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Rosenbalm v. Colvin

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

July 27, 2016

EARNEST EARL ROSENBALM, SR., Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

          MEMORANDUM OPINION

          PAMELA MEADE SARGENT UNITED STATES MAGISTRATE JUDGE

         I. Background and Standard of Review

         Plaintiff, Earnest Earl Rosenbalm, Sr., (“Rosenbalm”), filed this action challenging the final decision of the Commissioner of Social Security, (“Commissioner”), denying his claim 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 upon transfer by consent of the parties pursuant to 28 U.S.C. § 636(c)(1). Neither party has requested oral argument; therefore, this case is ripe for decision.

         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 Rosenbalm protectively filed his application for SSI[1]on January 7, 2011, alleging disability as of March 1, 2012, due to dyslexia; leg and back problems; stress and headaches. (Record, (“R.”), at 70, 368-72, 396, 400.) The claim was denied initially and upon reconsideration. (R. at 175-79, 182, 188-93, 195-97.) Rosenbalm then requested a hearing before an administrative law judge, (“ALJ”). (R. at 198.) Hearings were held on February 5, 2013, and June 24, 2013, at which Rosenbalm was represented by counsel. (R. at 68-73, 100-08.) At Rosenbalm’s June 24, 2013, hearing, the ALJ found that Rosenbalm was disabled. (R. at 72.)

         By decision dated July 3, 2013, the ALJ awarded Rosenbalm benefits. (R. at 155-61.) The ALJ found that found that Rosenbalm was not able to perform any of his past relevant work. (R. at 160.) Based on Rosenbalm’s age, education, work history and residual functional capacity and the testimony of a vocational expert, the ALJ also found that there were no jobs available that Rosenbalm could perform. (R. at 160.) Thus, the ALJ concluded that Rosenbalm was disabled as defined by the Act beginning March 1, 2012, the amended alleged onset date. (R. at 161.) See 20 C.F.R. § 416.920(g) (2015).

         By order dated November 7, 2013, the Appeals Council remanded the case back to the ALJ due to an error of law and found that the ALJ’s actions, findings or conclusions were not supported by substantial evidence. (R. at 164-68.) The Appeals Council found that the ALJ’s decision reflected reliance on Dr. Gohar’s 2013 consultative examination to establish disability a year earlier. (R. at 165.) The Appeals Council concluded, however, that reliance on this opinion was not supported by substantial evidence and reflected an error of law. (R. at 165.) Upon remand, the ALJ held a hearing on April 22, 2014, at which Rosenbalm was represented by counsel. (R. at 37-64.)

         By decision dated May 15, 2014, the ALJ denied Rosenbalm’s claim. (R. at 17-30.) The ALJ found that Rosenbalm had not engaged in substantial gainful activity since March 1, 2012, the alleged onset date. (R. at 20.) The ALJ found that the medical evidence established that Rosenbalm had severe impairments, namely chronic back pain, obesity and borderline intellectual functioning, but he found that Rosenbalm did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 20-21.) The ALJ found that Rosenbalm had the residual functional capacity to perform unskilled light work[2] that did not require more than frequent reaching, handling, fingering, feeling, pushing/pulling, balancing, stooping, kneeling, operation of foot controls, exposure to moving mechanical parts, humidity and wetness and operation of a motor vehicle; that did not require more than occasional climbing, crouching and crawling and exposure to unprotected heights, respiratory irritants and extreme cold; and that did not require more than moderate exposure to noise. (R. at 23.) The ALJ found that Rosenbalm was unable to perform his past relevant work. (R. at 28.) Based on Rosenbalm’s age, education, work history and residual functional capacity and the testimony of a vocational expert, the ALJ found that a significant number of other jobs existed in the national economy that Rosenbalm could perform, including jobs as an assembler, a packer and an inspector/tester/sorter. (R. at 28-29.) Thus, the ALJ concluded that Rosenbalm was not under a disability as defined by the Act and was not eligible for SSI benefits. (R. at 29-30.) See 20 C.F.R. § 416.920(g) (2015).

