Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Branham v. Berryhill

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

September 21, 2017

RUSSELL W. BRANHAM, 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, Russell W. Branham, (“Branham”), filed this action challenging the final decision of the Commissioner of Social Security, (“Commissioner”), determining that he was not eligible for disability insurance benefits, (“DIB”), under the Social Security Act, as amended, (“Act”), 42 U.S.C.A. § 423 (West 2011). Jurisdiction of this court is pursuant to 42 U.S.C. § 405(g). This case is before the undersigned magistrate judge by transfer based on consent of the parties pursuant to 28 U.S.C. § 636(c)(1). Oral argument has not been requested; therefore, the matter 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 Branham protectively filed an application for DIB on September 6, 2012, alleging disability as of September 4, 2012, due to problems with his back, neck and lungs; breathing problems resulting from lung nodules; arthritis; hands swelling; depression; shoulder injuries; and difficulty standing for extended periods due to foot pain. (Record, (“R.”), at 182-83, 205, 209.) The claim was denied initially and on reconsideration. (R. at 100-02, 109-16, 118-20.) Branham then requested a hearing before an ALJ. (R. at 121.) The ALJ held a video hearing on December 29, 2014, at which Branham was represented by counsel. (R. at 41-66.)

         By decision dated January 30, 2015, the ALJ denied Branham's claim. (R. at 26-36.) The ALJ found that Branham met the nondisability insured status requirements of the Act for DIB purposes through December 31, 2017. (R. at 28.) The ALJ found that Branham had not engaged in substantial gainful activity since September 4, 2012, the alleged onset date.[2] (R. at 28.) The ALJ found that the medical evidence established that Branham had severe impairments, namely degenerative disc disease of the cervical/lumbar spine with radiculopathy in the right arm; chronic obstructive pulmonary disease, (“COPD”); obesity; and depression, but she found that Branham 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 28-29.) The ALJ found that Branham had the residual functional capacity to perform simple, routine, repetitive light work[3] that did not require him to crawl or climb ladders, ropes or scaffolds; that did not require more than occasional kneeling, crouching and climbing of ramps and stairs; that did not require him to use his right arm for frequent overhead reaching; that did not involve concentrated exposure to dust, chemicals, fumes, unprotected heights or dangerous equipment; that did not require him to have contact with the public; and that did not require him to have more than occasional interaction with supervisors and co-workers. (R. at 31.) The ALJ found that Branham was unable to perform his past relevant work. (R. at 34.) Based on Branham'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 Branham could perform, including jobs as an assembler, a garment folder and a packing line worker. (R. at 34-35.) Thus, the ALJ concluded that Branham was not under a disability as defined by the Act, and was not eligible for DIB benefits. (R. at 35-36.) See 20 C.F.R. § 404.1520(g) (2016).

         After the ALJ issued her decision, Branham pursued his administrative appeals, (R. at 21), but the Appeals Council denied his request for review. (R. at 1-6.) Branham 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 (2016). The case is before this court on Branham's motion for summary judgment filed January 18, 2017, and the Commissioner's motion for summary judgment filed February 9, 2017.

         II. Facts

         Branham was born in 1968, (R. at 67), which classifies him as a “younger person” under 20 C.F.R. § 404.1563(c). Branham has an eleventh-grade education and past work experience as a construction worker and a tire changer. (R. at 62, 210.) Branham testified that he constantly suffered with back and neck pain. (R. at 54.) He stated that he was unable to lift more than a gallon of milk; walk more than five minutes; stand more than 20 minutes without interruption; or sit more than 30 minutes without interruption. (R. at 54-55.) He stated that his medications helped dull the pain, but never totally eliminated it. (R. at 54.)

         Asheley Wells, a vocational expert, was present and testified at Branham's hearing. (R. at 62-65.) Wells was asked to consider a hypothetical individual of Branham's age, education and work history, who was limited to simple, routine, repetitive light work that did not require more than frequent overhead reaching with his right arm; that did not require him to climb ladders, ropes or scaffolds or crawl; that did not require more than occasional climbing of stairs or ramps, kneeling or crouching; that did not require working around concentrated exposure to unprotected heights, dangerous equipment, dust, chemicals and fumes; and that did not require the individual to have contact with the public or more than occasional social interaction with co-workers and supervisors. (R. at 62-63.) Wells stated that the individual could not perform Branham's past work, but that jobs were available existing in significant numbers in the national economy that such an individual could perform, including those of an assembler, a garment folder and a hand packager. (R. at 63.)

