United States District Court, Western District of Virginia, Big Stone Gap Division
REPORT AND RECOMMENDATION
PAMELA MEADE SARGENT, United States Magistrate Judge
I. Background and Standard of Review
Plaintiff, William Curtis Campbell, Jr., filed this action challenging the final decision of the Commissioner of Social Security, (“Commissioner”), determining that he was not eligible for supplemental security income, (“SSI”), under the Social Security Act, as amended, (“Act”), 42 U.S.C.A. § 1381 et seq. (West 2012). Jurisdiction of this court is pursuant to 42 U.S.C. § 1383(c)(3). 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 “substantial evidence.’”” Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (quoting Laws, 368 F.2d at 642).
The record shows that Campbell protectively filed his application for SSI on April 16, 2009, alleging disability as of September 30, 2005, due to problems with his back and legs, broken ribs, chronic obstructive pulmonary disease, (“COPD”), anxiety, depression, numbness in the right leg, herniated discs, bulging discs, lower back problems and high cholesterol. (Record, (“R.”), at 15, 154-59, 167, 171.) The claims were denied initially and on reconsideration. (R. at 15, 84-86, 89-90, 92-94, 96-98.) Campbell then requested a hearing before an administrative law judge, (“ALJ”). (R. at 99.) The hearing was held on June 17, 2011, at which Campbell was represented by counsel. (R. at 33-63.)
By decision dated July 18, 2011, the ALJ denied Campbell’s claim. (R. at 15-28.) The ALJ found that Campbell had not engaged in substantial gainful activity since April 16, 2009, the date of his application. (R. at 17.) The ALJ determined that the medical evidence established that Campbell suffered from severe impairments, including degenerative disc disease of the lumbosacral spine and borderline intellectual functioning, but he found that Campbell 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 17-21.) The ALJ found that Campbell had the residual functional capacity to perform unskilled, sedentary work that required the performance of no more than occasional postural activities, and which did not require climbing ladders, ropes or scaffolds or working around vibration, respiratory irritants, hazards and unprotected heights. (R. at 22.) Thus, the ALJ found that Campbell was unable to perform any of his past relevant work as an assistant service manager, a drywall hanger and finisher, a self-employed produce seller or a truck driver. (R. at 26.) Based on Campbell’s age, education, work history and residual functional capacity and the testimony of a vocational expert, the ALJ found that Campbell could perform other jobs existing in significant numbers in the national economy, including jobs as a maintenance worker, a cashier and a telephone clerk. (R. at 26-27.) Therefore, the ALJ found that Campbell was not under a disability as defined under the Act and was not eligible for benefits. (R. at 28.) See 20 C.F.R. § 416.920(g) (2013).
After the ALJ issued his decision, Campbell pursued his administrative appeals, (R. at 9-11), but the Appeals Council denied his request for review. (R. at 1-5.) Campbell 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. § 416.1481 (2013). The case is before this court on Campbell’s motion for summary judgment filed July 23, 2013, and on the Commissioner’s motion for summary judgment filed August 22, 2013.
Campbell was born in 1963, (R. at 38, 154), which, at the time of the hearing, classified him as a “younger person” under 20 C.F.R. § 416.963(c).Campbell obtained his general equivalency development, ("GED"), diploma and has some vocational training in auto body work. (R. at 38-39.) He last worked fulltime in September 2005 as a delivery truck driver and a self-employed produce seller. (R. at 39-40.) Campbell testified that he stopped working when he was involved in a motor vehicle accident. (R. at 39.) He testified that he began seeing Dr. G.S. Kanwal, M.D., following the accident, and he continued to be his treating physician. (R. at 41-42.) Campbell stated that the accident had resulted in seven broken ribs, which caused continuing left side pain, a ruptured spleen, a lung contusion or puncture, two bulging discs, a herniated disc and a tear in the annulus of his back. (R. at 43, 52.) Campbell also testified that he suffered from COPD. (R. at 43.) He stated that his right leg would give way, and he had radiating pain down his right leg. (R. at 43.) Campbell also stated that he had a “real bad nerve problem now.” (R. at 43.) He testified that he had abdominal pain due to removal of part of his colon, which had resulted in having to use the restroom at unpredictable times. (R. at 44-45.) Campbell testified that he was able to take care of his personal hygiene, but that his wife took care of all the housework. (R. at 44-45.) Campbell reported having undergone physical therapy and chiropractic treatment for his ribs and back, noting that, if he did not go to the chiropractor, he could not walk. (R. at 46.) Campbell testified that he had not undergone any steroid injections, but he had used a TENS unit. (R. at 47.) He stated that he “get[s] out and walk[s] around some, and then back to the house.” (R. at 47.) He stated that he was taking Lortab, Soma, Celexa, Valium, amitriptyline, Lexapro, a nerve pill, potassium and a fluid pill. (R. at 47-48.) He stated that his feet had been swelling all the way up to his knees, for which he had been hospitalized. (R. at 48.) Campbell testified that his medications affected his memory and gave him constipation. (R. at 48.)
