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Roberts v. Berryhill

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

December 6, 2017

CLARK W. ROBERTS, 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, Clark W. Roberts, (“Roberts”), 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 Roberts protectively filed his applications for DIB and SSI on September 21, 2010, alleging disability as of December 1, 2007, [2] due to back problems, depression and anxiety. (Record, (“R.”), at 409-16, 445, 449, 478.) The claims were denied initially and on reconsideration. (R. at 232-34, 240, 244-46, 248-53, 255-57.) Roberts requested a hearing before an administrative law judge, (“ALJ”), which was held on November 28, 2012. (R. at 126-54, 258.) By decision dated January 9, 2013, an ALJ denied Roberts's claims. (R. at 209-21.) The Appeals Council remanded Roberts's case for further consideration. (R. at 227-30.) On remand, the ALJ held two hearings, on November 3, 2014, and March 16, 2015, at which Roberts was represented by counsel. (R. at 51-79, 90-97.)

         By decision dated March 20, 2015, the ALJ again denied Roberts's claims. (R. at 30-44.) The ALJ found that Roberts met the nondisability insured status requirements of the Act for DIB purposes through March 31, 2013. (R. at 33.) The ALJ found that Roberts had not engaged in substantial gainful activity since December 1, 2007, the alleged onset date. (R. at 33.) The ALJ found that the medical evidence established that Roberts had severe impairments, namely bilateral shoulder dysfunction; status-post arthroscopic right shoulder anterior and posterior labral repair; low back pain; gastroesophageal reflux disease, (“GERD”); hypertension; depressive disorder; and anxiety disorder, but he found that Roberts 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 33.) The ALJ found that Roberts had the residual functional capacity to occasionally lift and carry items weighing up to 50 pounds and 20 pounds continuously; sit for eight hours in an eight-hour workday, but only two hours at one time without interruption; and stand and/or walk for a total of four hours in an eight-hour workday, but for only two hours at one time without interruption. (R. at 35.)

         In addition, the ALJ found that Roberts could occasionally reach overhead with his bilateral upper extremities and continuously reach in all other directions; that he could continuously handle, finger, feel, push and pull, use his bilateral lower extremities to operate foot controls, climb stairs and ramps, balance, stoop, kneel, crouch and crawl; that he could frequently climb ladders and scaffolds; that he could continuously tolerate exposure to environmental conditions, such as unprotected heights, moving mechanical parts, vibrations, extreme temperatures and pulmonary irritants; and that he would be limited to simple one- to two-step jobs with little interaction with co-workers and no interaction with the general public. (R. at 35.) The ALJ found that Roberts was unable to perform his past relevant work. (R. at 43.) Based on Roberts'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 Roberts could perform, including jobs as a laundry worker, a kitchen worker and a cleaner. (R. at 43-44.) Thus, the ALJ concluded that Roberts was not under a disability as defined by the Act, and was not eligible for DIB or SSI benefits. (R. at 44.) See 20 C.F.R. §§ 404.1520(g) 416.920(g) (2017).

         After the ALJ issued his decision, Roberts pursued his administrative appeals, (R. at 22-26), but the Appeals Council denied his request for review. (R. at 1-6.) Roberts 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 (2017). This case is before this court on Roberts's motion for summary judgment filed March 20, 2017, and the Commissioner's motion for summary judgment filed April 19, 2017.

         II. Facts

         Roberts was born in 1978, (R. at 55, 131, 409, 411), which classifies him as a “younger person” under 20 C.F.R. §§ 404.1563(c), 416.963(c). Roberts has a high school education and past relevant work as a construction electrician and a kitchen helper. (R. at 56, 60-61, 70, 132, 450.) He stated that he had a journeyman electrician license that expired in 2014. (R. at 56.) Roberts stated that he needed assistance with getting in and out of the shower, shaving his head and, at times, drying his head and upper body. (R. at 57.) He stated that he spent 15 to 45 minutes at a time in the bathroom as a result of irritable bowel syndrome. (R. at 58, 66.) Roberts stated that he did not take any prescribed pain medication. (R. at 63.) He stated that he used a cane for stability, but that the cane was not prescribed. (R. at 63.) He stated that he could walk up to 200 feet without the use of a cane. (R. at 63.) Roberts stated that he experienced chest pains daily, and that walking caused him to be short of breath. (R. at 67.) He stated that he did not like to be around crowds of people due to nervousness and paranoia. (R. at 68.)

