar infarct; consider evaluation of the aortic arch
and proximal cervical arteries.” Id. For the
MRI, Dr. Meyers noted primarily normal findings, excepting
“a chronic 20 x 12 mm area of encephalomalacia in the
right inferior cerebellum consistent with an old infarct,
” a “tiny 3 mm punctuate are of focal volume loss
in the left cerebellum that may be a small old lacunar
infarct, ” unchanged since the prior study (R. 233).
on August 22, 2012, Plaintiff saw Dr. Jay Bauerle, M.D.
pursuant to Dr. Levy's neurology referral. (R. 235). At
this point, Plaintiff reported taking Vicodin
(hydrocodone-acetominophen) for pain, Lasix, Lisinopril,
Pravastatin, Toprol, Warfarin, and Xanax for anxiety (R.
236). Dr. Bauerle's assessment was “cerebral
embolism; with cerebral infarction, primary hypercoagulable
state, and late effects of cerebrovascular disease,
ataxia.” Id. He noted that:
[Plaintiff's] embolic appearing right cerebellar infarct
and the left insular collection of smaller infarcts, as seen
on MRI, are concerning for a cardiac source of emboli. The
The history of deep venous thrombosis is suggestive of a
hypercoagulable state. Were the patient to have a patent
foramen ovale, which occurs in ~ 25% of the population,
venous thrombi could cause cerebral infarction. The patient
needs a transesophageal echocardiogram, a laboratory workup
for thrombophilia and a hematology consultation, as
laboratory tests are not available for all hypercoagulable
disorders. Many hypercoagulable disorders are familial, so
diagnosis of such an issue in one patient can be valuable
preventatively for their family members. After the above
evaluations, consider MR angiography of the carotid and
Id. Dr. Bauerle ordered a transesophageal
echocardiography along with a number of laboratory tests in
order to confirm or rule out potential causes. Id.
Dr. Bauerle considered both physical structural abnormalities
- specifically, a patent foramen ovale - and blood clotting
disorders as potential causes (noting Plaintiff's family
history of stroke and Plaintiff's personal history of
deep vein thrombosis in conjunction with Plaintiff's
current brain diagnoses). Id.
echocardiogram was completed on September 21, 2012, which Dr.
Humphrey opined was of “poor quality, ” lacked
2-D measurements or Doppler study, and was thus limited (R.
248). Subsequently, a transesophageal echocardiogram
including Doppler study was completed on October 5, 2012,
which showed primarily normal results, excepting “mild
dilation of the left atrium” and “mild mitral
regurgitation, ” and “[n]o evidence of any
significant valvular heart disease or intramural
thrombus” (R. 246).
Disability Determination Explanation at the Initial
November 12, 2012, Dominic Graziano, M.D. opined Plaintiff
was “Partially Credible . . . mer [Medical Evidence of
Record] does not support degree of alleged impairments,
” and that “Normal mental status does not support
his claims of limitations in this domain” (R. Under
“Weighing of Opinion Evidence, ” the report
stated “[t]here is no indication that there is medical
or other opinion evidence” (R. 60). Dr. Graziano
concluded Plaintiff had the following exertional limitations:
occasionally lift 50 pounds; frequently lift 25 pounds;
stand, walk, or sit 6 hours in an 8-hour work day; and
unlimited pushing and pulling (R. 60). Dr. Graziano concluded
Plaintiff had the following postural limitations:
occasionally climb ramps/stairs; never climbing
ladders/ropes/scaffolds; never balancing; occasionally
stooping, kneeling, crouching, and crawling, which he
supported with “small cva with wide based atalgic gait,
mildly unsteady gait” (R. 61). Dr. Graziano concluded
Plaintiff had the following environmental limitations:
Unlimited extreme cold, extreme heat, wetness, humidity,
noise, and fumes etc.; avoid even moderate exposure to
vibration; and avoid all exposure to hazards (machinery,
heights, etc.), and could perform Light work. Id.
