United States District Court, W.D. Virginia, Big Stone Gap Division
REPORT AND RECOMMENDATION
PAMELA MEADE SARGENT, Magistrate Judge.
I. Background and Standard of Review
Plaintiff, James Ray Salyers, filed this action challenging the final decision of the Commissioner of Social Security, ("Commissioner"), determining that he was not eligible for disability insurance benefits, ("DIB"), under the Social Security Act, as amended, ("Act"), 42 U.S.C.A. § 423 (West 2011). Jurisdiction of this court is pursuant to 42 U.S.C. § 405(g). This case is before the undersigned magistrate judge by referral pursuant to 28 U.S.C. § 636(b)(1)(B). As directed by the order of referral, the undersigned now submits the following report and recommended disposition.
The court's review in this case is limited to determining if the factual findings of the Commissioner are supported by substantial evidence and were reached through application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence has been defined as "evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). "If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is Asubstantial evidence.'"" Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (quoting Laws, 368 F.2d at 642).
The record shows that Salyers protectively filed an application for DIB on January 22, 2009, alleging disability as of May 7, 2008, due to neck pain, gout, high blood pressure, depression, bursitis in the left shoulder, bilateral carpal tunnel syndrome, a cyst behind the right knee, arthritis, bone spurs on the spine, bulging discs, right ankle pain and headaches. (Record, ("R."), at 11, 173-74, 192, 215.) The claim was denied initially and on reconsideration. (R. at 100-02, 106-08, 111, 113-15, 117-19.) Salyers then requested a hearing before an administrative law judge, ("ALJ"), (R. at 120.) The hearing was held on October 14, 2011, at which, Salyers was represented by counsel. (R. at 27-71.)
By decision dated November 3, 2011, the ALJ denied Salyers's claim. (R. at 11-22.) The ALJ found that Salyers met the nondisability insured status requirements of the Act for DIB purposes through December 31, 2013. (R. at 13.) The ALJ also found that Salyers had not engaged in substantial gainful activity since May 7, 2008, the alleged onset date. (R. at 13.) The ALJ found that the medical evidence established that Salyers suffered from severe impairments, namely obesity; status-post anterior cervical spine fusion; previous hemilaminotomy and discectomy; postoperative degenerative changes of the cervical spine; disc protrusion of the cervical spine; cervical spondylosis; disc bulge, protrusion, foraminal narrowing and compromise on the exiting left C6 and C7 roots; mild degenerative annular bulging of the lumbar spine; degenerative disc disease with spur formation of the thoracic spine; fibromyalgia; gout; and bilateral carpal tunnel syndrome, but she found that Salyers did not have an impairment or combination of impairments listed at or medically equal to one listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 13-14.) The ALJ found that Salyers's depression and anxiety were nonsevere. (R. at 14.) The ALJ also found that Salyers had the residual functional capacity to perform sedentary work that allowed for occasional reaching, including overhead, with the left upper extremity, occasional climbing of ramps and stairs, kneeling, stooping, crouching and crawling, frequent balancing and that did not require him to climb ladders, ropes or scaffolds, to use a keyboard or to work around hazards such as moving machinery, unprotected heights and vibrating surfaces. (R. at 15.) The ALJ found that Salyers was unable to perform his past relevant work. (R. at 21.) Based on Salyers's age, education, work history and residual functional capacity and the testimony of a vocational expert, the ALJ found that jobs existed in significant numbers in the national economy that Salyers could perform, including the job as a ticket checker, a telephone clerk and a general office clerk. (R. at 21-22.) Thus, the ALJ found that Salyers was not under a disability as defined under the Act and was not eligible for benefits. (R. at 22.) See 20 C.F.R. § 404.1520(g) (2013).
After the ALJ issued her decision, Salyers pursued his administrative appeals, (R. at 6), but the Appeals Council denied his request for review. (R. at 1-3.) Salyers then filed this action seeking review of the ALJ's unfavorable decision, which now stands as the Commissioner's final decision. See 20 C.F.R. § 404.981 (2013). The case is before this court on Salyers's motion for summary judgment filed September 19, 2013, and the Commissioner's motion for summary judgment filed November 22, 2013.
