United States District Court, N.D. West Virginia
December 16, 2016
MATTHEW TODD STUMP, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
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 out.
Q: And if a person missed as many as two to three times a
month each month, how would that level of absenteeism impact
one's ability to maintain unskilled work?
A: If that was on a consistent basis, it would rule out work
in my opinion.
Report of Contact Forms, Work History Report & Disability
Work History Report
October 8, 2012, Plaintiff filled out a work history report.
In the report, Plaintiff listed his prior work as
“window maker” with Simonton Windows, from April
26, 1999, to present (R. 173). Plaintiff described his work as
“runn[ing] a power saw or weld[ing] all day, ”
eight to twelve (8-12) hours per day, five to six (5-6) days
per week. Id. Per day, this job required Plaintiff
to walk for eight to twelve (8-12) hours, stand for eight to
twelve (8-12) hours, climb for one (1) hour, crouch for one
(1) hour per, reach for eight to twelve (8-12) hours, and
handle, grab, or grasp big objects for eight to twelve (8-12)
hours. Id. Plaintiff had to lift vinyl sticks
weighing fifty (50) pounds or more and carry them
approximately five (5) feet to the saw continuously
throughout his workday. Id.
filled out a disability report on October 1, 2012 (R. 162).
He indicated that his ability to work was limited by
headaches, dizziness, high blood pressure, neck and back
troubles, stroke on the base of the brain, high cholesterol,
vertigo, anxiety, and motion sickness, which also cause him
pain and other symptoms (R. 164). Medications listed at this
time included Hydrocodone for pain, Ibuprofen for headaches,
Lasix for fluid retention, Lisinopril for blood pressure,
Meclizine for motion sickness, Pravastatin for cholesterol,
Troprol for blood pressure, Warfarin for blood thinner, and
Xanax for nerves (R. 167).
second disability report dated January 16, 2013 noted largely
no changes, except that Plaintiff was “unable to walk
or stand for any amount of time[, g]ets confused easily[, and
m]ust be reminded to take care of household tasks” (R.
193). Medications listed at this time included Lisinopril and
Toprol for blood pressure, Warfarin for blood thinner, and
Xanax for nerves. Id.
February 5, 2013, a third and fourth disability reports were
completed, one each for field office and appeals. The appeals
disability report noted increased anxiety beginning January
1, 2013, and more back and neck problems (R. 199). Plaintiff
also noted that personal tasks now take longer to complete,
he only showers once or twice per week, he cannot stand or
walk for any amount of time, he is unable to drive, he has
difficulty communicating and concentrating on completing
household tasks (R. 200). Medications listed at this time
included Lisinopril and Toprol for blood pressure, Warfarin
for blood thinner, and Xanax for nerves. Id. In the
“Remarks” section, Plaintiff additionally listed
Furosemide for fluid retention, Metoprolol ER for blood
pressure, Pravastatin for cholesterol, and Alprazolam for
anxiety (R. 201).
Adult Function Report
October 8, 2012 Plaintiff completed an adult function report,
listing “dizziness, headaches, lightheadedness”
as conditions limiting his ability to work (R. 181). In
describing his daily activities, Plaintiff stated that he
takes care of his son in terms of getting him from school,
making sure his homework is done, and feeding him; he also
feeds and waters the family's pet cats with help from his
wife (R. 182).
is able to prepare some food for himself, such as sandwiches,
frozen pizza, and canned soup, but he no longer cooks regular
meals (R. 183). Plaintiff is able to wash dishes as long as
he is sitting on a stool, and limits it to fifteen to twenty
(15-20) minutes in duration, and can occasionally vacuum.
Id. Plaintiff is not able to do yard word; his son
mows the yard (R. 184). Plaintiff typically goes outside once
per day to get his son from school. Id. Plaintiff is
able to shop for groceries approximately once per week for
fifteen to twenty (15-20) minutes. Id.
notes that he used to play golf, fish, work, and stand for
long periods of time, but is no longer able to do any of
those things as he used to (R. 182). Plaintiff has not
attempted to play golf because of balance issues, and his
fishing is now limited to accompanying his son on short
fishing trips (R. 185). The only activity Plaintiff is still
able to do is to watch football. Id. His
interactions with others socially have also likewise been
limited by his conditions (R. 186).
reports the following are affected by his conditions:
standing, walking, talking, memory, concentration,
understanding (R. 186). He “can't stand very long,
ha[s] to stop walking to get [his] bearings, lose attention
in conversations, sometimes [he doesn't] understand even
though [he] knows what [his] wife is talking about.”
Id. Plantiff is able to walk maybe a hundred (100)
yards before he must stop and rest for one to two (1-2)
minutes. Id. Plaintiff notes that sometimes, his
attention span is “not very long, ” he
doesn't always finish tasks, and when following written
instructions, has “keep going back rereading even
though [he has] done it before.” Id. Finally,
Plaintiff reports poor coping with stress now, compared to
prior to the onset of his conditions (R. 187).
III. THE FIVE STEP EVALUATION PROCESS
disabled under the Social Security Act, a claimant must meet
the following criteria:
An individual shall be determined to be under a disability
only if his physical or mental impairment or impairments are
of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial
gainful work which exists in the national economy, regardless
of whether such work exists in the immediate area in which he
lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work. . . .
'[W]ork which exists in the national economy' means
work which exists in significant numbers either in the region
where such individual lives or in several regions of the
42 U.S.C. § 423(d)(2)(A) (2004). The Social Security
Administration uses the following five-step sequential
evaluation process to determine whether a claimant is
(i) At the first step, we consider your work activity, if
any. If you are doing substantial gainful activity, we will
find that you are not disabled.
(ii) At the second step, we consider the medical severity of
your impairment(s). If you do not have a severe medically
determinable physical or mental impairment that meets the
duration requirement . . . or a combination of impairments
that is severe and meets the duration requirement, we will
find that you are not disabled.
(iii) At the third step, we also consider the medical
severity of your impairments(s). If you have an impairment(s)
that meets or equals one of our listings . . . and meets the
duration requirement, we will find that you are disabled.
[Before the fourth step, the [RFC] of the claimant is
evaluated “based on all the relevant medical and other
evidence in your case record . . . ."]
(iv) At the fourth step, we consider our assessment of your
[RFC] and your past relevant work. If you can still do your
past relevant work, we will find that you are not disabled.
(v) At the fifth and last step, we consider our assessment of
your [RFC] and your age, education, and work experience to
see if you can make an adjustment to other work. If you can
make an adjustment to other work, we will find that you are
not disabled. If you cannot make an adjustment to other work,
we will find that you are disabled.
20 C.F.R. § 404.1520 (2015); 20 C.F.R. § 416.920
(2012). In steps one through four, the burden is on the
claimant to prove that he or she is disabled and that, as a
result of the disability, he or she is unable to engage in
any gainful employment. Richardson v. Califano, 574
F.2d 802, 804 (4th Cir. 1978). Once this is proven, the
burden of proof shifts to the Government during step five to
demonstrate that jobs exist in the national economy that the
claimant is capable of performing. Hicks v. Gardner,
393 F.2d 299, 301 (4th Cir. 1968). If the claimant is
determined to be disabled or not disabled at any of the five
steps, the process will not proceed to the next step. 20
C.F.R. § 404.1520; 20 C.F.R. § 416.920.
THE ADMINISTRATIVE LAW JUDGE DECISION
the five-step sequential evaluation process described above,
the ALJ made the following findings:
1. The claimant meets the insured status requirements of the
Social Security Act through December 31, 2017.
2. The claimant has not engaged in substantial gainful
activity since May 21, 2012, the alleged onset date (20 CFR
404.1571 et seq.).
