United States District Court, S.D. West Virginia, Beckley Division
PROPOSED FINDINGS AND RECOMMENDATIONS
A. Eifert, Judge.
action seeks a review of the decision of the Commissioner of
the Social Security Administration (hereinafter
“Commissioner”) denying Plaintiff's
applications for a period of disability and disability
insurance benefits (“DIB”) and supplemental
security income (“SSI”) under Titles II and XVI
of the Social Security Act, 42 U.S.C. §§ 401-433,
1381-1383f. The matter is assigned to the Honorable Irene C.
Berger, United States District Judge, and was referred to the
undersigned United States Magistrate Judge by standing order
for submission of proposed findings of fact and
recommendations for disposition pursuant to 28 U.S.C. §
636(b)(1)(B). Presently pending before the Court are the
parties' motions for judgment on the pleadings as
articulated in their briefs. (ECF Nos. 15, 18, 19).
fully considered the record and the arguments of the parties,
the undersigned respectfully RECOMMENDS that
Plaintiff's request for judgment on the pleadings be
DENIED; the Commissioner's request for
judgment on the pleadings be GRANTED; the
Commissioner's decision be AFFIRMED; and
this case be DISMISSED and removed from the
docket of the Court.
9, 2011, Plaintiff Scottie Ray Peake (“Claimant”)
completed applications for DIB and SSI, alleging a disability
onset date of April 15, 2011, (Tr. at 252, 259), due to
“blood clots in heart, lungs, and right knee.”
(Tr. at 320). The Social Security Administration
(“SSA”) denied Claimant's applications
initially and on reconsideration. (Tr. at 119, 126-131).
Claimant filed a request for an administrative hearing, (Tr.
at 136), which was held on May 29, 2013, before the Honorable
Anne V. Sprague, Administrative Law Judge
(“ALJ”). (Tr. at 36-65). By written decision
dated August 7, 2013, the ALJ found that Claimant was not
disabled as defined in the Social Security Act. (Tr. at
100-109). On September 23, 2014, the Appeals Council remanded
the case to the ALJ, instructing the ALJ to more thoroughly
address Claimant's long-term anticoagulation therapy and
its effect on Claimant's ability to work. (Tr. at
on March 24, 2015, the ALJ conducted a second administrative
hearing. (Tr. at 66-92). By written decision dated June 8,
2015, the ALJ found that Claimant was not disabled as defined
in the Social Security Act. (Tr. at 17-30). The ALJ's
decision became the final decision of the Commissioner on
February 1, 2017, when the Appeals Council denied
Claimant's request for review. (Tr. at 1-6).
timely filed the present civil action seeking judicial review
pursuant to 42 U.S.C. § 405(g). (ECF No. 2). The
Commissioner subsequently filed an Answer opposing
Claimant's complaint and a Transcript of the
Administrative Proceedings. (ECF Nos. 11, 12). Claimant then
filed a Brief in Support of Judgment on the Pleadings, (ECF
No. 15); the Commissioner filed a Brief in Support of
Defendant's Decision, (ECF No. 18); and Claimant
submitted a reply memorandum. (ECF No. 19). Therefore, the
matter is fully briefed and ready for disposition.
was 36 years old at the time of his applications for DIB and
SSI, and 40 years old on the date of the ALJ's second
decision. (Tr. at 17, 252, 259). He has a high school
education and received additional training in carpentry and
insurance sales. Claimant communicates in English. (Tr. at
320-21). He has prior work experience as a childcare worker,
kitchen worker, landscape laborer, and insurance salesman.
(Tr. at 73-77, 321).
Summary of ALJ's Decision
42 U.S.C. § 423(d)(5), a claimant seeking disability
benefits has the burden of proving a disability. See
Blalock v. Richardson, 483 F.2d 773, 775 (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 has lasted or 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 five-step sequential
evaluation process for the adjudication of disability claims.
If an individual is found “not disabled” at any
step of the process, further inquiry is unnecessary and
benefits are denied. 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). The first step in the sequence is determining
whether a claimant is currently engaged in substantial
gainful employment. Id. §§ 404.1520(b),
416.920(b). If the claimant is not, then the second step
requires a determination of whether the claimant suffers from
a severe impairment. Id. §§ 404.1520(c),
416.920(c). A severe impairment is one that
“significantly limits [a claimant's] physical or
mental ability to do basic work activities.”
Id. If severe impairment is present, the third
inquiry is whether this impairment meets or equals any of the
impairments listed in Appendix 1 to Subpart P of the
Administrative Regulations No. 4 (the “Listing”).
