United States District Court, E.D. Virginia, Norfolk Division
WILLIAM L. SUTTON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
DOUGLAS E. MILLER, UNITED STATES MAGISTRATE JUDGE.
William L. Sutton seeks judicial review of the Commissioner
of Social Security ("Commissioner")'s denial of
his claim for Title II disability insurance benefits
("DIB"). Specifically, Sutton claims that the
Administrative Law Judge ("ALJ")'s
determination of residual functional capacity
("RFC") failed to account for his need for a cane,
which Sutton claims undermines the evidence upon which the
ALJ concluded he was not disabled. Sutton also claims the ALJ
failed to properly consider his work history when evaluating
his credibility and determining his RFC. For the reasons
stated below, this report recommends that the court AFFIRM
the final decision of the Commissioner by GRANTING the
Commissioner's Motion for Summary Judgment (ECF No. 20)
and DENYING Sutton's Motion for Summary Judgment (ECF No.
4, 2012, Sutton filed an application for Title II DIB. R. at
19. He alleged that he was disabled as of April 15, 2010. R.
at 80. He alleged his disability was due to degenerative disc
disease of the lumbar spine, carpal tunnel syndrome, and
sensorineural hearing loss. R. at 21-22. The state agency
denied his application initially. R. at 87-88. It did so
again upon reconsideration. R. at 100. Sutton then requested
an administrative hearing from the Social Security
Administration ("SSA"). R. at 19. An ALJ conducted
a hearing on October 15, 2015. R. at 31. Sutton was
represented by an attorney. R. at 33.
determined Sutton was last eligible for benefits under the
Social Security Act on September 30, 2015, identifying this
as Sutton's Date Last Insured ("DLI"). R. at
21. On November 23, 2015, the ALJ denied Sutton's claims
for DIB. R. at 26. The ALJ found Sutton was not disabled
between his alleged onset date of April 15, 2010, and his DLI
of September 30, 2015. R. at 19, 26. The Appeals Council
denied Plaintiffs request for review on November 16, 2016. R.
at 1-3. Sutton timely filed the Complaint in the present
action seeking review of the administrative proceedings below
on January 18, 2017. Compl. at 1 (ECF No. 5).
was born in 1961. See R. at 25. On his DLI, he was 54 years
old and "closely approaching advanced age" as
determined by the SSA's regulations. See 20 C.F.R. §
200-204. He completed high school and served in the U.S. Navy
from 1979 to 1999. R. at 200, 206. After his retirement from
military service, he worked a number of jobs in the
construction, manufacturing, and trucking industries.
Id. These jobs were skilled and unskilled and
required medium or heavy exertion. R. at 55-56, 206. His last
job was as a contract stocker, which he left in June 2011. R.
relevant portions of Sutton's medical history are
summarized here, as are the portions of the administrative
proceedings below that are relevant to his arguments in this
History of Medical Treatment and Evaluation.
medical records show he consistently described a lengthy
history of back pain to his treating physicians. See,
e.g., R. at 267, 268, 273, 422.
21, 2010, during emergency room treatment for kidney stones,
Sutton underwent a musculoskeletal evaluation; he was found
to have a normal range of motion, exhibiting no edemas and no
tenderness. R. at 343-44.
August 17, 2012, Sutton sought treatment for back pain as he
prepared to fly to the Philippine Islands. R. at 267. He was
prescribed pain medicine. Id. The treating physician
found no weakness in Sutton's lower extremities.
Id. In September of that year, he again sought
treatment for back pain. R. at 268. His physician noted he
was walking with a cane and that he had low-back tenderness
during active forward flexion and dorsiflexion. Id.
October 9, 2012, Sutton sought treatment from Dr. Richard
Guinand at The Spine Center at Chesapeake. R. at 275. Sutton
had severe, sharp, and consistent lower back pain as well as
left leg weakness. R. at 273. Sutton had no tenderness to
palpation, intact sensation and symmetric reflexes, normal
coordination and balance, full active and passive range of
motion, and negative bilateral straight leg raising tests. R.
at 75. An X-ray of his lumbar spine revealed good bony
anatomy and alignment, lumbarization of SI, decreased disc
space on LI-2 and L2-3, facet arthropathy at L5-S1, and no
instability on flexion and extension views. R. at 275.
Although Sutton brought disability evaluation paperwork to
the session, Dr. Guinand did not complete them, telling
Sutton he did not perform those evaluations. R. at 275. Dr.
Guinand made no reference to Sutton using a cane. See R. at
272-76. Dr. Guinand directed Sutton to physical therapy,
which he would be undergoing for the first time, and
prescribed tramadol, a pain-reliever. R. at 275-76.
October to December 2012, Sutton underwent a course of
physical therapy. See R. at 369-426. During his initial
screening with the physical therapist, Sutton complained of
chronic back pain. R. at 428. He said his pain worsened if he
walked, stood, or sat for more than an hour. R. at 423.
