United States District Court, W.D. Virginia, Danville Division
REPORT AND RECOMMENDATION
C. HOPPE, UNITED STATES MAGISTRATE JUDGE
Curtis Waller 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. The case is
before me by referral under 28 U.S.C. § 636(b)(1)(B).
ECF No. 12. Having considered the administrative record, the
parties' briefs, and the applicable law, I find that the
Commissioner's decision is not supported by substantial
evidence. Therefore, I recommend that the Court GRANT
Waller's Motion for Summary Judgment, ECF No. 13, DENY
the Commissioner's Motion for Summary Judgment, ECF No.
15, and REMAND the case for further administrative
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. § 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 Heckler v. Campbell, 461 U.S. 458, 460-62
(1983); 20 C.F.R. § 416.920(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.
applied for SSI on March 16, 2012, alleging disability caused
by depression, nerve problems, learning disabilities, and
chronic neck and back pain. Administrative Record
(“R.”) 90, ECF No. 9. This was Waller's
second application for benefits. His first claim was denied
by ALJ R. Neely Owen on September 24, 2010, R. 67-79, and the
Appeals Council declined his request for review of that
decision on December 20, 2011, R. 84-86. Waller's second
claim for benefits alleged a disability onset date of
September 25, 2010, at which time he was thirty-two years
old. R. 90. Disability Determination Services
(“DDS”), the state agency, denied Waller's
second claim at the initial and reconsideration stages. R.
90-102, 104-117. On April 11, 2014, he appeared with counsel
at an administrative hearing before ALJ Mary Peltzer. R.
40-63. The ALJ heard testimony from Waller, R. 44-57, and a
vocational expert (“VE”), R. 57-62.
Peltzer denied Waller's claim in a written decision
issued on April 28, 2014. R. 13- 34. She found that Waller
had severe impairments of lumbar spinal stenosis and mental
disorders diagnosed to include major depressive disorder with
psychotic features, schizoaffective disorder depressive type,
and borderline intellectual functioning. R. 15. Other
impairments alleged in the record, including abnormal liver
enzymes, hypertension, and alcohol abuse, were found to be
non-severe. Id. The ALJ next determined that none of
Waller's impairments, alone or in combination, met or
equaled the severity of an impairment listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1-in particular Listings 1.04
(disorders of the spine), 12.04 (affective disorders), and
12.05 (intellectual disability). R. 15-17.
Peltzer then found that Waller had the residual functional
capacity (“RFC”) to perform light
with only occasional climbing of ramps and stairs; occasional
climbing of ladders, ropes, and scaffolds; occasional
kneeling, crouching, and crawling; and no more than
occasional exposure to workplace hazards. R. 17. As to
Waller's mental limitations, the ALJ determined,
He can perform unskilled work at an SVP of 1 or 2 in a static
work environment where changes in tasks are infrequent and
explained when they do occur, no more than simple,
work-related decisions, and no work where pace of
productivity is dictated by an external source over which he
has no control, such as conveyor belts, and no tandem work
assignments. He can have occasional contact with the general
Id.; see also R. 18-32 (explaining the
ALJ's reasoning for her RFC finding). Based on this RFC
and the VE's testimony, the ALJ found that Waller could
perform his past work as an elevator operator,  or in the
alternative could perform other work available in the
economy, including laundry worker, textile and garment
presser, and food counter clerk. R. 33-34. She therefore
determined that Waller was not disabled. R. 34. The Appeals
Council declined Waller's request for review, R. 1-3, and
this appeal followed.
Prior to the Alleged Onset Date
record reflects Waller's treatment history dating back to
October 2009, at which time Waller complained that he had
been suffering from chronic back pain since being in a motor
vehicle accident in 1999. He was not taking any medication
for pain at this time, but stated that he had treated with an
orthopedist and pain management specialists in the past.
