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Boswell v. Berryhill

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

May 18, 2018

HARRY BOSWELL, JR., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, 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 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, 16).

         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; the Commissioner's decision be AFFIRMED; and this case be DISMISSED and removed from the docket of the Court.

         I. Procedural History

         On 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. (Tr. 1-3).

         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 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 resolution.

         II. Claimant's Background

         Claimant 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).

         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, 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).

         Under 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).

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

         Claimant 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).

         In 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.

         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 information most pertinent to Claimant's challenges is summarized as follows:

         A. Treatment Records

         On May 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.

         On 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.

         On 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 sinusitis.

         On June 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.

         Dr. 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[1] 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 ...


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