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Lovejoy v. Berryhill

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

May 2, 2018

STANLEY THOMAS LOVEJOY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, 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 John T. Copenhaver, Jr., 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 Plaintiff's brief, requesting judgment on the pleadings, and the Commissioner's brief in support of her decision, requesting judgment in her favor. (ECF Nos. 17, 18).

         The undersigned has fully considered the evidence and the arguments of counsel. For the following reasons, the undersigned RECOMMENDS that Plaintiff's request for judgment on the pleadings be DENIED; the Commissioner's request for judgment on the pleadings be GRANTED; and this case be DISMISSED and removed from the docket of the Court.

         I. Procedural History

         On August 27, 2013 and January 18, 2014, respectively, Plaintiff Stanley Thomas Lovejoy, (“Claimant”), filed applications for SSI and DIB, (Tr. at 224, 231), alleging a disability onset date of March 1, 2012, [1] due to “leg problems, left arm problems, [and] high blood pressure.” (Tr. at 258). The Social Security Administration (“SSA”) denied Claimant's applications initially and upon reconsideration. (Tr. at 115-24, 129-34). Claimant then filed a request for an administrative hearing, (Tr. at 135), which was held on January 28, 2016, before the Honorable Tierney Carlos, Administrative Law Judge (“ALJ”). (Tr. at 45-80). By written decision dated March 21, 2016, the ALJ found that Claimant was not disabled as defined by the Social Security Act. (Tr. at 29-38). The ALJ's decision became the final decision of the Commissioner on March 16, 2017, when the Appeals Council denied Claimant's request for review. (Tr. 1-4).

         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. 9, 10). Claimant filed a Brief in Support of Judgment on the Pleadings, (ECF No. 17), and the Commissioner submitted a Brief in Support of Defendant's Decision, (ECF No. 18), to which Claimant filed a reply. (ECF No. 19). Consequently, the matter is fully briefed and ready for resolution.

         II. Claimant's Background

         Claimant was 50 years old at the time he completed the instant applications for benefits, and 52 years old on the date of the ALJ's decision. (Tr. at 29, 58, 224, 231). Claimant left school in the eleventh grade, but subsequently obtained a mining certification. (Tr. at 59, 259). He communicates in English and has prior work experience as a laborer and as a roof bolter in the coal mining industry. (Tr. at 59-61, 259).

         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).

         In this case, the ALJ determined as a preliminary matter that Claimant met the insured status for disability insurance benefits through June 30, 2015. (Tr. at 31, Finding No. 1). At the first step of the sequential evaluation, the ALJ confirmed that Claimant had not engaged in substantial gainful activity since March 1, 2012, the alleged disability onset date. (Tr. at 31, Finding No. 2). The ALJ explained that Claimant had worked after March 1, 2012, but his wages did not rise to the level necessary to constitute substantial gainful activity. At the second step of the evaluation, the ALJ found that Claimant had the following severe impairments: “degenerative disc disease of the cervical and thoracic spine, degenerative joint disease of the left knee, and osteoarthritis of the right knee.” (Tr. at 31-32, Finding No. 3). The ALJ also considered Claimant's reports of left shoulder impairment and hypertension, but found that these conditions were non-severe. Furthermore, the ALJ evaluated Claimant's report of depression, noting that this condition was not a medically determinable impairment, as Claimant had not been diagnosed with depression and did not testify to having mental health issues. (Tr. at 32).

         Under the third inquiry, the ALJ found that Claimant did not have an impairment or combination of impairments that met or medically equaled any of the impairments contained in the Listing. (Id. at Finding No. 4). Accordingly, he determined that Claimant 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 could occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. The claimant could never climb ladders, ropes, or scaffolds.

(Tr. at 32-36, Finding No. 5). At the fourth step, the ALJ determined that Claimant was unable to perform his past relevant work. (Tr. at 36, Finding No. 6). Therefore, under the fifth and final inquiry, the ALJ reviewed Claimant's past work experience, age, and education in combination with his RFC to determine his ability to engage in substantial gainful activity. (Tr. at 36-37, Finding Nos. 7-10). The ALJ considered that (1) Claimant was born in 1963, and was 49 years old on the alleged date of disability, which placed him in the category of an individual closely approaching advanced age; (2) he had a limited education and could communicate in English; and (3) transferability of job skills was not an issue because the Medical-Vocational Rules (the “Grids”) supported a finding that Claimant was “not disabled, ” regardless of his transferable job skills. (Tr. at 36, Finding Nos. 7-9). Taking into account 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, (Tr. at 36-37, Finding No. 10), including work as a product inspector, laundry worker, and price marker at the unskilled, light exertional level. (Tr. at 37). Accordingly, the ALJ concluded that Claimant was not disabled as defined in the Social Security Act and was not entitled to benefits. (Tr. at 37-38, Finding No. 11).

