United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
MICHAEL JOHNALON, UNITED STATES MAGISTRATE JUDGE
December 28, 2016, Plaintiff Daniel Wayne Salisbury, Sr.
(“Plaintiff”), by counsel Brian Bailey, Esq.,
filed a Complaint in this Court to obtain judicial review of
the final decision of Defendant Nancy A. Berryhill, Acting
Commissioner of Social Security (“Commissioner” or
“Defendant”), pursuant to Section 205(g) of the
Social Security Act, as amended, 42 U.S.C. § 405(g).
(Compl., ECF No. 1). On March 7, 2017, the Commissioner, by
counsel Helen Campbell Altmeyer, Assistant United States
Attorney, filed an answer and the administrative record of
the proceedings. (Answer, ECF No. 7; Admin. R., ECF No. 8).
On April 4, 2017, and April 25, 2017, Plaintiff and the
Commissioner filed their respective Motions for Summary
Judgment. (Pl.'s Mot. for Summ. J. (“Pl.'s
Mot.”), ECF No. 10; Def.'s Mot. for Summ. J.
(“Def.'s Mot.”), ECF No. 12). Following
review of the motions by the parties and the administrative
record, the undersigned Magistrate Judge now issues this
Report and Recommendation to the District Judge.
October 25, 2013, Plaintiff protectively filed his first
application under Title II of the Social Security Act for a
period of disability and disability insurance benefits
(“DIB”) and widow's disability benefits
(“WDIB”), and under Title XVI of the Social
Security Act for Supplemental Security Income
(“SSI”), alleging disability that began on
October 14, 2008. (R. 264). Plaintiff's earnings record
shows that he acquired sufficient quarters of coverage to
remain insured through June 30, 2012 (R. 297); therefore,
Plaintiff must establish disability on or before this date
(R. 41). This claim was initially denied on January 21, 2014
(R. 189) and denied again upon reconsideration on April 15,
2014 (R. 210). On April 23, 2014, Plaintiff filed a written
request for a hearing (R. 219), which was held before United
States Administrative Law Judge (“ALJ”) Jeffrey
P. La Vicka on November 17, 2015 in Morgantown, West
Virginia. (R. 38). Plaintiff, represented by counsel Brian
Bailey, Esq., appeared and testified, as did Casey Vass, an
impartial vocational expert. Id. On November 23,
2015, the ALJ issued an unfavorable decision to Plaintiff,
finding that he was not disabled within the meaning of the
Social Security Act. (R. 16). On November 8, 2016, the
Appeals Council denied Plaintiff's request for review (R.
1), making the ALJ's decision the final decision of the
was born on May 19, 1963, and was 50 years old at the time he
filed his claim. (R. 264). He obtained his GED (R. 51).
Plaintiff's prior work experience included a boiler
operator (2000-2006), laborer at a lumber company
(2006-2007), and maintenance and stocking shelves at Wal-Mart
(2007-2009). (R. 53). He was widowed at the time he filed his
initial claim (R. 264) and was widowed at the time of the
administrative hearing. (R. 38). He has two adult children,
but no dependent children. (R. 43-44). Plaintiff alleges
disability based on “depression, anxiety, suicidal,
back problems, leg problems, PTSD, diabetic, oxygen use,
COPD, [and] obese.” (R. 301).
Relevant Medical History
began care with Arbor Medical Associates in February of 2010.
Physician's assistant Christie Shoemaker noted after an
initial intake appointment on February 22, 2010 that
Plaintiff had been going to Chestnut Ridge for mental health
treatment “over the last couple of years” for
post-traumatic stress disorder (“PTSD”) after
witnessing his wife's suicide. (R. 432). PA-C Shoemaker
also noted that “[Plaintiff] has been diagnosed as
being bipolar and does take Buspar, Seroquel, Doxepin, and
Zoloft.” Id. At that time, Plaintiff was
having “significant issues” with his blood
pressure, pain in his hand after amputation of his right ring
finger, and back pain. Id. Plaintiff needed
prescription refills, including Hydrocodone for pain.
Plaintiff returned to Arbor Medical to see Dr. Eric Anger on
March 12, 2010. (R. 431). Dr. Anger noted obesity, and that
Plaintiff's history also included a fall from a roof, and
a suicide attempt two years ago. Id. Dr. Anger noted
that Plaintiff had tried multiple medications and a TENS unit
for his chronic back pain, none of which were effective.
Id. Dr. Anger directed Plaintiff to continue to
follow with Chestnut Ridge for treatment of his bipolar
disorder. (R. 432). He also prescribed an increased dosage of
Lortab for Plaintiff's low back pain and adjusted his
blood pressure medications. Id.
followup on May 7, 2010, Plaintiff continued to have
“moderate to severe” low back pain, for which
pain medications “t[ook] the edge off.” (R. 430).