         Victor Faranoscus, a vocational expert, was present and testified at Roberts's hearing. (R. at 70-78.) Faranoscus was asked to consider a hypothetical individual of Roberts's age, education and work history, who was limited as indicated in the assessments of Dr. James Abrokwah, M.D., [3] and B. Wayne Lanthorn. (R. at 71-73, 602, 1025-27.) Faranoscus stated that there would be no jobs available that the individual could perform. (R. at 73.) Faranoscus was asked to consider the same individual, but who would be limited as indicated in the assessments of Dr. Louis A. Fuchs, M.D., [4] and Gary Bennett, Ph.D. (R. at 73-75, 1063-64, 1365-70.) Faranoscus stated that the individual could not perform Roberts's past work, but that sedentary[5] jobs were available, existing in significant numbers in the national economy, that such an individual could perform, including those of a laundry worker, a kitchen worker and a cleaner. (R. at 75-77.) Faranoscus was asked to consider an individual who was limited as indicated by the assessments of Dr. Fuchs and Lanthorn. (R. at 77.) He stated that there would be no jobs available that such an individual could perform. (R. at 77.) He also stated that there would be no jobs available that an individual could perform should he be required to rest up to two hours a day on a regular basis or who would require unscheduled bathroom breaks during the day. (R. at 77-78.)

         In rendering his decision, the ALJ reviewed records from Dr. Robert Keeley, M.D., a state agency physician; Dr. Thomas Henretta, M.D., a state agency physician; David Tessler, Psy.D., a state agency psychologist; Dr. James Abrokwah, M.D.; B. Wayne Lanthorn, Ph.D., a licensed clinical psychologist; Dr. R. M. Bentley, D.O.; Community Physicians; Dr. Pema O. Bhutia, M.D.; University of Virginia Health System, (“UVA”); Dr. James L. Lapis, M.D.; Dr. Orson D. Go, M.D.; James Kegley, M.S.; Lonesome Pine Hospital; Norton Community Hospital; Holston Valley Hospital; Holston Medical Group; Gary Bennett, Ph.D., a licensed clinical psychologist; Dr. John N. Menio, M.D.; Wise Chiropractic and Acupuncture; and Dr. Louis A. Fuchs, M.D. Roberts's attorney also submitted medical reports from Dr. Lapis and Dr. Go to the Appeals Council.[6]

         The record shows that Roberts treated at Community Physicians from 2001 through 2013 for lumbar spine pain with radiculopathy; knee, back, sciatic and shoulder pain; anxiety; depression; avoidance behavior; hypertension; dyslipidemia; GERD; right glenohumeral joint dysfunction; lumbago; bronchitis; sinusitis; headaches; abdominal pain; inguinal pain; carpal tunnel syndrome; major depressive disorder; and hematuria. (R. at 613, 616, 641-42, 646, 648, 650, 652, 684-85, 693, 696, 723, 732, 734, 924, 935, 940, 950, 1071, 1076, 1079, 1084, 1089, 1092, 1097.) In February 2006, Roberts reported that he was doing well with Paxil. (R. at 616.) In February 2011, Roberts reported that he was tolerating his medications without any side effects. (R. at 950.) He reported that his GERD was doing better. (R. at 950.) In May 2011, Roberts reported that medication relieved his abdominal pain and nausea. (R. at 945.) In June 2011, Roberts reported that his abdominal pain had resolved. (R. at 940.) Examination of Roberts's right shoulder showed restricted range of motion with weakness. (R. at 939-40.) In July 2011, Roberts had right shoulder pain and weakness. (R. at 935.) It was noted that Roberts's hypertension, hyperlipidemia and GERD were stable. (R. at 935.) In August 2011, Roberts reported that his pain medication provided moderate relief and that he was doing exercises using light weights. (R. at 965.)

         On October 8, 2011, an MRI of Roberts's right shoulder showed signal abnormalities present within the anterior/interior labrum, mild degenerative changes of the acromioclavicalar joint, small fluid within the subscapular recess and mild marrow edema at the posterior humeral head. (R. at 990.) An MRI of Roberts's left shoulder showed a posterior labral tear with moderate acromioclavicular arthrosis. (R. at 992.) An MRI of Roberts's thoracic spine showed mild disc desiccation and small disc protrusions along with Schmorl's nodes at the T6-T7, T7-T8, T8-T9 and T9-T10 levels without any significant spinal canal or neural foramina compromise and a right T6 vertebral hemangioma. (R. at 987-88, 994-95.) An MRI of Roberts's lumbar spine showed degenerative disc disease at the L4-L5 and L5-S1 levels with mild neural canal and left foraminal stenosis at the L4-L5 level and right paracentral disc extrusion inferiorly at the L5-S1 level causing a right lateral recess stenosis and compression over the right S1 nerve root sleeve. (R. at 987-88, 994-95.) In February 2012, Roberts complained of back and shoulder pain and depression. (R. at 1079.) He reported that his shoulder pain had improved. (R. at 1079.) Roberts stated that he had a firearm and that he would make a “list to kill other people.” (R. at 1079.) In February 2013, a CT scan of Roberts's abdomen and pelvis was normal with the exception of residual colonic contrast. (R. at 1333-34.)