December 29, 2012, Debra Lilly, Ph.D. listed the following
Medically Determinable Impairment Diagnoses: 1) Other
Disorders of the Nervous System: Priority - Primary, Severity
- Severe; 2) Organic Brain Syndrome, Priority - Secondary,
Severity - Non Severe; 3) Anxiety Disorders: Priority: Other,
Severity: Non Severe, ” none of which she found to
satisfy A, B, or C criteria (R. 58). Dr. Lilly found mild
restriction of activities of daily living, mild difficulties
in maintaining social functioning, and mild difficulties in
maintaining concentration, persistence, or pace. Dr. Lilly
further opined “The claimant has a history of CVFA with
reports of cognitive issues. These are not apparent upon
testing. His activities of daily living do not reflect
significant difficulties secondary to a mental disorder. Non
Severe” (R. 59).
Neuropsychological Evaluation / Consultative Evaluation
December 11, 2012, licensed psychologist Cynthia Spaulding
conducted a neuropsychological evaluation of Plaintiff
(R.259). At this time, Plaintiff reported loss of balance,
severe headaches, and perspiration. Id. In her
Consultative Evaluation Report, Dr. Spaulding observed the
following: Plaintiff had poor hygiene and “fair”
grooming. Id. Plaintiff had an impaired gait, and
his psychomotor activity level was mildly retarded.
Id. Plaintiff's affect was “mildly
restricted” (reduced range of emotional expression) and
his mood was neutral. Id. Spaulding described
Plaintiff's speech as “rambling, ” with
“evident” word retrieval difficulties.
Id. Plaintiff appeared older than his chronological
age. Id. Plaintiff's immediate and recent memory
were both unimpaired; but his remote memory was impaired. (R.
scores on the Wechsler Adult Intelligence Scale for Adults -
Fourth Edition (WAIS-IV) were in the low to average range
(“judgment was mildly impaired based on the claimant
obtaining a standard score of seven on the Comprehension
Subtest of the WAIS-IV”) (R. 262). Plaintiff's
attention span was within normal limits, based on a standard
score of eight on the Digit Span Subtest of the WAIS-IV.
Id. Plaintiff was cooperative, had appropriate eye
contact, and social functioning was normal. Id.
Spaulding diagnosed “Axis I: Cognitive Disorder,
NOS” [not otherwise specified] based on “word
retrieval difficulties, difficulty recalling details of his
personal history, reported symptoms and medical evidence of a
prior stroke” (R. 263). Dr. Spaulding diagnosed
“Anxiety Disorder, NOS” based on “panic
attacks in which he struggles to breathe, has chest pain and
becomes dizzy.” Id. Dr. Spaulding listed
Plaintiff's prognosis as “Guarded.”
Disability Determination Explanation at the Reconsideration
January 18, 2013, Pedro Lo, M.D. signed an assessment that
was identical to the previous assessment by Dr. Graziano,
differing only in 1) his addition of the following note:
“mer in the file reviewed. Affirm [Dr. Graziano's]
prior assessment of 11/12/12, ” and 2) finding
Plaintiff could perform Medium work (R. 73).
January 22, 2013, G. David Allen, Ph.D. likewise signed an
assessment identical to Dr. Lilly's, differing only in
his addition of the following note: “Following review
of all pertinent evidence in this file, the assessment
completed on 12/29/2012 is affirmed as written” (R.
Physical Residual Functional Capacity
February 17, 2014, treating physician Frederick Humphrey
completed an RFC Assessment for Plaintiff (R. 302). While not
all of the things Dr. Humphrey wrote were legible, Dr.
Humphrey listed the following diagnoses: 1) cerebellar
infarct, 2) chronic DVT [deep vein thrombosis] in left leg;
3) generalized anxiety disorder, 4) [indeterminable], 5)
obesity, 6) chronic cephalgia, 7) hypertension, 8)
hypothyroidism, 9) VI lower extremities. Id.
Prognosis was listed as “poor.” Id.
