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Close v. Berryhill

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

February 26, 2018

CAROL CLOSE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          PROPOSED FINDINGS AND RECOMMENDATIONS

          Cheryl A. Eifert United States Magistrate 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 David A. Faber, 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. 12, 13, 20).

         Having fully considered the record and the arguments of the parties, the undersigned respectfully RECOMMENDS that Plaintiff's motion to remand and 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 January 7, 2013, Plaintiff Carol Lynn Close (“Claimant”) completed applications for DIB and SSI, alleging a disability onset date of July 1, 2010, (Tr. at 167-84), due to “back and neck problem, right elbow pain, mental condition, bipolar, hardening of arteries, severe depression, 3 heart valves leaking, COPD, asthma, arthritis in hips, numbness in hands and arms, migraines, bladder is tilted, severe degenerative disease in [her] back, heart disease.” (Tr. at 198). The Social Security Administration (“SSA”) denied Claimant's applications initially and on reconsideration. (Tr. at 98, 103, 114, 118). Claimant filed a request for an administrative hearing, (Tr. at 122), which was held on June 15, 2015, before the Honorable Anne V. Sprague, Administrative Law Judge (“ALJ”), (Tr. at 867-900). During the hearing, Claimant amended her alleged onset date to October 16, 2012, which was the day following an unfavorable decision on her prior applications for benefits. (Tr. at 870-71). By written decision dated October 21, 2015, the ALJ found that Claimant was not disabled as defined in the Social Security Act. (Tr. at 9-26). The ALJ's decision became the final decision of the Commissioner on January 23, 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. 8, 9). Claimant moved to remand the action on the basis that the Transcript of the Administrative Proceedings did not contain a transcript of the administrative hearing. (ECF No. 11), and Claimant also moved for summary judgment, (ECF Nos. 12, 13). The Commissioner filed a supplement to the record, which included the full administrative hearing transcript, (ECF No. 14), and also filed a Brief in Support of Defendant's Decision. (ECF No. 20). Accordingly, the substantive issues are fully briefed and ready for resolution.

         II. Claimant's Background

         Claimant was 43 years old on her amended alleged onset date and 46 years old on the date of the ALJ's second decision. (Tr. at 263). She has the equivalent of a high school education and communicates in English. (Tr. at 197, 199). Claimant previously worked as a carpenter. (Tr. at 200, 895-96).

         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).

         When a claimant alleges a mental impairment, the SSA “must follow a special technique at each level in the administrative review process, ” including the review performed by the ALJ. 20 C.F.R. §§ 404.1520a(a), 416.920a(a). Under this technique, the ALJ first evaluates the claimant's pertinent signs, symptoms, and laboratory results to determine whether the claimant has a medically determinable mental impairment. Id. §§ 404.1520a(b), 416.920a(b). If an impairment exists, the ALJ documents her findings. Second, the ALJ rates and documents the degree of functional limitation resulting from the impairment according to criteria specified in Id. §§ 404.1520a(c), 416.920a(c). Third, after rating the degree of functional limitation from the claimant's impairment(s), the ALJ determines the severity of the limitation. Id. §§ 404.1520a(d), 416.920a(d). A rating of “none” or “mild” in the first three functional areas (activities of daily living, social functioning, and concentration, persistence or pace) and “none” in the fourth (episodes of decompensation of extended duration) will result in a finding that the impairment is not severe unless the evidence indicates that there is more than minimal limitation in the claimant's ability to do basic work activities. Id. §§ 404.1520a(d)(1), 416.920a(d)(1). Fourth, if the claimant's impairment is deemed severe, the ALJ compares the medical findings about the severe impairment and the rating and degree and functional limitation to the criteria of the appropriate listed mental disorder to determine if the severe impairment meets or is equal to a listed mental disorder. Id. §§ 404.1520a(d)(2), 416.920a(d)(2). Finally, if the ALJ finds that the claimant has a severe mental impairment, which neither meets nor equals a listed mental disorder, the ALJ assesses the claimant's residual mental functional capacity. Id. §§ 404.1520a(d)(3), 416.920a(d)(3). The regulations further specify how the findings and conclusion reached in applying the technique must be documented by the ALJ, stating:

The decision must show the significant history, including examination and laboratory findings, the functional limitations that were considered in reaching a conclusion about the severity of the mental impairment(s). The decision must include a specific finding as to the degree of limitation in each functional areas described in paragraph (c) of this section.

20 C.F.R. §§ 404.1520a(e)(4), 416.920a(e)(4).

         Here, the ALJ determined as a preliminary matter that Claimant met the insured status for disability insurance benefits through December 31, 2015. (Tr. at 14, Finding No. 1). At the first step of the sequential evaluation, the ALJ confirmed that Claimant had not engaged in substantial gainful activity since July 1, 2010, the original 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: “asthma, cervical and thoracic degenerative disc disease, history of migraines, depression, and anxiety.” (Id., Finding No. 3).