Salyers was born in 1971, (R. at 36, 173, 188), which classifies him as a "younger person" under 20 C.F.R. § 404.1563(c). Salyers has a high school education and attended one year of college. (R. at 32, 36, 197.) He has past relevant work experience as a surface coal miner and a mechanic. (R. at 33, 37.) Salyers testified that he could stand for up to 10 minutes without interruption, walk up to 100 meters without interruption and sit for up to five minutes without interruption. (R. at 38.) He stated that he had numbness in his hands as a result of carpal tunnel syndrome. (R. at 39.) Salyers testified that medication helped his symptoms of depression and anxiety. (R. at 40.)
Dr. Haddon Christopher Alexander, III, M.D., a medical expert, was present and testified at Salyers's hearing. (R. at 50-65.) Dr. Alexander stated that Salyers's physical impairments included degenerative disc disease of the cervical spine, carpal tunnel syndrome, gout and high blood pressure. (R. at 51-52.) Dr. Alexander stated that Salyers's impairments did not meet or equal the Listing of Impairments for § 1.04A for the cervical or lumbar spines. (R. at 54.) He further stated that Salyers's impairments did not meet or equal a listed impairment. (R. at 54-56.) Dr. Alexander stated that Salyers had the residual functional capacity to occasionally lift items weighing up to 20 pounds and frequently lift items weighing up to 10 pounds. (R. at 56.) He stated that Salyers could sit, stand and walk six hours in an eight-hour workday with normal breaks. (R. at 56.) He stated that Salyers could not climb ropes, ladders or scaffolds; frequently climb ramps and stairs; and occasionally balance, bend, crouch, kneel or crawl. (R. at 56-57.) Dr. Alexander stated that Salyers could occasionally lift items above his chest with his left shoulder. (R. at 56.) He stated that Salyers should not work around unprotected heights or heavy machinery with rapidly moving parts. (R. at 56-57.)
Vocational expert, AnnMarie Cash, also was present and testified at Salyers's hearing. (R. at 66-70.) Cash classified Salyers's work as a mechanic with the coal mines as heavy and skilled. (R. at 67.) Cash was asked to consider a hypothetical individual of Salyers's age, education and work history who had the residual functional capacity to occasionally lift and carry items weighing 20 pounds, 10 pounds frequently, stand and walk no more than three hours in an eight-hour workday with normal breaks, sit no more than six hours in an eight-hour workday with normal breaks, frequently climb ramps and stairs, occasionally balance, kneel, stoop, crawl, crouch, reach with the left shoulder above chest level, no working around moving machinery with rapidly moving parts, no exposure to hazardous machinery, unprotected heights, climb ladders, ropes, scaffolds or working on vibrating surfaces and no keyboarding. (R. at 67.) Cash stated that such an individual could not perform Salyers's past work. (R. at 67.) Cash also stated that the individual could perform sedentary work, such as a ticket checker, a telephone clerk and a general office clerk. (R. at 68-69.) Cash was asked to consider the same individual, but who would be off task 30 to 40 percent of any workday. (R. at 69.) She stated that such an individual could not perform Salyers's past work and that there would be no other work available that such an individual could perform. (R. at 69-70.) When asked if the restriction to no stooping were added to any of the hypotheticals, Cash stated that there would be no jobs available that such an individual could perform. (R. at 70.)
In rendering her decision, the ALJ reviewed medical records from Julie Jennings, Ph.D., a state agency psychologist; Dr. Richard Surrusco, M.D., a state agency physician; Dr. Brian Strain, M.D., a state agency physician; Joseph Leizer, Ph.D., a state agency psychologist; Dr. Shahab M. Ehtesham, M.D.; Dr. Matthew W. Wood, Jr., M.D., a neurologist; Dr. John Marshall, M.D.; Dr. Kevin Blackwell, D.O.; and Wellmont Bristol Regional Medical Center.
