United States District Court, W.D. Virginia, Charlottesville Division
WILLIAM C. WEAVER, JR., Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant
C. Hoppe United States Magistrate Judge
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.
Standard of Review
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).
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).
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.
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.”)
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.
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.
Weaver's residual functional capacity
(“RFC”),  the ALJ determined that Weaver could
perform light work,  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.
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.
Statement of Facts
Relevant Medical Treatment Records
Medical Records Before the Alleged Onset Date
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.
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.
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. 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.
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.
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
Relevant Medical Records During DIB Coverage Period
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.
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.
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.
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.
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