         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 15-17, Finding No. 4). Accordingly, the ALJ assessed Claimant's RFC, finding that she possessed:

[T]he residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a). The claimant can lift/carry 10 pounds occasionally and less than 10 pounds frequently. The claimant can sit for 6 hours in an 8-hour workday and stand/walk for 4 hours in an 8-hour workday. She can frequently reach overhead bilaterally as well as reaching in other directions. She can occasionally climb ladders, ropes, and scaffolds, balance, stoop, kneel, crouch, and crawl. She should not be exposed to heights, machinery, vibrations, dust, chemicals, or fumes. She is limited to simple, routine work activity with no public interaction.

(Tr. at 17-18, Finding No. 5). At the fourth step, the ALJ determined that Claimant was unable to perform any of her past relevant work. (Tr. at 18-19, Finding No. 6). Under the fifth and final inquiry, the ALJ reviewed Claimant's past work experience, age, and education in combination with her RFC to determine her ability to engage in substantial gainful activity. (Tr. at 19-20, Finding Nos. 7-10). The ALJ considered that (1) Claimant was born in 1969, and was defined as a younger individual on the alleged disability onset date; (2) she 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 because the Medical-Vocational Rules supported a finding that Claimant was “not disabled, ” regardless of his transferable job skills. (Tr. at 19, Finding Nos. 7-9). Given these factors, Claimant's RFC, and the testimony of a vocational expert, the ALJ determined that Claimant could perform jobs that existed in significant numbers in the national economy, including sedentary unskilled work as a material handler or inspector/tester/sorter. (Tr. at 19-20, Finding No. 10). Therefore, the ALJ found that Claimant was not disabled and was not entitled to benefits. (Tr. at 20, Finding No. 11).

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

         Claimant raises several challenges to the Commissioner's decision. First, Claimant contends that the Court cannot meaningfully review the ALJ's decision due to the absence of the administrative hearing transcript in the record. (ECF No. 13 at 6). Second, Claimant argues that the ALJ's RFC analysis is insufficient under the relevant social security rulings and regulations because the ALJ failed to articulate a function-by-function analysis or connect the evidence to the ALJ's ultimate conclusions. (Id. at 8). Claimant further posits that the ALJ's RFC discussion is most remarkably deficient in its failure to address Claimant's mental limitations and provide explanation and support for the ALJ's finding that Claimant was limited to simple, routine work activity with no public interaction. In support, Claimant cites to the United States Court of Appeals for the Fourth Circuit's (“Fourth Circuit”) decision in Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), which purportedly holds that restricting an individual to simple, routine tasks or unskilled work does not automatically account for moderate limitations in concentration, persistence, or pace. (Id. at 8-9). In her third challenge, Claimant argues that the ALJ's analysis of her credibility and pain “lacks any substance in terms of analysis or explanation” and failed to follow the regulatory mandates. (Id. at 9-10). In addition, Claimant contends that the ALJ inappropriately assessed her credibility before determining her RFC. (Id. at 11). In her next challenge, Claimant asserts that the ALJ improperly discounted the opinion of her treating physician, Eric McClanahan, D.O., dated October 15, 2015, which found that Claimant was more restricted than the ALJ concluded. (Id. at 11-12). Lastly, in her final challenge, Claimant argues that the ALJ failed to provide enough discussion to show that she considered the entire record; for instance, Claimant states that the ALJ analyzed her physical impairments in a single paragraph and did not meaningfully discuss Claimant's psychiatric treatment. (Id. at 12-13).

         In response to Claimant's challenges, the Commissioner argues that the record has been supplemented to include the administrative hearing transcript. (ECF No. 20 at 12). Moreover, the Commissioner states that Claimant conflates what must be considered and what must be discussed by an ALJ, noting that an ALJ need not comment on every piece of evidence. (Id. at 12-13). The Commissioner argues that this case is distinguishable from Mascio because the ALJ explained the basis for the mental limitations and why no further limitations were warranted. (Id. at 14-15). As to the ALJ's analysis of Claimant's physical impairments, the Commissioner points to medical evidence that she contends supports the ALJ's determination that Claimant could perform a limited range of sedentary work. (Id. at 16-17). Finally, the Commissioner states that the ALJ properly rejected Dr. McClanahan's “check-box opinion” that Claimant could not perform even the modest demands of sedentary work because it was inconsistent with Dr. McClanahan's own treatment notes and the other evidence in the record. (Id. at 20-21).