Campbell estimated that he could lift items weighing up to 10 pounds, stand and/or walk for a total of only two hours in an eight-hour workday and sit for a total of only two hours in an eight-hour workday. (R. at 48-49.) He testified that he spent four to five hours daily reclining or lying down. (R. at 49.) Campbell stated that he could not repeatedly bend or stoop, but he had no difficulty using his arms, hands or fingers. (R. at 49-50.) However, he testified that both of his feet swelled, his right leg gave out, and he had a shooting pain down the right leg with numbness. (R. at 50.) He stated that his leg also tingled and burned all the way to his toes. (R. at 50.) Campbell testified that he was thinking about starting to use a cane. (R. at 50.)
Campbell rated his pain level since the accident as being from a five to an eight on a 10-point scale. (R. at 52.) On his better days, he testified that he still did not do much of anything, but on the worse days, he stayed in the recliner, on the couch or in bed. (R. at 52.) He stated that the pain interfered with his sleeping, leaving him tired during the day, resulting in regular napping. (R. at 52-53.) He stated that he did not want to be around crowds, and he associated only with his wife and parents. (R. at 53.) He stated that his medications helped as long as he stayed away from crowds. (R. at 53-54.)
Gerald Wells, a vocational expert, also was present and testified at Campbell’s hearing. (R. at 56-61.) Wells classified Campbell’s past work as an assistant service manager as light and skilled, as a laborer as heavy and unskilled, as a self-employed produce seller as medium to heavy and semi-skilled and as a delivery truck driver, as normally performed, as medium and semi-skilled. (R. at 56-57.) Wells testified that a hypothetical individual of Campbell’s age, education and work experience, who was limited to unskilled, light work with the performance of occasional postural movements, but who could not climb ladders, ropes or scaffolds and could not work around concentrated exposure to hazards and unprotected heights, could not perform any of Campbell’s past relevant work. (R. at 57.) However, Wells testified that such an individual could perform the jobs of a cashier, at both the sedentary and light levels of exertion, a convenience store clerk, at the light level of exertion, and a night office cleaner, at the light level of exertion. (R. at 58.) Wells next testified that, the same hypothetical individual, but who could perform only sedentary work, with the same postural and environmental limitations, and who also must avoid exposure to excessive vibration and respiratory irritants, could not perform any of Campbell’s past work or the jobs previously identified. (R. at 58-59.) However, Wells testified that such an individual could perform the jobs of a dispatcher of maintenance workers, a cashier II and a telephone information clerk, all at the unskilled, sedentary level of exertion. (R. at 59.) Wells next testified that the same hypothetical individual, but who also could work only a low-stress job, which was defined as having no fixed production quota, no hazardous conditions, only occasional decision making and only occasional changes in the work setting, and who could have only occasional or superficial interaction with the public and with co-workers and supervisors, could not perform any jobs. (R. at 60.) Lastly, Wells testified that an individual who could not sustain sufficient concentration, persistence and pace performing unskilled work on a full-time basis, would be precluded from all work. (R. at 60.)
In rendering his decision, the ALJ reviewed records from Dr. Robert McGuffin, M.D., a state agency physician; Julie Jennings, Ph.D., a state agency psychologist; Dr. Brian Strain, M.D., a state agency physician; Richard J. Milan, Jr., Ph.D., a state agency psychologist; Martha Rubenstein, Ph.D.; Norton Community Hospital; Dr. Luciano D’Amato, M.D.; Clinch Valley Medical Center; Dr. Jim C. Brasfield, M.D.; Dr. G.S. Kanwal, M.D.; Highlands Chiropractic & Wellness Center; B. Wayne Lanthorn, Ph.D., a licensed clinical psychologist; and Mountain View Regional Medical Center.
