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Breighner v. Colvin

United States District Court, W.D. Virginia, Harrisonburg Division

April 1, 2014

ROBERT W. BREIGHNER, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

JAMES G. WELSH, Magistrate Judge.

The plaintiff, Robert W. Breighner, 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 claims for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, as amended, 42 U.S.C. §§ 1381-1383f, and 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 March 22, 2010, [1] alleging a period of disability beginning on September 17, 2009 (R. 211). Initially denied, the claims were reconsidered on February 14, 2011, and again denied. (R. 100, 128). Following an administrative hearing on September 20, 2011 the presiding ALJ confirmed this denial in writing (R. 21-41). 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 #9) to the plaintiff's Complaint (docket #3), the Commission 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, 14, 20, 21). Oral argument on these motions occurred by telephone on November 21, 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. Issues Presented on Appeal

The ALJ first found that plaintiff met the Act's insured status requirements through March 31, 2014, and had not engaged in substantial gainful activity[2]since September 17, 2009, the alleged onset date (R. 23). He categorized several of the plaintiff's medical conditions as severe, [3] including: diabetes mellitus, [4] peripheral neuropathy, [5] major joint dysfunction (diffuse arthritis), [6] hypertension, [7] an organic mental disorder, [8] headaches, an affective disorder, [9] a cognitive disorder- not otherwise specified, and obesity (R. 23-24). He then determined that none of these impairments, either singularly or in combination, met or equaled a listed impairment, [10] and he also noted that the plaintiff had the non-severe impairments of high cholesterol and tobacco abuse (R. 24). Completing the sequential analysis mandated by the Agency, [11] the ALJ assessed the functional limitations caused by Mr. Breighner's impairments (R. 39) and concluded the plaintiff retained the capacity to perform "medium work, "[12] but was limited to frequent stair and ramp climbing, to occasional ladder, rope and scaffold climbing, and to frequent handling and fingering of objects (R. 26-27). In addition, the ALJ found the plaintiff to be additionally limited to "simply routine, repetitive work with no more than occasional decision making, no more than occasional and minimal changes in the work setting, and... only occasional use of judgment" (R. 27). Suggested work included the plaintiff's past work as an egg gatherer (R. 40).

The plaintiff challenges the ALJ's decision generally as unsupported by substantial evidence, (docket #14, p 1), and he specifically challenges the finding that his mild intellectual impairments are not of listing level (disabling) severity (docket #14, pp4-5).

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 GRANTED, that final judgment be entered AFFIRMING the Commissioner's decision denying benefits, and that this matter be DISMISSED from the court's active docket.

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 Co. v. Compton, 211 F.3d 203, 208 (4th Cir. 2000); 42 U.S.C. § 405(g).

V. Facts

A. Age, Educational, and Vocational Profile

In 2009, when Mr. Breighner alleges his disability began, he was 45[13] (docket #14, p 3; R. 211)). In school, Mr. Breighner reports, he struggled with math and was confined to separate special education classes. (R. 60-61). No documentation in the record supports this claim, and it is undisputed that he completed high school and entered the work force. (R.60, 224, 241). His work history includes employment as an automobile mechanic, a draw-bench operator, an egg gatherer, and a hotel manager (R. 263). According to the vocational witness, these jobs ranged from unskilled to skilled and exertionally from sedentary to heavy (R. 83). Following a work-related injury in December 2008, the plaintiff was treated for a soft tissue laceration of his right palm and a fracture of the right index finger. (R. 391-95). For most of the ensuing year, the plaintiff received workers' compensation benefits; he returned to work at some point, but was terminated in November 2009; he thereafter received unemployment benefits through the first quarter of 2010; despite looking for work, however, he was unable to find a job (R. 59-60, 66-67, 220, 234).

B. Medical Record

Although the medical record contains no confirmation of an actual medical diagnosis, the record does indicate that Mr. Breighner was diagnosed to have of Type II (adult onset) diabetes mellitus at some point before 2009.[14] A February 11, 2009 medical treatment entry notes that Mr. Breighner had come to the doctor because his blood sugar was "out of whack, " prompting the doctor to remark that this was unusual-Mr. Breighner's sugar was normally controlled and he, "ha[d]n't had labs in over a year" (R. 320).

Mr. Breighner's first post-onset-date doctor's visit occurred two months after his alleged disability date on November 5, 2009. (R. 353-56). The attending physician noted "suboptimal" control of the diabetes (R. 354), but he also noted that Mr. Breighner had come to the emergency room largely to get a prescription filled for free (R. 354). His glucose at that time was 213 mg/dL. (R. 356).

In the following months Mr. Breighner came to the Rockingham Memorial Hospital Emergency Room ("RMH-ER") and the Rockingham Free Clinic ("Free Clinic") only for treatment of a couple of non-diabetes-related medical care. In November 2009 he was seen for a nerve injury to his finger (R. 331); in February and March 2010 he was seen for dental care (R. 410, 412), and on July 12, 2010 he was seen for an ear infection and fevers (R. 452).

Although a dental history sheet notes that Mr. Breighner reported having experienced a diabetic coma in 2002 (R. 412) and that his glucose levels were at times high (R. 408, 410), there is nothing in the record to suggest that the status of the plaintiff's diabetes was a significant cause for medical concern. For example, he had "no numbness in [his] feet" on February 15, 2010 (R. 410) and "to have no diabetic retinopathy" when seen by his ophthalmologist on March 19, 2010 (R. 409, 470). Later the same month, for prophylactic reasons he was counseled by his physicians both on the proper use of medications (apparently because he was "skipping" one Lantus (insulin) dose every 1-2 days (R. 408)) and on the proper way to record his blood sugar (R. 407, 410). It was also recommended that he lose weight (R. 407, 453-55), and on occasion his insulin dosage was adjusted for symptom (afternoon nausea and discomfort) control ( see e.g. R. 457). In August 2010 he told a Free Clinic physician that his blood sugar was good, ranging from 110-79 (R. 451) and that it was "gradually coming down" (R. 450).

Although "numbness [in his] feet/hands]" is noted on the diabetes residual functional capacity questionnaire completed by Dr. John Stauffer that same month, Mr. Breighner did not discuss this issue with any other primary care physicians (R. 434-38). Likewise, Dr. Stauffer's January 2011 responses to a range of motion questionnaire mentions Mr. Breighner's "history or poorly controlled diabetes" and also notes the plaintiff's history of "tak[ing] [his] medicines sporadically" (R. 473-74). Once again, there was no discussion in the record of any diabetic or other peripheral neuropathy.

As the following chart demonstrates, the bulk of Mr. Breighner's RMH-ER and Free Clinic visits during the decisionally relevant period involved routine lab work coupled with self-reported information provided on several occasions.

Institution Date Glucose Level Unit Record Rockingham 9/19/2008 213 (7:12 am); 135 (10:42 am); 199 mg/dL 402 Memorial Hospital (15:30) Rockingham 1/12/2009 200 (9 am) 178 (11:14 am) mg/dL 382-86 Memorial Hospital LabCorp Report 3/6/2009 207 mg/dL 322-23 Rockingham 8/3/2009 One specimen 175, one 261 mg/dL 321 Memorial Hospital Rockingham 8/3/2009 261 (morning); 175 (three ...


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