         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. Because Claimant's amended alleged onset date directly follows a previously adjudicated period, the undersigned delineates which records correspond to the prior period and which records occurred on or after Claimant's alleged onset of disability.

         A. Treatment Records

         1. Prior to Alleged Onset of Disability

         On March 7, 2012, Claimant saw cardiologist Jack C. Meshel, M.D., at the referral of Dr. McClanahan, to evaluate Claimant's complaints of chest pain radiating into her left arm with shortness of breath and dizziness. Dr. Meshel's impression was that Claimant had chest pain, premature ventricular contractions, mitral valve insufficiency, transient ischemic attacks, and peripheral vascular disease with claudication. (Tr. at 553). Dr. Meshel ordered a myocardial perfusion SPECT scan and a stress test. (Id.). The SPECT scan taken the following day was normal with no evidence of ischemia and normal ejection fraction and wall motion. (Tr. at 435). Claimant's stress test was also normal. (Tr. at 436).

         On March 14, 2012, Claimant followed up with Dr. Meshel to discuss her test results. Dr. Meshel's impression was that in addition to Claimant's chest pain, transient ischemic attacks, peripheral vascular disease with claudication, and mitral valve insufficiency, she had aortic and tricuspid valve insufficiency. (Tr. at 552). The plan was for Claimant to have a cardiac catheterization and take Aspirin daily. (Id.). Claimant followed up with Dr. Meshel again on April 4, 2012 and Dr. Meshel noted that Claimant's cardiac catheterization showed no significant disease, although she had some minimal spasms. (Tr. at 551). Dr. Meshel's impression at that point was that Claimant suffered from chest pain, mitral valve insufficiency, transient ischemic attacks, and premature ventricular contractions. (Id.). Claimant's dosage of Aspirin was reduced and she was prescribed Plavix. (Id.).

         On May 23, 2012, Claimant had a bronchoprovaction challenge test that was strongly suggestive of asthma. (Tr. at 437). The following month, on June 4, 2012, Claimant saw Oscar Figueroa, M.D., at Bluefield Pulmonary Consultants, Inc., for follow-up regarding her asthma. (Tr. at 503). Dr. Figueroa noted that Claimant was a smoker. (Tr. at 504). Claimant denied having any chest pain, shortness of breath, or back pain. (Id.). Her physical examination was normal, including clear breath sounds, no shortness of breath, regular sinus rhythm, normal musculoskeletal findings, and intact gait and coordination. (Tr. at 505). Claimant was prescribed a nicotine inhaler and Dulera inhaler. (Id.). Claimant had further lung function testing on June 5, 2012, which was likewise strongly suggestive of asthma. (Tr. at 525-28).

         In June through August 2012, Claimant continued to follow up with Dr. Meshel. Her diagnoses remained the same and she was to continue her medications. (Tr. at 547-50). On July 2, 2012, x-rays were taken of Claimant's back, shoulders, and pelvis to evaluate her pain complaints, but all results were normal. (Tr. at 409, 439-40).

         On July 18, 2012, Claimant followed up with Dr. Figueroa. She was doing somewhat better on Advair, but did not tolerate Dulera, so that medication was replaced with Spiriva. (Tr. at 506). The oxygen saturation in Claimant's blood was 99 percent in room air. (Tr. at 508). Claimant's respiratory, cardiovascular, musculoskeletal, and psychiatric examinations were all normal. (Id.).

         On August 30, 2012, Claimant presented to the emergency room at the Clinch Valley Medical Center due to an abscess on her back from a spider bite. (Tr. at 360). She denied any malaise, weakness, chest pain, shortness of breath, headache, or other cardiovascular, respiratory, neurological, or musculoskeletal/lymphatic issues, although she continued to smoke one pack of cigars per day. (Tr. at 361-62). Claimant's respiratory, cardiovascular, and neurological examinations were normal and she had a steady gait with no neurological deficits. (Tr. at 363-64).

         On September 10, 2012, Claimant saw Carol Felts, FNP-BC, at the office of her psychiatrist, Philip B. Robertson, M.D. Claimant advised Ms. Felts that she was very depressed because her adult daughter was being evicted and had two small children. (Tr. at 501). Her current mental status examination was normal other than her depressed and anxious mood. (Id.). Ms. Felt's assessment was that Claimant had bipolar disorder for which Claimant was prescribed Prozac, Xanax, and Abilify. (Id.).

