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Weaver v. Colvin

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

September 13, 2016

WILLIAM C. WEAVER, JR., Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant


          Joel C. Hoppe United States Magistrate Judge

         Plaintiff William C. Weaver, Jr., asks this Court to review the Commissioner of Social Security's (“Commissioner”) final decision denying his application for disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. The case is before me by the parties' consent under 28 U.S.C. § 636(c)(1). ECF Nos. 6, 7. Having considered the administrative record, the parties' briefs and oral arguments, and the applicable law, I find that substantial evidence supports the Commissioner's decision that Weaver 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 Administrative Law Judge (“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 Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-89 (1951); Gordon v. Schweiker, 725 F.2d 231, 236 (4th Cir. 1984). 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)). 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 to 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); 20 C.F.R. § 404.1505(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 Heckler v. Campbell, 461 U.S. 458, 460-62 (1983); 20 C.F.R. § 404.1520(a)(4). 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

         Weaver filed an application for DIB on February 25, 2010, alleging disability caused by a protruding disc, arthritis, and pain in his back. Administrative Record (“R.”) 149.[1] He claimed that his period of disability began on March 1, 2001, at which time he was thirty-eight years old, and his date last insured was December 31, 2006. Id. Disability Determination Services (“DDS”), the state agency, denied his claim at the initial and reconsideration stages. R. 149-60, 162-78. On October 28, 2011, Weaver appeared with counsel at an administrative hearing before ALJ Brian Rippel. R. 47-103. The ALJ heard testimony from Weaver, R. 58-88, and Andrew Beal, a vocational expert (“VE”), R. 90-101.

         ALJ Rippel denied Weaver's claim in a written decision issued on December 6, 2011. R. 180-94. He found that Weaver had severe impairments of degenerative disc disease of the lumbar spine and obesity, but also found that Weaver's impairment of gout was non-severe. In addition, the ALJ determined that Weaver's medically determinable mental impairment of affective disorder did not cause more than a minimal limitation in Weaver's ability to perform basic mental work activities and was therefore non-severe. R. 185-86. The ALJ then determined that none of Weaver's severe impairments, alone or in combination, met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, in particular Listing 1.04 (disorders of the spine). R. 186.

         As to Weaver's residual functional capacity (“RFC”), [2] the ALJ determined that Weaver could perform light work, [3] except he could do only occasional climbing of ramps and stairs, balancing, stooping, kneeling, crouching, and crawling, and no climbing of ladders, ropes, or scaffolds. R. 186-89. Based on this finding and the testimony of the VE, the ALJ concluded that Weaver was unable to perform any of his past relevant work, but could perform other jobs existing in the national economy, including cashier, gate keeper/lobby monitor, and ticket taker. R. 189-90. Therefore, the ALJ concluded that Weaver was not disabled. R. 190. Weaver sought review of ALJ Rippel's decision from the Appeals Council, which remanded the case for further consideration of the opinion of Thomas Wolanski, M.D., and to obtain supplemental testimony from a VE if necessary. R. 195-97.

         On remand, ALJ Rippel held a second hearing on January 7, 2014, during which he heard testimony from Weaver, R. 108-21; Christopher Alexander, III, M.D., a medical expert, R. 121- 31; and a VE, R. 131-47. On January 29, 2014, ALJ Rippel again denied Weaver's claim in a written decision. R. 16-44. He found that Weaver suffered from the same severe impairments of degenerative disc disease of the lumbar spine and obesity. He also found that Weaver suffered from obstructive sleep apnea, but did not consider this impairment for the purpose of Weaver's disability application because it was not diagnosed or treated until 2012, after the date last insured of December 31, 2006. R. 27. In addition, the ALJ found once again that Weaver's medically determinable mental impairment of affective disorder was non-severe. R. 22-25. ALJ Rippel determined that Weaver's severe impairments still did not rise to the level of a listed impairment. R. 25. He then found that, through the date last insured, Weaver had the RFC to perform light work, but was limited to lifting or carrying twenty pounds occasionally and ten pounds frequently, and to standing or walking for six hours and sitting for six hours in an eight-hour workday with an option to alternate to sitting after standing or walking for thirty minutes. He also found that Weaver had similar postural limitations as those he found in his first determination, and he further limited Weaver from exposure to unprotected heights. R. 26-36. Based on this finding and the VE's testimony, the ALJ concluded that Weaver was unable to perform any of his past relevant work, but could perform other jobs existing in the national economy representing light, unskilled occupations, such as parking lot cashier, storage facility rental clerk, or assembler of electrical accessories. R. 36-37. Therefore, the ALJ concluded that Weaver was not disabled. R. 37. Weaver again requested review by Appeals Council, which was denied. R. 8-10. This appeal followed.