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

         Claimant asserts that the ALJ erred in two respects. First, Claimant argues that the ALJ failed to adequately address Claimant's reliance on a cane to stand and walk. According to Claimant, the record contains substantial evidence demonstrating his need for a cane. Despite this evidence, the ALJ never explicitly discussed the issue and never provided a rationale for rejecting Claimant's contention that he relied on a cane. Claimant points to the vocational expert's testimony stating that Claimant would be unable to perform light exertional work if he required a cane. Claimant argues that if he is precluded from light level work, his other vocational factors mandate a finding of “disabled” under the Grids. For his second challenge to the decision, Claimant asserts that the ALJ erred by failing to give controlling weight to the RFC opinions expressed by his treating physician, Dr. Ira Morris.

         In response, the Commissioner argues that Claimant is mistaken in his contention that the ALJ did not consider Claimant's alleged use of a cane. The Commissioner notes that the ALJ expressly commented on Claimant's statement that he needed a cane, and the ALJ made other references to evidence discussing hand-held assistive devices. However, the ALJ clearly was not persuaded that Claimant required a cane to walk and stand, because the evidence did not corroborate such a scenario. With respect to Dr. Morris's opinions, the Commissioner cites to the applicable rules and regulations and maintains that the ALJ followed them to the letter. The Commissioner indicates that the ALJ provide multiple reasons for rejecting Dr. Morris's opinions, not the least of which was the inconsistency between Claimant's relatively mundane treatment notes and Dr. Morris's extreme RFC limitations.

         V. Relevant Medical 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 relevant information is summarized as follows:

         A. Treatment Records

         On April 23, 2011, Claimant presented to Boone Memorial Hospital's emergency room complaining of knee pain. (Tr. at 413-17). He reported twisting his left knee at work while carrying a can of oil. A physical examination was performed and was negative, except for left knee effusion. An x-ray of Claimant's left knee revealed no evidence of acute fracture or malalignment. Claimant was diagnosed with left knee strain; given prescriptions for Naprosyn, a Medrol dose pak, and Lortab; and was discharged in good condition.

         On July 22, 2011, Claimant returned to Boone Memorial Hospital with complaints of global left knee pain and swelling secondary to an twisting injury sustained while at work. (Tr. at 406-12). A physical examination revealed left knee pain and tenderness. X-rays of Claimant's left knee showed a cystic lesion on the superior patella; however, no acute fracture or dislocation was seen. The cyst was well circumscribed and appeared to be a benign subchondral cyst. (Tr. at 410). Claimant was diagnosed with left knee strain, provided prescriptions for Vicodin and Naprosyn, and discharged home in good condition.

         On September 1, 2011, Claimant was examined by Nurse Practitioner (“NP”) Melanie Harper-Allen at Boone Memorial Hospital's Rural Health Clinic (“BMHRHC”). (Tr. at 332-33). Claimant complained of chronic low back pain and right leg pain that had been present for years. The low back pain was getting progressively worse, and the leg pain radiated down his leg. Claimant reported that he was injured in a mining accident several years earlier and was later “run over by a dump truck.” (Tr. at 332). Claimant stated that he now possessed a medical card and wanted an MRI. On examination, Claimant weighed two hundred fifty pounds, with a height of six feet, two inches, and had a blood pressure of 148/80. He had no bowel or bladder loss. NP Harper-Allen assessed Claimant with lumbosacral neuritis and lumbago. She prescribed Daypro, Ultram, and Neurontin and ordered x-rays of Claimant's lumbar spine. (Tr. at 397-98). The x-rays showed mild to moderate degenerative changes, most noticeable at ¶ 3-4, but also involving L4 through S1 and T10-12. In addition, there was possible mild dextroscoliosis of the lumbar spine, but no evidence of abnormal alignment or definite spondylolysis.

         On October 6, 2011, Claimant returned to BMHRHC with complaints of persistent low back pain that was not relieved by the prescribed medication. (Tr. at 334-35). Claimant also complained of pain in his right lower extremity. An examination by Physician's Assistant (“PA”) Tarah Hagar revealed no somatic dysfunction, pain, or arthritic changes. Claimant's extremities were negative for edema, cyanosis, clubbing, and deformities, and his distal pulses measured �. PA Hagar assessed Claimant with lumbago and provided prescriptions for Daypro, Neurontin, Motrin, Prednisone, and Ultram.

         On October 24, 2011, Claimant presented to Dr. Ira Morris at Wharton Medical Center with complaints of leg cramps that were worse in the right leg. (Tr. at 469). Claimant reported that he had not been getting regular medical care, but treated with another physician in the past, who prescribed Neurontin, and this medication was helpful in reducing the symptoms. Dr. Morris conducted a review of systems, which was negative except for leg cramps. Claimant's physical examination findings were normal. Dr. Morris was unsure of the cause of Claimant's cramps, so he ordered various diagnostic studies and prescribed Neurontin. (Tr. at 471).