         On September 22, 2012, Claimant was transferred to Clinch Valley Medical Center from Tazewell Medical Center due to acute infectious colitis. Claimant reported mild shortness of breath, but her physical examination revealed that she was in no respiratory distress and had normal cardiac rhythm. (Tr. at 395). On the second day of her admission, Claimant reported moderate back pain that she rated 5 out of 10 in severity; she stated that Percocet was not helping her back pain, nor did the Lortab that she typically took at home. (Tr. at 398). Claimant no longer had chest pain or shortness of breath. (Id.). Her chest x-ray showed no active cardiopulmonary disease. (Tr. at 402). Claimant's colitis improved and her pain resolved with treatment over the course of two days. (Tr. at 393). She was discharged in stable condition and was to follow up with a colonoscopy in six weeks. (Id.). On the date of her discharge, Claimant was doing “very well” and still denied any chest pain or shortness of breath. (Tr. at 397).

         On October 10, 2012, Claimant saw Dr. McClanahan for follow-up after her hospitalization for colitis. (Tr. at 414). Claimant reported that her anxiety symptoms were stable and she was doing well as far as her chronic pain. (Id.). She continued to smoke daily, but denied cardiovascular, pulmonary, musculoskeletal, neurological, or psychiatric complaints. (Tr. at 415). Likewise, an examination of those systems was normal, including normal sinus rhythm; clear breath sounds; normal gait, station, strength, and range of motion; no focal deficits; and normal affect, mood, and orientation. (Tr. at 416). Claimant was diagnosed with hypertension, asthma, generalized anxiety, chronic pain, hyperlipidemia, colitis, and unspecified urinary incontinence. (Tr. at 416-17). Claimant was to continue her treatment plan, which consisted of an albuterol inhaler, blood pressure and blood thinner medications, vitamin supplements, gastrointestinal medications, Aspirin, a muscle relaxer, Lortab, Prozac, and Xanax. (Tr. at 417). Diet and exercise were also encouraged, and Claimant was counseled on smoking cessation and offered medication to help her quit smoking. (Tr. at 417-18).

         2. Beginning on Alleged Onset of Disability

         On October 16, 2012, Claimant saw Dr. Figueroa for follow up regarding asthma. Claimant denied chest pain, shortness of breath, back pain, headaches, and myalgias. (Tr. at 509). Claimant continued to smoke one pack of cigars per day. (Tr. at 510). Her respiratory, cardiovascular, and musculoskeletal examinations were normal. (Tr. at 511). Claimant's prescriptions for Singulair, Advair, an albuterol nebulizer solution, and nicotine patches were renewed. (Id.).

         On November 12, 2012, Claimant followed up with her cardiologist, Dr. Meshel. Her diagnoses remained the same and she was to continue her medications. (Tr. at 546). Later that month, on November 20, 2012, Claimant saw neurologist Bandhu Paudyal, M.D., at Bluefield Neurology, due to her complaints of pain in her upper and lower extremities for the past 20 years. (Tr. at 650). Claimant reported pain in both hands that was worse with movement, such as bending her wrists, and pain that radiated from her hips down the back of her legs, particularly in her left leg. (Id.). Claimant did not have any weakness in her extremities. (Id.). She had “light headaches, ” but no chest pain, breathing difficulties, vomiting, nausea, memory issues, depression, anxiety, or impulse control issues. (Id.). Her review of systems was otherwise normal except for her complains of occasional urinary incontinence and chronic lower back and neck pain. (Id.). On examination, Claimant's high mental function was normal, including scores of 3 out of 3 on registration, short-term recall, and intact long-term memory. (Tr. at 652). Her mini mental status score was 30 out of 30. (Id.). Claimant's muscle strength was normal and she had no atrophy, but flexion in her hips was slightly limited. (Tr. at 653-54). Her sensation in her left hand and leg was decreased as compared to her right side, but her gait was completely normal. (Tr. at 654). Dr. Paudyal stated that it was difficult to ascertain a single neurological localization of her symptoms. (Tr. at 655). He believed that she might possibly have cervical myelopathy or carpal tunnel syndrome along with lumbosacral radiculopathy. (Id.). Dr. Paudyal ordered a MRI of Claimant's cervical spine and a nerve conduction study. (Id.). On December 7, 2012, Claimant saw Dr. Paudyal again for follow- up. Claimant was not able to obtain the MRI because it was denied by her insurance company. (Tr. at 632). However, her nerve conduction/EMG study was normal. (Tr. at 637).

         On December 17, 2012, Claimant told Ms. Felts that she was very stressed due to her adult daughter's issues and would like to try something besides medication. (Tr. at 500). Her mental status examination was normal other than her depressed and anxious mood. (Id.). Ms. Felts assessed Claimant with stress and bipolar disorder for which she was prescribed Abilify, Prozac, and Xanax. (Id.).

         On December 26, 2012, Claimant had a MRI of her cervical spine without contrast. Claimant reported having a motor vehicle accident two years earlier and had suffered with migraines since then. She also had neck pain radiating into her bilateral upper extremities causing numbness. (Tr. at 406). The MRI showed mild degenerative disc disease with ...


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