         III. Statement of Facts

         A. Relevant Medical Treatment Records

         1. Medical Records Before the Alleged Onset Date

         The Administrative Record contains medical records spanning from July 1994, R. 498- 99, through January 2014, R. 893. The record prior to the alleged onset date of March 1, 2001, indicates Weaver injured his back in 1995 while lifting a steal beam at work. R. 498-99, 615. MRI scans from 1995, 1996, and 1999 are almost identical and show a disc herniation at ¶ 5-S1. R. 648-50, R. 612-14, 665-66.

         In 1995 George N. Stergis, M.D., recommended conservative treatment consisting of physiotherapy and prescribed Skelaxin for Weaver's muscle spasms. R. 663-66. From 1995 to 1998, Weaver, in consultation with his medical providers, regularly stayed out of work for periods of weeks or even months because of flare ups in symptoms. In 1998, Dr. Stergis opined that Weaver could return to work with a fifty-pound lifting restriction and recommended that he avoid sitting for more than one hour. R. 556-58, 690, 699, 709. Eileen S. Whelan, D.C., suggested surgical consultation. R. 606-07. In January and February 1997, neurosurgeon Benjamin R. Allen, Jr., M.D., examined Weaver and reviewed his MRIs. Although Weaver had a “very large L5-S1 disc, ” Dr. Allen determined that Weaver looked “quite good at this time” and did not require surgery unless his condition worsened. R. 610-13.

         In 1997, Weaver's symptoms flared up, and he walked with a slight limp. Dr. Stergis encouraged Weaver to lose weight and to continue with his lifting restriction. R. 694. He noted that Weaver “show[ed] signs of S1 root irritation and eventually his disc may have to come out.” Id.[4] By 1998, Weaver was attending physical therapy, exhibiting positive straight leg raises, and walking with a slight stoop. R. 698. A preliminary sleep apnea examination revealed Weaver needed a further sleep study. R. 617. He told Dr. Stergis that he “had to quit his job because of [his] persistent symptoms.” R. 702-03. Dr. Stergis noted that Weaver's mental status was normal and his motor exam showed satisfactory strength. R. 695. Dr. Stergis examined Weaver again on September 14, 1998, and recommended that he return to work with a fifty-pound lifting restriction. R. 704-05. Dr. Stergis further noted that since May 1998, Weaver's lumbar spine had been in a weakened condition compared to his pre-injury level. R. 708-10. That same day, Weaver reported to Dr. Stergis that he was experiencing new symptoms in the right lower extremity. R. 711.

         In January 1999, Richard R. Eckert, M.D., a neurosurgeon reviewing Weaver's medical record, opined that his impairment was causally related to his 1995 injury. R. 633-37. Dr. Eckert found that Weaver had left lumbosacral radiculopathy, and he opined that Weaver's chronic subjective symptoms correlated with the objective findings. He noted that Weaver had chosen to avoid chronic non-steroidal anti-inflammatory drugs (“NSAIDs”) and surgery, which presented some risk, but this decision to limit treatment deprived him of some relief, particularly as Weaver had previously achieved good results from periodic NSAID use. Id.