Findings on physical examination were unremarkable, with no
costovertebral angle (“CVA”) tenderness and
negative straight leg raise bilaterally. Waller was
prescribed Flexeril and Tylenol with Codeine for his pain and
referred to orthopedics at the University of Virginia
(“UVA”). R. 334-35.
x-ray of Waller's lumbar spine, taken on November 20,
revealed normal findings, with no evidence of fracture and no
focal osseous abnormalities identified. R. 299-300. On
January 15, 2010, Waller visited Judy C. Broughton, M.N.,
F.N.P., to discuss the results of an MRI of his spine that
had been taken at UVA. Broughton noted that the orthopedist at
UVA found that the MRI showed degenerative disk disease in
the L5-S1 area. Waller reported a history of pain in his neck
and lower back, although he stated that the pain in the lower
back was worse and that he was not experiencing neck pain at
the moment. On physical examination, Waller had no CVA
tenderness and negative bilateral straight leg raise, but
exhibited definite sacroiliac joint pain on the right. R.
accompanied by his mother, visited with Robert Goodnight,
M.D., on June 25, 2010. Waller's mother reported that he
was not working, was eating less and losing weight, had
crying spells, and felt tired all the time. She stated that
Waller did not smoke, drink alcohol, or use
drugs. He had previously taken Wellbutrin,
Zoloft, Remeron, Celebrex, Ultram, and Flexeril for his
physical and mental symptoms, but none of these were
effective (although Waller's mother also stated that
Wellbutrin and Zoloft may have helped somewhat). Findings on
physical examination were again unremarkable, with normal
range of motion of the spine, no evidence of scoliosis, no
CVA tenderness, normal strength and sensation, and normal
gait. Dr. Goodnight prescribed Zoloft for dysthymia and
ordered laboratory screenings for possible thyroid and
endocrine disorders. R. 329-31.
returned to Dr. Goodnight on September 3. His mood remained
low, and he reported staying in his room a lot. Waller stated
that he saw a psychiatrist, but Dr. Goodnight noted that it
did not appear as though Waller visited the psychiatrist
regularly. He had a somewhat flat affect and denied use of
alcohol and drugs. Waller still complained of chronic pain.
His lab work showed liver and kidney issues. Findings on
examination were fully normal except for flat, restricted
affect. Dr. Goodnight ordered further lab work for renal
insufficiency, continued Waller on Zoloft, and prescribed
Abilify. R. 327-28.
December 2, 2009, DDS consulting examiner Dana R. Blackmer,
Ph.D., conducted a mental status examination of Waller. R.
309-12. Waller told Blackmer that he experienced back pain,
but did not suffer from any other physical problems. He
reported that he did not take any medication for his mental
symptoms at the time, but had taken an antidepressant in the
past. Waller denied substance abuse and stated that he had
never been in a psychiatric hospital, but had received
outpatient treatment for depression. With regard to his mood,
Waller stated that he felt “down a lot, ” but
claimed that he rarely had crying spells. Waller also had
difficulty eating, possibly causing him to lose weight, and
difficulty initiating and maintaining sleep, which he
attributed to both his physical and mental symptoms. He
stated that he had less energy and social interest than
normal, and he claimed that he had experienced depressive
symptoms on and off for years, but denied suicidal thoughts.
reported that he went to school through tenth grade, took
special education classes, repeated two years, and was unsure
what kind of grades he got. He stated that he had difficulty
reading and writing, to the point where he would have
difficulty reading a newspaper well enough to understand it.
Waller reported that he worked in a mill for one year before
stopping because of his auto accident, and he stated that at
this time he needed help with managing his money. He told Dr.
Blackmer that he never married or lived independently and
that he currently lived with his mother. Waller stated that
on a typical day he would watch television, stay inside, and
help his family around the house. He did not know how to
cook, but could do laundry, although he did not do this by
himself. Waller also informed Dr. Blackmer that he never
attempted to obtain his driver's license. R. 309-10.
examination, Dr. Blackmer observed that Waller was casually
dressed and adequately groomed. He did not exhibit unusual
speech, gait, or motor movements, and he was oriented to
person, place, time, and situation. His thought processes
were logical and rational, with no signs of psychosis or
thought disorder. Waller's mood was within normal limits,
although Dr. Blackmer observed that he rarely smiled. His
concentration and attention were fair, short- and long-term
memory were fair, abstract reasoning was poor, and common
sense reasoning and judgment capacity were fair. As to
Waller's intelligence, Dr. Blackmer estimated that he
functioned in the low end of the borderline to the upper end
of the extremely low range. R. 310- 11.