3. The claimant has the following severe impairments: late
effects of cerebral vascular accident (CVA), organic brain
syndrome, left eye blindness, obesity, and anxiety (20 CFR
4. Claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 40-1520(d), 404.1525 and 404-1526).
5. After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform light work as defined in 20
CFR 404.1567(b) except he could occasionally lift and carry
twenty pounds, frequently lift and carry ten pounds. He could
stand and walk six hours and sit six hours in an eight-hour
workday. He should never climb ladders, ropes, or scaffolds;
01· balance. He could occasionally climb ramps and
stairs, stoop, kneel, crouch, and crawl. He has visual
limitation of depth perception due to one eye blindness. He
should avoid concentrated exposure to extreme cold, extreme
heat, wetness, and noise. He should avoid even moderate
exposure to vibration, and never be exposed to hazards, such
as machinery and heights. He is able to perform simple,
repetitive, routine tasks.
6. The claimant is unable to perform any past relevant work
(20 CFR 40-tl 565). Vocational expert, Nancy Shapero
testified the claimant's past work as a production worker
was semiskilled (SVP3) and performed at medium exertion with
no transferrable skills. Accordingly, the claimant is unable
to perform past relevant work.
7. The claimant was born on October 15, 1966, and was 45
years old, which is defined as a younger individual age
18-49, on the alleged disability onset date (20 CFR
8. The claimant has at least a high school education and is
able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the
determination of disability because using the
Medical-Vocational Rules as a framework support a finding
that the claimant is "not disabled, " whether or
not the claimant has transferrable job skills (Sec SSR 82-41
and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work
experience, and residual functional capacity, there are jobs
that exist in significant numbers in the national economy
that the claimant can perform (20 CFR 404.1569 and
11. The claimant has not been under a disability, as defined
in the Social Security Act, from May 21, 2012, through the
date of this decision (20 CFR 404.1520(g)).
Scope of Review
reviewing an administrative finding of no disability the
scope of review is limited to determining whether “the
findings of the Secretary are supported by substantial
evidence and whether the correct law was applied.”
Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990). Substantial evidence is “such relevant evidence
as a reasonable mind might accept to support a
conclusion.” Richardson v. Perales, 402 U.S.
389, 401 (1971) (quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)). Elaborating on this
definition, the Fourth Circuit has stated that substantial
evidence “consists of more than a mere scintilla of
evidence but may be somewhat less than a preponderance. If
there is evidence to justify a refusal to direct a jury
verdict were the case before a jury, then there is
‘substantial evidence.'” Shively v.
Heckler, 739 F.2d 987, 989 (4th Cir. 1984)
(quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th
Cir. 1968)). In reviewing the Commissioner's decision,
the reviewing court must also consider whether the ALJ
applied the proper standards of law: “A factual finding
by the ALJ is not binding if it was reached by means of an
improper standard or misapplication of the law.”
Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
Contentions of the Parties
1. The ALJ should have given “controlling weight”
to the opinion(s) of Dr. Humphrey since it was well-supported
and not inconsistent with the other substantial evidence in
the case record. SSR 96-2p. [Exhibits 6F, 8F, 9F].
2. The ALJ failed to provide “good reasons” for
discounting the opinion(s) of Dr. Humphrey. SSR 96-2p.
[See ALJ decision at 9].
3. The intensity/persistence of claimant's subjective
complaints was rejected based solely on objective findings.
4. The substantial evidence of record does not support a
finding that the claimant can perform work activities in an
ordinary work setting on a regular and continuing basis,
i.e., 8 hours a day, for 5 days a week. SSR 968p.
5. The ALJ violated Social Security Ruling 96-8p by failing
to consider the effects of the claimant's non-severe
physical and mental impairments on his ability to work. SSR
96-8p requires considering the impact of both severe and
non-severe impairments on the ability to work.
6. The ALJ's finding that claimant's posttraumatic
stress disorder, chronic and major depressive disorder were
not severe impairments was not supported by substantial
evidence since the medical evidence of record adequately
establishes more than a “minimal effect” on the
claimant's ability to work, SSR 85-28; SSR 96-3p.
7. The evidence of record documents that the claimant's
impairments meet or equal the requirements of Listing(s)
12.06. 20 C.F.R. §§404.1520(d) and 416.920(d); 20
CFR P. 404, Subpt. P, App. 1.
8. The ALJ failed to obtain an updated opinion on medical
equivalence from a medical expert. SSR 96-6p.
9. The ALJ failed to accord adequate weight to the opinion
evidence from the Department of Veterans Affairs related to
the claimant's service-connected disability. The
regulations provide that decisions by other governmental or
nongovernmental agencies that a claimant is disabled are not
binding on the agency. See 20 C.F.R. §
404.1504. However, SSR 06-03p explains that “evidence
of a disability decision by another governmental or
nongovernmental agency cannot be ignored and must be
considered.” Additionally, the Fourth Circuit has held
that in making a disability determination, the Commissioner
must give substantial weight to a Veterans Affairs
disability rating unless the record clearly supports less
weight. Bird v. Comm'r of Soc. Sec. Admin., 699
F.3d 337, 343 (4th Cir. 2012) (Emphasis added).
10. For all the above reasons the ALJ's decision should
be overturned and a new hearing on the merits be had
or there should be an outright award of benefits as
the claimant is disabled under Social Security's rules
and regulations. (R. 221-222).
1. Substantial evidence supports the ALJ's finding that
Plaintiff's subjective complaints were not fully
2. The ALJ adequately considered Plaintiff's obesity.
3. Substantial evidence supports the ALJ's finding that
Plaintiff did not have a severe impairment of the cervical
4. The ALJ's residual functional capacity finding
adequately accounted for his moderate difficulties in
maintaining concentration, persistence, or pace. (ECF No.
determination of whether a person is disabled by pain or
other symptoms is a two-step process. See Craig v.
Chater, 76 F.3d 585, 594 (4th Cir. 1996); see
also 20 C.F.R. § 404.1529(c)(1); SSR 96-7p, 1996 WL
374186 (July 2, 1996). First, the ALJ must expressly consider
whether the claimant has demonstrated by objective medical
evidence an impairment capable of causing the degree and type of
pain alleged. See Craig, 76 F.3d at 594. Second,
once this threshold determination has been made, the ALJ
considers the credibility of the subjective allegations in
light of the entire record. Id.
Security Ruling 96-7p sets out some of the factors used to
assess the credibility of an individual's subjective
symptoms, including allegations of pain, which include:
1. The individual's daily activities; 2. The location,
duration, frequency, and intensity of the individual's
pain or other symptoms; 3. Factors that precipitate and
aggravate the symptoms; 4. The type, dosage, effectiveness,
and side effects of any medication the individual takes or
has taken to alleviate pain or other symptoms; 5. Treatment,
other than medication, the individual receives or has
received for relief of pain or other symptoms; 6. Any
measures other than treatment the individual uses or has used
to relieve pain or other symptoms (e.g., lying flat on his or
her back, standing for 15 to 20 minutes every hour, or
sleeping on a board); and 7. Any other factors concerning the
individual's functional limitations and restrictions due
to pain or other symptoms.
SSR 96-7p, 1996 WL 374186, at *3 (July 2, 1996).
determination or decision “must contain specific
reasons for the finding on credibility, supported by the
evidence in the case record, and must be sufficiently
specific to make clear to the individual and to any
subsequent reviewers the weight the adjudicator gave to the
individual's statements and the reasons for that
weight.” Id. at *4. Because the ALJ has the
opportunity to observe the demeanor of the claimant, the
ALJ's observations concerning the claimant's
credibility are given great weight. Shively v.
Heckler, 739 F.2d 987, 989-90 (4th Cir. 1984). This
Court has determined that “[a]n ALJ's credibility
determinations are ‘virtually unreviewable' by this
Court.” Ryan v. Astrue, No. 5:09cv55, 2011 WL
541125, at *3 (N.D. W.Va. Feb. 8, 2011). If the ALJ meets the
basic duty of explanation, “[w]e will reverse an
ALJ's credibility determination only if the claimant can
show it was ‘patently wrong.'”