         Before releasing Weaver to Dr. Wolanski in 1999, Dr. Stergis noted that Weaver's condition had been “static over many months of observation, ” and Weaver was “entitled to [a disability] rating.” R. 712. He opined that Weaver could lift fifty pounds intermittently, and he noted that Weaver walked with a slightly antalgic gait. He recommended that Weaver continue taking ibuprofen and follow the current work restrictions. The record is sparse until January 4, 2001, at which time Dr. Wolanski opined that he had been seeing Weaver “over the past year and a half for flares of his back pain which began intermittently and then gradually became worse associated with spasm and radiation, ” with symptoms including tenderness and limited range of motion, but never neurological defects. R. 805. Dr. Wolanski opined that there was little he could offer Weaver from a medical standpoint and referred Weaver back to Dr. Stergis for consideration of further treatment through medication. Id

         2. Relevant Medical Records During DIB Coverage Period

         On March 7, 2001, Weaver visited Dr. Stergis complaining of low back pain. Dr. Stergis noted that he had not seen Weaver for two years. Reviewing Weaver's MRI results from that day, Dr. Stergis observed disc herniation at ¶ 5-S1 and a bulge at ¶ 4-5, which he determined were consistent with prior MRIs from 1995 and 1999. On examination, Weaver walked with a stooped posture, could not walk on his toes, and had “patchy” sensory loss at ¶ 1 on the left. R. 741-42. Dr. Stergis prescribed a trial of Topamax, recommended Weaver consult with a spine surgeon, and excused Weaver from work for the month of March. R. 740. Stergis referred Weaver to the Pain Clinic at Culpeper Memorial Hospital. On March 26, 2001, Weaver received an epidural steroid injection (“ESI”), with a second injection to follow in two weeks. R. 813-14.

         Three days later, on March 29, 2001, Weaver visited Dr. Stergis and reported pain in his lumbosacral region. R. 739. On April 4, 2001, Dr. Stergis examined Weaver and found that his sciatic problems were only mildly positive. Weaver said he felt much better after ESI treatment. R. 737. Dr. Stergis opined that Weaver was disabled from March 7 to April 8, 2001, with L5-S1 disc herniation, but able to return to work on April 9, 2001, with lifting restrictions. R. 715.

         On April 17, 2001, Susan Anderson, M.D., gave Weaver another ESI and noted that Weaver's MRI showed disc disease at ¶ 4-L5 and L5-S1. Dr Anderson reported that Weaver did “well from the epidural after about five days of initial discomfort. He did so well that he asked to go back to work, which Dr. Stergis approved. He has been back at work a week and has noticed that his stinging and pain is coming back into his groin and down his legs, not beyond his knees.” R. 655-57. Dr. Anderson's examination on April 17, 2001, revealed negative right and left straight leg raising. She recommended he have another ESI in two to three weeks and not return to work that night. Id.

         Weaver visited Dr. Stergis again on April 24, 2001, and complained of continued back pain, aggravated by sitting. Weaver told Dr. Stergis that he was afraid of losing his job. On examination, Dr. Stergis observed spasms in the L4-5 and L3-4 regions, positive sciatic stretch on the left, and chronic lumbar radiculopathy. He excused Weaver from work from April 23 to May 8, 2001. R. 735. Dr. Stergis recommended that he consider myobloc injections for his chronic back spasm. Id. On May 9, 2001, Dr. Stergis noted a spasm in the lumbar and iliolumbar paraspinous muscles, positive sciatic stretch on the left, and chronic lumbar radiculitis with low back spasm. He recommended Weaver seek a second opinion from another neurosurgeon because “I [Dr. Stergis] don't think he got a fair assessment with Dr. Ben Allen of Richmond.” Dr. Stergis again excused Weaver from work from May 9 through May 31, 2001. R. 719-20, 733-34.

         Returning to Dr. Stergis on May 31, 2001, Weaver was “miserable with pain and afraid that he's going to lose everything” because his worker's compensation payments were not enough to keep up with his bills. Dr. Stergis observed positive sciatic stretch sign and noted that Weaver had lumbar radiculopathy associated with lumbar disc herniation. Finding that other pain medications had been ...

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