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
Plaintiff's motion and brief, requesting judgment on the
pleadings, and the Commissioner's brief in support of her
decision, requesting judgment in her favor. (ECF Nos. 12, 13,
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; the
Commissioner's decision be AFFIRMED; and
this case be DISMISSED and removed from the
docket of the Court.
April 1, 2014, and April 14, 2014, respectively, Plaintiff
Harry Boswell, Jr., (“Claimant”), filed
applications for DIB and SSI, alleging a disability onset
date of April 1, 2013, (Tr. at 209, 211), due to
“Anxiety, Depression, Back problems, Kidney stones,
Migraines, Vertigo, [and] Foot problem.” (Tr. at 252).
The Social Security Administration (“SSA”) denied
Claimant's applications initially and upon
reconsideration. (Tr. at 123-125, 131-136). Claimant then
filed a request for an administrative hearing, (Tr. at 137),
which was held on May 11, 2016, before the Honorable Michael
D. Mance, Administrative Law Judge (“ALJ”). (Tr.
at 40-70). By written decision dated August 3, 2016, the ALJ
found that Claimant was not disabled as defined in the Social
Security Act. (Tr. at 11-23). The ALJ's decision became
the final decision of the Commissioner on June 9, 2017, when
the Appeals Council denied Claimant's request for review.
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 filed a
Motion and Brief in Support of Judgment on the Pleadings,
(ECF Nos. 12, 13), and the Commissioner filed a Brief in
Support of Defendant's Decision. (ECF No. 16).
Consequently, the matter is fully briefed and ready for
was 44 years old at the time that he filed the instant
applications for benefits, and 47 years old on the date of
the ALJ's decision. (Tr. at 11, 45, 209, 211). He has a
seventh grade education and communicates in English. (Tr. at
45, 251, 253). Claimant has prior work experience as a
self-employed laborer pressure-washing houses and sealing
driveways. (Tr. at 46, 253).
Summary of ALJ's Decision
42 U.S.C. § 423(d)(5), a claimant seeking disability
benefits has the burden of proving a disability. See
Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir.
1972). A disability is defined as the “inability to
engage in any substantial gainful activity by reason of any
medically determinable impairment which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A).
Social Security regulations establish a five step sequential
evaluation process for the adjudication of disability claims.
If an individual is found “not disabled” at any
step of the process, further inquiry is unnecessary and
benefits are denied. 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). The first step in the sequence is determining
whether a claimant is currently engaged in substantial
gainful employment. Id. §§ 404.1520(b),
416.920(b). If the claimant is not, then the second step
requires a determination of whether the claimant suffers from
a severe impairment. Id. §§ 404.1520(c),
416.920(c). A severe impairment is one that
“significantly limits [a claimant's] physical or
mental ability to do basic work activities.”
Id. If severe impairment is present, the third
inquiry is whether this impairment meets or equals any of the
impairments listed in Appendix 1 to Subpart P of the
Administrative Regulations No. 4 (the “Listing”).
Id. §§ 404.1520(d), 416.920(d). If so,
then the claimant is found disabled and awarded benefits.
if the impairment does not meet or equal a listed impairment,
the adjudicator must assess the claimant's residual
functional capacity (“RFC”), which is the measure
of the claimant's ability to engage in substantial
gainful activity despite the limitations of his or her
impairments. Id. §§ 404.1520(e),
416.920(e). After making this determination, the fourth step
is to ascertain whether the claimant's impairments
prevent the performance of past relevant work. Id.
§§ 404.1520(f), 416.920(f). If the impairments do
prevent the performance of past relevant work, then the
claimant has established a prima facie case of
disability, and the burden shifts to the Commissioner to
demonstrate, in the fifth and final step of the process, that
the claimant is able to perform other forms of substantial
gainful activity, given the claimant's remaining physical
and mental capacities, age, education, and prior work
experiences. 20 C.F.R. §§ 404.1520(g), 416.920(g);
see also McLain v. Schweiker, 715 F.2d 866, 868-69
(4th Cir. 1983). The Commissioner must establish two things:
(1) that the claimant, considering his or her age, education,
skills, work experience, and physical shortcomings has the
capacity to perform an alternative job, and (2) that this
specific job exists in significant numbers in the national
economy. McLamore v. Weinberger, 538 F.2d. 572, 574
(4th Cir. 1976).
