United States District Court, S.D. West Virginia, Charleston
L. Tinsley, United States Magistrate Judge
an action seeking review of the final decision of the
Commissioner of Social Security denying the Plaintiff's
application for supplemental security income (SSI) under
Title XVI of the Social Security Act. The parties consented
to the undersigned United States Magistrate Judge ordering
the entry of final judgement. Presently pending before this
Court are Plaintiff's Brief in Support of Judgment on the
Pleadings (ECF No. 11) and Defendant's Brief in Support
of Defendant's Decision (ECF No. 12).
Alan McComas (hereinafter referred to as Claimant), applied
for SSI on April 17, 2012, alleging disability beginning
April 13, 2012. The claim was denied initially on August
7, 2012, and upon reconsideration on December 20, 2012.
Thereafter, Claimant filed a written request for a hearing
before an Administrative Law Judge (ALJ) on February 19,
2013. A hearing was held on May 14, 2014, in Huntington, West
Virginia. On June 27, 2014, the ALJ denied Claimant's
application for SSI (Tr. at 24). On August 25, 2014, Claimant
requested that the ALJ's decision be reviewed by the
Appeals Council (AC) (Tr. at 7). On August 17, 2015, the AC
denied Claimant's request for review (Tr. at 1-6).
Thereafter, Claimant filed the instant civil action.
42 U.S.C. § 423(d)(5) and ' 1382c(a)(3)(H)(i), a
claimant for disability benefits has the burden of proving a
disability. See Blalock v. Richardson, 483 F.2d 773,
774 (4th Cir. 1972). A disability is defined as the
"inability to engage in any substantial gainful activity
by reason of any medically determinable impairment which can
be expected to last for a continuous period of not less than
12 months . . . ." 42 U.S.C. § 423(d)(1)(A).
Social Security Regulations establish a "sequential
evaluation" for the adjudication of disability claims.
20 C.F.R. '' 404.1520, 416.920 (2015). If an
individual is found "not disabled" at any step,
further inquiry is unnecessary. Id. ''
404.1520(a), 416.920(a). The first inquiry under the sequence
is whether a claimant is currently engaged in substantial
gainful employment. Id. '' 404.1520(b),
416.920(b). If the claimant is not, the second inquiry is
whether claimant suffers from a severe impairment.
Id. '' 404.1520(c), 416.920(c). If a severe
impairment is present, the third inquiry is whether such
impairment meets or equals any of the impairments listed in
Appendix 1 to Subpart P of the Administrative Regulations No.
4. Id. '' 404.1520(d), 416.920(d). If it
does, the claimant is found disabled and awarded benefits.
Id. If it does not, the fourth inquiry is whether
the claimant's impairments prevent the performance of
past relevant work. Id. '' 404.1520(e),
416.920(e). By satisfying inquiry four, the claimant
establishes a prima facie case of disability.
Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
The burden then shifts to the Commissioner, McLain v.
Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983), and
leads to the fifth and final inquiry: whether the claimant is
able to perform other forms of substantial gainful activity,
considering claimant's remaining physical and mental
capacities and claimant's age, education and prior work
experience. 20 C.F.R. '' 404.1520(f), 416.920(f)
(2015). The Commissioner must show two things: (1) that the
claimant, considering claimant's age, education, work
experience, skills and physical shortcomings, has the
capacity to perform an alternative job, and (2) that this
specific job exists in the national economy. McLamore v.
