United States District Court, S.D. West Virginia, Bluefield Division
PROPOSED FINDINGS AND RECOMMENDATIONS
A. Eifert United States Magistrate 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 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).
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
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).
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.
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).
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).
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).
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).
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).
Claimant's Challenges to the Commissioner's
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.
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).
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.
Prior to Alleged Onset of Disability
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).
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.
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).
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).
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.).
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).
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.).
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).
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).
Beginning on Alleged Onset of Disability
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.).
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).
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.).
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 ...