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Burke v. Berryhill

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

March 24, 2017

LINDA M. BURKE, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM OPINION

          Joel C. Hoppe United States Magistrate Judge

         Plaintiff Linda M. Burke asks this Court to review the Commissioner of Social Security's (“Commissioner”) final decision denying her application for supplemental security income (“SSI”) under Title XVI of the Social Security Act (the “Act”), 42 U.S.C. §§ 1381-1383f. The case is before me by the parties' consent under 28 U.S.C. § 636(c). ECF No. 9. Having considered the administrative record, the parties' briefs and oral arguments, and the applicable law, I find that the Commissioner's decision is supported by substantial evidence.

         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

         Burke applied for SSI on March 27, 2012, alleging disability caused by arthritis in her knees, elbows, shoulders, neck, and hands; bone disease; enlarged liver; bulging discs in her back; and nerve damage in her neck. Administrative Record (“R.”) 165, 195, ECF No. 14. At the time of her alleged onset date of March 14, 2012, Burke was forty-six years old. R. 165. Disability Determination Services (“DDS”), the state agency, denied her claim at the initial, R. 68-78, and reconsideration stages, R. 81-94. On June 10, 2014, Burke appeared with counsel at an administrative hearing before ALJ Brian Rippel. R. 30-62. Burke testified about her past work, medical conditions, and the limiting effect these conditions had on her daily activities. A vocational expert (“VE”) also testified regarding the nature of Burke's past work and her ability to perform other jobs in the national and local economies.

         The ALJ denied Burke's claim in a written decision issued on July 10, 2014. R. 14-25. He found that Burke had severe impairments of degenerative disc disease and radiculopathy of the cervical spine, degenerative disc disease of the lumbar spine, and degenerative changes of the knees. R. 16. He also determined that these impairments did not meet or medically equal the severity of a listed impairment. R. 18-19. As to Burke's residual functional capacity (“RFC”), the ALJ found that she could perform light work[1] and occasionally stoop, kneel, crouch, crawl, and climb ramps, stairs, ladders, ropes, and scaffolds. R. 19-23. Relying on this RFC and the testimony of the VE, the ALJ found that Burke could perform her past relevant work as a housekeeper and perform other jobs existing in the national and local economies, including dining room attendant/silver wrapper, laundry aide, and deli clerk. R. 23-25. Therefore, the ALJ determined that Burke was not disabled. R. 25. The Appeals Council denied Burke's request for review, R. 1-5, and this appeal followed.

         III. Facts

         A. Relevant Medical Evidence

         In August 2008, Burke visited Kenneth B. Perkins, P.A., of Middlebrook Family Medicine (“Middlebrook”), primarily for abdominal issues and alcohol abuse. R. 270. P.A. Perkins also noted that Burke could not abduct her right shoulder above 90 degrees, had cervical spine tenderness at ¶ 5 and C6, and had decreased grip strength on the right. R. 270. On September 19, Burke had an MRI of her cervical spine. R. 281. Imaging revealed endplate changes and disc space narrowing of C5-6 and C6-7 and small bulge at ¶ 4-5 without mass effect. Id. The report also noted diffuse disc ridge complex resulting in bilateral foraminal narrowing and minimal mass effect on the cord and nerve roots at ¶ 5-6 with similar results at ¶ 6-7. Id.

         In December, P.A. Perkins found Burke's lower extremity muscle strength and sensation to be intact. R. 347. In January and February 2009, P.A. Perkins assessed decreased abduction of Burke's left shoulder. R. 298, 300. At appointments throughout 2009, Burke was tender to palpation in her lumbar spine at ¶ 4 and L5. R. 298, 337, 341, 343. X-rays taken in June showed bilateral spondylolysis at ¶ 5-S1. R. 364. In July, P.A. Perkins found that Burke had normal gait and negative straight leg raise test. R. 337. He noted that her X-ray was “negative” except for some spurring, and he ordered an MRI. The MRI revealed mild retrolisthesis at ¶ 4-5 and a small disc bulge without mass effect; anterior subluxation, spondylolisthesis, and a right foraminal bulge at ¶ 5-S1 with questionable minimal mass effect on the L5 nerve root; and a bulge and small disc herniation at ¶ 3-4 with minimal mass effect on the L3 nerve root. R. 362.