         Wells was asked to consider the same individual, but who would be limited to standing two hours a day. (R. at 63-64.) She stated that there would be jobs available at the sedentary[4] level that such an individual could perform, including jobs as an assembler, a cuff folder and a weight tester. (R. at 64.) She also stated that, should the individual be required to rest three hours a day, there would be no jobs that the individual could perform. (R. at 64.) Wells stated that all competitive employment would be precluded should the individual have no useful ability to deal with work stress or to demonstrate reliability. (R. at 64-65.)

         In rendering her decision, the ALJ reviewed records from Jo McClain, Psy.D., a state agency psychologist; Dr. Michael Hartman, M.D., a state agency physician; Howard S. Leizer, Ph.D., a state agency psychologist; Dr. Walid Saado, M.D.; Dr. Wyatt S. Beazley, III, M.D., a state agency physician; Robert S. Spangler, Ed.D., a licensed psychologist; Dr. James Robert Snapper, M.D., a pulmonologist; Pulmonary Associates of Kingsport; Dr. David M. Ratliff, M.D.; Dr. Latisha Hilton, D.O.; Crystal Burke, L.C.S.W., a licensed clinical social worker; James Kegley, M.S., a counselor; Dr. Wael El Minaoui, M.D.; Duke University Medical Center, (“Duke”); Brandie Dotson, A.P.R.N., an advanced practice registered nurse; Dr. Jason Fogg, M.D.; and Dr. Roy Deel, D.O. Branham's attorney also submitted medical reports from Mountain View Regional Medical Center and Dr. Saado to the Appeals Council.[5]

         The record shows that Dr. Walid Saado, M.D., saw Branham from 2008 through 2015 for COPD; lumbar or lumbosacral intervertebral disc degeneration; hyperlipidemia; hypertension; bipolar disorder; obstructive sleep apnea; benign prostatic hyperplasia; a lung mass; shortness of breath; basal cell carcinoma; attention-deficit hyperactivity disorder; fatigue; pneumocystosis;[6] bursitis; shoulder pain; left knee pain; chronic pain syndrome; depression; anxiety; hypogonadism;[7] mixed or unspecified drug abuse;[8] and dysthymia. (R. at 627, 630, 634, 637, 641, 643, 646-47, 653, 656, 685, 732-35, 773, 783, 791, 798, 807, 816, 823.) During this time, Branham complained of low back, neck and right shoulder pain; hypertension; anxiety; and depression. (R. at 626, 629, 633, 635, 640, 642, 645, 648, 654, 657, 772, 786-87, 793-94, 800-01, 809-10, 818-19, 825-26.) In December 2010, x-rays of Branham's shoulders were normal. (R. at 730.) In September 2011, a PET scan of Branham's skull base to mid thigh showed multiple well-defined lung nodules.[9] (R. at 322.) Dr. Saado routinely reported that Branham's examinations were normal, [10] with the exception of tenderness in Branham's back and shoulder. (R. at 626-27, 629-30, 633-34, 636-37, 640-43, 645-46, 653-54, 656-57, 772-73, 781-83, 789-91, 796-98, 804, 806-07, 813, 815-16, 821-23, 828.)

         In August 2013, x-rays of Branham's chest showed bilateral pulmonary nodules, probably related to old granulomatous disease, and metastasis or other malignancy could not be excluded.[11] (R. at 765.) In September 2013, Branham complained of low back and neck pain, shortness of breath, anxiety and depression. (R. at 648.) Branham had no respiratory distress and clear bilateral breath sounds. (R. at 648.) While Dr. Saado noted that Branham had a depressed affect and anxious mood and diagnosed dysthymia, (R. at 647), subsequent office visits revealed a normal mood and affect; intact memory; appropriate intellectual functioning; and appropriate thought content/perception. (R. at 627, 630, 634, 637, 641, 643, 646, 653, 656, 773, 783, 791, 798, 807, 816, 823.) Branham reported on numerous occasions in 2013 and 2014 that his symptoms of anxiety had improved. (R. at 626, 633, 636, 640, 642, 645, 654, 657.)