         After the ALJ issued his decision, Rosenbalm pursued his administrative appeals, (R. at 9), but the Appeals Council denied his request for review. (R. at 1-6.) Rosenbalm 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 (2015). This case is before this court on Rosenbalm’s motion for summary judgment filed August 17, 2015, and the Commissioner’s motion for summary judgment filed September 21, 2015.

         II. Facts

         Rosenbalm was born in 1963, (R. at 40, 361, 368), which classifies him as a “person closely approaching advanced age” under 20 C.F.R. § 416.963(d). He has a seventh-grade education and past work as a janitor, a mechanic and a truck driver. (R. at 41, 402.) Rosenbalm testified at his April 22, 2014, hearing that he walked 15 to 30 minutes a day. (R. at 43.) He stated that he had lower back pain and that he used a cane to help him keep his balance. (R. at 44-45.) However, Rosenbalm stated that he could walk up to three miles without the use of a cane. (R. at 46.) He stated that Flexeril relieved his back pain, but that it caused drowsiness. (R. at 46.) Rosenbalm stated that he experienced headaches two to three times a week. (R. at 46.) He stated that he had crying spells once a week. (R. at 47.)

         On June 24, 2013, Gerald K. Wells, a vocational expert, testified at Rosenbalm’s hearing. (R. at 71-72.) Wells was asked to consider an individual of Rosenbalm’s age and limited education, who only occasionally could handle, reach, finger, feel, push and pull and who could never stoop, kneel and crouch. (R. at 71-72.) Wells stated that there would be no jobs available that such an individual could perform. (R. at 72.)

         John Newman, a vocational expert, also was present and testified at Rosenbalm’s April 22, 2014, hearing. (R. at 51-63.) Newman was asked to consider a hypothetical individual of Rosenbalm’s age, education and work history, who would be limited as found in the assessment of Dr. Gohar. (R. at 52, 508-17.) Newman testified that there would be no jobs available that such an individual could perform because the hypothetical included “no stooping, ” which would abolish any potential occupational base. (R. at 53.) He stated that, even if the individual could stoop, due to the carrying limitation, he would be limited to sedentary[3] work. (R. at 53.) Newman further testified that, if the individual were limited to only occasional reaching, handling, fingering, feeling, pushing and pulling, the occupational base would be abolished. (R. at 54.) Newman next was asked to consider a hypothetical individual who would be limited as found in the assessment of Dr. Jadali. (R. at 54, 535-40.) He stated that such an individual would be limited to light, unskilled work. (R. at 55.) Newman stated that such an individual could perform jobs existing in significant numbers, including jobs as an assembler, a packer, a laundry folder and an inspector, tester and sorter. (R. at 55.) He stated that, should the individual be required to rest two hours out of an eight-hour workday, there would be no jobs available that he could perform. (R. at 55-56.) Newman stated that, should the individual be absent from work one day a week, there would be no jobs available that he could perform. (R. at 56.)

         In rendering his decision, the ALJ reviewed records from Washington County Schools; Alan D. Entin, Ph.D., a state agency psychologist; Dr. Ralph Hellams, M.D., a state agency physician; Dr. Andrew Bockner, M.D., a state agency physician; Dr. John Sadler, M.D., a state agency physician; Johnston Memorial Hospital; Dr. William Humphries, M.D.; Kathy Jo Miller, M.Ed., a licensed psychological examiner; Robert S. Spangler, Ed.D., a licensed psychologist; Wellmont Bristol Regional Medical Center; Dr. Salman Gohar, M.D.; Dr. Roy R. Andrews, D.O.; and Dr. Saeed Jadali, M.D.

         On February 15, 2010, Rosenbalm was seen at the emergency room at Wellmont Bristol Regional Medical Center, (“BRMC”), for injuries to his neck, shoulder and back following a motor vehicle accident. (R. at 492-500.) A CT scan of Rosenbalm’s cervical spine showed degenerative changes at the C5-C6 and C6-C7 disc spaces, mild levocurvature at the C5-C6 disc space and a nonunited ossification center at the tip of the T1 spinous process, ...


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