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Waller v. Colvin

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

October 19, 2016

CURTIS WALLER, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner, Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION

          JOEL C. HOPPE, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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 proceedings.

         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. § 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.

         II. Procedural History

         Waller 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.

         ALJ 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.

         ALJ Peltzer then found that Waller had the residual functional capacity (“RFC”)[1] to perform light work[2] 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 public.

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, [3] 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.

         III. Facts

         A. Prior to the Alleged Onset Date

         1.Treatment Records

         The 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.

         An 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.[4] 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. 332-33.

         Waller, 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.[5] 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.

         Waller 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.

         2.Medical Opinions

         a. Dr. Blackmer

         On 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. R. 309.

         Waller 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.

         On 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.

         Dr. 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.[6] 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.

         b. Dr. Buchner

         DDS 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.

         As to 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.

         Waller 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.

         Dr. 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.

         Dr. 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. She ...


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