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Nolan v. Colvin

United States District Court, Western District of Virginia, Danville Division

May 21, 2014

BRUCE NOLAN, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

Joel C. Hoppe United States Magistrate Judge

Plaintiff Bruce Nolan brought this action for review of the Commissioner of Social Security’s (the “Commissioner”) decision denying his claim for supplemental security income (SSI) under Title XVI of the Social Security Act (the “Act”) ”), 42 U.S.C. §§ 1381–1383f. On appeal, Nolan argues that the Commissioner erred in weighing the opinions of examining sources and in failing to assign specific limitations regarding the use of Nolan’s left arm. The Court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), and this case is before the undersigned magistrate judge by referral pursuant to 28 U.S.C. § 636(b)(1)(B). After carefully reviewing the record, I find that the decision of the Administrative Law Judge (“ALJ”) was based on substantial evidence and respectfully recommend that the Commissioner’s decision be affirmed.

I. The Legal Framework

The Social Security Act authorizes this Court to review the Commissioner’s final determination that a person is not entitled to disability benefits. See 42 U.S.C. §§ 405(g), 1383(c)(3); see also Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). The Court’s role, however, is limited—it may not “reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment” for that of agency officials. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Instead, the Court asks only whether substantial evidence supports the ALJ’s factual findings and whether the ALJ applied the correct legal standards. Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011).

Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). It is “more than a mere scintilla” of evidence, ” id., but not necessarily “a large or considerable amount of evidence, ” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence review takes into account the entire record, and not just the evidence cited by the ALJ. See Gordon v. Schweiker, 725 F.2d 231, 236 (4th Cir. 1984); see also Universal Camera Corp. v. NLRB, 340 U.S. 474, 487–89 (1951). Ultimately, this Court must affirm the ALJ’s factual findings if “‘conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled.’” Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (internal quotation marks omitted)). However, “[a] factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law.” Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).

A person is “disabled” if he or she is unable engage in “any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). Social Security ALJs follow a five-step process to determine whether an applicant is disabled. The ALJ asks, in sequence, whether the applicant: (1) is working; (2) has a severe impairment; (3) has an impairment that meets or equals an impairment listed in the Act’s regulations; (4) can return to his or her past relevant work based on his or her residual functional capacity; and if not (5) whether he or she can perform other work. See 20 C.F.R. § 416.920(a)(4); see also Heckler v. Campbell, 461 U.S. 458, 460–462 (1983). The applicant bears the burden of proof at steps one through four. Hancock, 667 F.3d at 472. At step five, the burden shifts to the agency to prove that the applicant is not disabled. See id.

II. Procedural History

Nolan was born in 1962 (Administrative Record, hereinafter “R.” 66, 199, 203), and at the time of the ALJ’s decision was considered an “individual closely approaching advanced age” under the Act. 20 C.F.R. § 416.963. He graduated from high school in 1980 and worked as a construction supervisor from 2000 until his alleged onset date. (R. 208.) He alleges that he has been disabled since September 1, 2010, due to injuries to his back, left arm, and left leg stemming from a 1984 motorcycle accident, as well as chest pains, insomnia, anxiety, stress, and depression. (Plaintiff’s Brief, hereinafter “Pl. Br.” 1–2; R. 60, 203, 207, 239.) After rejecting Nolan’s application initially[1] and upon reconsideration, (R. 58, 102, 111), the Commissioner convened a hearing before an ALJ at Nolan’s request on April 2, 2012. (R. 72–92.) Nolan was represented by counsel at the hearing, where he and a vocational expert testified. (R. 72–92.)

On April 26, 2012, the ALJ issued his decision finding that Nolan was not disabled. (R. 55–67.) The ALJ found that Nolan had severe impairments of back difficulty and left knee difficulty, but that neither of these impairments met or medically equaled the severity of those listed in 20 C.F.R. part 404, Subpart P, Appendix 1. (R. 60–61.) The ALJ also found that Nolan retained the capacity to perform light work, except that he cannot climb ladders, ropes or scaffolds and cannot kneel, crouch, or crawl. (R. 25.) In reaching his assessment of Nolan’s residual functional capacity (“RFC”), the ALJ afforded “little weight” to the opinions of Dr. William McCarty, M.D., and physical therapist David Love, but great weight to the opinion of consultative medical examiner Dr. David Boone, M.D. (R. 63–64.) At step four, the ALJ found that Nolan was able to do his past relevant work as a drywall supervisor as he actually performed it, even though that job is typically performed at a medium exertional level. (R. 66.) Although this meant that the ALJ found Nolan not disabled at step four, the ALJ made two alternative findings at step five. First, the ALJ found that Nolan was a younger individual at the time of his application, had a high school education, and was able to communicate in English; therefore, he was not disabled pursuant to the Medical-Vocational Rules, 20 C.F.R. Part 404, Subpart P, Appendix 2 (“the grids”). (R. 66.) Second, the ALJ found that Nolan could perform light unskilled work existing in significant numbers in the state and national economies, including lobby monitor, laundry separator, and cafeteria monitor. (R. 66–67.) Accordingly, the ALJ found that Nolan was not disabled under the Act. (R. 67.) The Appeals Council denied Nolan’s request to review the ALJ’s decision and this appeal followed. (R. 1–5.)