Symptoms listed included “Recurrent vertigo, esp.
sitting & standing - chronic headaches, chronic left leg
pain.” Id. Dr. Humphrey identified pain
experienced by Plaintiff as “mild pain left leg - main
problems are headaches - (Severe at times) & recurrent
vertigo, present most of the time & difficulty walking,
problems with gait and balance.” Id. Dr.
Humphrey identified clinical findings and objective signs
“Difficulty standing, swollen left leg - obese 300
lbs.” Id. Dr. Humphrey noted a good response
to Coumadin, Lisinopril, Prilosec, and Prevastatin; a fair
response to Xanax and Topamax, and noted another medication
for swelling of legs. Id. Dr. Humphrey opined that
Plaintiff's impairment lasted or could be expected to
last at least twelve months. Id.
Humphrey further opined that Plaintiff was not a malingerer,
that emotional factors did not contribute to the severity of
Plaintiff's symptoms and functions limitations, that
Plaintiff's anxiety affected his physical condition, and
impairments were reasonably consistent with the symptoms and
functional limitations (R. 303). He opined that
Plaintiff's experience of pain or other symptoms was
severe enough to interfere constantly with attention and
concentration, and that Plaintiff was incapable of even low
stress jobs due to a combination of factors, including
suffering from “marked anxiety - very nervous and
stressed most of the time, ” as well as “poor
concentration” (R. 304).
Humphrey opined that Plaintiff could walk “1/2 block
only” without rest or severe pain; sit for 10 minutes
at one time before needing to get up; stand for 10 minutes
before needing to sit down or walk around; sit/stand/walk for
two hours in an 8-hour working day; and walk for two minutes
every 30 minutes (R. 304-305). Plaintiff would need to take
two to three unscheduled breaks per 8-hour workday, resting
five minutes before returning to work. (R. 305). Dr. Humphrey
opined that Plaintiff could occasionally lift or carry 10
pounds or less, rarely lift or carry 20 pounds, and never
lift or carry 50 pounds. Id. Plaintiff could rarely
look up or down; occasionally turn head left or right, and
frequently hold his head in a static position (R. 306). He
could never stoop, crouch, or climb ladders; and rarely twist
or climb stairs. Id. Plaintiff had significant
limitations with reaching, handing, or fingering; he could
use hands and fingers 25% of the time, and his arms 10% of
the time. Id. Dr. Humphrey described other
limitations as “Does suffer mark [sic] stress &
anxiety, problem working around crowds, following commands,
& time constraints; He tires easily & would have
trouble working full time; He is unable to be gainfully
employed on a full time basis” (R. 307).
administrative hearing held on March 10, 2014, Plaintiff
testified that he was born on October 15, 1966 (making him
forty-seven (47) years old at the time of the hearing) (R.
32). Plaintiff obtained his GED, the highest level of
education he has completed. Id.
next testified regarding his work history. Plaintiff's
last job was with Simonton Building Products, where he was
employed from April of 1999 through May of 2012 - almost
thirteen (13) years (R. 33). Plaintiff described his typical
workday as “taking big stacks of vinyl off of a rack
and loading them on a saw, running drill, using the saw,
measuring pieces as you cut them out, rubbing frames for
windows” (R. 33). Plaintiff testified that he would
stand and walk eight out of eight hours in a workday, and
that the typical weight of items he lifted was between 25 and
50 pounds (R. 34). Plaintiff is right-handed, five feet eight
inches (5'8”) tall, and weighs three hundred (300)
last worked on May 21, 2012, when he experienced an episode
at work wherein he “got real lightheaded and stumbled,
” and had high blood pressure, which continued along
with the dizziness (R. 35). Emergency personnel at
Plaintiff's place of employment administered an EKG,
which was normal, but personnel took Plaintiff home.
Id. Since then, Plaintiff has been seeing Dr.
Humphrey, his primary care doctor, once per month on average.