At this visit, lower extremities were without edema
(swelling), and Plaintiff's range of motion in his lumbar
spine was decreased. Id. On July 9, 2010,
Plaintiff's low back pain was “severe at
times” and “not controlled with current pain
med[ication dosage].” (R. 429). Dr. Anger increased
Plaintiff's pain medication (Lorcet) for continued low
back pain, and increased Plaintiff's Seroquel for
anxiety/depression, noting Plaintiff's depression has
been “slightly worse.” (R. 429-430). On October
12, 2010, Plaintiff's depression was “somewhat
better, ” but back pain continued with additional pain
in “both heels.” (R. 428). On December 13, 2010,
Plaintiff continued to complain of “chronic low back
[pain] radiating into [his] hips, ” reporting that his
pain had been worse in the last few days. (R. 427). The pain
was “achy, constant, ” and present upon waking,
though clearing up after “about an hour.”
Id. Diagnoses at that visit included chronic lower
back pain, anxiety and depression (major), and claudication
(pain and/or cramping in the lower leg due to inadequate
blood flow to the muscles). Id.
March 14, 2011, Plaintiff reported that the Seroquel he had
been taking for his anxiety and depression had side effects
(“wiped [him] out” he could not tolerate,
although he did “do ok[ay] on extended release
medications.” (R. 426). It was unclear from Dr.
Anger's notes whether these extended release medications
were for depression and anxiety, or something else. In
addition to existing circulation issues already diagnosed
(claudication), Plaintiff also reported erectile dysfunction
as well. (R. 425). On June 14, 2011, Plaintiff reported that
Hydrocodone was giving “significant relief” of
his lower back pain. (R. 424). His activities of daily living
were “stable, but limited.” Id.
Plaintiff was following a diet and had lost fifteen to twenty
(15-20) pounds. Id.
August 5, 2011, Plaintiff reported to the Davis Memorial
Hospital emergency room complaining, in part, that his calf
had been painful, swollen, and tender for several days. (R.
368). On August 28, 2012, Plaintiff was again seen for right
foot pain that had lasted over a week, described as feeling
like “a knife is sticking him in [the] foot, ”
and alternately, “like a Charlie horse.” (R.
408). The attending medical personnel noted that his right
foot was swollen, especially below the joint of his big toe.
Id. Plaintiff's uric acid levels were tested to
rule out gout. (R. 412).
next followup with Dr. Anger on September 2, 2011, Plaintiff
reported that his breathing was better after a bout with
pneumonia. (R. 422). His gastroesophageal reflux (GERD) was
controlled with medication. Plaintiff's chronic low back
pain continued, but he now had neck pain and numbness in his
arms and legs that was worse with sitting. Id. A pop
can test was positive on the right side (though Dr. Anger did
not specify whether pain, weakness, or both), with
accompanying positive Phalen's test and Tinel's sign.
Id. Dr. Anger also noted that Plaintiff continued to
smoke, though he had tried to quit (including calling the
quitline) in the past. Id.
September 15, 2011, Plaintiff complained of numbness in his
hand, stating that he had injured two fingers on his left
hand and “did not feel it.” (R. 421). At his
November 3, 2011 followup, Dr. Anger noted that Plaintiff
needed to lose weight and discussed exercise with him, also
noting that Plaintiff had lost thirty pounds at that point
(R. 419-20). Plaintiff also complained that his Buspar was
not working, reporting that he coughs until he passes out.
(R. 419). Low back pain, frequent urination, and anxiety
continued; COPD was also assessed. Id. By April 19,
2012, Plaintiff reported being “very anxious [and]
nervous, ” with “continuous anxiety, ”
without panic attacks. (R. 416). Plaintiff had “shaking
of the knees.” (R. 417). His breathing was
“worsening;” he had been smoking more recently
due to his increased anxiety. Id. Plaintiff was
started on Klonopin and Celexa for anxiety/depression.
Id. At his next followup on June 7, 2012, Plaintiff
reported that Klonopin was helping with his anxiety. (R.
415). Dr. Anger noted paraspinal lumbar tenderness,
bilateral, lateral to L1 and L2, without spasms. Id.
On December 19, 2012, Plaintiff complained of difficulty
breathing, pain and tightness in his chest with cough,
swelling in his feet and legs that was worse with standing,
and fatigue. (R. 413).
transthoracic echocardiogram on January 17, 2013 revealed
mild left ventricular hypertrophy, normal ejection fraction
(60-65%), mild diastolic dysfunction, mild dilation of the
left atrium (R. 441), and trace mitral regurgitation (R.