Sencindiver v. Astrue, No. 3:08cv178, 2010 WL
446174, at *33 (N.D. W.Va. Feb. 3, 2010) (quoting Powers
v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000)).
the conclusions as explained by the ALJ are not supported by
the evidence he cites, the Court cannot find that the ALJ has
met his basic duty of explanation. That is, the evidence the
ALJ cites appears to be consistent with the objective medical
evidence, and thus inconsistent with his conclusion. While
the evidence cited by the ALJ may be
“substantial” in terms of quantity or amount, it
is not “substantial” in terms of substance or
Court begins by reiterating that the ALJ found that Plaintiff
had satisfied Step One in that Plaintiff does indeed have
medically determinable impairments that could reasonably
cause the alleged symptoms. SSR 96-7p, 1996 WL 374186, at *3
(July 2, 1996). Step One was thus resolved in favor of the
Two of the credibility analysis, the ALJ found “the
claimant's statements regarding intensity, persistence,
and limiting effects of these symptoms are not entirely
credible, ” because 1) “allegations of disabling
symptoms and limitations are greater than expected in light
of the objective clinical evidence and treatment notes,
” (R. 17) and 2) “daily activities are not
limited to the extent one would expect, given the complaints
of disabling symptoms and limitations” (R. 19). Both
conclusions lack support and are largely contradicted by the
evidence the ALJ cites. The Court thus cannot conclude that
the ALJ has met his basic duty of explanation, and even if he
had, the Court would have no choice but to consider his
conclusion patently wrong based on the evidence cited, and
unsupported by substantial evidence.
The ALJ's finding of diminished credibility is not
supported by substantial evidence because allegations of
disabling symptoms and limitations are not
contradicted by - and are consistent with - objective
clinical evidence and treatment notes.
argues that “the intensity/persistence of
claimant's subjective complaints was rejected based
solely on objective findings. SSR 96-7p” (R. 221). More
to the point, the ALJ rejected Plaintiff's subjective
complaints largely on objective findings that cannot fairly
support that conclusion.
found that Plaintiff's credibility was diminished by the
medical evidence in the record because an MR angiogram showed
“no significant changes in Plaintiff's brain since
June 2012.” Had Plaintiff's brain been in good
shape in June 2012, this could have been supportive. However,
in June 2012, an MRI showed microvascular ischemic changes in
the brain and chronic infarcts in the right cerebellar
hemisphere and left cerebellum (R. 249). The subsequent
diagnosis was cerebral embolism with cerebral infarction,
primary hypercoagulable state, and late effects of
cerebrovascular disease (ataxia). (R. 238).
the circumstances, the fact that nothing had changed since
the June 26, 2012 MRI could not support an inference that
Plaintiff was less than credible. The only inference such a
statement could logically support is that the underlying
medically determinable condition that caused Plaintiff's
symptoms in June 2012 still existed. In fact, the findings
explicitly state as such. Further, the ALJ's classification
of such a state as “normal” is equally puzzling,
given those findings. Further, the ALJ cited a portion of the
report indicating “no significant stenosis, branch
occlusion, aneurysms, or vascular malformation” as
further evidence that undermined Plaintiff's credibility
regarding his symptoms (R. 231). However, even a cursory
reading of the findings of Dr. Gregory Myers, properly placed
in the context of the report, clearly shows that the purpose
of the MRI on August 9, 2012, was to determine whether there
were any observable causes of, or
explanations for, the chronic infarcts which were
documented and indisputably existed in Plaintiff's brain:
“No significant abnormalities identified to explain
the right cerebellar infarct. Consider
evaluation of the aortic arch and proximal cervical
arteries” (R. 231) [emphasis added].
on August 22, 2012, Dr. Bauerle saw Plaintiff and his
assessment was “cerebral embolism; with cerebral
infarction, primary hypercoagulable state, and late effects
of cerebrovascular disease, ataxia” (R. 238). Dr.
Bauerle further noted that:
The patient'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
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, and 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
vertebral arteries . . . Additional studies are necessary to
reach an accurate diagnosis. These tests are discussed with
(R. 238). The ALJ did not discuss the bulk of Dr.
Bauerle's findings or notes, which also appear consistent
with Plaintiff's statements. Rather, the ALJ briefly
mentioned that the results of the echocardiogram were
“normal” as supporting Plaintiff's lack of
credibility. However, as with above, the ALJ seems to
interpret this as negating Plaintiff's claims, rather
than what it actually signifies. Dr. Bauerle's notes make
clear that the echocardiogram was one of a number of tests he
recommended to either confirm or rule out possible
causes of the brain infarcts that indisputably
existed (R. 238). The fact that no cardiac sources of emboli
were observed does not change the fact that the infarcts were
still present, and still causing Plaintiff's reported
issues. It simply means that possible suspected causes of, or
contributors to, those infarcts had been ruled out. Thus,
this finding of the ALJ is also not supported by substantial
a cursory review of all of the physicians' notes and
medical records pertaining to claims of dizziness, vertigo,
and headaches supports an inference that Plaintiff is
credible, a few notes and findings appear to have been
selectively plucked out of context to support the opposite
conclusion - both by the ALJ and by the Commissioner. Whether
an innocent mistake or based on a mere lack of understanding
rather than purposeful, the selective inclusion of these
portions of the record while simultaneously excluding the
context of those findings unfairly distorts their objective
meaning. In any case, this evidence - taken out of context,
contrary to the overall meaning, and cited piecemeal to
undermine Plaintiff's credibility - cannot properly
support such a finding, not even by a mere scintilla. This
evidence clearly can support only an inference that Plaintiff
is credible regarding the persistence, intensity, and
duration of his symptoms.
next cited a “fair response to medication” from
Dr. Humphrey, and that “headaches were alleviated with
medications and rest” observed by Dr. Levy as,
presumably, evidence that contradicts Plaintiff's reports
of headaches (R. 18). The Court finds this to be disingenuous
as well. Plaintiff reported and testified before the ALJ that
he has painful headaches that require pain medication and
sleep to resolve. Neither of those quotes from either
physician contradict that claim. In fact, all three
statements appear to be consistent. Plaintiff's headaches
are in fact temporarily alleviated with medications and rest,
consistent with Plaintiff's testimony, to the extent that
once a headache begins, he must take pain medication and
sleep in order to resolve it (R. 37). Plaintiff's
headaches are not alleviated by medication on more
than a temporary basis, as they continue to reoccur on a
frequent basis. Id. The ALJ appears to misinterpret
statements indicating that Plaintiff's headaches
eventually go away after pain medication and two to
five hours of sleep, as rather indicating that they are
somehow resolved entirely. The Court would also note that
Plaintiff was apparently prescribed Vicodin for pain, a
significantly stronger pain medication than over-the-counter
pain relievers typically used for headaches. (R. 217). In
October 2012, Plaintiff's prescriptions included
hydrocodone for pain, another maximum-strength prescription
pain medicine, in addition to Ibuprofen. (R. 167). Thus, this
finding of the ALJ is also without any support, and thus is
certainly not supported by substantial evidence.
Plaintiff's daily activities (Factor 1, SSR 96-7p) cannot
support a finding of diminished credibility
because they are consistent with both Plaintiff's
subjective reports and the objective medical
ALJ's rationale regarding Plaintiff's daily
activities as undermining Plaintiff's credibility is
likewise similarly puzzling. The ALJ found that
“Claimant has described daily activities which are not
limited to the extent one would expect, given the complaints
of disabling symptoms and limitations.” The Court
reported that he was able to 1) was dishes only if he was
seated during, and only for 15-20 minutes before he had to
stop and rest; 2) make short trips to the grocery store once
per week, again limited to 15-20 minutes; 3) prepare basic
foods that do not require significant preparation; 4) pick
his son up from school; 5) drive to doctor's
appointments; 6) go to some football games, and 7) go fishing
once per week (R. 184). The ALJ noted that Plaintiff is able
to drive still, and goes to football games and goes fishing
as evidence contradicting Plaintiff's credibility as to
Court can find nothing in these statements of daily
activities that is inconsistent with Plaintiff's claims,
or with the medical evidence in the record. None of those
activities require Plaintiff to stand or otherwise exert
himself for more than 15-20 minutes. Presumably, Plaintiff
watches football games seated, can adjust positions as
necessary during the games he attends, and does not have to
stand or exert himself for more than 15-20 minutes.