         On March 16, 2012, Claimant returned to Dr. Morris after suffering a back and upper leg strain at work the previous night. (Tr. at 472). Claimant stated that he needed “a night off work.” (Id.). Claimant's lumbar spine was tender to palpation at ¶ 5, and he had a positive straight leg raising test bilaterally. Claimant was given a prescription of Robaxin.

         Claimant presented to Boone Memorial Hospital's emergency room on April 12, 2012 with complaints of right leg pain due to a work injury that occurred two weeks earlier. (Tr. at 387-96). Claimant added that he had twisted his right leg earlier in the day, which had increased his leg pain. Claimant was ambulatory and his physical examination was largely normal, although he had back tenderness and decreased range of motion, tenderness to internal rotation, and decreased function of the right leg. X-rays of Claimant's hip, femur, and back were ordered. (Tr. at 391-92). The x-rays of his hip showed mild enthesopathic change (a disorder of muscle or ligament); an incidental benign primary bone tumor involving the proximal aspect of the right femur that was probably not of clinical significance; and no evidence of acute fractures, dislocations, malalignment, or bony abnormalities. X-rays of the right femur revealed a 4mm radiopaque foreign body proximal to the mid right thigh, but no evidence of acute fracture or malalignment. X-rays of Claimant's lumbar spine were negative for acute fractures or malalignment, but showed moderate degenerative changes at ¶ 3-S1 and a transitional vertebra at ¶ 5. Claimant was diagnosed with lumbar and groin strain, given prescriptions and a three-day work excuse, and was discharged in fair condition.

         Claimant returned to Boone Memorial Hospital's emergency room on May 1, 2012 complaining of right upper leg pain. (Tr. at 384-86). Claimant reported that he had been injured at work two weeks earlier, came to the emergency room, and was referred to a specialist, but had not yet seen the specialist. Claimant denied having trouble weight-bearing, and his physical examination was unremarkable. He was diagnosed with lumbar and groin strain; provided with prescriptions for Motrin, Flexeril, and Lortab; and given an excuse advising him to stay off work for two days.

         On June 19, 2012, Claimant presented to Boone Memorial Hospital's emergency room for syncopal episodes, weakness, and lightheadedness that occurred the prior day. (Tr. at 374-83). Claimant surmised that his symptoms were caused by hypertension, indicating that he had taken blood pressure medication provided by a friend. Claimant's physical examination was unremarkable, except for low blood pressure, and he appeared to be in no acute distress. Claimant was “talking to all nurses, asking questions, very talkative.” (Tr. at 375). An EKG reflected a borderline left axis deviation, and a tilt table test was positive. A CT scan of Claimant's head and brain showed a normal brain and skull, but moderate sinusitis in the right sphenoid sinus. The emergency room physician recommended admission to the hospital for further work-up; however, Claimant declined and asked to be discharged. He was diagnosed with hypotension and weakness and was released in fair, but stable, condition. Claimant was instructed to see his primary care physician.

         On July 9, 2012, Claimant was again seen in the emergency room at Boone Memorial Hospital for complaints of left shoulder pain. (Tr. at 368-73). Claimant described rolling off a bench onto his left shoulder. A physical examination showed good range of motion without any obvious signs of injury. Claimant's neurological examination was normal, and he had no weakness of the extremities. The hospital records document that Claimant was under arrest at the time of the visit and refused to have an x-ray. Accordingly, he was discharged to police custody in good condition.

         The following month, on August 4, 2012, Claimant returned to Boone Memorial Hospital's emergency room complaining of chronic pain in the right leg and left arm. (Tr. at 362-67). A physical examination revealed a mass in the left mid humerus. However, Claimant's neurovascular examination was normal, and he had no deformity, swelling, or range of motion deficit. The emergency room staff noted that Claimant had been in the emergency room on “several occasions but does not follow-up with [recommended] specialist.” (Tr. at 364). Claimant was diagnosed with chronic pain and bicep tendon rupture. He was discharged in good condition.

         On January 30, 2013, Claimant presented to Sriramloo Kesari, M.D., for Suboxone treatment. (Tr. at 420-21). Claimant traced his drug use history to 1995. He reported having been arrested in the past and charged with delivery of a controlled substance, for which he was placed on probation. Claimant admitted that he started “looking for a doctor to supply his drug habit” and “doctor shopped” to get medications. (Tr. at 420). Claimant reported that, other than his drug habit, “he [was] a healthy man.” (Id.). Claimant advised that he needed to continue taking Suboxone, because without it, he would not be able to do his daily work at home or on the job. He was administered a toxicology screening test, which was negative for all substances except Suboxone, and his physical examination was unremarkable. Claimant was diagnosed with substance dependence and provided an induction of Suboxone. He was advised to ...


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