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 Briefs in Support of Judgment on the
Pleadings and the Commissioner's Brief in Support of
Defendant's Decision, requesting judgment in her favor.
(ECF Nos. 11, 12, 15).
following reasons, the undersigned
RECOMMENDS that Plaintiff's motion for
judgment on the pleadings be GRANTED, to the
extent that it requests remand of the Commissioner's
decision pursuant to sentence four of 42 U.S.C. §
405(g); DENY Defendant's request to
affirm the decision of the Commissioner, (ECF No. 15);
REVERSE the final decision of the
Commissioner; REMAND this matter pursuant to
sentence four of 42 U.S.C. § 405(g) for further
administrative proceedings consistent with this PF&R; and
that this case be DISMISSED, with
prejudice, and removed from the docket of the Court.
November 2012, Plaintiff Andy Scott Kincaid
(“Claimant”), completed applications for DIB and
SSI, alleging a disability onset date of April 23,
due to “Bad back/bad knees/bad shoulders, Back injury,
Arthritis, Depression, carpal tunnel, can not [sic] read and
spell good.” (Tr. at 243-65, 388). The Social Security
Administration (“SSA”) denied Claimant's
applications initially and upon reconsideration. (Tr. at
155-67, 178-84). Claimant filed a request for an
administrative hearing, which was held on August 18, 2015,
before the Honorable Jeffrey J. Schueler, Administrative Law
Judge (the “ALJ”). (Tr. at 30-70). By written
decision dated September 25, 2015, the ALJ concluded that
Claimant was not disabled as defined in the Social Security
Act from the amended disability onset date of June 25, 2011
through the date of his decision. (Tr. at 21). The ALJ's
decision became the final decision of the Commissioner on
December 2, 2016 when the Appeals Council denied
Claimant's request for review. (Tr. at 1-3).
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 Proceedings.
(ECF Nos. 9, 10). Thereafter, Claimant filed Briefs in
Support of Judgment on the Pleadings, (ECF Nos. 11, 12), and
the Commissioner filed a Brief in Support of Defendant's
Decision, (ECF No. 15). Consequently, the matter is fully
briefed and ready for resolution.
was 41 years old on the date following the prior ALJ's
decision and 45 years old on the date of the decision in this
case. (Tr. at 245). He completed the ninth grade and
communicates in English. (Tr. at 35-36, 387, 419). Claimant
previously worked as an assistant automobile mechanic. (Tr.
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, 2015. (Tr. at 12, Finding No. 1). At the first
step of the sequential evaluation, the ALJ found that
Claimant had not engaged in substantial gainful activity
since June 25, 2011, the day after the prior ALJ's
decision. (Tr. 12-13, Finding No. 2). At the second step of
the evaluation, the ALJ found that Claimant had the following
severe impairments: lumbar spine degenerative disc disease,
osteoarthritis of the knees, hypertension, carpal tunnel
syndrome (“CTS”), borderline intellectual
functioning, major depressive disorder, generalized anxiety
disorder, and pain disorder. (Tr. at 13, Finding No. 3). The
ALJ also considered Claimant's right shoulder rotator
injury status post repair and left shoulder impingement, but
concluded that these impairments were non-severe. (Tr. at
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. (Tr. at 13-15, Finding No. 4). Accordingly, the ALJ
determined that Claimant 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 never crawl or climb ladders, ropes, or scaffolds, can
occasionally climb ramps or stairs, balance, stoop, kneel, or
crouch, and can frequently reach, handle, finger, but only
occasionally reach overhead. He should avoid concentrated
exposure to chemicals, operational control of hazardous
moving machinery, and unprotected heights, should not drive
or operate motor vehicles, and needs a low-stress job
(defined as having only occasional decision making or changes
in the work setting) with only occasional interaction with
the public or co-workers.
(Tr. at 15-19, Finding No. 5).
fourth step, the ALJ found that Claimant was unable to
perform his past relevant work. (Tr. at 19, Finding No. 6).
Under the fifth and final inquiry, the ALJ reviewed
Claimant's prior work experience, age, and education in
combination with his RFC to determine his ability to engage
in substantial gainful activity. (Tr. at 19-20, Finding Nos.