the ALJ determined as a preliminary matter that Claimant met
the insured status for disability insurance benefits through
December 31, 2018. (Tr. at 13, 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 1, 2013, the alleged disability onset date. (Tr.
at 13, Finding No. 2). At the second step of the evaluation,
the ALJ found that Claimant had the following severe
impairment: “recurrent kidney stones, migraines,
Meniere's disease, anxiety, depression, and degenerative
disc disease, degenerative joint disease, and spondylosis of
the lumbar spine.” (Tr. at 13, Finding No. 3). The ALJ
considered Claimant's other alleged impairments of right
knee problems, left foot problems, and gastrointestinal
reflux disease (“GERD”) and found them to be
either non-severe or not medically determinable. (Tr. at
13-14, Finding No. 3).
the third inquiry, the ALJ concluded 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 14-15, 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) in that he can
lift and carry 20 pounds occasionally and 10 pounds
frequently, sit for 6 hours out of an 8-hour workday, and
stand and walk for 6 hours out of an 8-hour workday. He can
never climb stairs, ramps, ropes, ladders or scaffolds. He
can occasionally balance, stoop, kneel, crouch, and crawl. He
should work in a temperature controlled environment. He
should avoid concentrated exposure to pulmonary irritants,
unprotected heights, excessive vibrations, and hazardous
machinery. He can perform unskilled work only.
(Tr. at 15-21, Finding No. 5). At the fourth step, the ALJ
determined that Claimant was unable to perform any past
relevant work. (Tr. at 21, Finding No. 6). 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 21-22, Finding Nos. 7-10). The ALJ
considered that (1) Claimant was born in 1969, and was
defined as a younger individual age 18-49; (2) he had at
least a limited education and could communicate in English;
and (3) transferability of job skills was not an issue
because the Medical-Vocational Rules supported a finding that
Claimant was “not disabled, ” regardless of his
transferable job skills. (Tr. at 21, 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 21-22, Finding No.
10), including work as a sales attendant, marker, or counter
attendant at the unskilled, light exertional level.
Consequently, the ALJ concluded that Claimant was not
disabled as defined in the Social Security Act and was not
entitled to benefits. (Tr. at 22-23, Finding No. 11).
Claimant's Challenges to the Commissioner's
raises three challenges to the Commissioner's decision.
The first two challenges arise from the ALJ's assessment
of Claimant's vertigo and its impact on Claimant's
functional abilities. In particular, Claimant contends that
the ALJ underestimated the severity and functional
consequences of Claimant's vertigo. (ECF No. 13 at
10-12). In the third challenge, Claimant maintains that the
ALJ made an RFC finding prior to assessing Claimant's
credibility, which is prejudicial error requiring remand
under Mascio v. Colvin, 780 F.3d 632, 639-40 (4th
Cir. 2015). (Id. at 12).
response, the Commissioner argues that the ALJ fully
considered and assessed Claimant's vertigo and explained
why the vertigo did not substantially limit Claimant's
RFC. (ECF No. 16 at 7-8). The Commissioner emphasizes that
Claimant received only sporadic treatment for vertigo and
suffered from that condition for decades, while still being
able to work. With respect to the credibility analysis, the
Commissioner indicates that even if the ALJ should have
discussed the credibility analysis before stating the RFC
finding, such error was harmless. According to the
Commissioner, Claimant has the burden of demonstrating
prejudice from an alleged error, and if he fails to do so,
the case should not be remanded. The Commissioner contends
that the ALJ provided a reasonable explanation for his
credibility assessment, and Claimant has not identified any
prejudice arising from the order in which the ALJ provided
his rationale for the RFC finding. Consequently, there is no
basis for remand.
undersigned has reviewed all of the evidence before the
Court, including the records of Claimant's health care
examinations, evaluations, and treatment. The information
most pertinent to Claimant's challenges is summarized as
13, 2011, Claimant was examined by Tahir I. Rana, M.D., a
neurologist, at the request of Claimant's treating
physician, Dr. Crews. (Tr. at 383-85). Claimant complained of
having headaches since childhood, which started as a
heaviness in his eyes, followed by black spots in his eyes.
