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Bourne v. Colvin

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

September 30, 2014

GARNETTE G. BOURNE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM OPINION

GLEN E. CONRAD, Chief District Judge.

Plaintiff has filed this action challenging the final decision of the Commissioner of Social Security denying plaintiffs claim for a period of disability and disability insurance benefits under the Social Security Act, as amended, 42 U.S.C. §§ 416(i) and 423. Jurisdiction of this court is pursuant to § 205(g) of the Act, 42 U.S.C. § 405(g). This court's review is limited to a determination as to whether there is substantial evidence to support the Commissioner's conclusion that plaintiff failed to meet the requirements for entitlement to benefits under the Act. If such substantial evidence exists, the final decision of the Commissioner must be affirmed. Laws v. Celebrezze , 368 F.2d 640 (4th Cir. 1966). Stated briefly, substantial evidence has been defined as such relevant evidence, considering the record as a whole, as might be found adequate to support a conclusion by a reasonable mind. Richardson v. Perales , 402 U.S. 389, 401 (1971).

The plaintiff, Garnette G. Bourne, was born on August 6, 1959 and eventually completed his high school education. Mr. Bourne worked as an owner/operator of a masonry business. In this capacity, he performed masonry work and exercised supervisory responsibilities. He last worked on a regular and sustained basis in 2011. On March 31, 2011, plaintiff filed an application for a period of disability and disability insurance benefits. He alleged that he became disabled for all forms of substantial gainful employment on November 20, 2010, due to back problems, ear problems, right leg pain, and left thigh pain. Some time later, plaintiff amended his application so as to reflect an alleged disability onset date of January 21, 2011. (TR 130). He now maintains that he has remained disabled to the present time. The record reveals that Mr. Bourne met the insured status requirements of the Act at all relevant times covered by the final decision of the Commissioner. See generally 42 U.S.C. §§ 416(i) and 423(a).

Mr. Bourne's application was denied upon initial consideration and reconsideration. He then requested and received a de novo hearing and review before an Administrative Law Judge. In an opinion dated August 8, 2012, the Law Judge also determined that Mr. Bourne is not disabled. The Law Judge found that plaintiff suffers from several severe impairments, including degenerative disk disease, chronic back pain, and bilateral leg pain. The Law Judge noted that plaintiff also suffers from knee pain, ear problems, and decreased hearing in the left ear. However, the Law Judge ruled that these difficulties are not severe in terms of functional impact. Nevertheless, because of plaintiffs severe impairments, the Law Judge held that Mr. Bourne is disabled for his past relevant work activity. However, the Law Judge determined that plaintiff retains sufficient residual functional capacity to perform light work which does not require more than occasional climbing, crawling, stooping, kneeling, and crouching. (TR 20). Given such a residual functional capacity, and after considering Mr. Bourne's age, education, and prior work experience, the Law Judge applied the medical vocational guidelines so as to conclude that plaintiff retains sufficient functional capacity to perform several specific light work roles existing in significant number in the national economy. See 20 C.F.R. § 404.1569, and Rule 202.14 of Appendix 2 to Subpart P of the Administrative Regulations Part 404. Accordingly, the Law Judge ultimately concluded that Mr. Bourne is not disabled, and that he is not entitled to a period of disability or disability insurance benefits. See 20 C.F.R. § 404.1520(g). Plaintiff then sought review of his case by the Social Security Administration's Appeals Council. In connection with his request for review, Mr. Bourne submitted additional medical evidence. However, the Appeals Council adopted the Law Judge's opinion as the final decision of the Commissioner. Having exhausted all available administrative remedies, Mr. Bourne has now appealed to this court.

While plaintiff may be disabled for certain forms of employment, the crucial factual determination is whether plaintiff was disabled for all forms of substantial gainful employment. See 42 U.S.C. § 423(d)(2). There are four elements of proof which must be considered in making such an analysis. These elements are summarized as follows: (1) objective medical facts and clinical findings; (2) the opinions and conclusions of treating physicians; (3) subjective evidence of physical manifestations of impairments, as described through a claimant's testimony; and (4) the claimant's education, vocational history, residual skills, and age. Vitek v. Finch , 438 F.2d 1157, 1159-60 (4th Cir. 1971); Underwood v. Ribicoff , 298 F.2d 850, 851 (4th Cir. 1962).

