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Roush v. Berryhill

United States District Court, S.D. West Virginia, Charleston Division

November 3, 2017

KELLY YVONNE ROUSH, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          PROPOSED FINDINGS AND RECOMMENDATION

          Omar J. Aboulhosn United States Magistrate Judge

         This is an action seeking review of the final decision of the Acting Commissioner of Social Security dying the Plaintiff's applications for Disability Insurance Benefits (DIB) under Title II and for Supplemental Security Income (SSI) under Title XVI of the Social Security Act, 42 U.S.C. §§ 401-433, 1381-1383f. By Order entered October 20, 2017 (Document No. 15.), this case was referred to the undersigned United States Magistrate Judge to consider the pleadings and evidence, and to submit proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Presently pending before the Court is Plaintiff's Memorandum in Support of Judgment on the Pleadings and Defendant's Brief in Support of Defendant's Decision. (Document Nos. 12 and 13.)

         Having fully considered the record and the arguments of the parties, the undersigned respectfully RECOMMENDS that the United States District Judge DENY Plaintiff's request for judgment on the pleadings (Document No. 12.), GRANT Defendant's request to affirm the decision of the Commissioner (Document No. 13.); AFFIRM the final decision of the Commissioner; and DISMISS this action from the docket of the Court.

         Procedural History

         The Plaintiff, Kelly Yvonne Roush (hereinafter referred to as “Claimant”), protectively filed her applications for Title II benefits and for Title XVI benefits on August 28, 2013, alleging disability beginning October 27, 2011 due to “spinal problems, cervical problems, strokes, fibromyalgia, severe edema in hips and legs, and coronary artery disease”.[1] (Tr. at 175-176, 177-183, 184-189, 202.) Her claims were initially denied on October 22, 2013 (Tr. at 101-105, 106-110.) and again upon reconsideration on December 17, 2013. (Tr. at 115-117, 118-120.) Thereafter, Claimant filed a written request for hearing on January 21, 2014. (Tr. at 121-122.)

         An administrative hearing was held on April 28, 2015 before the Honorable John T. Molleur, Administrative Law Judge (“ALJ”). (Tr. at 32-64.) On June 23, 2015, the ALJ entered an unfavorable decision. (Tr. at 14-31.) On August 18, 2015, Claimant sought review by the Appeals Council of the ALJ's decision. (Tr. at 248, 249-252.) The ALJ's decision became the final decision of the Commissioner on December 13, 2016 when the Appeals Council denied Claimant's Request for Review. (Tr. at 1-6.) On February 8, 2017, Claimant timely brought the present action seeking judicial review of the administrative decision pursuant to 42 U.S.C. § 405(g). (Document No. 2.) In response, the Commissioner filed an Answer and a Transcript of the Administrative Proceedings. (Document Nos. 8 and 9.) Subsequently, Claimant filed a Memorandum in Support of Judgment on the Pleadings (Document No. 12.), in response, the Commissioner filed a Brief in Support of Defendant's Decision (Document No. 13.), to which Claimant filed her Reply. (Document No. 14.) Consequently, this matter is fully briefed and ready for resolution.

         Claimant's Background

         Claimant was 39 years old as of the alleged onset date, and is defined as a “younger person” throughout these proceedings. See 20 C.F.R. §§ 404.1563(c), 416.963(c). (Tr. at 39.) Claimant went to school through the ninth grade, but did not obtain a GED. (Id.) She last worked in October 2011 as a part time employee, and before that, her earnings totaled about $4, 500 in 2004 through 2005. (Tr. at 39-40.)

         Standard

         Under 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).

         The Social Security Regulations establish a “sequential evaluation” for the adjudication of disability claims. 20 C.F.R. §§ 404.1520, 416.920. 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(f), 416.920(f). 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. Id. §§ 404.1520(g), 416.920(g). 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).

         Summary of ALJ's Decision

         In this particular case, the ALJ determined that Claimant met the requirements for insured worker status through June 30, 2016. (Tr. at 19, Finding No. 1.) Moreover, the ALJ determined that Claimant satisfied the first inquiry because she had not engaged in substantial gainful activity since October 27, 2011, the alleged onset date. (Id., Finding No. 2.) Under the second inquiry, the ALJ found that Claimant suffered from the following severe impairments: obesity; degenerative disc disease of the cervical and lumbar spine; and coronary artery disease with pitting edema. (Id., Finding No. 3.) At the third inquiry, the ALJ concluded that Claimant's impairments did not meet or equal the level of severity of any listing in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 22, Finding No. 4.) The ALJ then found that Claimant had the residual functional capacity (“RFC”)to perform sedentary work

except she could never climb ladders, ropes or scaffolds, but could occasionally climb ramps and stairs. She can occasionally balance, stoop, kneel, crouch, and crawl. The claimant can have no exposure to unprotected heights or loud industrial-type background noise. She can reach overhead and frequently reach in all other directions with bilateral upper extremities.

(Tr. at 22-23, Finding No. 5.)