On June 18, 2008, Salyers saw Dr. Matthew W. Wood, Jr., M.D., a neurosurgeon, for complaints of left neck, shoulder and arm pain following a work-related injury. (R. at 337.) Dr. Wood reported that Salyers was in no distress. (R. at 337.) Salyers had mild weakness of the left triceps, his cranial nerves and higher cortical functions were intact, and his station and gait were normal. (R. at 337.) An MRI of Salyers's cervical spine showed degenerative joint disease with loss of the normal lordosis curvature, a protrusion of disc in the left paracentral region at the C5-C6 and C6-C7 disc spaces, which resulted in the narrowing of the central canal on the left side, a compression of the cord was noted and marked narrowing of the neural foramen on the left side at both levels. (R. at 277, 393-94.) On June 26, 2008, a CT scan of Salyers's cervical and thoracic spines showed significant spondylosis and disc bulge/protrusion at both the C5-C6 and C6-C7 disc spaces with foraminal narrowing at both levels and a significant compromise on the exiting left C6 and C7 roots. (R. at 333-36.) A cervical myelogram showed spondylosis and disc protrusion at multiple levels being most marked at the C5-C6 and C6-C7 disc spaces. (R. at 331-32.) On July 9, 2008, Salyers complained of left shoulder and arm pain. (R. at 325.) His strength was intact, with the exception of the left triceps, which were mildly weak. (R. at 325.) Dr. Wood noted that Salyers had pain in his neck and left shoulder with extension of his neck. (R. at 325.) Salyers underwent an EMG, which showed severe bilateral carpal tunnel syndrome. (R. at 326, 329-30.) A cervical myelogram showed a large left foraminal disc extrusion and a small, but significant, left C5-C6 disc protrusion atop an uncovertebral osteophyte, as well as two-level compressive disease. (R. at 325.) Dr. Wood noted that this was severe and needed decompression. (R. at 325.)
On July 16, 2008, Salyers underwent a left C6-C7 partial hemilaminotomy and discectomy and a left C5-C6 partial hemilaminotomy and foraminotomy for decompression. (R. at 323-24.) On August 25, 2008, Salyers complained of neck pain, headache and left shoulder pain. (R. at 315.) Dr. Wood reported that Salyers's gait was normal, and he had full range of motion of the neck, with pain on extension. (R. at 315.) X-rays showed a large recurrent disc protrusion at the C5 disc space and osteophytes and a disc protrusion at the C6 disc space. (R. at 315, 317-18.) Dr. Wood scheduled a C5 and C6 anterior cervical discectomy. (R. at 315.) On September 2, 2008, Salyers was admitted to Wellmont Bristol Regional Medical Center where he underwent a two-level anterior cervical disc fusion without complications. (R. at 247-62.) He ambulated without difficulty and was discharged the next day in stable condition. (R. at 247.) On October 10, 2008, Salyers complained of neck pain, headaches and occasional bilateral posterior shoulder pain. (R. at 306.) Dr. Wood noted that Salyers was in no distress, and his range of motion was at 80 percent normal. (R. at 306.) Dr. Wood reported that Salyers's incision was well-healed, and he had no weakness in either upper extremity. (R. at 306.) X-rays performed indicated excellent position of Salyers's grafts and plate. (R. at 306-08.) On November 10, 2008, Salyers complained of worsening neck pain and headache. (R. at 301.) Dr. Wood reported that Salyers remained neurologically intact. (R. at 301.) Salyers's range of motion of the neck was excellent. (R. at 301.) Salyers exhibited profound cervical spasm bilaterally, which was treatable with medication. (R. at 301.) X-rays indicated excellent early fusion. (R. at 301-02.) On December 9, 2008, Chris Justus, P.A.C., a certified physician's assistant, reported that Salyers was in no acute distress. (R. at 294.) Justus reported that Salyers exhibited findings consistent with cervical spasm. (R. at 294.) He had ...