Presumably, Plaintiff is primarily seated while fishing once
a week, can adjust positions as necessary while fishing, and
does not have to stand or exert himself for more than 15-20
minutes. Presumably, Plaintiff drives in a seated position,
and his son's school is not a great distance from their
reported that he drives “three or four miles” to
Dr. Humphrey's office (R. 41). Plaintiff testified that
he drives short distances when necessary, but that he no
longer drives to visit family as he used to, and his son
drives them to go fishing (R. 43). This is further supported
by Plaintiff's testimony that he is hesitant to drive
unless absolutely necessary because of his conditions, and
has discussed giving up his license altogether with Dr.
Humphrey (R. 40). Taken together, this evidence shows that
Plaintiff has eliminated driving for anything other than
necessary purposes and short distances, and supports an
inference of credibility. The Court cannot thus find this
evidence supportive of the ALJ's conclusion.
in contrast, the types of daily activities that negate
credibility include significantly more demanding activities
than the ones described by Plaintiff here. See Mastro v.
Apfel, 270 F.3d 171 (4th Cir. 2001) (Riding a
bike, walking in the woods, and traveling to distant states
without significant difficulty undermined claimant's
subjective complaints of pain and fatigue). See also
Meyer v. Astrue, 662 F.3d 700 (4th Cir. 2011)
(driving, caring for horses and dogs, riding horses and
operating a tractor was conflicting evidence); Kearse v.
Massanari, 73 Fed.Appx. 601 (4th Cir. 2003)
(cutting wood, mowing grass, and occasionally shopping
contradicted a disability determination). Here, Plaintiff
reported that his son mows their yard because Plaintiff fell
off the riding mower, which is consistent with
Plaintiff's statements regarding dizziness, vertigo, and
falls. (R. 263). Plaintiff's reported daily activities
are significantly more limited than these.
one of Plaintiff's most problematic conditions, dizziness
and vertigo, are noted throughout the medical record and his
testimony: “I've fallen like 13 or 14 times from
it” (R. 37). With regard to Plaintiff's falls and
dizziness/vertigo, the ALJ's opinion stated only that
“[Plaintiff alleges he has fallen down due to the
dizziness, but he was not injured” (R. 17). During the
hearing, the ALJ asked Plaintiff “Have any of those
falls required you to go to the emergency room?” (R.
38). The Commissioner does not argue, nor is the Court aware
of, any requirement that Plaintiff be seriously injured from
falls before he can be considered credible. Further, there is
evidence in the record to indicate that Plaintiff has largely
ceased doing things that are more likely to lead to such a
result. Plaintiff reported that he no longer is able to mow
the lawn, even using a riding mower, because he fell off it
(R. 263). The lack of emergency room visits following a fall
cannot be considered substantial evidence to negate
Plaintiff's credibility with regard to dizziness and
The evidence cited by the ALJ pertaining to the remaining SSR
96-7p Factors 2-6 cannot support a finding of diminished
credibility because it is consistent with both
Plaintiff's subjective reports and the objective medical
medications a claimant takes is evidence relevant to a
credibility determination regarding allegations of pain.
Kearse, 73 Fed.Appx. at *603 (taking only
over-the-counter medications such as Tylenol and Motrin for
pain supported finding that pain was not as severe as
claimant alleged). Here, the record shows Claimant was
prescribed Hydrocodone (R. 167, 260) and Vicodin (R. 236,
282) for pain. Hydrocodone is a prescription-strength
Schedule II controlled substance and opioid pain medication
designed to treat severe pain. Vicodin is a
prescription-strength pain medication comprised of
Hydrocodone and Acetaminophen, and designed to treat moderate
to moderately severe pain. Thus, the type of medications Plaintiff
was prescribed supports Plaintiff's allegations of pain.
only mild pain relievers, in absence of objective medical
evidence to support allegations of pain, and in conjunction
with daily activities that contradict those allegations, does
not support a finding of disability. Shively v.
Heckler, 739 F.2d 987, 989-90 (4th Cir. 1984)
(Extra strength Tylenol and extra strength Excedrin, and a
prescription analgesic intended for mild to moderate pain,
did not sustain pain allegations alone without supporting
objective medical evidence). Here, the record does indicate
that Plaintiff took Ibuprofen at times.However,
Plaintiff's case is clearly distinguished from
Shively because 1) based on the record, Plaintiff
was also prescribed Hydrocodone and Vicodin; 2) Hydrocodone
and Vicodin are designed to treat moderate to severe pain,
unlike the prescription analgesic in Shively which
was for mild to moderate pain; 3) the ALJ found that
Plaintiff's allegations of pain were supported by
objective medical evidence and could be caused by his
conditions, whereas in Shively they were not; and 4)
as discussed at length in this Report and Recommendation,
Plaintiff's daily activities are significantly limited
and do not contradict his allegations of pain. Thus, in this
case, evidence regarding medications could support only an
inference that Plaintiff's pain was as severe as he
alleged. Plaintiff does not continuously or always take
strong prescription pain medicines, but he also does not
allege that he is in constant pain; just that his headaches
can be very painful when they occur, which appears fully
consistent with the medical evidence of record.
Commissioner and the ALJ both cite the Adult Function Report
completed on October 8, 2012 in which Question 22, “Do
you currently take any medicines for your illnesses,
injuries, or conditions?” has a check mark in the
“No” box, presumably as evidence Plaintiff takes
no medications (R. 188). “In an Adult Function Report
dated October 8, 2012, Plaintiff reported that he was not
currently taking any medications” (ECF No. 10 at 5).
The Court is not prepared to take that single instance at
face value and assume accuracy, as it appears more likely to
be an oversight, mistake, or misunderstanding.
Plaintiff's medical record shows repeatedly on many other
instances that he has been on numerous medications for his
conditions, and that those regimens were ongoing. Further,
even in the unlikely event that on October 8, 2012 Plaintiff
had suddenly ceased all of his numerous medications only to
resume them shortly thereafter, the evidence in the record
overwhelmingly supports the conclusion he has been taking
them for some time, both before and after this anomaly, and
continues to take them.
Levy's report on August 2, 2012 documents Plaintiff was
taking his medications at that time (R. 277), as does Dr.
Bauerle's report on August 22, 2012 (R. 236). Plaintiff
completed online medical forms in which he submitted his list
of medications as “currently taking” on January
15, 2013 (R. 192-194), again on February 4, 2013 (R.
