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Bin-Salamon v. Commissioner of Social Security

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

December 31, 2014

NAJIB BIN-SALAMON, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION

JOEL C. HOPPE, Magistrate Judge.

Plaintiff Najib Bin-Salamon asks this Court to review the Commissioner of Social Security's ("Commissioner") final decision denying his applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-422, 1381-1383f. This Court has authority to decide Bin-Salamon'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).

On appeal, Bin-Salamon objects to the Administrative Law Judge's ("ALJ") finding that his statements describing the intensity, persistence, and limiting effects of his neck and foot pain were not fully credible. See Pl. Br. 6-10, ECF No. 13. Having considered the administrative record, the parties' briefs, and the applicable law, I find that substantial evidence supports the Commissioner's final decision that Bin-Salamon is not disabled.

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. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a) (governing claims for DIB), 416.905(a) (governing adult claims for SSI). 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. §§ 404.1520(a), 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

Bin-Salamon filed for DIB and SSI on November 23, 2010. See Administrative Record ("R.") 211, 220. He was 46 years old, id., and had worked as an order filler, carpenter, cook, and mechanic, R. 193. Bin-Salamon said that he stopped working on April 1, 2008, because of pain in his neck and feet. See R. 186, 211, 220. The state agency twice denied his applications. R. 52-55.

Bin-Salamon appeared with counsel at an administrative hearing on November 22, 2011. R. 26. He testified as to his alleged impairments and to the functional limitations those impairments caused in his daily activities. R. 33-44. A vocational expert ("VE") also testified as to Bin-Salamon's past work and ability to perform other work existing in the national and regional economies. R. 45-50.

In a written decision dated February 24, 2012, the ALJ concluded that Bin-Salamon was not entitled to disability benefits. See R. 11-21. He found that Bin-Salamon suffered from severe "disorders of the muscle, ligament, and fascia" that did not meet or medically equal an impairment listed in the Act's regulations. R. 13, 14. The ALJ next determined that Bin-Salamon had the residual functional capacity ("RFC")[1] to frequently lift and carry ten pounds, occasionally lift and carry twenty pounds, stand and walk for four hours in an eight-hour day, and sit for more than six hours in an eight-hour day.[2] See R. 14. The ALJ noted that this RFC ruled out Bin-Salamon's return to his past work. R. 19, 46-48. Finally, relying on the VE's testimony, the ALJ concluded that Bin-Salamon was not disabled because he still could perform specific occupations existing in significant numbers nationally and in Virginia. R. 20. The Appeals Council declined to review that decision, R. 1, and this appeal followed.[3]

III. Facts

A. Medical Evidence

Bin-Salamon's medical records document a history of neck surgery, gout, and plantar fasciitis.[4] Bin-Salamon first reported foot pain on January 20, 2010. See R. 289. On exam, Dr. Sharon Reilly, M.D., observed that Bin-Salamon was "tender to just the lightest touch" over the right heel and the first metatarsophalangeal on each foot. See id. She diagnosed gout, prescribed Indomethacin, and instructed Bin-Salamon to follow up as needed. See id. Bin-Salamon returned on February 11 complaining of foot pain near his heel. See R. 287. He described "episodes" of chronic pain where his foot "sometimes bother[ed] him for weeks" and sometimes did not hurt for six months. Id. Nurse Joseph Davis, F.N.P., noted tenderness to palpation of the heel, but no obvious deformities on either foot. See id. He assessed plantar fasciitis, prescribed Medrol, and instructed Bin-Salamon to return as needed. See id. Bin-Salamon next saw Nurse Davis on May 15; he complained of pain radiating from his trapezius to his shoulder, decreased range of motion in his neck, and chronic pain in his right foot. R. 285. Nurse Davis noted that Bin-Salamon had suffered a cervical spine fracture as a young man, but had experienced no significant consequences from that injury. Id. Bin-Salamon had a decreased range of motion of his neck. Id. Nurse Davis injected Bin-Salamon's shoulder with Lidocaine, prescribed Vicodin and Ibuprofen for pain, and referred Bin-Salamon to a podiatrist at his request. See id. He did not examine Bin-Salamon's feet on this visit.

Bin-Salamon established care with Dr. Danita Reese, D.P.M., at the Family Foot Clinic on May 25, 2010. See R. 306. He reported difficulty walking and bilateral foot pain for the past three months. See id. Following an exam, Dr. Reese noted that the "most probable diagnosis" was "plantar fasciitis left worse than right; tinea pedis; pain foot [ sic ]." R. 307. Dr. Reese administered cortisone injections bilaterally and prescribed Medrol and Lotrisone cream. See R. 306. She also wrote Bin-Salamon a prescription for static ankle foot orthoses to wear at night. See R. 305-06. Bin-Salamon returned to Dr. Reese's clinic on June 10. R. 308. He reported that the cortisone injections, orthoses, and foot exercises helped get his pain level down to "zero." R. 308. Dr. Reese noted that Bin-Salamon's condition was "much improved." Id. It is not clear what treatment, if any, Dr. Reese provided or recommended on this visit. See, e.g., id. ("Rx: Support- Plan: Use [illegible]."). She apparently did not object to Bin-Salamon's decision to "cut back on night splint wear" two weeks earlier. Id.

Bin-Salamon returned to Charlotte Primary Care on September 10, 2010, complaining of foot pain. See R. 283. Dr. Edwina Wilson, M.D., observed "tenderness" on palpation, extension, and flexion of the left foot. See id. She refilled Bin-Salamon's Vicodin prescription and instructed him to follow up in two months. See R. 283-84. Bin-Salamon returned on October 4, again complaining of foot pain. See R. 282. He told Nurse Davis that he was "seeing a podiatrist regularly" and that "his last set of injections only lasted about a month [before] his symptoms returned." Id. Nurse Davis noted "pain with palpation plantar aspect in the area of the metatarsals." Id. He refilled Bin-Salamon's Vicodin prescription and referred him to another podiatrist. See id.

Bin-Salamon saw Nurse Davis again on November 9, 2010, primarily to follow up on his hypertension and hyperlipidemia. See R. 280. He also reported debilitating chronic foot pain unabated by steroid injections, oral steroids, and nonsteroidal anti-inflammatory drugs. Id. He explained that he could not walk without assistance in the morning, but that his pain "improves a little bit" throughout the day. Id. Nurse Davis "somewhat reluctantly" refilled the Vicodin prescription and noted that he would consult with Dr. Reese after Bin-Salamon's upcoming appointment. See id. Bin-Salamon ...


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