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Thacker v. Berryhill

United States District Court, W.D. Virginia, Big Stone Gap Division

March 24, 2017

CALVIN W. THACKER, Plaintiff
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant

          MEMORANDUM OPINION

          Pamela Meade Sargent United States Magistrate Judge

         I. Background and Standard of Review

         Plaintiff, Calvin W. Thacker, (“Thacker”), filed this action challenging the final decision of the Commissioner of Social Security, (“Commissioner”), denying his claims for disability insurance benefits, (“DIB”), and supplemental security income, (“SSI”), under the Social Security Act, as amended, (“Act”), 42 U.S.C.A. §§ 423 and 1381 et seq. (West 2011 & West 2012). Jurisdiction of this court is pursuant to 42 U.S.C. §§ 405(g) and 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 Thacker protectively filed his applications for DIB and SSI on August 20, 2012, alleging disability as of May 2, 2012, due to left shoulder problems with his rotator cuff. (Record, (“R.”), at 208-15, 216-17, 232, 236.) The claims were denied initially and upon reconsideration. (R. at 80-121, 122-23, 128-30, 134-36, 140-41, 142-44, 146-48.) Thacker then requested a hearing before an administrative law judge, (“ALJ”). (R. at 150-51.) The ALJ held a video hearing on August 28, 2014, at which Thacker was represented by counsel. (R. at 32-59.)

         By decision dated October 16, 2014, the ALJ denied Thacker's claims. (R. at 17-26.) The ALJ found that Thacker met the nondisability insured status requirements of the Act for DIB purposes through December 31, 2018. (R. at 19.) The ALJ found that Thacker had not engaged in substantial gainful activity since May 2, 2012, the alleged onset date. (R. at 19.) The ALJ found that the medical evidence established that Thacker had severe impairments, namely degenerative joint disease and left shoulder rotator cuff tear status-post two surgeries, but she found that Thacker 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 19-20.) The ALJ found that Thacker had the residual functional capacity to perform light work[2] that did not require crawling or climbing ladders, ropes or scaffolds or more than occasional reaching, pushing or pulling or any overhead reaching with his left upper extremity. (R. at 20-25.) The ALJ found that Thacker was unable to perform his past relevant work. (R. at 25.) Based on Thackers'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 Thacker could perform, including jobs as a cashier, a sales attendant and a rental clerk. (R. at 25-26.) Thus, the ALJ concluded that Thacker was not under a disability as defined by the Act, and was not eligible for DIB or SSI benefits. (R. at 26.) See 20 C.F.R. §§ 404.1520(g) 416.920(g) (2016).

         After the ALJ issued her decision, Thacker pursued his administrative appeals, (R. at 9-12), but the Appeals Council denied his request for review. (R. at 1-5.) Thacker 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. §§ 404.981, 416.1481 (2016). This case is before this court on Thacker's motion for summary judgment filed July 29, 2016, and the Commissioner's motion for summary judgment filed August 31, 2016.

         II. Facts

         Thacker was born in 1963, (R. at 25), which classified him as a “younger person” under 20 C.F.R. §§ 404.1563(c), 416.963(c) on his alleged onset date and a “person closely approaching advanced age” under 20 C.F.R. §§ 404.1563(d), 416.963(d) prior to the ALJ's decision. Thacker graduated from high school and has past work experience as a maintenance pipefitter. (R. at 25, 237-38.) The record shows that Thacker suffered a work-related injury to his left shoulder in April 2011.

         In rendering her decision, the ALJ reviewed records from Dr. Christopher M. Basham, M.D.; Dr. Danny A. Mullins, M.D.; Dr. Souhail Shamiyeh, M.D.; Dr. Joseph Duckwall, M.D., a state agency physician; Dr. Wyatt S. Beazley III, M.D., a state agency physician; and physical therapists, Dewey T. Peck and Charles Williams, Jr.

         On June 22, 2011, Thacker saw Dr. Christopher M. Basham, M.D., for an injury to his left shoulder that he said he suffered at work changing out a water heater. (R. at 293.) Physical examination revealed left shoulder tenderness. (R. at 294.) Dr. Basham diagnosed left shoulder pain and biceps tendonitis with impingement syndrome. (R. at 294.) Thacker declined a referral for physical therapy, and Dr. Basham prescribed Naprosyn. (R. at 294.) A July 13, 2011, MRI of Thacker's left shoulder showed significant degenerative joint disease of the acromioclavicular joint and a full-thickness tear of the supraspinatus tendon. (R. at 301.)

         Thacker saw Dr. Danny A. Mullins, M.D., an orthopedic surgeon, on May 3, 2012. (R. at 321-45.) Dr. Mullins diagnosed left shoulder rotator cuff tear with impingement and acromioclavicular osteoarthritis. (R. at 321.) Dr. Mullins performed diagnostic arthroscopy with arthroscopic rotator cuff repair, extensive debridement and arthroscopic acromioplasty and arthroscopic distal clavicle excision. (R. at 321.) On June 13, 2012, Dr. Mullins released Thacker to return to light-duty work with no use of his left arm. (R. at 424.) He also prescribed physical therapy. (R. at 424.)

         On July 25, 2012, Dr. Mullins provided Thacker with an injection of Lidocaine and Celestone into his left shoulder. (R. at 423.) On July 25, 2012, Thacker stated that the injection did not provide any relief. (R. at 423.) Dr. Mullins suggested a second surgery and an open revision acromioplasty. (R. at 423.) Dr. Mullins performed this surgery on November 6, 2012, (R. at 542-43.)

         On December 31, 2012, Thacker complained of continued shoulder pain, decreased range of motion and a popping sensation. (R. at 556.) Dr. Mullins noted that Thacker was 10 weeks post surgery and should continue to improve. (R. at 556.) He stated that ...


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