An MRI of Campbell’s lumbar spine, dated February 1, 2006, showed a tear in the annulus in the left paracentral region with mild bulging of the disc at the L5- S1 disc space level, with no disc herniation and no narrowing of the central spinal canal or neural foramina at any level. (R. at 546-47.) On March 24, 2006, Campbell underwent an electromyogram, (“EMG”), and nerve conduction study of the lower extremities at Norton Community Hospital with normal results. (R. at 549.)
Campbell saw Martha Rubenstein, Ph.D., for six visits, between March 21, 2006, through July 7, 2006. (R. at 215-24.) At intake on March 21, 2006, Campbell reported never having received mental health treatment in the past. (R. at 215.) He stated that that the September 2005 motor vehicle accident had resulted in personality changes, causing stress in his marriage and that he was very fearful when driving, which he avoided whenever possible. (R. at 215.) Campbell’s affect was generally appropriate, but agitated at times, his mood was much more irritable, insight and judgment were fair, short-term memory was mildly impaired, and concentration was mildly impaired. (R. at 215.) Rubenstein estimated his intelligence to be in the average to low average range. (R. at 215.) Campbell endorsed symptoms of anxiety, including trembling and possible panic attacks. (R. at 215.) Rubenstein noted that Campbell was very hypervigilant when driving and that he avoided people. (R. at 215.) Rubenstein diagnosed Campbell with an adjustment disorder with anxiety and depressed mood and some symptoms of post-traumatic stress disorder, (“PTSD”), and she placed his then-current Global Assessment of Functioning Score at 52. (R. at 216.) Rubenstein recommended that Dr. Kanwal consider prescribing a trial of an SSRI and cognitive behavioral treatment of anxiety. (R. at 217.)
Campbell continued to see Rubenstein each month through July 2006. By April 24, 2006, Campbell’s mood and affect were anxious, but his cognition, appearance and behavior were within normal limits. (R. at 219.) Rubenstein noted minimal progress since the last session. (R. at 219.) She noted that Dr. Kanwal did not prescribe an SSRI as she had hoped, but did prescribe Librax. (R. at 219.) Campbell’s wife described him as very irritable and short-tempered. (R. at 219.) On May 8, 2006, Campbell’s mood and affect were flat, dysphoric and irritable, his cognition was fragmented with a preoccupation with pain, behavior was hypoactive, and appearance was within normal limits. (R. at 220.) His progress was described as “up and down” since the last session. (R. at 220.) Rubenstein noted that Dr. Kanwal had prescribed Limbritol with little effect. (R. at 220.) She recommended that Campbell discuss Zoloft or Lexapro with Dr. Kanwal at his next appointment. (R. at 220.) On June 2, 2006, Campbell’s mood and affect were within normal limits, his behavior was hypoactive, and his appearance was normal. (R. at 221.) Rubenstein noted good progress since the last session. (R. at 221.) She further noted that Dr. Kanwal had prescribed Lexapro, and both Campbell and his wife stated that he was less irritable. (R. at 221.) Rubenstein recommended that he try driving more to assess his anxiety level and to decrease smoking to aid his physical healing. (R. at 221.) However, on June 19, 2006, Rubenstein noted that Campbell had neither driven nor stopped smoking. (R. at 223.) His wife stated he was improving. (R. at 223.) Rubenstein described his mood as depressed, with a normal and appropriate affect and an intact mental status. (R. at 223.) Rubenstein noted only partial treatment compliance, but further noted that Campbell was accepting his limitations with less anger. (R. at 223.) On July 7, 2006, Campbell’s mood and affect were within normal limits, his cognition was fragmented, as he was preoccupied with his work situation, his behavior was hypoactive, and his appearance was within normal limits. (R. at 224.) Campbell had decreased his caffeine intake and cigarette use. (R. at 224.) Rubenstein reported that Campbell had made good progress since his last visit. (R. at 224.) He was driving short distances a little more and was managing it better than before. (R. at 224.) Rubenstein recommended walking five times weekly, continued driving and continued decreased cigarette use and caffeine intake. (R. at 224.) Both Campbell and his with reported noticeable improvement since beginning Lexapro, including less brooding, less irritability and a bit less anxiety when driving. (R. at 224.)