III. Discussion

A. The ALJ’s Assessment of the Medical Opinions

Nolan’s first argument on appeal is that the ALJ afforded too much weight to Dr. Boone’s opinion and insufficient weight to the opinions of Dr. MacCarty and physical therapist David Love.

1.Relevant Evidence

Because Nolan had relatively limited medical records, the state agency considering Nolan’s initial application ordered a consultative medical examination by Dr. Boone in order to develop the record. 20 C.F.R. §§ 416.912(e), 416.919a(b)(1); see also Kersey v. Astrue, No. 2:08cv00045, 2009 WL 1457694, at *2 (noting that a consultative examination is required when the evidence is insufficient to evaluate the claim). Dr. Boone examined Nolan on January 22, 2011, and submitted his report two days later. (R. 277–81.) Dr. Boone based his report solely on his examination, as he was not provided any of Nolan’s paper medical records. (R. 277.)

At the examination, Dr. Boone asked Nolan about his work history. Nolan explained that he had not worked since he left his construction supervisor job in September 2010. Dr. Boone’s report indicates that this job involved no lifting, climbing ladders, or “things of that nature, ” but that Nolan was “just supervising other workers and giving advice mostly, with minimal manual labor.” (R. 277.) Nolan explained that the owner of the construction company told him that there was no more work and has not called him in for any more jobs. (R. 277.) Nolan told Dr. Boone that he was not applying for any jobs, “he states because, ‘There’s no work out there.’” (R. 277.) Nolan explained that he was convinced that there were no jobs available because his friend had been looking for work without success. (R. 277.)

At the examination, Dr. Boone also asked Nolan to describe his medical problems. Dr. Boone noted complaints of mid to low back pain as well as arm and leg stiffness. (R. 278.) Nolan told Dr. Boone that “he was in a motorcycle accident in 1984 that affected shattered bones in his arms and leg and his back has always hurt since then.” (R. 278.) Nolan reported that his arm and leg stiffness “is the same as it has always been” and that “[i]t has not worsened acutely in the past years.” (R. 278.) Nolan also complained of sharp on-and-off-chest pain. (R. 278–79.) Nolan reported taking only aspirin for his pain. (R. 278.)

Dr. Boone also conducted a physical examination. (R. 279–80.) He described Nolan as “a tall, muscular male, ” six feet tall and weighing 256 pounds. (R. 279.) Dr. Boone noted that, while Nolan was able to walk without assistance, he limped favoring his left leg. (R. 279–80.) Nolan demonstrated normal range of motion in most joints, but demonstrated limited range of motion in the left elbow, left thumb and index finger, and left knee. (R. 280.) Specifically, Dr. Boone’s examination revealed that Nolan had a range of motion in his left elbow of between 20 to 130 degrees[2] and that he could flex his left thumb and index finger to only 70 degrees.[3] Dr. Boone noted that his left knee was essentially locked into place and was capable of only five degrees of motion between 15 and 20 degrees of flexion.[4] (Id.) Nolan’s muscle strength was below normal in his left hand and left leg (), but otherwise normal (). (R. 280.)

Dr. Boone diagnosed Nolan with mid and low back pain, which “appears unchanged over the course of his history, ” and arm and leg stiffness, which also did not appear to have changed recently. (R. 280.) Dr. Boone stated that, in his opinion, Nolan could stand and walk six hours and sit six hours in an eight hour work day and lift and carry 20 lbs. occasionally and 10 lbs. frequently. (R. 281.) Dr. Boone identified no manipulative limitations based on Nolan’s ability to bend over and pick up a coin and paper clip off the floor, exchange them from hand to hand, and return it to Dr. Boone. (R. 281.) Dr. Boone did note postural limitations, “as [Nolan] is unable to flex or extend the lower extremity very much and does appear to have some loss of coordination using the left upper extremity, likely from deconditioning over the years.” However, Dr. Boone noted that “[t]his does not appear to be changed per his own history over the past few years as it has been in the past, but he will likely be unable to climb ladders, stairs, or walk at any great heights as it would be unsafe.” (R. 281.)

On August 4, 2011, Nolan saw Dr. MacCarty, “on referral from Joel Cunningham, his lawyer, who is trying to get him disability.” (R. 318.) At the examination, Nolan complained of “stiffness in his left knee, [and] pain and weakness in the left wrist and hand.” (Id.) Dr. MacCarty noted that Nolan was injured in a motorcycle accident in 1984 and that since then he “has had marked disability involving the left upper extremity.” (Id.)

Dr. MacCarty observed that Nolan had a grossly antalgic gait, decreased back motion, no spinal tenderness, and tenderness in the left sciatic notch. (Id.) He also noted “gross stiffness and swelling” in the left knee, “significant[ly]” decreased range of motion in the left wrist, and “gross weakness” and sensitivity in the left hand. (Id.) Dr. MacCarty also reviewed Nolan’s records, including several x-rays. A left knee x-ray showed “severe advanced tricompartmental degenerative disease” and a left wrist and hand x-ray showed “pantrapezial disease and marked degenerative changes at the wrist joint.” (Id.) Additionally, lumbar spine x-rays showed decreased disc spaces between ...


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