435). Plaintiff returned to Dr. Anger on February 27, 2013,
complaining about his anxiety. (R. 491). Dr. Anger noted that
Plaintiff exhibited a flat affect, though alert and oriented.
(R. 492). Plaintiff was “off his Celexa” at that
point, and wanted to increase his Klonopin dosage per his
anxiety. (R. 491). However, Dr. Anger did “not want to
[increase Plaintiff's] Klonopin at this time, ” and
instead started Plaintiff on Wellbutrin. (R. 492). He noted
Plaintiff's history of suicide attempts and discussed
possible side effect of suicidal ideation with Plaintiff.
Id. Dr. Anger also addressed counseling with
Plaintiff. Plaintiff's “most recent counseling was
in Morgantown, ” but Plaintiff did not want to attend
counseling at that point, noting that “he has trouble
being around people.” (R. 491).
completed a six-minute walk test on April 19, 2013. The
technician noted that Plaintiff had to stop walking after two
minutes and rest for seven seconds due to cramping in his
legs. (R. 479). However, Plaintiff's oxygen saturation
did not drop low enough to warrant oxygen on exertion.
Id. Imaging of Plaintiff's chest that same day
revealed mild lung hyperinflation, but no acute findings. (R.
480). Plaintiff saw Dr. Anger for followup on May 20, 2013,
where he continued to complain of trouble breathing
(dyspnea), swelling in his legs and feet (lower extremity
edema, and low back pain. (R. 489). Dr. Anger noted that
Plaintiff “had tried  stockings [for the swelling in
his legs and feet], but th[ey] increase [the swelling],
” and he “has trouble laying flat.”
Id. A stress test was ordered, and completed on June
19, 2013, with normal results (R. 476). A spectral cardiac
analysis done that same day was also normal. (R. 477). By
July 10, 2013, Plaintiff was reporting that his nerves were
“shot” and he could not sleep, as well as daily
chest pain for the past six months. (R. 488). Dr. Anger
observed venous stasis changes on Plaintiff's legs.
August 5, 2013, Plaintiff's breathing problems were
evaluated by Ronald Mudry, M.D. pursuant to referral by Dr.
Anger. (R. 466). Pulse oximetry (spirometry) revealed
“minimal obstructive lung defect, ” a
“decrease in flow rate at peak flow and flow at 25%,
50%, and 75% of the flow volume curve, ” FEF 25-75
changed by 12%, and lung volumes within normal limits. (R.
471). Dr. Mudry noted that the “spirometry suggests
restriction, [indecipherable], normal lung volume, [and]
normal diffusion capacity.” Id. Dr. Mudry
diagnosed Chronic Obstructive Pulmonary Disease (COPD) and
prescribed nocturnal oxygen for Plaintiff. (R. 472-73).
was seen by Dr. Anger again for follow-up on October 2, 2013,
reporting trouble with his blood sugar. Dr. Anger diagnosed
diabetes, and prescribed Metformin. (R. 484). On October 16,
2013, Dr. Anger noted that Plaintiff's anxiety had
increased despite him being “compliant with
medications” (R. 583):
Feels like nerves are shot. We were trying to limit his
temazepam, however, he states once daily [i]s not cutting it.
He feels like he is about [to snap]. He refuses to get
Appalachian Mental Health. He states he has been to West
Virginia University in past but cannot go there all the time.
(R. 584). On November 27, 2013, Dr. Anger informed Plaintiff
that he “needs to get better control of his diabetes,
” and provided him with “some handouts on diet
control.” (R. 577). At that visit, Plaintiff's
lower extremity swelling was “under decent control,
” but was still having shortness of breath on exertion.
(R. 580). Plaintiff advised that he had not gotten labs done
because he lost the paperwork for them, but would get them
taken care of. (R. 581).
January 27, 2014, Plaintiff was seen for follow-up with Jenny
Cross, M.D., after a sleep study (polysomnography) on
December 5, 2013. (R. 529). Plaintiff complained that he is
“tired all of the time and has daytime sleepiness every
day.” Id. Plaintiff scored 13 out of 24 on the
Epworth Sleepiness Scale, and a 10 on the self-report Asthma
Control Test. Id. Dr. Cross diagnosed obstructive
sleep apnea (severe) based on Plaintiff's polysomnography
results, and prescribed a PAP mask. (R. 530). Dr. Cross also
assessed hypersomnolence, nocturnal hypoxia, fatigue, asthma,
morbid obesity (with a BMI of 46.17), and snoring.
Id. Dr. Cross also noted that “narcotic pain
medication [which Plaintiff takes] increases the severity of
untreated [obstructive sleep apnea] and contributes to
respiratory control instability.” (R. 537).