7-10). The ALJ considered that (1) Claimant was defined as a
younger individual aged 18-44 on the date following the prior
ALJ's decision, (2) he had limited education and could
communicate in English; and (3) transferability of job skills
was not material to the disability determination. (Tr. at
19-20, Finding Nos. 7-9). Given these factors and
Claimant's RFC, with the assistance of a vocational
expert, the ALJ concluded that Claimant could perform jobs
that existed in significant numbers in the national economy,
including unskilled sedentary work as an assembler, table
worker, and stuffer. (Tr. at 20, Finding No. 10). Therefore,
the ALJ found that Claimant was not disabled as defined in
the Social Security Act. (Tr. at 21, Finding No. 11).
Claimant's Challenge to the Commissioner's
raises numerous challenges to the Commissioner's
decision. First, he contends that the ALJ failed to properly
assess whether he met Listing 12.05C at step three of the
sequential evaluation. Claimant argues that the ALJ did not
consider three factors, which are indicative of deficits in
adaptive functioning: Claimant's past “employment
in simple work, ” his poor grades in school, and his
history of getting into fights and getting kicked out of
school. (ECF No. 12 at 4-6).
remainder of Claimant's challenges focus on the ALJ's
RFC analysis. Claimant asserts that the ALJ's RFC
discussion failed to comport with Social Security Ruling
(“SSR”) 96-8p because it omitted significant
evidence, including the full results of his November 22, 2011
back MRI; a May 1, 2015 right knee MRI; and a June 5, 2015
visit with Dr. Zahir. In addition, it lacked any discussion
of Claimant's “nonmedical evidence\daily
activities.” (Id. at 7-8). Claimant further
alleges that the ALJ did not explain his reason for rejecting
the opinion of Claimant's treating orthopedic surgeon,
Robert P. Kropac, M.D., that Claimant could stand for less
than two hours and sit for less than six hours in an
eight-hour workday. (Id. at 8-10). Claimant adds
that the ALJ also failed to explain his conclusory statements
that Claimant received conservative treatment, had
“routine” problems and impairments, and had
“minimal” or “benign” diagnostic
results. (Id. at 10-12). Finally, Claimant
challenges the Commissioner's decision on the basis that
the ALJ failed to address his moderate difficulties in
concentration, persistence, or pace when formulating the RFC
finding. (Id. at 12-13).
response, the Commissioner points to what she considers to be
substantial evidence to support the ALJ's RFC assessment
and notes that an ALJ is not required to comment on every
piece of evidence in the record so long as the analysis is
sufficiently thorough to permit meaningful review. (ECF No.
15 at 12-20). The Commissioner contends that the ALJ's
RFC assessment complied with SSR 96-8p, correctly analyzed
Dr. Kropac's opinion, and fully accounted for
Claimant's mental limitations. (Id. at 20-31).
undersigned has reviewed all of the evidence before the
Court. The following evidence is most relevant to the issues
27, 2010, Claimant saw orthopedic surgeon, Matthew Nelson,
M.D., complaining of increased bilateral knee pain. (Tr. at
600). Dr. Nelson noted that Claimant had previously received
cortisone injections in both knees over eight months earlier.
(Id.). On examination, Claimant had mild effusion
and moderate crepitus, but no erythema or increased warmth.
He had a full range of motion and muscle strength, stability
to varus and valgus stress testing, and a well-balanced gait.
(Id.). Claimant was given cortisone injections,
encouraged to remain active, and instructed to follow-up on
an as-needed basis. (Id.).
16, 2010, Claimant saw internal medicine physician, Mustafa
Rahim, M.D., complaining of a sudden onset of dizziness. (Tr.
at 632). Although Claimant's EKG did not reveal any
issues, Dr. Rahim planned for further cardiac testing and
started Claimant on Antivert. (Id.).
following month, on August 26, 2010, Claimant again saw Dr.
Nelson, this time reporting right shoulder pain. (Tr. at
601). Dr. Nelson gave Claimant a cortisone injection in his
right shoulder and planned to order a MRI of Claimant's
returned to Dr. Rahim on September 16, 2010. (Tr. at 637).