199-201). Claimant's Medications Form HA-4632 also listed
his full regimen, and that he had been taking most of those
medications for years (R. 215). For the numerous instances
throughout the record where Plaintiff was documented to be
taking his medications, see also R. 253-255 (early
to mid-October 2011), R. 260-261 (December 11, 2012), R. 302
(February 17, 2014), Exhibit No. 9F, R. 308-318 (August 13,
2013 through February 11, 2014), including “Matthew
Stump's Medication List and Dates” of eleven
different medications prescribed (R. 318). Thus, the Court
cannot find one singular instance of a box checked
“No” to medications on October 8, 2012 to be
significant or even accurate in the face of overwhelming
instances in the record, both before and after that date,
showing that Plaintiff was taking numerous medications.
especially nonsensical because ALJ cited adherence to
appropriate medications as prescribed as weighing in
Plaintiff's favor. The ALJ also stated that because
Plaintiff had never had injections, physical therapy, or
surgery, and had only been treated with medication,
this weighed against Plaintiff. Yet, the Plaintiff testified
before the ALJ that no changes to his regimen had ever been
suggested to him by his doctors (R. 39). Further, Plaintiff
had tried taking medication as prescribed for
dizziness/vertigo, but it had not been effective (R. 17). The
record also provides no indication that Plaintiff's
doctors ever proposed injections or surgery.
record is unclear on whether Plaintiff has ever had physical
therapy. A report from Johnson Chiropractic is included in
Plaintiff's medical record, but the extent of
Plaintiff's treatment there and whether it involved
physical therapy is simply unclear, as it is not uncommon for
Chiropractic care to include in-house physical therapy of
varying extents (R. 223). However, the records are dated from
August 23, 2011 to April 13, 2012, which at minimum supports
that Plaintiff's treatment there was ongoing for at least
that 8-month period. Thus, as it pertains to Factors 2, 4, 5,
and 6 of SSR 96-7p, the Court cannot find substantial
evidence in the record to support a credibility determination
against the Plaintiff on this issue. The evidence that does
exist weighs in Plaintiff's favor.
The ALJ's failure to give controlling weight to
Plaintiff's treating physician is not supported by
regulations, specifically 20 C.F.R. § 404.1527(c),
discuss how the ALJ weighs treating source medical opinions:
How we weigh medical opinions. Regardless of its
source, we will evaluate every medical opinion we receive.
Unless we give a treating source's opinion controlling
weight under paragraph (c)(2) of this section, we consider
all of the following factors in deciding the weight we give
to any medical opinion
(1) Examining relationship. Generally we give more
weight to the opinion of a source who has examined you than
to the opinion of a source who has not examined you.
(2) Treatment relationship. Generally, we give more
weight to opinions from your treating sources, since these
sources are likely to be the medical professionals most able
to provide a detailed, longitudinal picture of your medical
impairment(s) and may bring a unique perspective to the
medical evidence that cannot be obtained from the objective
medical findings alone or from reports of individual
examinations, such as consultative examinations or brief
hospitalizations. If we find that a treating source's
opinion on the issue(s) of the nature and severity of your
impairment(s) is well supported by medically acceptable
clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the]
case record, we will give it controlling weight. When we do
not give the treating source's opinion controlling
weight, we apply the factors listed in paragraphs (c)(2)(i)
and (c)(2)(ii) of this section, as well as the factors in
paragraphs (c)(3) through (c)(6) of this section in
determining the weight to give the opinion. We will always
give good reasons in our notice of determination or decision
for the weight we give your treating source's opinion.
(i) Length of the treatment relationship and the
frequency of examination. Generally, the longer a
treating source has treated you and the more times you have
been seen by a treating source, the more weight we will give
to the treating source's medical opinion. When the
treating source has seen you a number of times and long
enough to have obtained a longitudinal picture of your
impairment, we will give the source's opinion more weight
than we would give it if it were from a non treating source.
(ii) Nature and extent of the treatment
relationship. Generally, the more knowledge a treating
source has about your impairment(s) the more weight we will
give to the source's medical opinion. We will look at the
treatment the source has provided and at the kinds and extent
of examinations and testing the source has performed or
ordered from specialists and independent laboratories.
(3) Supportability. The more a medical source
presents relevant evidence to support an opinion particularly
medical signs and laboratory findings, the more weight we
will give that opinion. The better an explanation a source
provides for an opinion the more weight we will give that
opinion. Furthermore, because nonexamining sources have no
examining or treating relationship with you, the weight we
will give their opinions will depend on the degree to which
they provide supporting explanations for their opinions. We
will evaluate the degree to which these opinions consider all
of the pertinent evidence in your claim, including opinions
of treating and other examining sources.
(4) Consistency. Generally, the more consistent an
opinion is with the record as a whole, the more weight we
will give to that opinion.
(5) Specialization. We generally give more weight to
the opinion of a specialist about medical issues related to
his or her area of specialty than to the opinion of a source
who is not a specialist.
(6) Other factors. When we consider how much weight
to give a medical opinion, we will also consider any factors
you or others bring to our attention, or of which we are
aware, which tend to support or contradict the opinion. For
example, the amount of understanding of our disability
programs and their evidentiary requirements that an
acceptable medical source has, regardless of the source of
that understanding, and the extent to which an acceptable
medical source is familiar with the other information in your
case record are relevant factors that we will consider in
deciding the weight to give to a medical opinion.
it is not binding on the Commissioner, a treating
physician's opinion is entitled to great weight and may
be disregarded only if persuasive contradictory evidence
exists to rebut it. See Coffman v. Bowen, 829 F.2d
514, 517 (4th Cir. 1987). Such opinions should be accorded
great weight because they “reflect an expert judgment
based on a continuing observation of the patient's
condition over a prolonged period of time.”
Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir.
1983). In Craig v. Chater, however, the Fourth
Circuit further elaborated on this rule:
precedent does not require that a treating physician's
testimony “be given controlling weight.”
Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992).
In fact, 20 C.F.R. §§ 404.1527(c)(2) and
416.927(d)(2) (emphasis added) both provide,
[i]f we find that a treating source's opinion on the
issue(s) of the nature and severity of [the] impairment(s) is
well supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the] case record, we will
give it controlling weight.
By negative implication, 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.
76 F.3d 585, 590 (4th Cir. 1996). In addition,
“[n]either the opinion of a treating physician nor the
determination of another governmental entity are binding on
the Secretary.” DeLoatch v. Heckler, 715 F.2d
148, 150 n.1 (4th Cir. 1983). Thus, “[t]he treating
physician rule is not absolute.” See Hines v.
Barnhart, 453 F.3d 559, 563 n.2 (4th Cir. 2006).
issues are reserved specifically for the Commissioner and
opinions on such issues “are never entitled to
controlling weight or special significance.” SSR 96-5p,
1996 WL 374183, at *2 (July 2, 1996). For example, the
Commissioner is responsible for determining whether a
claimant is disabled or unable to work. 20 C.F.R.
§§ 404.1527(d)(1), 416.927(d)(1). Therefore, a
medical source that offers an opinion on whether an
individual is disabled or unable to work “can never be
entitled to controlling weight or given special
significance.” SSR 96-5p, 1996 WL 374183, at *5.
Fourth Circuit has also noted that a court “cannot
determine if findings are supported by substantial evidence
unless the Secretary explicitly indicates the weight given to
all of the relevant evidence.” Gordon v.
Schweiker, 725 F.2d 231, 235 (4th Cir. 1984). An
ALJ's failure to do this “approaches an abdication
of the court's ‘duty to scrutinize the record as a
whole to determine whether the conclusions reached are
rational.'” Arnold v. Sec'y of Health, Ed.
& Welfare, 567 F.2d 258, 259 (4th Cir. 1977)
(quoting Oppenheim v. Finch, 495 F.2d 396, 397 (4th
Consistency with the Medical Evidence of Record
as discussed at length above, the Court can find no
substantial evidence to support the ALJ's findings
regarding Dr. Humphrey's credibility, his reports, and
conclusions. The ALJ “[gave] little weight to the
opinion that the claimant is limited to less than sedentary
exertion, as it is not supported by the overall evidence in
the treating record including his own treatment
records.” (R. 20). In support of this assertion, the
ALJ noted that treatment notes from Dr. Humphrey
“revealed normal to mild findings on examination of the
extremities and joints and neurological examination was
essentially normal (R. 20) (internal citations
omitted).” The Court fails to see how normal to mild
findings regarding extremities and joints discredits
Plaintiff's claims, which have consistently reflected his
primary and most problematic impediment to be dizziness and
painful headaches associated with stroke.
likewise does not elaborate on how findings regarding
extremities and joints relate to the herniated and bulging
discs in Plaintiff's back. This is especially unclear
because the ALJ notes that moderate central spinal stenosis
on C4-5 and C5-6 and small protrusions at ¶ 5-6 and C6-7
were observed in an MRI from August 2008 (R.