         In February 2014, Branham reported difficulty sleeping, trouble concentrating and mood swings, but stated that his symptoms of anxiety had improved. (R. at 633.) Dr. Saado diagnosed dysthymia and bipolar disorder. (R. at 634.) In September 2014, Dr. Saado reported that Branham's COPD, anxiety and depression were controlled. (R. at 767-68.) Branham's lungs were clear to auscultation bilaterally with no wheezes, rhonchi or rales, and his breathing was unlabored. (R. at 770.) In November 2014, chest x-rays showed multiple bilateral nodular pulmonary opacities, and it was noted that coal worker's pneumoconiosis could not be excluded. (R. at 762-63.) In January and February 2015, Dr. Saado reported that Branham's mood was anxious, depressed and angry. (R. at 783, 791.) Dr. Saado found that Branham's memory was intact, he had appropriate intellectual functioning and appropriate thought content/perception. (R. at 783, 791.)

         The record shows that Dr. Latisha Hilton, D.O., saw Branham from 2011 through 2013 for chest pain; right shoulder pain; hypertension; dyspnea; chronic pain; arthritis; hypogonadism; a lung mass; dyspnea; hypercholesterolemia; lumbar and cervical disc degeneration; low back pain; obstructive sleep apnea; bursitis; neck pain; coal worker's pneumoconiosis; and depression. (R. at 386, 389, 392, 396, 399, 403, 407, 410, 412, 416, 462, 468, 754, 758.) Diagnostic testing performed in 2011 and 2012 showed that Branham had multiple bilateral pulmonary nodules, (R. at 377, 380, 412, 419, 424); a negative stress test, (R. at 374); a transthoracic echocardiogram was normal, with the exception of mild tricuspid regurgitation, (R. at 375); a right upper lobe lung biopsy showed bronchial mucosa with mild chronic inflammation, (R. at 674); x-rays of Branham's right shoulder were normal, (R. at 372); x-rays of Branham's cervical spine showed degenerative changes, (R. at 373); an MRI of Branham's cervical spine showed multilevel disc degenerative disease, most prominent findings at the C5-6 vertebrae where broad-based protrusion eccentric to the right caused mild canal, thecal sac narrowing with effacement of the cerebrospinal fluid space ventral to the cord on the right side and moderate right C5-6 foraminal stenosis by an uncovertebral spur, (R. at 367-68); x-rays of Branham's lumbar spine showed degenerative changes, (R. at 434); and an MRI of Branham's lumbar spine showed mild spondylitic changes, mild narrowing of the neural foramen on the left side at the L3-L4 and L4-L5 levels and mild narrowing of the neural foramina on both sides of the L5-S1 level. (R. at 427.)

         In August 2011, Branham complained of intermittent episodes of mild substernal chest pain caused by exertion and stress, low back pain and right shoulder pain. (R. at 414.) Dr. Hilton reported that Branham had no respiratory distress; normal respiratory rhythm and effort; and clear bilateral breath sounds. (R. at 415.) Branham had a normal gait; no clubbing, cyanosis or joint swelling; normal muscle tone and strength; and limited range of motion of the right shoulder. (R. at 415.) In October 2011, Branham reported that his pain was controlled with medication. (R. at 408.) In December 2011, Branham reported that he was doing “okay.” (R. at 405.) He stated that he was tolerating his medications without any issues and that his pain was stable. (R. at 405.)

         In February 2012, Branham stated that his right shoulder pain improved with his last injection. (R. at 401.) Dr. Hilton diagnosed bursitis, hypertension, neck pain and hypercholesterolemia. (R. at 403.) In April 2012, Branham reported that he tolerated his pain medications, but requested that they be increased. (R. at 397.) In June 2012, Branham stated that he had to cut wood all year to ensure that his father had wood for the winter. (R. at 394.) He complained of back pain and requested an injection. (R. at 394.) Dr. Hilton reported that Branham had a normal gait; tenderness with palpation of the paraspinous muscles of the back; and muscle spasm on the right. (R. at 396.) In August 2012, Branham reported that he “get[s] a lot of exercise with his daily activities.” (R. at 386.) He continued to report back pain. (R. at 386.) Dr. Hilton reported that Branham had no respiratory distress; normal respiratory rhythm and effort; and clear bilateral breath sounds. (R. at 388.)

         In April 2013, Branham's physical examination was normal, and Dr. Hilton diagnosed coal worker's pneumoconiosis, hypertension, hypercholesterolemia and obstructive sleep apnea. (R. at 461-62.) In July 2013, Branham complained of shortness of breath on exertion. (R. at 752.) Dr. Hilton reported that Branham had no respiratory distress; normal respiratory rhythm and effort; and clear bilateral breath sounds. (R. at 754.) She reported that Branham had a depressed mood, but his insight and judgment were intact. (R. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.