WALLACE H. WHITAKER, Plaintiff,
CAROLYN W. COLVIN,  Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
Hon. James G. Welsh, U.S. Magistrate Judge
The plaintiff, Wallace H. Whitaker, brings this action pursuant to 42 U.S.C. § 405(g) challenging the final decision of the Commissioner of the Social Security Administration (“the agency”) denying his claim for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, as amended, 42 U.S.C. §§ 1381–1383f, and his claim for disability insurance benefits (“DIB”) under Title II, 42 U.S.C. §§ 461(i) and 423. This court has jurisdiction pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3).
I. Administrative and Procedural History
The plaintiff filed claims for DIB and SSI on May 17, 2010, alleging a period of disability beginning on December 31, 2007. (R.41, 246) Initially denied, the claims were reconsidered on January 28, 2011 and again denied. (R. 100, 89) Following an administrative hearing on October 28, 2011 and a limited supplemental hearing on February 2, 2012 the ALJ confirmed this denial in writing. (R. 17–29) The Appeals Council denial of plaintiff’s subsequent review request made the ALJ’s unfavorable written decision the Commissioner’s final decision. (R. 1) See 20 C.F.R. § 404.981.
Along with his Answer (docket #8) to the plaintiff’s Complaint (docket #2), the Commissioner filed a certified copy of the Administrative Record (“R.”) (docket #10), which includes the evidentiary basis for the Commissioner’s findings. Both parties have filed motions for summary judgment and supporting memoranda. (Docket #13, 18, 19, 22, 23) Oral argument on these motions occurred by telephone on October 17, 2013. By standing order this case is before the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
II. ALJ Findings and Issues Presented on Appeal
After finding that the plaintiff met the Act’s insured status requirements through December 31, 2012, and had not engaged in substantial gainful activity since his alleged onset date (R. 19), the ALJ found that the plaintiff’s several severe impairments included —alcohol abuse, monoclonal gammopathy,  Waldenstrom’s macroglobulinemia,  and degenerative disc disease. He then found that none of these impairments met or equaled a listed impairment. (R. 21), and he further concluded that the plaintiff also had several non-severe impairments, including hypertension and atrial fibrillation (labeled by the ALJ as “various cardiac conditions”). (R. 20) Concluding the sequential analysis mandated by the Agency,  the ALJ assessed the functional limitations caused by Mr. Whitaker’s impairments (R. 21-23), and concluded that the plaintiff retained the capacity to perform “light work . . . except he must avoid climbing ladders, ropes, or scaffolds, can occasionally climb ramps and stairs, can occasionally stoop, kneel, crouch and crawl, and must avoid moderate or greater hazards” (R. 23) In doing so, the ALJ neither relied on vocational testimony nor provided any representative examples; instead, relying solely on SSR 85-15 (a more than twenty-five year old agency ruling), he simply made the conclusory assertion that “approximately 1, 600” of these jobs are available in the national economy. (R. 28)
The plaintiff challenges the ALJ’s decision as fraught with “serious” legal error and the product of an unfair hearing procedure. (Docket #13, pp 7-8) He argues that the ALJ conducted the supplemental hearing unfairly, failing either to allow or to address favorable third-party testimony, making an unsupported credibility finding with regard to Mr. Whitaker’s testimony, and failing to consider Mr. Whitaker’s severe ailments in combination.
III. Summary Recommendation
Based on a thorough review of the administrative record, and for the reasons herein set forth, it is RECOMMENDED that the plaintiff’s motion for summary judgment be DENIED, that the Commissioner’s motion for summary judgment be DENIED, that the Commissioner’s final judgment be VACATED, that this matter be REMANDED for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g), and that this matter be STRICKEN from the court’s active docket.
With the remand of this case and any resulting award of benefits, pursuant herewith, plaintiff's counsel should be granted an extension of time pursuant to Rule 54(d)(2)(B) within which to file a petition for authorization of attorney's fees under 42 U.S.C. § 406(b) until thirty (30) days subsequent to the receipt of a notice of award of benefits from the agency; provided, however, any such extension of time would not extend the time limits for filing a motion for attorney's fees under the Equal Access to Justice Act.
No opinion is offered as to what result should emerge on remand, but the procedure that produces that result should be fair, and the reasoning that underpins it should be consistent with articulated legal standards.
IV. Standard of Review
The court’s review in this case is limited to determining whether there is substantial evidence to support the Commissioner’s conclusion that the plaintiff failed to meet the statutory conditions for entitlement to DIB or SSI. “Under the . . . Act, [a reviewing court] must uphold the factual findings of the [Commissioner], if they are supported by substantial evidence and were reached through application of the correct legal standard.” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)). Substantial evidence “consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Mastro, 270 F.3d at 176 (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Id. (quoting Craig v. Chater, 76 F.3d at 589). This standard of review is more deferential than de novo. The Commissioner’s conclusions of law are, however, not subject to the same deferential standard and are subject to plenary review. See Island Creek Coal Company v. Compton, 211 F.3d 203, 208 (4th Cir. 2000); 42 U.S.C. § 405(g).