He then experienced pain in the left side of his head, which
gradually progressed to a ten on a ten-point pain scale and
was accompanied by photosensitivity, phonosensitivity, and
nausea. Claimant took Naprosyn to treat the pain and Imitrex
if the symptoms were “full blown.” Claimant
denied having double vision, but reported having dizziness.
He stated that he had dizziness without headaches as well and
had felt dizzy all of the time for the past several years.
Claimant also had a spinning sensation at times, which
occurred with bright lights and spinning objects. Claimant
indicated that he was employed at the time.
examination, Claimant appeared alert, oriented, and awake.
His concentration, short-term memory, and long-term memory
were good, and his cognitive function and comprehension were
intact. Claimant's eyes were normal; his visual acuity
was 20/30 bilaterally without glasses. His hearing was
intact, and he had no neurological abnormalities. An MRI of
the head was taken and was interpreted as unremarkable. Dr.
Rana diagnosed Claimant with classical migraine headaches;
chronic dizziness and intermittent vertigo of unclear
etiology, but could be related to anxiety, migraine, carotid
disease, or more unlikely, seizures; daytime sleepiness and
fatigue with possible sleep apnea that could also be a cause
of Claimant's dizziness; and chronic back and left lumbar
radicular pain. Dr. Rana ordered an MRA of the head, a
carotid Doppler, an EEG, an EMG, and a sleep study. He
prescribed Topamax for treatment of migraine headaches.
January 6, 2013, Claimant was examined by Patricia Clark,
D.O., at Med Express, for complaints of vomiting and sinus
issues. (Tr. at 501-03). A review of systems was negative for
headaches. Claimant's physical examination was negative
other than for symptoms consistent with the diagnosis of
28, 2013, Claimant presented to Stephen J. Wetmore, M.D., at
WVU Healthcare, for an evaluation of dizziness. (Tr. at
330-32). Claimant reported that he had experienced episodes
of dizziness since his early twenties. The dizziness began as
a spinning sensation, but that feeling had subsided
approximately two decades earlier. He described his current
baseline dizziness as a feeling of being “off
balance” and “not focused right.” Claimant
further experienced motion sensitivity, especially when
seeing carnival rides, lights, or home videos. The episodes
of dizziness made him nauseous and often led to a headache;
they occurred at least once per month and could last for
days. During the episodes, Claimant would feel heaviness or
fullness in his left ear. He described the headaches as
frontal parietal pain accompanied with phonophobia and
photophobia, sometimes preceded by swirls or other visual
manifestations. Claimant reported having previously been
examined by Dr. Rana in Princeton, West Virginia, who
diagnosed Claimant with migraine headaches. Claimant received
Topomax and Imitrex, but he did not tolerate the medications
well. Claimant underwent a videonystagmography several years
earlier, which led to a recommendation that Claimant undergo
vestibular rehabilitation; however, he did not follow-up with
that treatment recommendation.
Wetmore examined Claimant, noting him to be pleasant,
cooperative, healthy in appearance, and in no acute distress.
His examination was unremarkable except for an ancillary
finding that Claimant's left leg was slightly shorter
than the right, leading to some gait instability. Dr. Wetmore
reviewed a prior MRA taken at Community Radiology in
Bluefield and saw no acute stenotic or aneurysmal lesions. He
also reviewed magnetic resonance venography
(“MRV”) results, documenting that they were
normal. An audiogram performed earlier in the day by Dr. Mary
E. Koike, (Tr. at 333-35), showed speech reception thresholds
of five decibels in the right ear and fifteen decibels in the
left ear, with slight to mild sensoneural notches on the
right. Claimant had slight low frequency sensoneural hearing
loss in the left ear and Type A tympanograms bilaterally. Dr.
Wetmore reviewed the records prepared by Dr. Rana and agreed
with his diagnosis of dizziness, most likely caused by
migraines. Given Claimant's ...