Id. Plaintiff has collected disability payments
following the incident based on long-term disability.
Id. See also (R. 172).
next testified regarding his treatment. He advised Dr.
Humphrey “tried putting [Plaintiff] on an anti-motion
or a motion sickness pill to see if that would steady me and
that didn't help” (R. 37). Plaintiff has not had
any surgeries, physical therapies, pain injections, or pain
blocks since May of 2012. Id. Plaintiff's
conditions have been managed with medication, from which he
experiences no side effects. Id.
testified that the dizzy spells are the worst of his
impairments (R. 37). Plaintiff reported experiencing episodes
of dizziness “just about everyday” and without
warning: “It'll happen all of a sudden and I'll
get real weak in my knees” Id. The dizzy
spells do not typically last more than ten to fifteen (10-15)
seconds. Plaintiff reported having fallen “like 13 or
14 times” from dizzy spells since 2012, though those
falls have not required emergency treatment to date (R. 37).
The dizzy spells are accompanied by painful headaches that
require medication and between two (2) to five (5) hours of
sleep to treat:
Q: Have you told Dr. Humphrey about them?
Q: What has he told you about them?
A: He thought that I should have been getting better, but
that is why - is causing the dizzy spells is from the stroke.
Q: Okay. So you said you have these dizzy spells everyday.
How often during a typical day and how long do they last?
A: Well usually they last not very long, but I'll get a
real bad headache with it.
Q: Okay. So how long is not very long? Let's kind of
break it down a little bit. You have - you get a spell of
A: Yeah, 10 -
Q: You're talking about -
A: -- 10-15 seconds
Q: Okay. So they last about 10 to 15 seconds. And then
afterwards you get a headache?
A: Yeah, I'll have - I'll - it's like you can
feel it walking up the back of my head and I'll get the
headache and I'll go in and take something for the pain
and then I'll go in and I'll lay down.
Q: How long does that headache last once you take your
medication and lay down?
A: Well, usually I have to go to sleep in order for the
headache to stop.
Q: Okay. So how long typically are you laying down sleeping
before that goes away?
A: It can be anywhere from two to five hours.
Q: And how often in a typical day do you have those dizzy
spells? Just once a day?
A: Sometimes once, sometimes twice. I don't think
I've ever had more than two.
Q: Okay. And that happens everyday [sic]?
A: Just about - yeah, just about everyday [sic].
Q: Have they adjusted your blood pressure medication?
A: My blood pressure had read fine every time.
Q: So what medications are they adjusting?
A: None - none of my medications have been adjusted.
(R. 37-39). Plaintiff testified that in terms of medication,
he takes Topamax, Coumadin, Xanax, Lasix, Lisinopril,
Pravastatin, and Prilosec (R. 40). Plaintiff testified that
he does not drive unless he absolutely has to. Id.
Although he has not had any accidents while driving since
2012, he has had dizzy spells while driving and is concerned
he may hurt someone. Id. When this happens,
Plaintiff testified all that he can do is pull over to the
side of the road and sit still. Id. Plaintiff has
discussed with his doctor “maybe taking my license
because [he does]n't want to hurt anybody.”
also testified about problems with his neck and back,
reporting a herniated disc that causes periodic loss of use
of, and feeling in, his left arm (R. 41). Plaintiff reports
that these symptoms are worse when he puts more stress and
strain on it, and better when he does not use it much.
Id. Plaintiff next discussed problems standing or
walking. Id. He testified that he was able to stand
or walk for approximately fifteen (15) to twenty (20) minutes
before he would be “pushed to his limit” and have
to sit down and rest for about an hour (R. 41-42).
Problematically, however, Plaintiff's back and neck begin
to hurt when he sits for longer than fifteen (15) to twenty
(20) minutes. Id.
next testified about his daily activities and typical day.