March 26, 2014, Plaintiff had gotten his blood sugar
(typically in the 100s) and hemoglobin levels down;
“recent liver function tests [we]re still elevated but
improved.” Id. Plaintiff was watching his diet
and had lost a few pounds. (R. 568). He reported occasionally
drinking alcohol, but Dr. Anger advised him that he could not
drink any more with the medications he was on. Id.
Plaintiff's anxiety issues continued. Id. An
ultrasound on April 1, 2014 revealed “mild increased
echogenicity of the liver which may represent fatty
infiltration;” otherwise, results were unremarkable and
there was no evidence of cholelithiasis (R. 543). A left knee
imaging study on September 3, 2014 showed “mild early
osteoarthritis without definite acute fracture of
malalignment.” (R. 541). Lab results reviewed with Dr.
Anger on October 22, 2014 showed that Plaintiff's
cholesterol and hemoglobin levels had improved, though x-rays
showed arthritis. (R. 559). On November 19, 2014, Plaintiff
received an injection in his left knee (R. 549-551).
2, 2015 Plaintiff complained of heaviness in his left arm,
right ear discomfort, and “occasional sharp chest
pain.” (R. 598). His anxiety had been elevated.
Id. Plaintiff reported that his pain was controlled
“fairly well, ” though “some days [we]re
better than others, ” and pain continued in his knees,
back, shoulders, and all joints. Id. On July 14,
2015, Plaintiff continued to have back pain; Dr. Anger told
him to “decrease activity” and continue pain
medication to “help take the edge off, ” which
Plaintiff said provided “moderate control.” (R.
593). Plaintiff reported that Benicar was ineffective at
controlling his blood pressure and had stopped taking it,
asking to be switched to something else. Id. On
September 14, 2015, Plaintiff reported he was “doing
okay, ” and medications helped “somewhat.”
(R. 587). He was taking chronic pain medications for joint
discomfort, his blood pressure was elevated, and he was
experiencing “mood swings which range[d] from anger to
sadness.” Id. Plaintiff had eliminated soda
and was drinking more water; was exercising more and had lost
weight, but continued to smoke. Id.
WV DHHR MRT Physical Form Completed by Treating
January 19, 2011, Dr. Anger completed a Physical Examination
for the West Virginia Department of Health and Human
Resources' (DHHR) Medical Review Team (MRT) pursuant to
Plaintiff's evaluation for adult Medicaid. (R. 450). Dr.
Anger observed obesity, varicose veins and edema (swelling)
in Plaintiff's legs; arteriosclerosis; bilateral pain in
Plaintiff's lumbar area, and a flat affect and depressed
mood. (R. 451). Dr. Anger diagnosed major depression and
anxiety, and low back pain. Id. Dr. Anger opined
that Plaintiff should avoid stressful work situations, and
would be unable to work full time for at least one year
“due to psychiatric and physical limitations.”
Consultative Examination - Internal
December 19, 2013, Dr. Stephen Nutter completed a
consultative examination of Plaintiff and reviewed medical
records. (R. 512). Dr. Nutter's impressions included
COPD, asthma, chronic cervical and lumbar strain,
degenerative arthritis, and chest pain. (R. 516). A
Ventilatory Function Form also dated December 19, 2013 and
signed by Angie Henshaw (credentials unspecified) indicated
“moderate restrictive pulmonary disease without
improvement after bronchodilator.” (R. 521).
Consultative Examination - Mental
January 14, 2014, Licensed Psychologist Morgan Morgan, M.A.
completed a consultative examination and mental assessment
consisting of a mental status examination and clinical
interview. (R. 523). Plaintiff's sister drove him to the
appointment. Id. Morgan observed that Plaintiff was
“rather sullen, ” but cooperative; his clothing
appeared “somewhat soiled, ” and his grooming was
“minimal.” Id. Plaintiff reported that
“he was admitted to Chestnut Ridge Hospital for
approximately two weeks for depression and [suicide attempt
by] overdose.” (R. 524). He subsequently continued to
receive psychiatric services at Chestnut Ridge on an
outpatient basis in 2010. Id. Morgan noted that
“these services may have lasted for a period of
reported a history of “recurrent depressive
episodes” dating back to the 1980s, as well as PTSD
beginning in 2006:
His current mood is described as depressed. He reported guilt
feelings. He frustrates easily and displays irritability. His
libido is diminished and he reported symptoms of anhedonia.
The client reported being socially withdrawn and avoidant. He
often ruminates over problems making it difficult to maintain
attention and concentration. He is forgetful. The client
reported a history of academic difficulties. The client
stated that he has occasionally heard an unspecified
individual "call his name, " although no one is in
the home. He reported one time in the remote past, seeing a
Confederate soldier pass through the ceiling onto the floor
and then later disappear. He denied any current psychosis.
