United States District Court, Western District of Virginia, Big Stone Gap Division
WILLIAM D. BURKE, Plaintiff
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant
REPORT AND RECOMMENDATION
PAMELA MEADE SARGENT UNITED STATES MAGISTRATE JUDGE
I. Background and Standard of Review
Plaintiff, William D. Burke, 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 Burke protectively filed his application for SSI on November 17, 2009, alleging disability as of October 31, 2008,  due to neurological problems involving his neck and back, head shaking and swollen testicles. (Record, (“R.”), at 37-38, 116-22, 166.) The claim was denied initially and on reconsideration. (R. at 63-66, 67, 69-70, 72-74.) Burke then requested a hearing before an administrative law judge, (“ALJ”). (R. at 75-76.) The hearing was held on January 17, 2012, at which Burke was represented by counsel. (R. at 33-54.)
By decision dated February 8, 2012, the ALJ denied Burke’s claim. (R. at 19-28.) The ALJ found that Burke had not engaged in substantial gainful activity since November 17, 2009, the date of his application. (R. at 21.) The ALJ determined that the medical evidence established that Burke suffered from severe impairments, including degenerative changes of the lumbar spine and thoracic spine, history of back pain, left hydrocele,  history of head tremor, chronic obstructive pulmonary disease, (“COPD”), hypertension, migraine headaches, alcohol abuse, borderline intellectual functioning and an adjustment disorder with anxiety, but he found that Burke 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 21-23.) The ALJ found that Burke had the residual functional capacity to perform simple, routine, repetitive, low-stress medium workthat required no more than occasional climbing of ladders, ropes or scaffolds, decision making and changes in a work setting and frequent climbing of ramps and stairs, balancing, stooping, kneeling, crouching or crawling. (R. at 23.) The ALJ found that Burke had no past relevant work. (R. at 27.) Based on Burke’s age, education, lack of work history and residual functional capacity and the testimony of a vocational expert, the ALJ found that Burke could perform jobs existing in significant numbers in the national economy, including jobs as a food preparation worker, a janitor/cleaner and a packer. (R. at 27-28.) Therefore, the ALJ found that Burke 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, Burke pursued his administrative appeals, (R. at 15), but the Appeals Council denied his request for review. (R. at 1-4.) Burke 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 Burke’s motion for summary judgment filed December 4, 2013, and the Commissioner’s motion for summary judgment filed January 6, 2014.
Burke was born in 1959, (R. at 162), which classifies him as a “person closely approaching advanced age” under 20 C.F.R. § 416.963(d). Burke has a tenth-grade education. (R. at 226.) Burke stated that he worked in construction prior to October 2008. (R. at 40.) He stated that he injured his back in a motor vehicle accident in October 2008, which caused him to have tremors in his neck. (R. at 40-41.) Burke testified that he had been prescribed a cane, which he carried at all times. (R. at 42.) He stated that, without it, he would lose his balance. (R. at 42.)
John Newman, a vocational expert, also was present and testified at Burke’s hearing. (R. at 47-52.) Newman was asked to consider an individual closely approaching advanced age, who had a limited education and lack of work experience, who had the residual functional capacity to occasionally lift and carry items weighing up to 50 pounds and frequently lift and carry items weighing up to 20 pounds, who could frequently climb ramps or stairs, balance, stoop, kneel, crouch and crawl, who could occasionally climb ladders, ropes or scaffolds, who would require a low-stress job that had only occasional decision making and changes in the work setting. (R. at 49.) Newman stated that there was a significant number of medium, unskilled jobs that existed that such an individual could perform, including jobs as a food preparation worker, a cook helper, a janitor, a cleaner and a packer. (R. at 49-50.) Newman was asked to consider the same individual, but who could stand and walk for up to two hours in an eight-hour workday and sit for up to six hours in an eight-hour workday, occasionally lift items weighing 20 pounds and frequently lift items weighing 10 pounds. (R. at 50.) Newman stated that there would be sedentary jobs that such an individual could perform, including jobs as an assembler, a packer, a stuffer, an inspector, a tester, a sorter and a gauger. (R. at 50-51.) He also stated that, if the individual would not be able to sustain concentrated pace or persistence to complete an eight-hour workday, there would be no jobs available. (R. at 51.) Newman also testified that the jobs as a food preparation worker, a cleaner and a packer would be eliminated if the individual would need to use a cane for balance while standing or walking. (R. at 52.)
In rendering his decision, the ALJ reviewed records from Virginia Public Schools; Donna Abbott, M.A., a senior psychological examiner; B. Wayne Lanthorn, Ph.D., a licensed clinical psychologist; Frank D. Kupstas, Ph.D., a state agency psychologist; Dr. Rebecca L. Weingart, M.D., a physician at Mountain Home VAMC, (“Mountain Home”); Johnson City Eye Clinic; Dr. George Walker, M.D., a state agency physician; and Holston Valley Medical Center. Burke’s attorney also submitted additional evidence from Dr. Celeste Peterson, D.O., a physician at Mountain Home, to the Appeals Council.
On January 28, 2010, Donna Abbott, M.A., a senior psychological examiner, and B. Wayne Lanthorn, Ph.D., a licensed clinical psychologist, evaluated Burke at the request of Disability Determination Services. (R. at 230-36.) Burke reported that he consumed alcohol “everyday or every two days.” (R. at 231.) He reported smoking one pack of cigarettes a day. (R. at 231.) Abbott and Lanthorn noted that Burke did not seem significantly depressed, anxious, restless or fidgety. (R. at 232.) He had some shakiness, which was noted in his head. (R. at 232.) The Wechsler Adult Intelligence Scale - Fourth Edition, (“WAIS-IV”), was administered, and Burke obtained a full-scale IQ score of 57. (R. at 233.) The Wide Range Achievement Test – Fourth Edition, (“WRAT-IV”), was administered, and Abbott and Lanthorn noted that Burke’s scores were higher than expected for his then-current intellectual functioning. (R. at 234.) Abbott and Lanthorn diagnosed alcohol abuse, rule out alcohol dependence, and borderline intellectual functioning, estimated within the upper limits. (R. at 234.) While they noted that Burke’s intellectual functioning appeared to be below average, they opined that he was not limited to the degree presented by Burke. (R. at 235.) In support of this conclusion, they cited Burke’s inconsistency on testing. (R. at 234.) They assessed Burke’s then-current Global Assessment of Functioning score, (“GAF”),  at 55. (R. at 234.)
Abbott and Lanthorn opined that Burke could understand, remember and carry out somewhat detailed and simple instructions. (R. at 234.) Burke had no significant limitations in his abilities to attend and concentrate, to maintain a basic routine, to socially interact, to be aware of simple hazards and take precautions, to drive and travel alone, to set goals and makes plans to achieve these goals and to work in proximity to others. (R. at 234-35.) He was significantly limited in his ability to understand and remember complex instructions. (R. at 234.) His general adaptation skills showed a mild-to-moderate limitation. (R. at 234.) Burke had moderate limitations in his ability to adapt to change and mild limitations in his ability to deal with stress. (R. at 235.)
On March 15, 2010, Frank D. Kupstas, Ph.D., a state agency psychologist, completed a Psychiatric Review Technique form, (“PRTF”), indicating that Burke suffered from an organic mental disorder and substance addiction disorder. (R. at 237-50.) Kupstas opined that Burke had mild restrictions on his activities of daily living and in his ability to maintain social functioning. (R. at 247.) He found that Burke had moderate difficulties in maintaining ...