Weinberger, 538 F.2d 572, 574 (4th Cir. 1976).
claimant alleges a mental impairment, the Social Security
Administration “must follow a special technique at
every level in the administrative review process.” 20
C.F.R. §§ 404.1520a(a) and 416.920a(a). First, the
SSA evaluates the claimant's pertinent symptoms, signs
and laboratory findings to determine whether the claimant has
a medically determinable mental impairment and documents its
findings if the claimant is determined to have such an
impairment. Second, the SSA rates and documents the degree of
functional limitation resulting from the impairment according
to criteria as specified in 20 C.F.R. §§
404.1520a(c) and 416.920a(c). Those sections provide as
(c) Rating the degree of functional limitation. (1)
Assessment of functional limitations is a complex and highly
individualized process that requires us to consider multiple
issues and all relevant evidence to obtain a longitudinal
picture of your overall degree of functional limitation. We
will consider all relevant and available clinical signs and
laboratory findings, the effects of your symptoms, and how
your functioning may be affected by factors including, but
not limited to, chronic mental disorders, structured
settings, medication and other treatment.
(2) We will rate the degree of your functional limitation
based on the extent to which your impairment(s) interferes
with your ability to function independently, appropriately,
effectively, and on a sustained basis. Thus, we will consider
such factors as the quality and level of your overall
functional performance, any episodic limitations, the amount
of supervision or assistance you require, and the settings in
which you are able to function. See 12.00C through 12.00H of
the Listing of Impairments in appendix 1 to this subpart for
more information about the factors we consider when we rate
the degree of your functional limitation.
(3) We have identified four broad functional areas in which
we will rate the degree of your functional limitation:
Activities of daily living; social functioning;
concentration, persistence, or pace; and episodes of
decompensation. See 12.00C of the Listings of Impairments.
(4) When we rate the degree of limitation in the first three
functional areas (activities of daily living, social
functioning; and concentration, persistence, or pace), we
will use the following five-point scale: None, mild,
moderate, marked, and extreme. When we rate the degree of
limitation in the fourth functional area (episodes of
decompensation), we will use the following four-point scale:
None, one or two, three, four or more. The last point on each
scale represents a degree of limitation that is incompatible
with the ability to do any gainful activity.
after rating the degree of functional limitation from the
claimant's impairment(s), the SSA determines their
severity. A rating of “none” or
“mild” in the first three functional areas
(activities of daily living, social functioning; and
concentration, persistence, or pace) and “none”
in the fourth (episodes of decompensation) will yield a
finding that the impairment(s) is/are not severe unless
evidence indicates more than minimal limitation in the
claimant's ability to do basic work activities. 20 C.F.R.
§§ 404.1520a(d)(1) and 416.920a(d)(1). Fourth, if
the claimant's impairment(s) is/are deemed severe, the
SSA compares the medical findings about the severe
impairment(s) and the rating and degree and functional
limitation to the criteria of the appropriate listed mental
disorder to determine if the severe impairment(s) meet or are
equal to a listed mental disorder. 20 C.F.R. §§
404.1520a(d)(2) and 416.920a(d)(2). Finally, if the SSA finds
that the claimant has a severe mental impairment(s) which
neither meets nor equals a listed mental disorder, the SSA
assesses the Claimant's residual functional capacity. 20
C.F.R. §§ 404.1520a(d)(3) and 416.920a(d)(3). The
Regulation further specifies how the findings and conclusion
reached in applying the technique must be documented at the
ALJ and Appeals Council levels as follows:
At the administrative law judge hearing and the Appeals
Council levels, the written decision issued by the
administrative law judge and the Appeals Council must
incorporate the pertinent findings and conclusions based on
the technique. The decision must show the significant
history, including examination and laboratory findings, and
the functional limitations that were considered in reaching a
conclusion about the severity of the mental impairment(s).
The decision must include a specific finding as to the degree
of limitation in each of the functional areas described in
paragraph (c) of this section.