Plaintiff testified that he will watch television or read
books if he can, but that his ability to do those things is
affected by his daily headaches (R. 42). Plaintiff used to
enjoy working on cars or going to visit family, which he
cannot do much anymore because he is afraid to drive unless
it is absolutely necessary. Id. Plaintiff reports
that his wife has indicated to him that he has significant
memory problems, and that he feels depressed because he is
“used to working and this isn't . . . something
I'm used to and the health thing just seems to get worse
and worse.” Id.
then questioned Plaintiff regarding additional health
problems. Plaintiff testified that he is completely blind in
his left eye, and has “okay” vision in his right
eye, except for when reading (R. 44-45). Plaintiff reported
having problems with deep vein thrombosis in his lower
extremities in October 2011, but that he now takes blood
thinners to keep that in check (R. 45). The ALJ asked
Plaintiff if he “get[s] along with other people,
” and Plaintiff responded that he did. Id.
Nancy Shapero, an impartial vocational expert, also testified
at Plaintiff's administrative hearing, The VE classified
Plaintiff's work as “a [inaudible] worker in the
window factory” classified as “medium work up to
an SVP of 3; no transferrable skills” (R. 47).
then asked the VE the following hypothetical:
Let's assume this hypothetical individual's date of
birth is October 15, 1966; this individual has a GED with the
following limitations: okay. This individual can carry - lift
and carry 20 pounds occasionally/10 pounds frequently;
standing and walking six hours; sitting six hours; posturally
never climbing ladders, ropes, scaffolds; never balance; only
occasional for the following: climbing ramps, stairs,
stooping, kneeling, crouching, and crawling; visually this
individual has the limited depth perception secondary to his
or her being blind in one eye; environmentally, this
individual must avoid or never work in the heights,
machinery, or hazards; avoid even moderate exposure to
vibration; avoid concentrated exposure to extreme cold,
extreme heat, wetness, and noise; psychologically, this
individual is limited to simple, repetitive, routine tasks.
Based on those restrictions, can this hypothetical individual
perform any of the - or actually only one of the
claimant's past work?
(R. 47). The VE stated that such an individual would not
being able to perform the past work but could perform other
types of work: (1) hand packer, (2) sorter, and (3)
janitorial (R. 48). The ALJ then asked a second hypothetical:
Let me give you another hypothetical. Let's - everything
else stays the same except we change the exertional
requirement to -- or limitation to 10 pounds occasionally
/less than 10 pounds frequently; standing and walking two
hours; sitting six hours; and then [INAUDIBLE] postural,
visual, environmental, and psychological. Would there be any
jobs in the national and/or regional economy?
(R. 48-49). The VE testified that the job of (1) hand packer
would still be available, in addition to (2) addresser and
(3) inspector. The ALJ then asked a third hypothetical:
Okay. Let's -- this is a new hypothetical or -- it's
based on Exhibit SF, medical source statement from Dr.
Humphrey. We are going to leave the same psychological
limitation of simple, repetitive, routine tasks, but
physically, this hypothetical individual can sit about two
hours, standing and walking about two hours both in an
eight-hour workday; lifting up to 10 pounds occasionally/20
pounds rarely; rarely twisting; rarely climbing stairs; never
stoop; never crouch; never squat; never climbing ladders;
manipulatively, this individual can use 10% bilateral upper
extremities for reaching/25% for both handling and fingering.
Based on those restrictions, can this hypothetical individual
perform any jobs in the nation -- or would there be any jobs
in the nation and/or regional economy?
(R. 49). The VE testified that, based on those restrictions,
there would be no jobs in the nation or regional economy that
such a hypothetical individual could perform. Id.
Plaintiff's representative then examined the VE, posing a
Q: Ms. Shapiro, if we took the judge's first and second
hypothetical and added that a person would need to be able to
change their position about every 10 to 15 minutes; they
would need to be able then pretty much to shift at will; and
they would need two to three unscheduled breaks a day for up
to about five minutes at a time to deal with issues of pain.
Would that impact any of the jobs you listed in the first and
A: Yes, ma'am.
Q: In what way please?
A: They would be ruled ...