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Campbell v. Commissioner of Social Security

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

November 20, 2014

TIMMY CAMPBELL, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION

JOEL C. HOPPE, Magistrate Judge.

Plaintiff Timmy Campbell asks this Court to review the Commissioner of Social Security's ("Commissioner") final decision denying his application for supplemental security income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. This Court has authority to decide Campbell's case under 42 U.S.C. §§ 405(g) and 1383(c)(3), and his case is before me by referral under 28 U.S.C. § 636(b)(1)(B). Having considered the administrative record, the parties' briefs, and the applicable law, I find that the Commissioner's final decision is supported by substantial evidence and should be affirmed.

I. Standard of Review

The Social Security Act authorizes this Court to review the Commissioner's final decision that a person is not entitled to disability benefits. See 42 U.S.C. § 405(g); 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 the ALJ applied the correct legal standards and whether substantial evidence supports the ALJ's factual findings. 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); 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); Heckler v. Campbell, 461 U.S. 458, 460-62 (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

Campbell filed for SSI on April 28, 2011, because of a torn or broken disc, a torn tendon, a pinched nerve and residual pain, high blood pressure, and vision problems. See Administrative Record ("R.") 35, 38-39, 139, 173. At the time, he was 45 years old and had worked for many years in the construction industry. See R. 139, 183-90. A state agency denied Campbell's application initially in June 2011, R. 51, and upon reconsideration in August 2011, R. 60.

Campbell appeared with counsel at a hearing before an Administrative Law Judge ("ALJ") on June 26, 2012. R. 29. He testified as to the alleged impairments related to his neck and right arm, R. 40, and to the limitations those impairments caused in his daily activities, R. 34-43, 47. A vocational expert ("VE") also testified as to Campbell's past work and ability to perform other work existing in the national and regional economies. R. 44-49.

In a written decision dated July 13, 2012, the ALJ found that Campbell was not entitled to disability benefits. R. 24. He found that Campbell suffered from two severe impairments: a "right arm impairment ([bi]ceps rupture, status post surgical repair with residual weakness, carpal tunnel syndrome, and neuropathy/polyphasic activity) and neck pain status post cervical spine fusion." R. 16. Neither impairment, alone or combined, met or medically equaled an impairment listed in the Act's regulations. R. 18.

The ALJ next determined that Campbell had the residual functional capacity ("RFC") to perform a limited range of light work.[1] See R. 18, 23. Specifically, he found that Campbell could frequently lift and carry ten pounds, occasionally lift and carry twenty pounds, occasionally push, pull, and reach in any direction with the right upper extremity, and occasionally handle and finger objects. R. 18. The ALJ noted that this RFC ruled out Campbell's return to his past jobs as an "electrician helper and carpenter." R. 23.

Finally, relying on the VE's testimony, the ALJ concluded that Campbell was not disabled after April 28, 2011, because he still could perform one occupation that existed in significant numbers nationally and in Virginia - a furniture rental consultant. R. 23. The Appeals Council declined to review the ALJ's decision on August 13, 2013, R. 1-2, and this appeal followed.

III. Facts

Campbell's medical records document a history of degenerative changes, chronic pain, and weakness in the neck and dominant (right) upper extremity. On October 24, 2007, Dr. Katrina Murphy, M.D., performed an anterior cervical diskectomy, decompression, and plate fusion at C5-6 to relieve "severe cervical pain" that kept Campbell out of work for several months. See R. 428-29. Campbell established care with a second neurosurgeon, Dr. Joel Singer, M.D., at Southside Neurosurgical Associates in early March 2008. See R. 340. A contemporaneous imaging study "demonstrated good [cervical plate] fusion at the C5-6 level, " an "autofusion at C4-5, and marked cervical spondylosis at C3-4 with bilateral nerve root cutoffs." Id. On March 3, 2008, Dr. Singer performed another anterior cervical diskectomy and plate fusion, this time at C3-4. See R. 340, 343. Campbell did not receive any additional medical care until the summer of 2010. Pl. Br. 3, ECF No. 16.

On July 19, 2010, Campbell established care with Dr. William MacCarty, M.D., at Southern Virginia Orthopedics. R. 305. He reported experiencing "a tearing sensation in his right bicep" while helping someone lift a heavy safe six weeks earlier. Id. On exam, Dr. MacCarty noted decreased strength in Campbell's right arm with flexion and extension at the elbow, decreased grip strength in the right hand compared to the left, and tenderness to palpation over the biceps tendon at the elbow and proximal forearm. Id. A magnetic resonance imaging scan ("MRI") of Campbell's elbow confirmed a "suspect[ed] distal right biceps rupture." R. 304, 305, 308. Dr. MacCarty performed surgery to repair the ruptured tendon on August 10, 2010. R. 309.