         Roberts received treatment for back pain at Wise Chiropractic and Acupuncture from June 2009 through September 2009. (R. at 591-97.) In September 2010, Roberts returned with complaints of low back pain, (R. at 596), and by October 2010, Roberts reported that he was going “good” and had no pain. (R. at 597.)

         On December 4, 2010, Dr. James Abrokwah, M.D., examined Roberts at the request of Disability Determination Services. (R. at 599-603.) Dr. Abrokwah reported that Roberts was able to get on and off the couch without difficulty. (R. at 600.) His short- and long-term memory was intact, his thought content and process were within normal limits, and his affect was euthymic. (R. at 600.) Roberts's cervical spine movements were full and pain free; his thoraco-lumbar spine movements were full without vertebral tenderness or scoliosis; his shoulder, elbow, wrist, hand, knee and ankle movements were full and pain free; he had ligament laxity in both shoulders; active and passive hip flexion was reduced on both sides, but other movements were full and pain free; he had normal coordination; he had normal muscle tone and strength; his tendon reflexes were normal and symmetrical; there was no clinical cardiomegaly; and he had normal heart sounds. (R. at 600-01.) Dr. Abrokwah diagnosed chronic back pain, stating that there was no objective evidence to support Roberts's claim, and shoulder problems. (R. at 601.) Dr. Abrokwah noted that Roberts's calf circumference was equal despite his claim of left sciatica. (R. at 601.) Dr. Abrokwah stated that Roberts's pain could not be serious because he did not use even over-the-counter pain medication. (R. at 601.) Dr. Abrokwah opined that Roberts was able to stand for one hour; sit continuously for two hours and a total of seven hours in an eight-hour workday; walk one mile; run half of a mile; occasionally reach above head; crouch frequently; and occasionally lift items weighing up to 25 pounds and 15 pounds frequently. (R. at 602.)

         On December 21, 2010, Dr. Robert Keeley, M.D., a state agency physician, found that Roberts had the residual functional capacity to perform medium[7] work. (R. at 169-71.) He opined that Roberts could occasionally climb ladders, ropes and scaffolds, stoop, kneel, crouch and crawl and frequently climb ramps and stairs and balance. (R. at 170.) No manipulative, visual or communicative limitations were noted. (R. at 170.) Dr. Keeley opined that Roberts should avoid concentrated exposure to hazards, such as machinery and heights. (R. at 171.)

         The record shows that Roberts saw James Kegley, M.S., a counselor, for his complaints of depression and anxiety from February 2011 through March 2012. (R. at 774-918, 997-1012.) At a staff screening in January 2011, Roberts stated that he did not like people; that he felt edgy all of the time; that he hated the world and everyone in it; that he easily lost his temper around other people; that he had thoughts of harming himself and other people; and that he felt paranoid in crowds and believed people were watching him. (R. at 805.) John M. Riley, B.S., diagnosed anxiety disorder, major depressive disorder, not elsewhere classified, and impulse control disorder, unspecified. (R. at 805.) Riley assessed Roberts's then-current Global Assessment of Functioning, (“GAF”), [8] score at 60, [9] with his highest and lowest GAF score being 65[10] and 55, respectively, within the past six months. (R. at 805.) On February 4, 2011, Roberts reported that he played the guitar and video games. (R. at 780.) He reported that he had no major health problems other than hypertension and joint problems. (R. at 779.) Kegley diagnosed adjustment disorder with mixed anxiety and depression. (R. at 789.) His then-current GAF score was assessed at 50, [11] with his highest and lowest GAF score being 50 within the past six months. (R. at 789.) On February 16, 2011, Roberts reported he lived with his parents since his most recent divorce.[12] (R. at 774.) He stated that his ex-wife was a “pill head, ” and that she passed away in 2009 from a possible drug overdose. (R. at 774.)

         In May 2011, Roberts reported that his major problem was his health and trying to get his disability. (R. at 851.) He stated that he “hates the world and hates the government” because “they will try to screw us” if they can. (R. at 851.) He stated that “illegal aliens, ” “road rage” and people repeating themselves are the issues that made him the most angry. (R. at 850.) Kegley routinely reported that Roberts's mood was mildly depressed with a congruent affect. (R. at 774, 842-43, 853, 855, 858-59, 861, 997-98, 1002, 1007.) In July 2011, Roberts reported that his anger had improved. (R. at 842.) He stated that he was getting out more and playing the guitar with friends. (R. at 842.) In December 2011, Roberts reported that he helped move his girlfriend into her new home. (R. at 1004.) He stated that he had agreed to marry her because he wanted out of his parents' home. (R. at 1004.) In February 2012, Roberts reported that he had to force himself, at times, to get out of bed because he did not “feel happy.” (R. at 1001.) He stated that he would get together with his other band members and play music. (R. at 1001.) In March 2012, Roberts reported that he was on his third marriage. (R. at 997.) He stated that, before he married his third wife, he told her that “it's my way or the highway” because “I see it that it's a privilege to be around me.” (R. at 997.)