Notwithstanding his pain, he had a normal range of motion in
his hips, knees, and ankles and a reduced range of motion in
his lumbar spine. R. at 422-233. He used a single-point cane
to walk. R. at 422. At this initial screening, his physical
therapist made safe ambulation without a cane a goal of his
therapy. R. at 424. During his treatment, he reported
improvements and used his cane less as a result. R. at 388,
390, 378. At the conclusion of his treatment in December
2012, Sutton reported his strength and endurance for activity
had improved over the course of his physical therapy. R. at
373. His physical therapist reported he had met the goal of
being able to walk safely without the cane. Id.
treatment for back pain at a Veterans Administration Medical
Center, Sutton was instructed to use his cane while walking,
though he told the licensed practical nurse interviewing him
that he only used the cane on unfamiliar terrain. R. at 489.
2013, Sutton sought treatment for lower back pain. R. at 281.
His records reflect he was walking with a cane. Id.
He was prescribed pain relievers again to manage his back
pain. R. at 282. In August 2013, Sutton saw Dr. Maria Nguyen
for pain management care. R. at 285. During the examination,
he had negative bilateral leg raising, no range of motion
pain in his hips, full range of motion in his legs, 5/5 leg
strength, and intact sensation and symmetric reflexes. R. at
289. He had an antalgic gait, but could toe and heel walk
without difficulty and did not struggle to mount the
examination table. Id. He reported being able to
take short exercise walks and perform personal care tasks
like eating, bathing, dressing, and getting up from a chair
or from bed. R. at 288. He did have diminished range of
motion in his lumbar spine and pain with extension, flexion,
and lateral rotation. R. at 289.
Agency Consultative Examination and Physician
February 9, 2014, Dr. Shawne Bryant examined Sutton at the
request of the state agency in order to make a determination
regarding Sutton's disability status. R. at 291. Dr.
Bryant observed Sutton was able to walk with minimal
difficulty when using a cane in his right hand. R. at 292.
Without the cane, he could walk normally and heel-to-toe.
Id. He could squat to 90 percent when bracing on a
chair and mounted the examination table without difficulty.
Id. Sutton complained of pain in his back when
walking on his heels without the cane. Id. He limped
on his left when walking on his toes without the cane.
Id. Sutton had normal range of motion in his
cervical spine and knees, and he had negative straight left
raising tests. R. at 292-93. He showed diminished lumbar
spine range of motion, and hip flexion caused him pain. R. at
291. Dr. Bryant, in the section of her report titled
"Functional Status, " opined of Sutton: "It is
felt the patient would benefit from the use of his assistive
device due to his back pain." R. at 293.
3, 2013, and February 26, 2014, two different state agency
physicians reviewed Sutton's records and each concluded
Sutton could perform light work. R. at 85-88, 95-100. The
2013 assessment noted that Sutton had used a cane during an
examination in September 2012, but it nonetheless concluded
Sutton could still perform light tasks. R. at 83. The 2014
assessment also noted use of a cane during a visit to
Sutton's primary care provider in June 2013. R. at 95.
Based on Dr. Bryant's finding that Sutton could walk
normally without the cane, the assessing physician concluded
that "Use of a cane not entirely necessary per objective
findings, but may be helpful for extended distance
walking." R. at 96. The assessment went on to opine that
Sutton was not disabled. R. at 100.
Testimony Before the Administrative Law Judge.
administrative hearing on October 15, 2015, Sutton testified
before the ALJ. R. at 33. He told the ALJ his back was in
pain "constantly" and that, at its worst, the pain
was "like somebody putting a knife in there and turning
it." R. at 41. He testified he was using tramadol and
other pain-relievers. R. at 41-42. He told the ALJ he had not
continued with treatment for his back pain within the two
years before the hearing because he could not afford the $16
insurance co-pay for each treatment session. R. at 42, 50. He
told the ALJ he could only walk 15 minutes before his back
became severely painful. R. at 45-46 Sutton also told the
ALJ, while answering questions from counsel, he needed his
cane anytime he left the house. R. at 51. Sutton also told
the ALJ he could drive short distances, cook, and do limited
housework. R. at 46-47.
hearing from Sutton, the ALJ heard testimony from a
Vocational Expert ("VE"). R. at 54. The VE said a
hypothetical person with limitations described by the ALJ,
but not including the requirement of a cane, could perform
three light exertional level jobs. R. at 57 (office helper,
with 137, 000 positions in the national economy; clerical
checker, 68, 000 positions; and inspector, 78, 000
positions). When Sutton's counsel asked about the impact
of needing a cane on Sutton's employability, the VE said
the office helper and clerical checker jobs would remain the
same but that Sutton could not do the inspector job. R. at
59. This left 205, 000 positions in the national economy
Sutton could perform. See id.
Decision of the ...