Campbell saw Dr. MacCarty several times in the six months following his surgery. See R. 302-03 (Aug. 2010); R. 318-19 (Sept. 2010); R. 317 (Feb. 2011). Although Campbell often complained of pain on these visits, Dr. MacCarty generally found that Campbell was healing as expected and that his motion and strength were "gradually coming" along with gentle therapy[2] and Percocet as needed. See R. 302, 317, 318, 319. On February 9, 2011, Dr. MacCarty noted that Campbell's right arm was still weak, particularly with elbow flexion. R. 317.

On April 13, 2011, Campbell told Dr. MacCarty that he could not lift with his right arm. See R. 316. Dr. MacCarty observed that Campbell's right arm had "good motion" but was "definitely very weak" compared to the left. Id. He gave Campbell a steroid injection and instructed him to return as needed. Id. Dr. MacCarty also gave Campbell a note certifying that he was "unable to return to work[] from 4/11/11 thru permanently." R. 320. Campbell filed for disability benefits one week later.

Campbell returned to Dr. MacCarty's office on July 7, 2011, "for complaints related to his right arm, " including chronic elbow pain and recent onset "numbness and tingling" in the right upper extremity. R. 328. He told Dr. MacCarty that his disability application had been rejected because the agency said "he had normal function and strength in his right arm." Id. Dr. MacCarty opined that this was "definitely not true, " as his April 13, 2011, treatment note documented "significant weakness of elbow flexion on the right" and "a 50% permanent physical impairment of [Campbell's] right upper extremity secondary to his problems there." Id.

On exam, Dr. MacCarty observed that Campbell's right elbow was "very weak." Id. Campbell also had "some weakness of [the] median innervated muscles in the hand, ... a positive Tinel's at the wrist, and a positive Phalen's test in less than 10 seconds."[3] Id. He affirmed his previous assessment of Campbell's right-arm impairment and noted a new "concern[] about a nerve impingement in [the] right upper extremity... and perhaps at the carpal tunnel level and perhaps more proximally if not both." Id. Dr. MacCarty wrote Campbell a prescription for Vicodin and arranged for diagnostic studies on his right wrist and hand.

Campbell underwent electromyography ("EMG") and nerve conduction studies on August 2, 2011. R. 333. The reviewing physician, Victor Owusu-Yaw, M.D., noted that the EMG revealed "[m]ild to moderate right carpal tunnel syndrome-sympthoatic, " "[m]ild right ulnar neuropathy at the elbow, " and "[m]ild chronic polyphasic activity in the triceps, ... [and] right C6-7 distribution consistent with... cervical radiculopathy for which [Campbell] had [a] surgical decompression." Id. On August 10, 2011, Dr. MacCarty explained that the electrical study results were positive for carpal tunnel syndrome ("CTS") and cubital tunnel syndrome, which was consistent with positive Tinel's and Phalen's tests on the right wrist. R. 640. He switched Campbell back to Percocet and recommended that he undergo a "right carpal tunnel release with neurolysis and an ulnar nerve neurolysis and anterior transposition at the right elbow."[4] Id. An office note shows that the surgery originally set for August 16, 2011, was rescheduled several times at Campbell's request. See R. 638.

Campbell returned to Dr. MacCarty's office on October 7, 2011, "to reevaluate the situation with his right arm." R. 639. He reported experiencing "significant pain from his distal biceps, " even on Percocet. Id. Dr. MacCarty agreed to continue pain medication and to reschedule surgery to accommodate "some family issues" that Campbell was having at the time. Id. He refilled Campbell's Percocet on this visit and again on February 15, 2012. R. 639, 636.

Campbell saw Dr. MacCarty again on March 9, 2012. R. 629. He reported experiencing constant, moderate burning pain in his right elbow radiating into his right arm, hand, and fingers since his biceps surgery in August 2010. See R. 629. "Movement and contact" exacerbated the elbow pain, while grasping and bending the wrist increased the pain and numbness in his right wrist and hand. Id. On exam, Dr. MacCarty noted for the first time "tenderness" and "abnormal" range of motion in Campbell's neck. R. 631. He also noted tenderness on palpation of the right ulnar notch, "abnormal" flexion and pronation in the right elbow, a positive Tinel's sign in the right elbow and wrist, and a positive Phalen's test in the right wrist. Id.

Dr. MacCarty diagnosed Campbell with chronic right-sided CTS and chronic right-sided ulnar neuropathy that were "not controlled" by narcotic pain medication. Id. He also expressed frustration over seeing Campbell "many times for these issues" only to have him "repeatedly cancel[] surgery once pain medication was refilled." Id. Dr. MacCarty warned that Campbell would be discharged from his practice if he cancelled again. R. 632. Campbell agreed to have hand surgery in late April or early May 2012. See id.

In late March 2012, Campbell reestablished care with Dr. Singer. R. 599. He reported experiencing severe left-sided neck pain with right-arm weakness for the past four months, which he had tried to treat with ibuprofen, aspirin, and a heating pad. Id. On exam, Dr. Singer noted that Campbell's "deltoids [were] good, but his biceps, brachioradialis, supraspinatus and infraspinatus, and finger extensors on [the] right [were] ...


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