14). In fact, the full report and findings
indicate that is, at minimum, an understatement. The
Commissioner likewise cites the 2008 “MRI of
[Plaintiff's] cervical spine which . . . [showed] some
central spinal canal stenosis but no neural
impingement” as supportive of the Commissioner's
Motion for Summary Judgment (ECF No. 10 at 3). While neural
impingement was not seen at all levels, it
was observed at the C4/5 level affecting the left C5
1. No significant change from the 2003 exam.
2. Central spinal canal stenosis that is moderate at ¶
4/5 and C5/6, mild to moderate at ¶ 6/7 and C3/4. There
is also moderate left lateral recess and left foraminal
narrowing at the C4/5 level that impinge the left C5
nerve [emphasis added].
3. Chronic small posterior disc protrusions at ¶ 5/6 and
4. Possible right thyroid nodule (vs. partial left
thyroidectomy). Recommend thyroid ultrasound.
(R. 299). The record therefore shows that at some
locations, no neural impingement was observed, but it is
not true that no neural impingement was
observed at all, as it was clearly noted at the C4/C5 level.
The Commissioner's claim that the MRI showed “no
neural impingement” is thus false. If there is any
possible alternative interpretation of this evidence that
supports the ALJ's findings, it is not explained in the
ALJ's decision, nor can the Court intuit one.
Court is also unclear as to what in Dr. Humphrey's
records constitutes an “essentially normal”
neurological examination, or how that is inconsistent with
these claims, as the ALJ has failed to elaborate. If the ALJ
intended that in reference to the transesophageal
echocardiogram, this report and recommendation has already
discussed the unpersuasive nature of that reasoning at length
above. Finding no external inconsistency between Dr.
Humphrey's opinion and other medical evidence in the
record, the Court next turns to internal consistency.
treating physician is not credible when his treatment was
infrequent, and his opinion was unsupported by his own
treatment notes or other information in the file. Russell
v. Comm'r of Soc. Sec., 440 Fed.Appx. 163
(4th Cir. 2011). A treating physician also loses
credibility when her testimony is directly contradicted by
her own treatment notes. Burch v Apfel, 9 Fed.Appx.
255 (2001) (Treating physician given little credibility when
she testified that 1) Claimant was admitted to the hospital
for suicidal thoughts, when her notes clearly indicated
Claimant's condition was stable and she was not
considered harmful to herself or others; 2) Claimant's
poor response to medication was not her fault, when treatment
notes clearly indicated otherwise - “as usual she had
not given the medication adequate time to reach some degree
of remission;” 3) Claimant's alcohol consumption
did not contribute to her failure to recover, when notes
indicated Claimant continued to drink against physician's
advice and that it was “not beneficial;” and
numerous other contradictions and inconsistencies discussed
at length by the ALJ).
the Court can find nothing to contradict Dr. Humphrey's
opinions in his own treatment notes, in Plaintiff's
testimony, and in the objective medical evidence in the
record. In fact, the only evidence that appears to contradict
Dr. Humphrey are the opinions of the two medical personnel
who reviewed Plaintiff's records for the agency. The ALJ
gave “some weight” to the opinions of the State
Agency consult physicians, because they “supported
their opinions with reference to the available
evidence” - a generous characterization.
fact, psychological consultants Debra Lilly, Ph.D. and G.
David Allen, Ph.D., both of whom were not medical doctors but
psychologists, found no severe mental impairments.
However, Plaintiff does not appear to contend that his
anxiety and mental impairments rendered him disabled
alone or equaled a listing; his primary disabling issues are
physical - painful headaches, dizziness and chronic vertigo,
and inability to stand or exert himself for more than 15-20
only two agency physicians who appeared to consider
Plaintiff's physical capabilities were Dominic
Graziano, M.D. and Pedro Lo, M.D. The record appears to
indicate that these physicians reviewed Plaintiff's
medical records alone. There was also no explicit indication
either Dr. Graziano or Dr. Lo personally examined Plaintiff
(R. 57-58). Further, these opinions were issued in 2012,
approximately two years before Dr. Humphrey completed the RFC
Questionnaire in 2014.
clear is that the extent of Dr. Graziano's support of his
opinions with reference to the evidence consists of brief and
insubstantial statements with regard to credibility such as
“Partially Credible . . . mer does not support degree
of alleged impairments” and “Normal mental status
does not support his claims of limitations in this
domain” (R. 60). If any specific evidence of record
persuaded Dr. Graziano to arrive at this conclusion for
credibility, he did not elaborate beyond these few
exceedingly general statements, nor can the Court intuit what
it might be. Dr. Lo was even more brief: “mer in the
file reviewed. Affirm [Dr. Graziano's] prior assessment
of 11/12/12” (R. 73). Dr. Graziano supported his
Residual Functional Capacity findings with “small cva
with wide based atalgic gait, mildly unsteady gait,
9/21/2012” which Dr. Lo affirmed verbatim with no
additional clarification or comment (R. 61, 72). In short,
Dr. Graziano's opinion is supported by a few nonspecific
sentences, and Dr. Lo has done little more than add
“affirmed” to an already lacking explanation.
even if Dr. Humphrey's opinion was not controlling,
numerous relevant factors as to weight are clearly in favor
of Dr. Humphrey: examining relationship including frequency,
treatment relationship including length (Dr. Humphrey first
saw Plaintiff in 2003), supportability, consistency,
specialization, and familiarity. Dr. Humphrey had treated
Plaintiff in person for years, was familiar with his history,
cited more medical evidence in his Residual Functional
Capacity Questionnaire than was included in either agency
reviewer's report, provided statements that are not
inconsistent with the medical evidence in the record, and his
primary specialization, internal medicine, is noted on his
physician profile (R. 298). Further, it appears to the Court
that records from Drs. Bauerle and Levy are consistent with
Dr. Humphrey's opinion.
Opinions Exceeding Area of Expertise or Authority
Court is likewise troubled by the weight afforded to various
opinions pertaining to mental impairments. The ALJ's
conclusion that Dr. Humphrey's “opinion regarding
mental impairments is accorded little weight as it is outside
his area of expertise” is technically true - Dr.
Humphrey is indeed a medical doctor, and not a psychologist.
However, it is also internally inconsistent.
as to mental impairments, Dr. Humphrey circled
“anxiety, ” and opined 1) that Plaintiff's
physical and emotional impairments were reasonably consistent
with the symptoms and functional limitations described in
this evaluation, but that 2) the emotional factors did
not contribute to the severity of Plaintiff's
symptoms and limitations (R. 303). Plaintiff was in
fact diagnosed with anxiety; that is a statement of fact,
supported by the objective medical evidence, which requires
no expertise to determine. It is true that Dr. Humphrey noted
his personal observations of Plaintiff's nervous and
stressed demeanor on the RFC as well. But Dr. Humphrey also
indicated that emotional factors played no role in his
evaluation of the severity of Plaintiff's symptoms and
limitations. Further, because of the way Question 13 is
phrased on the RFC, it is impossible to determine how much of
Dr. Humphrey's opinion on mental impairments is
attributed to anxiety and emotional factors, and how much is
attributed simply to pain. Therefore, the Court is not
convinced that Dr. Humphrey has in fact ventured
outside his area of expertise in arriving at his opinion.
he had, though Dr. Humphrey is not a psychologist, his
diagnosis of anxiety and Plaintiff's mental
impairments (Cognitive Disorder) were both confirmed by a
licensed psychologist - Dr. Cynthia Spaulding - whose area of
expertise this clearly is. Dr. Spaulding further
supported her diagnoses with reference to test results and
specific symptoms, which is more than can be said for Drs.
Lilly and Allen.
gave “some weight to the opinions of these State Agency
consultant physicians. They supported their opinions with
reference to the available evidence” (R. 19). Dr.