         At step four, the ALJ found that Claimant had no past relevant work. (Tr. at 25, Finding No. 6.) The ALJ then determined that based on Claimant's age, education, ability to communicate in English, and the immateriality of transferability of Claimant's job skills, that the RFC supported a finding that there are other jobs in the national economy that Claimant can perform. (Tr. at 26, Finding Nos. 7-10.) Ultimately, the ALJ determined that Claimant had not been under a disability from October 27, 2011 through the date of the decision. (Tr. at 27, Finding No. 11.)

         Claimant's Challenges to the Commissioner's Decision

         Claimant asserts two main grounds of error in support of her appeal.

         The first is that the ALJ failed to consider all the medical evidence of record concerning the severity of Claimant's pitting edema in her lower legs, especially since he found it to be a severe impairment at step two. (Document No. 12 at 7-8.) Claimant argues the ALJ made mistakes of fact in the evidence regarding the treatment for Claimant's severe impairment that resulted in a flawed credibility finding, RFC assessment, and the decision denying her benefits. (Id. at 8-9.) Specifically, the ALJ minimized the considerable evidence concerning Claimant's inability to use certain medication to treat her edema and was referred to another doctor for an Unna Boot[2]evaluation, as she had difficulty wearing prescription compression socks. (Id.) Had the ALJ properly analyzed the medical evidence concerning this impairment, it would have made a major difference in the findings. (Id. at 9-10.)

         The second alleged ground of error is that the ALJ did not properly consider and weigh the opinion provided by Claimant's treating physician, James G. Gaal, D.O. (Id. at 10-12.) The ALJ gave Dr. Gaal's opinion little weight, and further totally disregarded certain portions of his opinion in contravention to the Regulations, rendering the decision unsupported by substantial evidence (Id. at 12-13.)

         Claimant asks the Court to reverse and remand the final decision for an award of benefits or for a correction of the errors made below. (Id. at 13.)

         In response, the Commissioner contends the ALJ considered Claimant's severe impairment of coronary artery disease with pitting edema at each step in the sequential evaluation process, which included the evidence provided by her treating physicians, and accommodated this impairment, as well as the other impairments, to a much reduced range of sedentary work. (Document No. 13 at 11.) The Commissioner also points out that the evidence showed that Claimant's edema waxed and waned over the relevant period, and it did not interfere with her ability to walk and stand. (Id. at 12.) Further, the medical records belie Claimant's assertion that her edema prevented her from using compression hose and that she needed a more intensive treatment with an Unna Boot. (Id. at 13-14.)

         Next, the Commissioner argues that the ALJ gave the appropriate weight to Dr. Gaal's opinion because his findings for more extreme limitations were not supported by the evidence of record, particularly by the clinical findings of treating and examining physicians. (Id. at 14-15.) With respect to Claimant's assertion that the ALJ did not address certain portions of Dr. Gaal's opinion, the Commissioner states that Dr. Gaal did not provide any medical or clinical findings to support them, and further, they were not supported by the evidence of record, but only by Claimant's own statements. (Id. at 15-16.)

         The Commissioner asks the Court to affirm the final decision, because it is supported by substantial evidence. (Id. at 16.)

         In reply, Claimant argues that the ALJ failed to consider all the evidence as mandated, and that the Commissioner provides post hoc rationale for the ALJ's evaluation of Dr. Gaal's opinion, and further, the ALJ did not adequately explain his reasons for discounting the treating physician's opinion. (Document No. 14 at 1-3.) Claimant renews her request for an order reversing and remanding the final decision to correct these errors. (Id. at 3.)

         The Relevant Evidence of Record[3]

         The undersigned has considered all evidence of record, including the medical evidence, pertaining to Claimant's arguments and discusses it below.

         Wirt County Health Services Associates, Inc.:

         Prior to her alleged onset date, Claimant sought treatment from Ronald E. Greer, M.D. through August 2013 for a variety of maladies including headaches, dizziness, edema, upper respiratory infections, cervical spine pain, and bronchitis. (Tr. at 378, 369.) At these appointments, Claimant frequently reported being self-reliant in her usual daily activities. (Tr. at 319, 335, 339, 343, 347, 351, 355, 359, 362, 366, 369, 379.) During clinical examinations, she frequently had normal sensation, normal deep tendon reflexes, and a normal ability to stand and walk. (Tr. at 370-371, 374, 380.)

         In November 2011, an x-ray of Claimant's cervical spine revealed degenerative disc disease. (Tr. at 405.) In October 2012 and May 2013, she had negative straight-leg raising. (Tr. at 340, 348.) Dr. Greer encouraged Claimant to exercise. (Tr. at 320, 336.)

         On August 21, 2013, Claimant complained of edema in her lower legs. (Tr. at 318.) Claimant reported being self-reliant in her usual daily activities. (Tr. at 319.) Dr. Greer observed that she had pretibial pitting edema of both lower extremities without varicosity changes. (Tr. at 320.) He instructed Claimant to continue taking a diuretic, start counting calories, start an exercise program, and stop smoking. (Id.)

         Pleasant Valley ...


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