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Peake v. Berryhill

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

February 8, 2018

SCOTTIE RAY PEAKE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          PROPOSED FINDINGS AND RECOMMENDATIONS

          Cheryl A. Eifert, Judge.

         This 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).

         Having 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.

         I. Procedural History

         On June 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 115-117).

         Accordingly, 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).

         Claimant 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.

         II. Claimant's Background

         Claimant 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).

         III. Summary of ALJ's Decision

         Under 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).

         The 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.

         However, 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).

         Here, 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.).

         Under 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).

         IV. Claimant's Challenges to the Commissioner's Decision

         Claimant 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).

         In her 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.

         V. Relevant Evidence

         The 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.

         A. Treatment Records

         Claimant 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 recovery.

         In 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.

         Additional 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.

         The 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 days.

         Claimant 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 home.

         He 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).

         Once at 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.

         On June 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.

         A few 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.

         On June 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.

         On July 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 ...


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