The client reported that he has difficulty falling asleep due
to ruminations over stressors. He has difficulty breathing,
which causes awakenings in the night. He also reported being
awakened by nightmares. He does not feel rested. The
client's appetite is diminished. He denied significant
weight fluctuations. The client reported infrequent crying
spells, and often attempting to blunt his emotions. His
energy level was reported to be low. He reported a past
suicide attempt by overdose of drugs in 2009.
He also apparently had tried to asphyxiate himself in his
20s. The client indicated that he had once attempted to shoot
himself, although the gun misfired. The client denied any
current plan of suicide. He reported no history of homicidal
ideations. The client reported that he came home to discover
his wife had shot herself in the head, and since that time,
he has been suffering nightmares and intrusive memories. He
reported hypervigilance, avoidance to stimuli that remind him
of this past issue, as well as triggers that remind him of
these symptoms. He reported that these symptomatologies occur
on a daily basis.
(R. 523-24). Plaintiff also reported a history of difficulty
with others, including “a history of significant
disciplinary problems” at school and being suspended
“often” because of fighting; being fired from
Coastal Lumber Company “after an issue arose and he
threatened his employer;” a history of
“problematic” relationships with coworkers and
supervisors; and a history of troubled relationships with
both of his ex-wives. (R. 525).
the Mental Status Examination, Morgan wrote:
The client arrived wearing worn and somewhat soiled clothing,
displaying minimal hygiene and grooming. He exhibited
significant body odor. He is reported to be 6 feet 1 inch
tall, and weighs 350 pounds. He was cooperative during the
assessment, although thoroughly disgruntled at being here.
His eye contact was adequate as the assessment progressed.
His level of spontaneity was adequate. The length and depth
of his verbal responses were within normal limits. His
demeanor depicted a history of extroversion, although he was
clearly tense and uncomfortable today. The client's
speech was both relevant and coherent, but at a mildly slowed
pace. He was oriented to time, name, place, and date. The
client's mood was dysphoric and irritable, as well as
anxious. He displayed a restricted affect. The client did not
display signs or symptoms of psychosis. His statements of
past socialization and presentation strongly suggest
maladaptive personality features. His insights were deemed to
be moderately deficient, based upon his statements and
presentation. The client's judgments were deemed to be
within normal limits, based upon his statements. He did not
display signs or symptoms of suicidal or homicidal ideation.
His immediate recall was observed to be within normal limits,
as he was capable of immediate recall of four words. The
client's recent recall was observed to be severely
deficient, as he was later capable of producing one of the
four words after a 15-minute delay. The client's remote
recall was observed to be moderately deficient, based upon
his ability to produce historic and personal facts. The
client's concentration was observed to be mildly
deficient, based upon a scaled score of 7 on the Digit Span
subtest of the WAIS-IV. He displayed slow personal tempo.
(R. 524-25). Morgan described Plaintiff's demeanor as
sullen and disgruntled; his mood as dysphoric, irritable, and
anxious; his affect as restricted; and his tempo as slow. (R.
526). Plaintiff's “presentation and statements
depicted a history of maladaptive personality
features.” Id. Immediate memory was within
normal limits, recent recall was severely deficient, and
remote recall was moderately deficient. Id.
Concentration was mildly deficient. Id. Below
average intelligence was suggested. Id.
reported limited daily activities, consisting of simple food
preparation “occasionally, ” infrequent trips to
the laundromat, grocery shopping once a week, and a
“few” household chores, which he can do for about
two minutes before needing to rest for half an hour. (R.
527). Plaintiff reported a “limited social
network” (including a cousin, his ex-brother-in-law,
and sister). Id. Plaintiff attended no social
activities, did not speak on the telephone, and was not
dating. Id. His interactions were limited to visits
from his ex-brother-in-law and cousin “a couple times
assessed Plaintiff's social functioning as
“severely deficient.” (R. 527). His diagnostic
impressions included 1) “Major Depressive Disorder,
recurrent, severe, without psychotic features, without full
interepisode recovery; 2) Posttraumatic Stress Disorder, and
3) Alcohol Use Disorder, moderate. (R. 526). Concentration
was mildly deficient; persistence, pace, and recent memory
were severely deficient; immediate memory was within normal
limits. (R. 527). Insight was moderately deficient; judgment
was within normal limits. (R. 525). Morgan noted that
Plaintiff would “not be able to appropriately manage
his own finances due to his history of alcohol
consumption.” Id. Morgan opined that
Plaintiff's prognosis was “poor.” (R. 526).