Claimant continued to complain of dizziness and symptoms of
restless leg syndrome (“RLS”). Claimant's
blood pressure was 115/90, but no issues were noted on his
physical examination. (Id.). Dr. Rahim diagnosed
Claimant with suspected RLS, peripheral vascular disease,
non-critical carotid stenosis, chronic obstructive pulmonary
disease, hypertension, and dizziness in need of further
evaluation. (Id.). Dr. Rahim ordered an arterial
doppler study for Claimant's suspected RLS and a MRI to
evaluate Claimant's dizziness. (Id.).
November 15, 2010, Claimant saw Dr. Rahim and did not voice
any issues or problems other than trouble sleeping. (Tr. at
640). Claimant's arterial doppler study did not show any
significant disease, but a CTA was requested and Claimant was
prescribed Ambien. (Id.). Claimant returned to Dr.
Rahim later that month and was prescribed Ultram. (Tr. at
January 14, 2011, Claimant saw Dr. Rahim with persistent
right shoulder pain. (Tr. at 643). Claimant's
hypertension was stable on Vasotec. (Id.). Dr. Rahim
requested an x-ray, physical therapy, and occupational
therapy for Claimant's shoulder. (Id.). He was
started on the non-steroidal anti-inflammatory drug, Mobic,
and his dosage of Ultram was increased. (Id.).
February 1, 2011, Claimant saw orthopedic surgeon, Philip J.
Branson, M.D., for right shoulder pain that had been present
for two months. (Tr. at 648). Dr. Branson diagnosed Claimant
with right shoulder rotator cuff tendonitis and right hand
paresthesia. (Tr. at 649). Claimant was given an injection of
lidocaine, Marcaine, and celestone in his right shoulder and
referred to physical therapy. (Tr. at 649-50).
following month, on March 2, 2011, Dr. Branson noted that the
injection and physical therapy had not improved
Claimant's right shoulder pain, although his hand
paresthesia was improved. (Tr. at 651). Dr. Branson ordered a
right shoulder MRI, which was taken on March 11, 2011. (Tr.
at 751). Upon review of the MRI, Dr. Branson diagnosed
Claimant with a small right rotator cuff tear, mild to
moderate impingement, and mild arthritis. (Tr. at 757). Dr.
Branson repaired the tear arthroscopically on April 8, 2011.
(Tr. at 653).
September 21, 2011, Claimant had lumbar spine x-rays, which
showed degenerative changes, but no fracture. (Tr. at 760).
However, a lumbar spine MRI taken the following month showed
a small to moderate-sized left posterolateral herniated
nucleus pulposus at ¶ 5-S1 that was narrowing the left
neural canal and a small midline disc protrusion at ¶
4-5. (Tr. at 680). In his thoracic spine, Claimant had mild
kyphoscolisosis and degenerative changes. (Tr. at 681).
December 6, 2011, Claimant saw orthopedic surgeon, Dr. Robert
Kropac. Claimant's physical examination revealed
tenderness in Claimant's lower lumbosacral spine
extending downward; a positive straight leg raising test in
Claimant's right lower extremity at 90 degrees in the
sitting position; 1-2, symmetric deep tendon reflexes, and
intact sensation. (Tr. at 662-63). Claimant had some
tenderness to palpation in his right knee, but there was no
effusion or ligamentous laxity. (Tr. at 663). Claimant could
heel and toe walk without weakness, and his gait was not
antalgic. (Id.). Dr. Kropac diagnosed Claimant with
a lumbosacral musculoligamentous strain with lower right
extremity radiculitis and a right knee strain.
(Id.). Claimant was continued on Motrin and Lortab
and advised to return in three months. (Id.).
December 19, 2011, Claimant saw physician's assistant,
Heather Cook, at Bluestone Health Center. Claimant seemed to
be doing well overall, but stated that Motrin was no longer
effective for his back pain. (Tr. at 665). His blood pressure
was 128/76; he was in no acute distress, well developed, and
oriented in all spheres; and his gait and stance were normal.
(Tr. at 666-67). Claimant was continued on blood pressure
medications and a muscle relaxant, Robaxin, and was started
on Mobic in place of Motrin. (Id.).