Id. §§ 404.1520(d), 416.920(d). If so,
then the claimant is found disabled and awarded benefits.
if the impairment does not meet or equal a listed impairment,
the adjudicator must assess the claimant's residual
functional capacity (“RFC”), which is the measure
of the claimant's ability to engage in substantial
gainful activity despite the limitations of his or her
impairments. Id. §§ 404.1520(e),
416.920(e). After making this determination, the fourth step
is to ascertain whether the claimant's impairments
prevent the performance of past relevant work. Id.
§§ 404.1520(f), 416.920(f). If the impairments do
prevent the performance of past relevant work, then the
claimant has established a prima facie case of
disability, and the burden shifts to the Commissioner to
demonstrate, in the fifth and final step of the process, that
the claimant is able to perform other forms of substantial
gainful activity, given the claimant's remaining physical
and mental capacities, age, education, and prior work
experiences. 20 C.F.R. §§ 404.1520(g), 416.920(g);
see also McLain v. Schweiker, 715 F.2d 866, 868-69
(4th Cir. 1983). The Commissioner must establish two things:
(1) that the claimant, considering his or her age, education,
skills, work experience, and physical shortcomings has the
capacity to perform an alternative job, and (2) that this
specific job exists in significant numbers in the national
economy. McLamore v. Weinberger, 538 F.2d 572, 574
(4th Cir. 1976).
the ALJ determined as a preliminary matter that Claimant met
the insured status for disability insurance benefits through
December 31, 2015. (Tr. at 19, Finding No. 1). At the first
step of the sequential evaluation, the ALJ confirmed that
Claimant had not engaged in substantial gainful activity
since April 15, 2011, the alleged disability onset date.
(Id., Finding No. 2). At the second step of the
evaluation, the ALJ found that Claimant had the following
severe impairments: “degenerative disc disease of the
lumbar spine; degenerative disc disease of the knee and hip;
history of deep vein thrombosis (DVT) and pulmonary embolism
requiring long-term Coumadin therapy.” (Tr. at 19-20,
Finding No. 3). The ALJ found that other impairments, as
alleged or reflected in the record, were either non-severe or
not medically determinable. (Id.).
the third inquiry, the ALJ determined that Claimant did not
have an impairment or combination of impairments that met or
medically equaled any of the impairments contained in the
Listing. (Tr. at 20, Finding No. 4). Accordingly, the ALJ
assessed Claimant's RFC, finding that he possessed:
[T]he residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b), except the
claimant can occasionally crawl and climb ladders, ropes, and
scaffolds. He can frequently kneel, crouch, stoop, balance,
or climb ramps or stairs. He can have frequent exposure to
extreme heat, cold, and vibration.
(Tr. at 20-28, Finding No. 5). At the fourth step, the ALJ
found that Claimant was capable of performing past relevant
work as an insurance salesman, as this job did not require
the performance of work-related activities precluded by the
Claimant's RFC. (Tr. at 28-29, Finding No. 6). Despite
having made this determination, the ALJ proceeded to step
five of the sequential evaluation process. The ALJ considered
that (1) Claimant was categorized as a younger individual
aged 18-49 on the alleged disability onset date; (2) he had
at least a high school education and could communicate in
English; and (3) transferability of job skills was not
material to the disability determination. (Id. At
28). Given these factors and Claimant's RFC, with the
assistance of a vocational expert, the ALJ concluded that
Claimant could perform other jobs that existed in significant
numbers in the national economy; including housekeeper,
assembler, and sales attendant. (Tr. at 28-29, Finding No.
6). Accordingly, the ALJ found that Claimant was not disabled
under the Social Security Act. (Tr. at 29-30, Finding No. 7).
Claimant's Challenges to the Commissioner's
raises four challenges to the Commissioner's decision.
First, he claims that the ALJ underrated the severity of
Claimant's longstanding problem with recurrent DVT.
Claimant argues that the ALJ incorrectly interpreted the
evidence to show that Claimant had less than one DVT episode
per year; in actuality, he had three DVT episodes in 2015,
alone. (ECF No. 15 at 4). Second, Claimant asserts that the
ALJ erred by commenting on Claimant's use of narcotics,
implying that he abused drugs, but then failing to consider
the effect of Claimant's drug use on his ability to work.