Disability Determination at the Initial Level
January 2, 2014, SDM Steven Snow reviewed Plaintiff's
records and completed a physical residual functional capacity
(“PRFC”) assessment. (R. 94-95). Snow found the
following exertional limitations: Plaintiff could
occasionally lift and/or carry twenty (20) pounds; frequently
lift and/or carry ten (10) pounds; stand, walk, and/or sit
for about six (6) hours in an eight (8) hour workday; and
unlimited pushing and/or pulling. (R. 94). As to postural
limitations, Plaintiff could occasionally climb ramps,
stairs, ladders, ropes, and scaffolds; occasionally balance,
stoop, kneel, crouch, and crawl. (R. 94). No manipulative,
visual, or communicative limitations were found. Id.
As to environmental limitations, Plaintiff could have
unlimited exposure to wetness, humidity, noise, and
vibration, but was to avoid concentrated exposure to hazards,
extreme cold and extreme heat; and avoid even moderate
exposure to fumes, odors, dusts, gases, poor ventilations,
etc. (R. 95).
January 20, 2014, agency reviewer Joseph Shaver, Ed.D.
completed a psychiatric review technique (“PRT”)
and mental residual functional capacity (“MRFC”)
assessment. (R. 95-97). As to the B Criteria, Shaver found
mild restriction of activities of daily living, moderate
difficulties in maintaining social function, and moderate
difficulties in maintaining concentration, persistence or
pace. (R. 92). As to understanding and memory limitations,
Shaver found moderate limitations in Plaintiff's ability
to understand and remember detailed instructions. (R. 96). As
to sustained concentration and persistence limitations,
Plaintiff was moderately limited in his ability to perform
activities within a schedule, maintain regular attendance,
and be punctual within customary tolerances. (R. 96).
Plaintiff also had moderate limitations in his ability to
complete a normal workday and workweek without interruptions
from psychologically-based symptoms and to perform as a
consistent pace without an unreasonable number and length of
rest periods. Id. As to social interaction
limitations, Plaintiff was moderately limited in his ability
to get along with coworkers or peers without distracting them
or exhibiting behavioral extremes, and moderately limited in
his ability to accept instructions and respond appropriately
to criticism from supervisors. (R. 96-97). As to adaption
limitations, Plaintiff was moderately limited in his ability
to respond appropriately to changes in the work setting. (R.
97). In the remaining areas, Shaver found no significant
explanation was as follows:
MSE (1I15/ 14) rated recent memory, pace and persistence as
severely impaired while concentration was only mildly
deficient. Although Clmt's social functioning was also
reported to be severely impaired, he was cooperative during
the evaluation process and maintained good eye contact. His
level of spontaneity was adequate. Clmt is reported to have a
network of people with whom he interacts. With regards to
ADLs, Clmt fixes easy foods, grocery shops and handles
personal finances. It is believed that Clmt retains the
mental capacity to operate in work-like situations that do
not require high levels of concentration, large amounts of
social interaction or strict production quotas.
Disability Determination at the Reconsideration
April 8, 2014, agency reviewer A. Rafael Gomez, M.D. reviewed
the prior PRFC Assessment and affirmed Snow's initial
PRFC as written. (R. 143). Dr. Gomez then made an additional
notation labeled “RFC - Additional Explanation”
that stated “Patient has morbid obesity level III, back
pain. Was reduced to light RFC prior to DLI.” (R. 145).
April 3, 2014, agency reviewer Jim Capage, Ph.D. completed a
second PRT for the time period from May 3, 2011 to June 30,
2012, and found insufficient evidence to rate the B and C
criteria of the listings. (R. 139). On the same day, Capage
completed a third PRT for the current evaluation period,
evaluating Plaintiff under listings 12.04, 12.06, and 12.09.
As to the B Criteria, Capage found mild restriction of
activities of daily living, moderate difficulties in
maintaining social function, and moderate difficulties in
maintaining concentration, persistence or pace. (R. 140).
understanding and memory limitations, Capage found moderate
limitations in Plaintiff's ability to understand and
remember detailed instructions. (R. 145). As to sustained
concentration and persistence limitations, Plaintiff was
moderately limited in his ability to carry out detailed
instructions, to perform activities within a schedule,
maintain regular attendance, and be punctual within customary
tolerances. (R. 146). Plaintiff also had moderate limitations
in his ability to complete a normal workday and workweek
without interruptions from psychologically-based symptoms and
to perform as a consistent pace without an unreasonable
number and length of rest periods. Id. As to social
interaction limitations, Plaintiff was moderately limited in
his ability to accept instructions and respond appropriately
to criticism from supervisors, to get along with coworkers or
peers without distracting them or exhibiting behavioral
extremes, and to maintain socially appropriate behavior and
to adhere to basic standards of neatness and cleanliness. (R.