After a review of the record in this case, the court is constrained to conclude that the Commissioner's final decision is supported by substantial evidence. The medical record confirms that Mr. Bourne experiences multi-level degenerative disc disease, as well as degenerative changes in his knees. He also suffers from mild lateral recess stenosis and anterior wedge compression deformities of longstanding duration in the thoracic spine. Without question, Mr. Bourne's musculoskeletal problems prevent performance of the medium and heavy work in which he engaged as a brick mason. Indeed, plaintiffs treating physician has submitted several reports indicating that Mr. Bourne is totally disabled for all forms of work. However, the court believes that the Administrative Law Judge reasonably relied on a medical report from a consultative physician in determining that plaintiff retains sufficient functional capacity to engage in a slightly limited range of light work activity. The Law Judge's reliance on the consultative physician's assessment is supported by x-ray reports and clinical findings generated during routine medical treatment. The x-ray reports document mild degenerative changes in plaintiff's back. Inasmuch as all of Mr. Bourne's severe impairments are exertional in nature, the court believes that the Law Judge properly relied on the medical vocational guidelines in assessing plaintiffs capacity for alternate work activity. The court agrees that the guidelines support a determination of not disabled. Thus, the court concludes that the final decision of the Commissioner must be affirmed.

On appeal to this court, Mr. Bourne emphasizes the findings and opinions of his treating physician, Dr. Randall Bashore. Plaintiff argues that, as a treating physician, Dr. Bashore's opinions should have been accorded greater weight by the Law Judge. See 20 C.F.R. § 404.1527(c)(2). As stated above, Dr. Bashore completed a physical limitations assessment on June 13, 2012, which indicates that Mr. Bourne is totally disabled. (TR 310). However, the court believes that the Administrative Law Judge properly determined that Dr. Bashore's assessment is not consistent with the objective x-ray studies or the findings of the consultative physician. More to the point, the court notes that Dr. Bashore's own clinical findings do not support his opinion as to plaintiffs total disability. For example, on March 28, 2012, Dr. Bashore listed findings and impressions as follows:

OBJECTIVE: The patient is sitting on the exam table, in no acute distress. Blood pressure was 130/90 in the right arm sitting. HEENT was unremarkable. Neck was supple. Lungs were clear to auscultation. Heart was regular rhythm. No murmur. No gallop. Abdomen was soft, nontender. Active bowel sounds. No organomegaly or masses. Extremities, there is no clubbing, cyanosis, or edema. The patient's neurologic exam, cranial nerves were intact. Sensory slightly decreased sensation in the right foot. Motor was slight weakness on plantar flexion on the right lower extremity. Gait was slightly shuffling with right leg, left was normal. Ability to raise up on his feet was intact. DTRs were decreased in the knees and the ankles bilaterally. No Babinski' s. Cognitive function was intact.
IMPRESSIONS AND PLANS:
1. Chronic pain, seems actually had fairly good control with use of the Lidoderm patch <____> back. We will continue with his current regimen along with occasional trazodone and baclofen.
2. Hypertension. Borderline elevated blood pressures today. We will continue to monitor, the patient's blood pressure was more elevated on last visit here. Follow up the patient here with me in eight weeks, sooner if necessary.

(TR 297-98). As noted above, the Law Judge relied, in part, on a consultative evaluation completed on June 18, 2011, by Dr. John Scagnelli. Dr. Scagnelli offered clinical findings as follows:

No joint swelling, erythema, effusion or deformity. The claimant had tenderness to palpitation over the right thoracic lumbar paraspinal musculature. The claimant was able to lift, carry and handle light objects. The claimant was able to squat and rise from that position with moderate difficulty. The claimant was able to rise from a sitting position without assistance and had no difficulty getting up and down from the exam table. The claimant was able to walk on heels and toes with ease. Tandem walking was normal and the claimant could stand but not hop on either foot bilaterally. The claimant can dress and undress adequately well, and was cooperative and gave good effort ...

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