(Id. at 4-5). Third, Claimant contends that the ALJ
erred when she found Claimant capable of performing past
relevant work as an insurance salesman. (Id. at
5-6). Claimant points to testimony offered by the vocational
expert in which she confirmed that Claimant could not work as
an insurance salesman if he needed an aid or device to
ambulate. (Id. at 5-7). Claimant indicates that he
regularly uses a cane to walk and stand. Therefore, he is not
capable of working as an insurance salesman. As additional
support for this position, Claimant relies on case law in
this District, which he believes clearly establishes that an
individual is not capable of light exertional work if he
requires an ambulatory aid. Claimant indicates that insurance
sales is categorized as light exertional work; consequently,
such a job position is not available to him. Finally,
Claimant alleges that the ALJ improperly rejected the opinion
of a treating physician, Dr. Richard Durham. Claimant
contends that the ALJ disregarded the opinion on the basis
that it was vague. Claimant argues that if the opinion was
indeed vague, the ALJ should have “fleshed out”
its meaning by contacting Dr. Durham and discussing the
opinion before simply declining it in its entirety.
(Id. at 7-8).
Brief in Support of the Commissioner's Decision, the
Commissioner responds that the ALJ accurately described the
history and status of Claimant's DVT episodes, noting
that Claimant only experienced a DVT when he failed to take
his medication as prescribed. (ECF No. 18 at 12-13). The
Commissioner adds that the ALJ had no obligation to assess
Claimant's use of narcotics in any greater detail than
was done, because the ALJ did not find Claimant to have a
drug addiction and did not find him to be disabled. The
Commissioner explains that drug addiction played no direct
role in the disability determination unless a claimant is
first found disabled. Only then must the ALJ assess the
impact of the drug addiction. (Id. at 13-14). With
respect to the ALJ's step four finding, the Commissioner
argues that the record is devoid of evidence that
Claimant's cane was medically required; accordingly, the
ALJ's determination that Claimant could perform light
work was supported by substantial evidence. (Id. at
14-16). The Commissioner maintains that, in any event, the
ALJ proceeded to step five and found other work that Claimant
could perform. Finally, the Commissioner posits that the ALJ
properly rejected Dr. Durham's opinion. In the
Commissioner's view, the ALJ had no obligation to seek
clarification from Dr. Durham, because the other evidence of
record provided a sufficient basis on which the ALJ could
make a disability determination.
undersigned has reviewed all of the evidence before the
Court, including the records of Claimant's health care
examinations, evaluations, and treatment. The evidence most
relevant to the issues in dispute has been summarized below.
provided treatment records from the Robert C. Byrd Clinic in
Lewisburg, West Virginia covering the time frame of July 2005
through June 2007. (Tr. At 504-49). These records discuss a
work-related injury suffered by Claimant in July 2005;
injuries in a November 2005 motor vehicle accident; and some
minor slip and falls that occurred in 2006. Claimant
generally complained about a herniated disc at ¶ 5,
cervical and lumbar strain, and radiculopathy. He was treated
with pain medications, manipulation, physical therapy, and
traction. (Id.). In January 2007, Dr. David
Essig-Beatty referred Claimant to Dr. John H. Schmidt, III, a
neurosurgeon in Charleston, West Virginia, to evaluate
Claimant's low back and right leg pain. (Tr. at 492-95).
Claimant described his pain, provided a history of his
injuries, and outlined his prior treatment. Dr. Schmidt
diagnosed Claimant with lumbosacral strain and spondylosis.
Dr. Schmidt not did believe surgery was indicated and instead
recommended conservative treatment with physical therapy,
heat, massage, and strengthening exercises. He suggested that
Claimant consider a cortisone injection to speed his
March 2007, Dr. Essig-Beatty referred Claimant to Dr. James
Leipzig, a spinal surgeon in Salem, Virginia, for a second
evaluation of Claimant's continued pain and disc
herniation. (Tr. at 497-98). After examining Claimant, Dr.
Leipzig diagnosed him with chronic back pain, significant
litigation issues, and mild desiccation at ¶ 4-L5 and
L5-S1. Dr. Leipzig found lumbar x-rays and an MRI to be
essentially normal, documenting that Claimant complained of
diffuse disability and back pain that required chronic
narcotic therapy, although there was no evidence of
structural injury. Dr. Leipzig believed Claimant could be
considered for pain management or physical therapy.
treatment records from the same time frame indicate that
Claimant was seen in June 2007 by a neurologist, Dr. John
Collins, who confirmed Claimant's degenerative disc
disease and disc bulging. (Tr. at 551). Dr. Collins advised
Claimant to continue taking Valium and Lodine XL and to
schedule an epidural steroid injection.
next treatment records in evidence are dated October 14, 2010
and reflect a visit Claimant made to Greenbrier Valley
Medical Center (“GVMC”). (Tr. at 403-04).
Claimant complained of a sudden onset of left flank pain that
radiated to his groin. He rated the pain at 10 on a 10-point
pain scale, stating that it was the worst pain he had ever
experienced, and he could find no position that would lessen
the pain. A CT scan of Claimant's abdomen and pelvis
revealed a tiny bladder calculus. (Tr. at 386). Claimant was
assessed with renal colic and ureterolithiasis. He was
discharged home and provided an excuse to be off work for two
presented to GVMC on May 16, 2011 with complaints of right
rib pain made worse with deep breathing. (Tr. at 395-97).