146). As to adaption limitations, Plaintiff was moderately
limited in his ability to respond appropriately to changes in
the work setting. (R. 147). All other areas were not
significantly limited or contained no evidence of limitation.
Id.Capage's explanation was as follows:
“MRFC assessment indicates that the cl[aimant] can
learn and perform at least routine 2-3 step work-related
activities in a setting that keeps change to a minimum. Tasks
should be low stress with no fast-paced production quotas, no
complex decision making, and no supervisory responsibilities.
He is best suited to work on his own in a setting that calls
for no more than occasional and superficial social
ALJ hearing held on November 17, 2015, Plaintiff testified
that he was widowed, and has two adult children in their
thirties who do not reside with him. (R. 43-44). Plaintiff
testified that he had lived alone for “probably over a
year” in a “leaky camper” belonging to a
friend. (R. 44). The camper has two steps that Plaintiff had
to use “maybe five or six times” per day to use
the restroom outdoors. (R. 45).
testified that he had obtained his GED, and had no other
on-the-job training or education. (R. 51). Plaintiff had no
income; he testified that he received food stamps and a
medical card monthly. Id. Plaintiff had previously
worked at a sawmill; he left that job to work at Walmart
because it “paid a little more money [and] was
easier.” (R. 54). Plaintiff last worked at Walmart
where he started out in maintenance and eventually began
stocking shelves. (R. 53). Plaintiff left that job because
his wife committed suicide. Id. He did not recall
whether he had looked for work after that. Id.
Plaintiff alleged disability beginning October 14, 2008, when
he attempted suicide (R. 52).
hearing, Plaintiff testified as to his physical and mental
conditions. When his attorney asked him to start with the
condition he felt most interfered with his ability to work,
A My whole body feels like it's asleep. My brain feels
like it's -- I don't know how it feel.
Q Say again?
A I [sic] mental state -- I can't stand to be around
people. Every joint and my body hurts. My legs -- I can't
hardly walk. To walk from here to you, I would be out of
breath [I'd] have to lean up against a wall or something.
(R. 54). In 2003, Plaintiff's hand was “crushed,
” requiring surgery and physical therapy after his
finger had to be amputated. (R. 55). Plaintiff was taking
Seroquel, Buspar, Benicar, Metoprolol, Symbicort, and
“a bunch of others” whose names he could not
recall. (R. 55). He was not aware of any side effects or
problems from his medications. Id. Plaintiff's
attorney questioned him regarding his alcohol consumption.
Plaintiff had a DUI “at least 15 years ago.” (R
57). Presently, “it [had] been a few a months”
since he had consumed any alcohol, the last occasion
involving drinking “half a beer” when a friend
stopped by his camper. (R. 56).
also testified regarding his daily activities. Plaintiff goes
out “once a week” to attend doctor's
appointments and get food, but his activities were limited to
that because he could not “stand to be around
people.” (R. 46). Plaintiff's license was suspended
“probably 20 years ago” after he got a speeding
ticket. Id. Plaintiff estimated that he had not
driven in at least “six months or so, ” though it
had likely been “a lot longer.” (R. 46-47). When
Plaintiff needs to go somewhere, he has to call his cousin
Ronald or his ex-brother-in-law Victor to get a ride. (R.
camper “ha[s] no water in [it], ” so Plaintiff
cannot shower or do laundry at home. (R. 57). Rather, he had
his “first shower . . . in probably over a month”
the night before the hearing at his cousin's house.
Id. He used to take his laundry to the Laundromat to
wash, but no longer has a way to do that since he “quit
driving [his] truck” “months ago.” (R. 58).
Plaintiff makes himself a sandwich once or twice a day,
because that does not take much preparation and he does not
have to wash any dishes. (R. 57).
attorney asked him how he was feeling at the hearing.
Plaintiff responded that he was feeling “frustrated,
aggravated, nervous, nauseous” and “pissed
off.” (R. 58). He testified that he was upset by
“being around people” and “not being able
to do nothing” [sic]. Id. Plaintiff dislikes
authority figures, stating he “might tell them to kiss
my ass” if told to do something or criticized. (R. 59).
Plaintiff testified that he is easily aggravated and
frustrated when things do not work the way they should.
Id. He also gets “sad” daily, and
experiences frequent crying spells. Id. Plaintiff
explained “I think what it is is when I came home,
found my wife laying in the bed where she blowed [sic] her
brains out, I can't get that image out of my brain, and
it's like watching TV. I look over at the wall, I can see
her laying there on the bed with the - just - I just -
can't take it.” Id. “It's hard
to do anything whenever [inaudible] all you can see is your
dead wife laying there on the bed.” Id.
noted that the only real social interaction he usually has is
that his cousin will check on him “probably twice [a]
week for about maybe half [an] hour each visit.” (R.