Blackmer found that Waller's reports of functional
impairment were internally consistent and were consistent
with his treatment history and the available collateral
information. She recorded a diagnosis of major depression,
recurrent, mild to moderate, without psychotic features, and
assessed a Global Assessment of Functioning
(“GAF”) score of 50. She opined that Waller would
have no difficulty with simple and repetitive tasks, but he
would have mild to moderate difficulty and would require
additional or special supervision with detailed or complex
tasks. Dr. Blackmer found that Waller would have no
difficulty accepting supervision or instruction or dealing
with coworkers and the public. She determined that he would
have mild to moderate difficulty completing a normal workday,
and he would have moderate difficulty with maintaining
regular workplace attendance, working consistently over time,
and dealing with the usual stress in a competitive workplace.
She expressed a fair prognosis for significant change, and
stated that Waller would not be capable of managing his
financial affairs. R. 311-12.
consulting physician Julie Buchner, M.D., examined Waller on
December 5, 2009. R. 303-08. With regard to his back pain,
Waller told Dr. Buchner that he attended physical therapy and
met with an orthopedic surgeon following his 1999 motor
vehicle accident. Waller stated that the orthopedic surgeon
offered to perform back surgery, but could not guarantee that
it would be totally successful, and he therefore declined to
go through with surgery. He stated that he continued to have
back pain located around the area of L3-L4 and radiating to
his legs and shoulders, which rated 10/10 in intensity.
Ibuprofen and Tylenol provided some pain relief. R. 303.
his depression, Waller stated that he took special education
classes in high school and was evaluated for depression
around this time. He denied being hospitalized or attempting
suicide and stated that he had no plans to hurt himself or
others, although the thought had crossed his mind. Waller
described feeling sad most days and experiencing frequent
feelings of guilt, worthlessness, helplessness, and
hopelessness. He claimed that he had difficulty getting out
of bed because of his mood. R. 304.
told Dr. Buchner that he could feed, bathe, dress, and use
the toilet himself. He was able to do some cooking and
cleaning, but was limited by his back pain. Waller stated
that he could not perform yard work or play basketball, which
he used to enjoy. He reported that he smoked one-half pack of
cigarettes per day, occasionally drank alcohol, and did not
use illicit drugs. He described having shortness of breath
when he experienced panic attacks. Id.
Buchner observed that Waller could ambulate without
difficulty, sit comfortably, and get on and off the
examination table with ease, but he also exhibited discomfort
while taking off his shoes. On examination, Dr. Buchner found
that Waller's coordination was normal, but he squatted
with some difficulty because of his pain. He had normal
flexion and extension of the cervical and lumbar spine and
limited right and left lateral flexion and rotation. He also
exhibited some limited range of motion of the hips. He
experienced pain on palpation over his entire spine that did
not localize anywhere, and Dr. Buchner did not appreciate any
paravertebral muscle spasm or spiny deformity. Waller's
motor strength, sensation, and reflexes were all normal. He
appeared drowsy but oriented, was slow in answering questions
and obeying commands, and had flat affect. R. 305-06, 308.
Buchner expressed difficulty assessing the nature of
Waller's back pain because she had no imaging and little
objective findings to evaluate. She opined that he could have
some sort of disc pathology or possibly early degenerative
changes that she could not appreciate. She found that
Waller's depression was moderate in degree. Dr. Buchner
determined that Waller had the functional capacity to stand
or walk six hours and sit six hours in a normal workday,
without any need for an assistive device. He could lift or
carry twenty pounds occasionally and ten pounds frequently.