Claimant reported he had left his prior employment at a
restaurant and was scheduled to start a new job with a lawn
care company. Claimant denied any numbness or weakness of his
extremities. On examination, he had paraspinal tenderness at
¶ 9 through T12 level, with pain on palpation of ribs 9
and 10. A chest x-ray revealed acute infiltrate in the right
middle lobe. (Tr. at 382). Claimant was diagnosed with
suspected pneumonia, given a shot of Toradol, provided
prescriptions for Erythromycin and Lortab, and discharged
returned to GVMC one week later, on May 23, 2011 complaining
of shortness of breath and bilateral rib pain. (Tr. at
389-91). A chest x-ray revealed increased markings in the
right and left base consistent with bilateral pleural
effusion, worse compared to the May 16 x-ray. (Tr. at 381). A
CT scan of the chest showed bilateral pulmonary emboli, with
a saddle embolism straddling the midline. (Tr. at 380).
Claimant was diagnosed with acute respiratory failure and
large pulmonary embolism with saddle embolus. He received
Percocet, Levaquin, and Dilaudid. After the CT scan, Claimant
was started on Heparin, placed on oxygen, and transferred to
Charleston Area Medical Center (“CAMC”), for
further treatment. (Tr. at 390).
CAMC, Claimant was admitted to the services of Dr. James
Brown, a hospitalist. (Tr. at 360). Claimant complained of
severe chest pain that worsened with lying on his back, deep
breathing, and laughing. He admitted smoking one pack of
cigarettes per day, but denied recreational drug use or heavy
drinking. Dr. Brown diagnosed Claimant with a saddle
pulmonary embolism, hypokalemia, anemia, and tobacco abuse.
(Tr. at 361). Claimant was evaluated by Dr. Tamejiro Takubo,
a pulmonologist, who agreed that Claimant had a saddle
pulmonary embolism, but also felt he had suffered a pulmonary
infarct. (Tr. at 363). A duplex study of Claimant's lower
extremities confirmed the presence of a DVT in Claimant's
right leg. (Tr. at 365). Nonetheless, Claimant was described
as being “remarkably stable” throughout the
hospitalization. (Tr. at 356). He was discharged from CAMC on
May 31, 2011 in improved condition. (Id.). He was
given prescriptions for an anti-coagulant, Coumadin, to be
taken daily, and for Percocet, to be used every four hours as
needed for severe pain.
2, 2011, Claimant presented to Debra Sams, D.O., to establish
primary care. (Tr. at 408-09). Claimant reported a history of
DVT and pulmonary emboli. His review of systems was negative
except for some musculoskeletal complaints. On examination,
Dr. Sams heard rales on auscultation of the lungs. However,
Claimant's cardiac examination was normal with no
gallops, rubs, or clicks. His peripheral pulses were full to
palpation with no varicosities, and his extremities were warm
with no edema or bilateral tenderness. The remainder of the
examination was unremarkable. Dr. Sams diagnosed Claimant
with saddle pulmonary embolus.
days later, on June 6, Claimant presented to the emergency
room at GVMC with complaints of chest pain and dyspnea. (Tr.
at 387-88). Claimant stated that he took his last Percocet
that morning and did not have an appointment set with Dr.
Sams for another two days. The emergency room physician
documented Claimant's recent history of pulmonary
embolism. Claimant's physical examination was
unremarkable, and his level of anti-coagulation was
therapeutic according to an INR blood test result. Claimant
was diagnosed with atypical chest pain and history of
pulmonary embolus. He requested pain medication and received
Percocet tablets. Claimant returned to Dr. Sams the following
day. (Tr. at 406-07). His examination was again unremarkable
except that auscultation of the lungs revealed rales.
Claimant was advised to follow a low Vitamin K Coumadin diet
and was given a prescription for Percocet.
19, 2011, Claimant underwent a CT angiogram of the chest at
GVMC. (Tr. at 436). The test revealed small pulmonary emboli
that were thought to be residual. The examining radiologist
noted that the angiogram report differed from virtual
radiology results; however, Claimant was on anticoagulants.
14, 2011, Claimant underwent a pulmonary function study
administered by Dr. Z. Shamma. (Tr. at 419-20). The
spirometry results indicated the FVC was 4.35 or 71%, with no
real change with a bronchodilator. FEV1 measured 3.53, or 72
%, with no change with bronchodilator. The FEV1/FVC ratio
measured 81. Dr. Shamma opined that these results were