60). Plaintiff explained that when his cousin visits him,
“part of [him] feels to have some company, and part of
[him] feels wish to hell he [would] get out of there and
leave me the hell alone.” Id. Plaintiff does
not adapt to change very well. Id.
testified that he cannot stand up for very long, because he
gets “lightheaded and dizzy.” (R. 61). He also
gets short of breath with activity, estimating that he could
sweep a floor for “a couple minutes” before he
would have to stop. Id. He also will sometimes
become short of breath when he is just sitting. Id.
When he is short of breath, he has an inhaler he uses, and
also tries “sit[ing] down, lean[ing] up against a wall,
[or] try to find something to hold onto.” (R. 62).
Plaintiff has been told to stop smoking by his doctors, so he
smokes less now than he used to, but has not been successful
at quitting entirely. Plaintiff “wishe[s he] could
quit, but it just ain't easy; [his] nerves are shot . . .
[he] get[s] aggravated and fee[s] like ripping [his] head off
or somebody else's head off[, and s]moking a cigarette
helps calm [him].” (R. 62).
also testified with regard to edema and swelling in his legs
that his legs “hurt like hell, ” they “stay
swoled [sic] up, ” and they also fall asleep. (R. 62).
Plaintiff testified that as a result of these problems with
his legs, he cannot stand up for more than ten (10) minutes
at a time. Id.
testifying at the hearing was Casey Vass, a vocational
expert. Mr. Vass characterized Plaintiff's past work at
the sawmill as a “lumber stocker, ” DOT code
922.687-070, which was heavy, semiskilled work with a
specific vocational preparation (SVP) of 2. (R. 64).
Plaintiffs past work at Walmart doing maintenance was
characterized as a “janitor, ” DOT code
381.687-018, which was medium, unskilled work with an SVP of
2. Id With regards to Plaintiffs ability to return
to his prior work, Mr. Vass gave the following responses to
the ALJ's hypothetical:
Q: Mr. Vass, assume a hypothetical individual the same age,
education, and work experience as the claimant, who retains
the capacity to perform light work with allow us to alternate
sitting and standing positions for up to two minutes at 30
minute intervals without going off task; who is limited to
know for control operation bilaterally; occasional posturals
except no climbing of ladders, ropes, or scaffolds; is
limited -- whose right, upper extremity is limited to
frequent handling and fingering, wouldn't require the use
of the fifth digit or the pinky finger on the dominant hand;
must avoid concentrated exposure to extreme cold and heat,
concentrated exposure to witness and humidity, concentrated
exposure to excessive vibration, all exposure to irritants
and chemicals, all exposure to unprotected heights, hazardous
machinery, and commercial driving; whose work is limited to
simple, routine, and repetitive tasks requiring only simple
decisions with no fast pace production requirements and few
workplace changes; who is to have no interaction with the
public and only occasional interaction with coworkers and
It is my understanding such an individual would be incapable
of performing the past work of the claimant, is that correct?
A: I agree.
(R. 65). Incorporating the above hypothetical, the ALJ then
questioned Mr. Vass regarding Plaintiffs ability to perform
Q Are there other jobs in the national economy that such an
individual could perform?
A I would list the first job as a kitchen worker. Code is
316.684-014, 402, 000 jobs in the nation. Assembler. Code is
729.684-046, 180, 000 jobs in the nation. A mail clerk. Code
is 209.687-026, 120, 000 jobs in the nation. These jobs are
light with an SVP of 2, unskilled.
Q Regarding tolerances, what are the customary tolerances a
typical employer would have us to an employee being [late] to
work or having unexcused or unscheduled absences, and if that
were exceeded, what would the result be?
A Frequency would be a day and a half a month. They would be
terminated if it exceeded that.
Q What are the customary number and length of breaks that a
typical employer permits during the workday?
A Usually morning, afternoon, 15 minutes, 30 minutes for
Q What are the customary tolerances for how much time during
an eight-hour workday a typical employer would permit an
employee to be off task in addition to regularly scheduled
breaks, and if that were exceeded, what with the result be?
A Ten percent at the workstation. Termination if exceeded.
Q Has all your testimony today been consistent with and
according to your experience at the DOT?
A Yes, your honor.
Q And if there's any deviation between your testimony at
the DOT, for example, sit/stand option or the fingering,
would those deviations based on your experience?
A Yes, sir.
(R. 65-66). Plaintiff's attorney questioned Mr. Vass when
provided the chance:
Q Mr. Vass, sit/stand option, if a person was asked to do
light work but can only stand for five minutes and then sit
down for 10 minutes, how would that affect the ...