A. Age, Educational, and Vocational Profile
In December 2007, when he alleges his disability began, Mr. Whitaker was 48 years of age. (R. 37) He has a high-school education and a year and a half of college (R. 37-38). His past relevant work included jobs as a trash truck loader, warehouse and mailroom worker, and stocker (R. 40-43, 317, 326). This work as performed by the plaintiff required a medium or greater level of exertion. (R. 27, 318-323, 327-332)
B. Medical Record and Medical Opinion
With a history of hepatitis C, hypertension, elevated liver function studies and ethanol use, during 2007 and 2008 the plaintiff’s medical records show that he sought treatment on various occasions at Winchester Medical Center for alcohol withdrawal with abnormal liver function studies, a swollen right knee, and acute gastroenteritis. (R. 442-562)
In contrast, during 2009 Mr. Whitaker sought medical treatment only once, when he was found to have “fairly significant degenerative changes of the cervical spine” and was diagnosed to have degenerative disc disease with significant cervical disc displacement (“grade 1 spondylosis”). (R. 408-415, 432-441) At the time it was also recorded that Mr. Whitaker’s pain was exacerbated by both movement and flexion. (R. 434) Significant for disability purposes, the examining physician also noted Mr. Whitaker statement that he had done “a lot of heavy lifting” and that the onset of acute pain had occurred without injury. (R. 437)
Believing that he was suffering from a seizure, in June 2010 the plaintiff returned to the hospital for treatment. (R.419-432) On examination, his condition was diagnosed as acute alcohol withdrawal; and after treatment he was released the following day as “improved.” (Id.) The results of cardiac and blood testing at this time were “consistent with myocardial injury” (R. 427); the result of a CT head scan demonstrated “mild[ly] diffuse cortical cerebral atrophy (R.430), and the result of a chest radiograph was remarkable for lymph node calcification (R. 431.).
Following a fainting episode two months later, Mr. Whitaker again sought treatment through the emergency room; during which time he began to experience alcohol withdrawal, and was kept in the hospital between August 22 and August 24. (R. 680-84) Blood work and another CT scan once again demonstrated lymph node calcification. (R. 692-693)
Following a traumatic head injury and attendant loss of consciousness, Mr. Whitaker was once again hospitalized in December 2010. (R. 605-661) A cervical spine CT scan demonstrated loss of cervical curvature and “fairly significant” degenerative disc disease at C3/4, C5/6 and C6/7. (R.643-644) As Dr. Nicholas Gamma noted in his later consultation report, blood work on this occasion also demonstrated markedly elevated protein levels. (R. 747)
Less than a month later, on January 5, 2011, Mr. Whitaker returned to Winchester Medical Center with complaints of chest pain and shortness of breath. (R. 572) Tests at that time demonstrated an abnormal EKG requiring a left heart catheterization. (R. 571-73)
Pursuant to an oncology referral, the plaintiff was seen for the first time on February 25, 2011 by Dr. Gamma. A bone scan at that time demonstrated “advanced degenerative changes in the cervical spine for a person of the patient’s age.” (R. 721) A battery of other tests followed, including electrophoresis, a monoclonal protein study, extensive blood work, a bone marrow biopsy, a CT scan and an MRI. (R. 724-34, 740-742, 780-783) On March 21, 2011 Dr. Gamma then made the diagnoses of Waldenstrom’s macroglobulinemia with a 2010 diagnostic onset date and monoclonal gammopathy of unknown significance with a January 2011 diagnosis date. (R. 743) He was, however, unsure whether Mr. Whitaker’s back pain was related to the macroglobulinemia. (R. 803) Utilizing the Kamofsky Performance Scale Index to quantify the plaintiff’s general well-being and to determine whether he could safely receive chemotherapy, Dr. Gamma classified the plaintiff’s functional impairment at 60, indicating that he required occasional assistance but was able to care for most of his personal needs. (R. 747-749) Based on the results of these extensive diagnostic studies and his clinical diagnoses, Dr. Gamma further opined that as of February 25, 2011 and for an “indefinite” subsequent period Mr. Whitaker was and would be functionally unable to engage in work activity on a regular and sustained basis. (R. 797, 845)
Inter alia, during this diagnostic process, numerous nonfunctioning immune system and nonfunctioning mediastinal lymph glands were identified; the presence of several small gall stones were noted, and extensive, multi-level, degenerative disc disease with “developing radicular pain symptoms” and “obvious low back pain [on motion]” was also objectively demonstrated. (R. 739-748, 783, 803-808, 817-820, 823-827)
Mr. Whitaker was started on his first cycle of R-CVP chemotherapy in March, and on April 3 he was admitted to the hospital in atrial fibrillation with a rapid ventricular response rate. (R. 707-712, 757, 781, 803-804) On admission Mr. Whitaker’s heart condition was treated with orally administered Cipro and amoxicillin, and after subsequently developing a Methicillin-resistant Staphylococcus aureus (“MRSA”) infection he was placed on intravenously administered vancomycin. (R.757) Based on consultive cardiology findings on April 3, treatment of the plaintiff’s heart arrhythmia was revised to provide for IV administration of Cardizem, with the duration of treatment to be dependent on the results of future renal ultrasound studies and whether any myocardial abscess was found. (R. 757-761) This treatment regime scheduled “for a minimum of 2 weeks” was affirmed on April 6 (R. 713-718, 789), and by April 8, 2011 the plaintiff’s heart arrhythmia and his MRSA-related fevers, chills, malaise and painful urination had abated to a degree sufficient to permit him to be discharged with IV vancomycin treatment for the MRSA infection to continue on an outpatient basis for two weeks. (R. 762-763, 773-774, 781-782, 811-815) Although the plaintiff’s lymphoma was essentially unchanged (R. 781), the oncologist deferred the next cycle of chemotherapy until completion of the plaintiff’s treatment of the MRSA infection. (Id.)
On April 19, 2011 the plaintiff returned to the oncologist for follow-up office visit in connection with his cancer treatment. (R. 801-802) Dr. Gemma noted the plaintiff had made only a “partial response” to chemotherapy. (R.801) The medical record during ensuing months documents ...