         On August 10, 2011, Dr. Thomas Henretta, M.D., a state agency physician, found that Roberts had the residual functional capacity to perform medium work. (R. at 190-91.) He opined that Roberts could occasionally climb ladders, ropes and scaffolds, stoop, kneel, crouch and crawl and frequently climb ramps and stairs and balance. (R. at 190.) No manipulative, visual or communicative limitations were noted. (R. at 191.) Dr. Henretta opined that Roberts should avoid concentrated exposure to hazards, such as machinery and heights. (R. at 191.)

         On August 17, 2011, David Tessler, Psy.D., a state agency psychologist, completed a Psychiatric Review Technique form, (“PRTF”), indicating that Roberts had no medically determinable mental impairments. (R. at 198-99.) He noted that Roberts's activities of daily living were limited due to physical impairments only. (R. at 199.)

         In February 2012, Roberts was seen at UVA for bilateral shoulder instability and recurrent shoulder dislocations. (R. at 1045-47.) Surgical correction was recommended. (R. at 1046.) In April 2012, Roberts underwent arthroscopic surgery for anterior and posterior labral repair of the right shoulder. (R. at 1030-42.) Roberts participated in physical therapy, (R. at 1104-31), and follow-up treatment notes indicate that Roberts exhibited full elevation on range of motion and was doing well. (R. at 1028, 1100.)

         On April 24, 2012, B. Wayne Lanthorn, Ph.D., a licensed clinical psychologist, evaluated Roberts at the request of Roberts's attorney. (R. at 1013-24.) The Wechsler Adult Intelligence Scale - Fourth Edition, (“WAIS-IV”), was administered, and Roberts obtained a full-scale IQ score of 72. (R. at 1014.) Lanthorn reported that Roberts displayed no signs of ongoing psychotic processes or evidence of delusional thinking. (R. at 1018.) Roberts reported that he had “some depression” during the previous two years secondary to physical difficulties and pain. (R. at 1018.) Roberts reported that his memory was “all right, ” but that his concentration had become increasingly erratic. (R. at 1018.) Lanthorn reported that Roberts's mood was best described as “agitated depression.” (R. at 1019.) The Minnesota Multiphasic Personality Inventory - 2, (“MMPI-2”), indicated that Roberts had moderate levels of emotional distress characterized by depression, dysphoria, anhedonia, agitation, anxiety and guilt.[13] (R. at 1020, 1022.) The MMPI-2 indicated that Roberts had problems with concentration, forgetfulness and memory deficits. (R. at 1022.) Lanthorn diagnosed mood disorder with major depressive-like episodes, moderate or greater due to chronic physical problems, pain and limitations; anxiety disorder with generalized anxiety; chronic pain disorder associated with both psychological factors and general medical conditions; and borderline intellectual functioning. (R. at 1022-23.) He assessed Roberts's then-current GAF score at 50. (R. at 1023.)

         Lanthorn completed a mental assessment, indicating that Roberts had an unlimited ability to understand, remember and carry out simple job instructions. (R. at 1025-27.) He found that Roberts had a limited, but satisfactory, ability to maintain personal appearance. (R. at 1026.) He found that Roberts was seriously limited in his ability to follow work rules; to relate to co-workers; to deal with the public; to use judgment; to interact with supervisors; to deal with work stresses; to function independently; to maintain attention and concentration; to understand, remember and carry out detailed job instructions; to behave in an emotionally stable manner; to relate predictably in social situations; and to demonstrate reliability. (R. at 1025-26.) Lanthorn found that Roberts had no useful ability to understand, remember and carry out complex job instructions. (R. at 1026.)

         On September 18, 2012, Gary Bennett, Ph.D., a licensed clinical psychologist, completed medical interrogatories concerning Roberts's mental impairments. (R. at 1066-69.) He indicated that he had not personally examined Roberts. (R. at 1066.) Bennett reported that a review of the medical evidence indicated that Roberts suffered from an adjustment disorder with mixed anxiety and depressed mood; mood disorder, not otherwise specified; an anxiety disorder, not otherwise specified; and a pain disorder associated with both psychological factors and a general medical condition. (R. at 1066.) He opined that Roberts had moderate limitations in his activities of daily living; moderate difficulties in maintaining social functioning and in maintaining concentration, persistence or pace; and had experienced no repeated episodes of decompensation of extended duration. (R. at 1067.) Bennett opined that Roberts's impairments did not meet or equal the criteria for any impairment described in the Listing of Impairments. (R. at 1068.) He stated that Roberts would be limited to ...


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