Dr. G.S. Kanwal, M.D., completed an Attending Physician’s Supplementary Statement on September 29, 2006, stating that Campbell was totally disabled based on multiple fractured ribs and back pain due to disc disease. (R. at 541.) Campbell saw Dr. Kanwal from January 8, 2007, through May 9, 2011, for complaints of low back pain, aggravated by bending and exertion, left rib cage pain, left side pain, leg pain and wheezing on exertion. (R. at 391-403, 423-50, 518-20.) Over this time period, he consistently exhibited tenderness to the lower back with decreased range of motion, as well as tenderness to the left rib cage area. (R. at 391, 393, 395, 397-403, 423-50, 518-20.) Dr. Kanwal diagnosed, among other things, chronic low back pain, degenerative disc disease, rib cage pain, diverticulitis, hyperlipidemia, COPD, left chest wall pain, polyarthralgia, possible congestive heart failure, depression and anxiety. (R. at 391, 392, 394, 396-400, 403, 423, 431-33, 435, 438-40, 442-50, 518-20.) He administered several interarticular injections in Campbell’s low back and left rib cage area, and he prescribed pain medications. (R. at 391-403, 423-50.) Physical examinations of Campbell also revealed occasional rhonchi of the lungs. (R. at 394, 396-97, 400-02, 424-25, 427, 429-32, 434-37, 440, 442, 444, 449-50.) Dr. Kanwal prescribed medications for Campbell’s depression and anxiety. It does not appear that Dr. Kanwal placed any restrictions on Campbell in his treatment notes. However, in a letter dated September 2, 2010, Dr. Kanwal stated that, due to the September 30, 2005, motor vehicle accident, in which Campbell sustained injuries to his ribs, spleen, lung and back, he had tried Campbell on multiple medications, and Campbell had undergone several interarticular injections. (R. at 422.) Dr. Kanwal stated that, despite these treatments, he was unable to control Campbell’s pain, and he became depressed as a result of his inability to work and was unable to perform the daily activities he once could. (R. at 422.) Dr. Kanwal stated that Campbell suffered from chronic back pain, a tear in the left annulus paracentral region with mild bulging disc at the L5-S1 disc space level, multiple rib fractures and anxiety and depression. (R. at 422.) He opined that Campbell was totally and permanently disabled from any gainful employment. (R. at 422.)
Dr. Kanwal also completed a physical assessment on March 10, 2011, finding that Campbell could occasionally lift and/or carry items weighing up to 10 pounds, but could lift no amount of weight on a frequent basis. (R. at 451-53.) He based this finding on Campbell’s chronic back pain and disc disease, multiple rib fractures with pain, COPD, anxiety and depression. (R. at 451.) He opined that Campbell could stand and/or walk a total of two to three hours in an eight-hour day, but could do so for only 30 minutes without interruption. (R. at 451.) He further opined that Campbell could sit a total of four hours in an eight-hour day, but could do so for only 30 minutes to one hour without interruption. (R. at 452.) Dr. Kanwal found that Campbell could never climb, stoop, kneel, balance, crouch or crawl, and that his abilities to reach, to handle and to push and/or pull were affected by his impairments. (R. at 452.) He further found that Campbell could not work around heights, moving machinery, temperature extremes, chemicals, dust, noise, fumes, humidity or vibration. (R. at 453.) He based these findings on Campbell’s “bad nerves, ” COPD and chronic pain. (R. at 453.) Dr. Kanwal opined that Campbell would be absent from work more than two days monthly due to his impairments. (R. at 453.)
Campbell also saw Matthew Jessee, D.C., a chiropractor at Highlands Chiropractic & Wellness Center, from May 22, 2007, to January 18, 2010, with complaints of back pain with radicular pain down the right leg and acute right knee pain. (R. at 408-18.) X-rays dated May 22, 2007, showed early osteophyte formation at the anterior, superior aspects of the L3-L5 vertebral bodies, decrease in disc height at the posterior aspect of the L4 and L5 disc spaces with IVF encroachment at both vertebral levels and pelvic unleveling. (R. at 417.) Jessee diagnosed early degenerative disc disease / spondylosis and possible disc displacement at the L4 and L5 vertebral levels, but he suggested confirmation by an MRI. (R. at 417.) Over the course of his treatment with Jessee, Campbell’s condition did not improve. On November 21, 2007, Campbell reported mild low back pain and stiffness and acute right knee pain. (R. at 409.) Palpation revealed LSI subluxation with posterior rotation with joint fixation, and there was spondylosis of the L4 level on the right with reduced motion. (R. at 409.) There also was joint fixation with spondylosis affecting vertebral segment L5 and tenderness to a degree affecting the right knee. (R. at 409.) Jessee introduced joint mobilization of the right knee, and he manipulated the cervical, thoracic, lumbar and LSI regions. (R. at 409.) Campbell also received unattended electrical muscle stimulation to the lumbar region. (R. at 409.) Jessee ...