20 C.F.R. §§ 404.1520a(e)(2) and 416.920a(e)(2).
particular case, the ALJ determined that Claimant satisfied
the first inquiry because he has not engaged in substantial
gainful activity since the application date, April 13, 2012
(Tr. at 13). Under the second inquiry, the ALJ found that
Claimant suffers from the severe impairments of spine
disorders, osteoarthritis and chronic pain syndrome. At the
third inquiry, the ALJ concluded that Claimant's
impairments do not meet or equal the level of severity of any
listing in Appendix 1 (Tr. at 15). The ALJ then found that
Claimant has a residual functional capacity (RFC) to perform
sedentary work, reduced by nonexertional
limitations (Tr. at 16). The ALJ concluded that
transferability of job skills is not an issue because
Claimant has no past relevant work (Tr. at 22). Claimant
could perform jobs such as inspector, sorter and a
surveillance system monitor. The vocational expert testified
that these positions exist in significant numbers in the
national economy (Tr. at 23). On this basis, benefits were
sole issue before this court is whether the final decision of
the Commissioner denying the claim is supported by
substantial evidence. In Blalock v. Richardson,
substantial evidence was defined as:
Evidence which a reasoning mind would accept as sufficient to
support a particular conclusion. It 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 verdict were the case before a jury, then there is
Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir.
1972) (quoting Laws v. Celebrezze, 368 F.2d 640, 642
(4th Cir. 1966)). Additionally, the Commissioner, not the
court, is charged with resolving conflicts in the evidence.
Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990). Nevertheless, the courts “must not abdicate
their traditional functions; they cannot escape their duty to
scrutinize the record as a whole to determine whether the
conclusions reached are rational.” Oppenheim v.
Finch, 495 F.2d 396, 397 (4th Cir. 1974).
careful review of the record reveals the decision of the
Commissioner is supported by substantial evidence.
was born on July 12, 1965. Claimant graduated from high
school and took auto mechanics classes in trade school during
his senior year of high school (Tr. at 39). At the time of
the hearing, Claimant was separated from his spouse and lived
alone (Tr. at 40). Claimant has a driver's license.
(Id.) Although he does not own a car, he borrowed
his mother's car to drive himself to the hearing (Tr. at
41). Claimant's son lives approximately three miles from
Claimant's home and Claimant's daughter lives
approximately 15 miles from Claimant's home (Tr. at 43).
Court adopts the medical record asserted by Claimant and
Defendant to the extent as follows:
March 1, 2012, Claimant established primary care with Lucia
Soltis, M.D., at the Lincoln County Primary Care Center (Tr.
at 305-307). Claimant stated that he had not been to a doctor
“in a while” (Tr. at 305). Claimant complained
about constant low back pain that radiated down his legs and
that was worse in the morning and that he felt better with
stretching. (Id.) Claimant stated that he had been
taking Lodine. On examination, Claimant was in no acute
distress (Tr. at 306). Claimant had tenderness to palpation
of the back, scoliosis, and pain on positive straight leg
raise testing. (Id.) X-rays showed mild degenerative
disc disease of the cervical spine and grade four
spondylolisthesis of L5 on S1 (Tr. at 307-309). Dr. Soltis
diagnosed Claimant with backache, neck pain, and lumbosacral
neuritis or radiculitis (Tr. at 307). Dr. Soltis prescribed
etodolac (a non-steroidal anti-inflammatory), gabapentin (a
pain medication), and cyclobenzaprine (a muscle relaxant).
March 19, 2012, Claimant was seen at the Prestera Center for
outpatient care for depression (Tr. at 323). Claimant
reported crying most days and that he tried not to be alone.
On examination, Claimant was withdrawn and had pressured
speech, a blunted affect, and some suicidal ideation.
However, he had a normal appearance, normal thought content,
full orientation, normal memory, appropriate eye contact, and
normal motor activity (Tr. at 324-325). Claimant was
diagnosed with major depressive disorder (Tr. at 325).
Charles R. Hoover, BA, recommended individual therapy and
prescribed Celexa and Trazodone (Tr. at 326).
initial psychological assessment on March 21, 2012, Claire
Belgrave, M.D., reported that Claimant had a normal
appearance, normal thought content, normal motor behavior,
linear thought process, a cooperative attitude, full
orientation, sad/anxious mood, congruent affect, fair memory,
fair concentration, average intelligence, and limited insight