         Burke underwent electromyography (“EMG”) testing on June 22, 2010. R. 359-61. Finding abnormal test results, Peter Konieczny, M.D., noted evidence of chronic left C7 radiculopathy without denervation, but no right radiculopathy or left median mononeuropathy at the wrist. R. 360. After reviewing these results, P.A. Perkins referred Burke to the Neurosurgery Department at the University of Virginia Medical System (“UVA”). R. 408.

         On August 24, Gregory A. Helm, M.D., Ph.D., a neurosurgeon at UVA, evaluated Burke for pain in her neck, lower back, shoulders, and upper extremities. R. 312. He found good strength and sensation in her lower and upper extremities, noted that she was not myelopathic, and ordered a CT/Myelogram of her cervical and lumbar spine. Id. During an appointment in November, Dr. Helm noted some lateral stenosis in the cervical region and a slip of L5 on S1. R. 430. He recommended that Burke engage in two months of physical therapy, and if that did not improve her neck pain, he would talk to her about cervical surgery.

         In January 2011, P.A. Perkins and Burke discussed Dr. Helm's treatment plan. R. 508. Burke said she had not noticed improvement. P.A. Perkins noted cervical tenderness, decreased muscle strength of the biceps and triceps on the right upper extremity, slightly decreased grip strength on the right compared to the left, tenderness at ¶ 4-5, and equal bilateral lower extremity strength. On February 21, Burke complained to P.A. Perkins of experiencing pain in her upper extremities, shoulders, elbows, hands, knees, and neck. R. 398. He noted that her cervical spine area remained tender. On exam, P.A. Perkins found reduced grip strength in Burke's upper extremities. He referred her back to the Neurosurgery Department at UVA, ordered knee X-rays, and prescribed Vicodin for her knee pain. The record, however, contains no further treatment notes from the Neurosurgery Department at UVA. X-rays of Burke's knees taken on March 1 showed degenerative changes of both knees consisting of mild narrowing of the medial compartments, probable minimal narrowing of the patellofemoral compartments, no acute bony abnormalities, and no loose body or joint effusion. R. 420.

         On March 9, Burke had an intake assessment at the Valley Community Services Board (“VCSB”) for “help with her drinking.” R. 477-79. She reported having one mental health counseling session in 2010, and she discussed her history of alcohol abuse and the problems in her relationship with her son. On mental status exam, Burke was oriented in all spheres, minimally cooperative, and pleasant but guarded. Her speech was normal, her insight and judgment were poor, she exhibited no evidence of hallucinations or delusional thinking, and she appeared to have low-average intelligence. The counselor diagnosed alcohol dependence and parent-child relationship problems. In June, Burke was admitted to alcohol detox for a week and discharged with a diagnosis of alcohol dependence and a recommendation that she pursue counseling at the VCSB. R. 480-81. After a couple of counseling sessions, Burke was discharged with a referral to another counseling group because she insisted, apparently in contravention of program rules, on continuing to use her prescribed opiates to manage her pain. R. 484. In August, Burke was evaluated at Augusta Health Behavioral Services for alcohol dependence and related social and relationship problems. R. 496-98. Her appearance, behavior, orientation, speech, thinking, insight, judgment, and memory were assessed to be within normal limits. Additionally, she appeared anxious, and Burke reported that pain interfered with her sleep. The counselor recommended that Burke attend weekly counseling sessions and ongoing Alcoholics Anonymous meetings.

         On March 16, 2012, Cindy W. Almarode, a nurse practitioner at Middlebrook, examined Burke for complaints of left elbow pain. R. 500-02. The nurse practitioner noted swelling and tenderness in the left elbow, but no joint mobility abnormalities. Burke had full strength and range of motion without pain. Additionally, Burke was alert and oriented, and she had no psychomotor, mood, affect, speech, or thought impairments. The nurse practitioner made no findings concerning Burke's history of cervical or knee pain. On March 30, Burke complained of increased pain in her left elbow and increased pain and numbness in her upper extremities. R. 562. N.P. Almarode's findings on exam were unchanged. R. 561.

         Through the VCSB, Burke was admitted to Boxwood, a residential treatment facility, on May 30 for treatment for alcohol dependence. R. 623-27, 645-63. She completed the program and was discharged on June 27. In December 2013, ...


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