Lilly's “reference to the available evidence”
essentially consists of “cognitive issues . . . are not
apparent upon testing. His activities of daily living do not
reflect significant difficulties secondary to a mental
disorder. Non-severe” and “(R. 59). There is very
little specificity as to what evidence in particular supports
her conclusions, and Dr. Allen has done little more than
simply affirm. Dr. Spaulding's justification, in
contrast, is more substantial and specific:
The diagnosis of Cognitive Disorder, NOS is given based on
observing the claimant to have word retrieval difficulties,
difficulty recalling details of his personal history,
reported symptoms and medical evidence of a prior stroke. The
additional diagnosis of Anxiety Disorder, NOS is given based
on the claimant reporting panic attacks in which he
struggles, to breathe, has chest pain and becomes dizzy.
(R. 263). The Court also notes that Dr. Spaulding further
listed Plaintiff's prognosis as “guarded.” A
guarded prognosis is given when “the outcome of a
patient's illness is in doubt” - when
medical personnel cannot definitively state whether a patient
will successfully recover. If the ALJ considered how much
weight to give Dr. Spaulding's opinion, the undersigned
was unable to glean that analysis and any conclusion from his
Court further does not expressly disagree with the ALJ that
Dr. Humphrey's “statement indicating the claimant
is disabled or unable to sustain employment, is not a medical
opinion, but rather an administrative finding dispositive of
a case. These issues are reserved to the Commissioner, and as
such are not entitled to any special significant weight (20
CFR 404.1527(e)(1)(2) and 416.927(e)(1)(3)).” The Court
would note, however, that Dr. Humphrey made both of these
statements in response to questions on the Physical Residual
Functional Capacity Questionnaire that explicitly solicited
his opinion on this exact matter (R. 303).
Failure to Consider Obesity
Plaintiff argues that the ALJ failed to consider obesity as
required, apart from briefly noting the rules for doing so:
Although obesity is no longer a listed impairment, Social
Security Ruling 02-1 p requires Administrative Law Judges to
consider obesity in determining whether claimants have
medically determinable impairments that are severe, whether
those impairments meet or equal any listing, and finally in
determining the residual functional capacity. The Clinical
Guidelines issued by the National Institutes of Health define
obesity as present in general where there is a body mass
index (BMI) of 30.0 or above. BMI is the ratio of an
individual's weight in kilograms to the square of his or
her height in meters (kg/m2). We generally will rely upon the
judgment of a physician as to whether an individual is obese.
Commissioner contends that this paragraph is sufficient
Security Ruling 02-01p explains the administration's
policy and protocol on the evaluation of obesity.
“Obesity is a complex, chronic disease characterized by
excessive accumulation of body fat.” SSR 02-1p, 2002 WL
34686281 (September 12, 2002). The ruling recognizes Body
Mass. Index (BMI) as one of the indicia of an
individual's degree of obesity. Id. Social
Security Ruling 02-1 provides that at step two of the five
step evaluation, obesity may be considered alone or in
combination with another medically determinable impairment.
At Step Three of the evaluation process, the administrator
may find that obesity, either by itself or in combination
with other impairments, meets a listed impairment if the
obesity is equivalent in severity: “[f]or example, if
the obesity is of such a level that it results in an
inability to ambulate effectively, as defined in sections
1.00B2b or 101.00B2b of the listings, it may substitute for
[the criteria of 1.02A] and we will then make a finding of
medical equivalence.” Id. at 5.
certain circumstances, failure to consider obesity can be
harmless error. First, an ALJ's failure to consider
obesity is harmless when substantial other evidence exists to
support the ALJ's findings. Pritt v. Colvin,
citing Prochaska v. Barnhart, 454 F.3d 731, 736-37
(8th Cir. 2006). Second, “Even where an ALJ's
decision does not explicitly analyze obesity, the omission
may be harmless if the ALJ relied on the opinions of doctors
who were aware of the obesity.” Cook v.
Astrue, 800 F.Supp.2d 897, 907 (N.D.Ill.2011) (citing
Prochaska v. Barnhart, 454 F.3d 731, 736-37 (7th
Cir. 2006). Additionally, an “ALJ's failure to
mention “obesity” is harmless error, where
“obesity” was never mentioned at the ALJ hearing
and the ALJ thoroughly considered all of Plaintiff's work
limitation in his review of the record and Plaintiff's
Adult Functioning Report.” Pritt v. Comm'r of
Soc. Sec., 2014 WL 284499 (N.D. W.Va., January 24,
obesity was noted at numerous points in the record, both
explicitly as a diagnosis and indirectly by height and
weight. Dr. Humphrey noted obesity in October 2011, with a
height of five feet seven inches and weight of 267 pounds,
which equals a BMI of 41.8 (R. 256). On June 26, 2012,
medical personnel noted “technical difficulties”
in trying to complete the carotid Doppler ultrasound
“due to patient large body habitus” - referring
to Plaintiff's large size (R. 251). On December 11, 2012,
Plaintiff weighed 292 pounds, a BMI of 45.7 (R. 259).
“Obese - 300 lbs” was noted on the Residual
Functional Capacity Questionnaire, completed in February
2014. (R. 302). At the hearing, Plaintiff weighed 300 pounds
and was five feet eight inches tall, a BMI of 45.6 (R. 14),
and testified that he had gained “about 40
pounds” since he left work due to inactivity caused by
his medical conditions (R. 34-35).
Court cannot conclude that the ALJ considered Plaintiff's
obesity, since the only mention of obesity in his opinion was
in citing the relevant rule. The physicians on whose opinions
he primarily relied do not appear to have considered it,
either. The ALJ gave some weight to the opinions of Drs.
Graziano and Lo, whose explanations were very brief and did
not mention obesity once - nor is it apparent that either
have ever met Plaintiff in person. The ALJ largely
discredited the opinions of Dr. Humphrey, who was
clearly aware of Plaintiff's obesity given his ongoing
in-person treatment of Plaintiff, his use of the term and his
documentation of same throughout the record. Lastly,
Plaintiff explicitly testified at the hearing before the ALJ
about the amount of weight he had put on since stopping work
in 2012 (R. 34-35). Therefore, the Court cannot find that the
ALJ thoroughly considered all of Plaintiff's work
limitation in his review of the record and Plaintiff's
Adult Functioning Report. See Lynch v. Astrue, 2011
WL 7640122 (N.D. W.Va., Oct. 31, 2011), Report and
Recommendation adopted sub nom. Lynch v. Comm'r
of Soc. Sec. Admin., 2012 WL 1085766 (N.D. W.Va., Mar.
30, 2012) (opinion not supported by substantial evidence when
Plaintiff gained approximately 50 pounds after his stroke,
and testified regarding obesity at the hearing). Because the
ALJ's findings are not supported by substantial evidence,
and the doctors on whose opinions he relied did not appear
aware, the error cannot be considered harmless.
appealing the ALJ's decision, the claimant must specify
how his obesity (1) limits his functioning and (2)
exacerbates his or her own impairments. Moss v.
Astrue, No. 2:11cv44, 2012 WL 1435665, at 6 (N.D. W.Va.
Apr. 25, 2012) (citing Cook v. Astrue, 800 F.Supp.2d
897, 907-08 (N.D. Ill. 2011)). However, a Plaintiff is not
required to do so “exhaustively, ” but may do so
“generally” in a motion for summary judgment and
objections. Pritt v. Comm'r of Soc. Sec., 2014
WL 284499 (N.D. W.Va., January 24, 2014). Here, Plaintiff
devoted two pages of his Motion for Judgment on the Pleadings
to this issue, which satisfies this obligation. (ECF No. 8 at
Failure to Consider Disability Determination by the
also argues that, although not binding under 20 CFR §
404.1504, an ALJ must still consider a disability
determination by the Department of Veterans Affairs
(“VA”) in his decision. SSR 06-03p
(“Evidence of a disability decision by another
governmental or nongovernmental agency cannot be ignored and
must be considered”). An ALJ must give
“substantial weight” to a VA disability rating,
unless the record “clearly demonstrates” that
less weight is appropriate. Bird v. Comm'r of Soc.