January 23 and April 23, 2012, Claimant saw Dr. Kropac for
his three-month follow-up visits. Claimant's physical
examinations, diagnoses, and treatment remained the same.
(Tr. at 658-61). On May 17, 2012, Claimant saw Ms. Cook for a
check-up and medication refills. (Tr. at 668). Claimant was
doing well on medications, but wanted to see a different
physician for his lower back pain, because the physician that
he saw stated that he could not do anything for him.
(Id.). Claimant's blood pressure was 110/60; he
had no erythema in his legs, and his gait and stance were
normal. (Tr. at 669-70). Claimant was referred to a
neurologist and continued on his medications. (Tr. at 671).
Shortly thereafter, on May 23, 2012, Claimant returned to Ms.
Cook complaining of RLS symptoms. (Tr. at 672). He stated
that he was on Requip for the condition and did well, but had
been out of it for over a year. (Id.).
Claimant's Requip was renewed. (Tr. at 674).
returned to Dr. Kropac on October 25, 2012. Claimant's
physical examination was essentially the same with tenderness
in his lower lumbosacral spine, a positive straight leg
raising test in his right lower extremity at 90 degrees in
the sitting position, and deep tendon reflexes that were 1-2
and symmetric, with intact sensation. (Tr. at 656-57).
Claimant still had some tenderness to palpation and
patellofemoral crepitation in his knees, but there was no
evidence of swelling, erythema, or deformity. He had no
palpable effusion or ligamentous laxity; his McMurray test
was negative; he could heel and toe walk without weakness;
and his gait was not antalgic. (Tr. at 657). Dr. Kropac's
diagnoses remained lumbosacral musculoligamentous strain with
radiculitis into the right lower extremity, but Dr. Kropac
felt Claimant's knee strains were superimposed on mild
degenerative changes. (Id.). Dr. Kropac injected a
Lidocaine and Celestone mixture into each of Claimant's
knees and continued him on Motrin and Lortab. (Id.).
Dr. Kropac still felt that no other treatment was recommended
at that time instructed Claimant to return for re-evaluation
in three months. (Id.).
October 31, 2012, Claimant saw Ms. Cook for regular
evaluation. He was doing acceptably on medications, but had
stopped taking Plavix because it caused him to itch. (Tr. at
676). Claimant's blood pressure was 110/70. His
examination was unremarkable. (Tr. at 678). He was continued
on medications for RLS, hypertension, and arthritis. (Tr. at
December 11, 2013, Claimant reported to orthopedic surgeon,
Robert C. Pennington, M.D., that he continued to have pain
localized in the lateral epicondyle of his right elbow. (Tr.
at 708). Claimant denied numbness or tingling, and he was
fully ambulatory with a normal gait. (Tr. at 708-09). An
examination of Claimant's upper extremities was normal,
other than tenderness in his right elbow, and there was no
evidence of swelling, deformity, restriction of rotation or
passive motion, collateral laxity, or neurological issues.
Dr. Pennington's diagnosis was lateral epicondylitis and
possible intraarticular pathology of the lateral elbow.
(Id.). He recommended that Claimant to undergo
arthroscopic surgery for definitive investigation and lateral
epicondylar debridement. (Id.). Claimant's
arthroscopic synovectomy and open lateral epicondylar release
surgery in his right elbow was performed on January 9, 2014.
(Tr. at 714).
January 16, 2014, Claimant returned to Dr. Pennington
following his right elbow surgery and stated that he was
“doing really well” and his deep pain was
“gone.” (Tr. at 707). Claimant appeared
comfortable and alert. (Id.). On examination,
Claimant lacked ten degrees of full extension in his elbow
and had mild swelling, but he had full flexion, unrestricted
rotation, and his incision was healing nicely.
February 12, 2014, Claimant saw Dr. Rahim for back pain and
arthritis, “especially with the change in the
weather.” (Tr. at 717). His blood pressure was 106/79.
He had full flexion in his lumbosacral spine, good lateral
bending, negative straight leg raising testing in both
positions, no tenderness, and he could squat and stand on his
heels and toes without difficulty. (Id.) ...