Sec. Admin, 699 F.3d 337, 343 (4th Cir. 2012).
Plaintiff was determined disabled for the purpose of
long-term disability payments from a nongovernmental entity,
Guardian Life Insurance Company (R. 137). Plaintiff also
asserts the ALJ failed to accord adequate weight to opinion
evidence from Veterans Affairs related to a service-connected
disability (R. 222). Because there is only a brief mention of
the VA disability determination and scant details, the Court
is unable to ascertain the date of that determination,
whether it was new or existing evidence, or whether any
relevant information from same was considered. Since neither
the ALJ nor the Commissioner discuss this, the Court assumes
that the ALJ either did not consider it at all, or at
minimum, failed to explain why it was not given substantial
weight. In either case, assuming Plaintiff was determined
disabled by the VA, and given that this case must be remanded
regardless for lack of substantial evidence, the ALJ should
both consider this evidence and either afford it substantial
weight, or explain why it should be given less weight.
summary, because the ALJ's cited evidence and reasons do
not support and frequently overtly contradict 1) finding
Plaintiff to be less than credible, and 2) failing to afford
controlling weight to treating physician Dr. Humphrey, the
Court must remand for the ALJ to make new findings regarding
credibility of both Plaintiff and treating physician Dr.
Humphrey that are sufficiently supported by substantial
evidence. Once made, the ALJ must then re-complete all steps
in which credibility played any role, using new credibility
findings supported by substantial evidence. In addition to
Plaintiff's credibility, this also includes affording
controlling weight to Plaintiff's treating physician
unless the ALJ is able to support less weight with evidence
from the record, consistent with a proper analysis of the
relevant factors. The ALJ must also likewise specify and
explain the weight afforded to Dr. Spaulding. The ALJ should
also consider and explain findings with regard to obesity and
any disability determination by the Veteran's
Administration, to the extent the Plaintiff documents it.
reasons herein stated, I accordingly recommend
Defendant's Motion for Summary Judgment be DENIED, and
the Plaintiff's Motion for Summary Judgment be GRANTED
and this matter be REMANDED for the reasons stated forth
party may, within fourteen (14) days after being served with
a copy of this Report and Recommendation, file with the Clerk
of the Court written objections identifying the portions of
the Report and Recommendation to which objection is made, and
the basis for such objection. A copy of such objections
should also be submitted to the Honorable John P. Bailey,
United States District Judge. Failure to timely file
objections to the Report and Recommendation set forth above
will result in waiver of the right to appeal from a judgment
of this Court based upon such Report and Recommendation. 28
U.S.C. § 636(b)(1); United States v. Schronce,
727 F.2d 91 (4th Cir. 1984), cert. denied, 467 U.S.
1208 (1984); Wright v. Collins, 766 F.2d 841 (4th
Cir. 1985); Thomas v. Arn, 474 U.S. 140 (1985).
Clerk of the Court is directed to provide an authenticated
copy of this Report and Recommendation to counsel of record.
 “Patient's mother had a
stroke before she turned 60 years old. His sister had a MI
prior to being 60 years old” (R. 235).
 Plaintiff also reported working at
Wings Ole from February 1997 - February 1999, further details
of which are omitted from this review as non-applicable to
the issues at hand.
 Step one is fulfilled here. The ALJ in
his decision stated that Plaintiff's “medically
determinable impairments could reasonably be expected to
cause the alleged symptoms . . .” (R. 17). Thus, the
Court addresses only Step Two.
 “There is a chronic 20 x 12 mm
area of encephalomalacia in the right inferior cerebellum
consistent with an old infarct. There is a tiny 3 mm
punctuate area of focal volume loss in the left cerebellum
that may be a asmall old lacunar infarct. No edema or acute
process. These are unchanged since prior study” (R.
 Infarcts are indicative of brain
tissue necrosis, of which Claimant had at least two, and
which were described as “chronic” (i.e.,
long-term and ongoing).
 “In reaching his credibility
determination, The ALJ found that although Kearse suffered
from impairments that could cause some of the alleged
symptoms, the objective medical evidence did not support the
alleged severity. An extensive analysis of the objective
medical evidence revealed that Kearse did not begin to
complain of headaches until after filing his disability
applications. Furthermore, there is no objective evidence in
the record to support such complaints. Moreover, although
Kearse testified that he had to be hospitalized approximately
twice a year for such headaches, there is no such supporting
documentation contained in the record. Kearse noted several
times that he either took no prescription medication, or only
samples that he received from the hospital. Instead, the
record reveals that he took only Tylenol and Motrin for pain.
See Shively, 739 F.2d at 989-90 (upholding the
ALJ's finding that claimant's pain was not as severe
as he alleged based partly on the prescribed medications of
 Zohydro ER (hydrocodone bitartrate) -
Drug Summary. Retrieved October 25, 2016 from Physicians'
Desk Reference Online (PDR.net):
 Physicians' Desk Reference 604
(PDR; 69th ed. 2015).
 The Court found the word
“ibuprofen” three (3) times in Claimant's
318-page record; two of those instances were in medical
records from October 2011, prior to Claimant's
alleged onset date of May 21, 2012 (R. 253, 255).
On Page 1 of records from Health
Bridge Imaging, LLC (R. 299, Exhibit No. 7F), the findings
from Dr. Gregory Myers are as follows:
Findings: No significant change from the prior
C3/4: Focal thickening/calcification of the left
ligamentum falvum and lavina indenting the left
thecal sac w central canal stenosis. No evidence of
C4/5: Congenitally short pedicals combined with
mild chronic disc bulge and marginal spurring
on the left moderate central canal). There is also
moderate to marked left lateral recess and moderate
foraminal stenosis  the left C5 nerve. If there is a
left C5 radiculopathy, this may be clinically
C5/6: Chronic small right paracentral disc protrusion
combined with short pedicles results in moderate
central can The disc abuts the right ventral
C6/7: Chronic small posterior midline disc protrusion
causing mild to moderate central canal stenosis.
Moderate  narrowing. No definite neural
13. How often during a typical
workday is your patient's experience of
painorothersymptomssevere enough to interfere with
attention and concentration needed to perform even simple
work tasks? [emphasis added] (R. 303).
Never Rarely Occasionally Frequently
Taber's Cyclopedic Medical
Dictionary (22nd ed. 2013).
On page 2 of the Physical Residual
Functional Capacity Questionnaire, Questions 10 through 12
explicitly solicit an opinion from the treating physician on
emotional and psychological impairments:
10. Do emotional factors contribute to the severity of
your patient's symptoms and functions
11. Identify any psychological conditions affecting
your patient's physical condition:
Psychological factors affecting physical
12. Are your patient's impairments (physical
impairments plus any emotional impairments) reasonably
consistent with the symptoms and functional limitations
described in this evaluation?
Yes No If no, please explain: ___
Question 16 explicitly solicits an opinion from the
treating physician as to limitations that affect a
Claimant's ability to workt [sic] a regular job on a
sustained basis, to which Dr. Humphrey responded in relevant
part: “He is unable to be gainfully employed on a
full time basis” (R. 305) [emphasis added], to
which the ALJ objected. The question that immediately follows
(Question 17), however, explicitly asks:
17. In your expert opinion, do you feel
that the patient is capable of working a full-time work
any level of exertion (8 hours per day, 5 days per
week)? [emphasis added]
The Court can see no qualitative difference between
Dr. Humphrey's written response to Question 16 and his
circling of “No” on Question 17. The Court
observes that this precise opinion is being solicited from a
physician, but when he gives it as requested, promptly
disregarded by an ALJ as one “reserved for the