United States District Court, E.D. Virginia, Norfolk Division
RODNEY E. UNSWORTH, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
LAWRENCE R. LEONARD UNITED STATES MAGISTRATE JUDGE.
Rodney E. Unsworth ("Plaintiff) filed a complaint,
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3),
that seeks judicial review of the final decision of the
Defendant, Nancy A. Berryhill, Acting Commissioner of the
Social Security Administration ("the
Commissioner"), which denied Plaintiffs claim for
Disability Insurance Benefits ("DIB") pursuant to
Title II, and his claim for Supplemental Social Security
Income ("SSI") pursuant to Title XVI, of the Social
Security Act. On April 5, 2017, Plaintiff filed his Motion
for Summary Judgment and brief in support. ECF Nos. 13-14. On
May 4, 2017, the Commissioner filed her Motion for Summary
Judgment and brief in support (ECF Nos. 15-16), to which
Plaintiff filed a Reply on May 16, 2017 (ECF No. 17) because
according to Plaintiff "[i]n her Opposition Memorandum,
the Commissioner made several assertions which require a
response." ECF No. 17 at 2. The parties' Motions for
Summary Judgment are now ripe and ready for disposition.
action was referred to the undersigned United States
Magistrate Judge ("the undersigned") pursuant to 28
U.S.C. §§ 636(b)(1)(B)-(C), Federal Rule of Civil
Procedure 72(b), Local Civil Rule 72, and the April 2, 2002
Standing Order on Assignment of Certain Matters to United
States Magistrate Judges. For the following reasons, the
undersigned RECOMMENDS Plaintiffs Motion for
Summary Judgment, ECF No. 13, be GRANTED to
the extent it seeks reversal and remand of the
Commissioner's decision and DENIED to
the extent that it seeks entry of an order directing the
award of benefits; the Commissioner's Motion for Summary
Judgment, ECF No. 15, be DENIED; and the
Commissioner's decision be VACATED and
filed a protective application for DIB on August 1, 2012 and
an application for a period of disability on August 4, 2012.
R. at 59. In both applications, Plaintiff alleged a
disability onset date of October 15, 2010. R. at 59. This
application was initially denied on February 12, 2013, R. at
59, and denied again upon reconsideration on November 26,
2013, R. at 158. On December 31, 2013, Plaintiff requested a
hearing in front of an Administrative Law Judge, R. at 59,
which was held before Administrative Law Judge William T.
Vest, Jr. ("the ALJ") on May 14, 2015, R. at 59.
The ALJ issued his decision on May 29, 2015, denying
Plaintiffs application. R. at 66. On October 11,
2016, the Appeals Council for the Office of Disability and
Adjudication ("Appeals Council") denied Plaintiffs
December request for review of the ALJ's decision. R. at
1, 6. After exhausting his administrative remedies, Plaintiff
filed his complaint for judicial review of the
Commissioner's final decision on December 5, 2016. ECF
No. 1. The Commissioner filed an answer on February 27, 2017.
ECF No. 7. Both parties filed motions for summary judgment,
ECF Nos. 13 and 15, and the matter is now ripe for
RELEVANT FACTUAL BACKGROUND
applications, filed August 1, 2012 and August 4, 2012,
Plaintiff alleged a disability onset date of October 15,
2010. R. at 59. At the time of the ALJ's decision,
Plaintiff was a forty-five year old man with a high school
education, who had completed two years of college, with
previous employment as a dock maintenance worker and an
electrician. R. at 66, 74, 95. At the May 14, 2015
hearing, Plaintiff supplemented his medical records by
providing additional information via testimony. The record
included the following factual background for the ALJ to
is divorced and has no children. R. at 196. Since 2010, he
has lived alone in Chesapeake, Virginia in a house owned by
his parents and his parents live next-door. R. at 93, 205.
Plaintiff worked as a ship repair electrician from September
2010 until October 15, 2010, at which time Plaintiff
sustained a back injury while assembling a cabinet at work.
R. at 75. However, prior to this date, Plaintiff has an
extensive record of complaints and alleged symptoms stemming
from psoriasis, from which he has suffered since he was a
teenager. R. at 413-38. At the hearing, Plaintiff testified
that he takes prescription medication for his psoriasis, but
no pain medication for his back. R. at 63, 79. Plaintiff
reported that immediately prior to his October 15, 2010 work
injury, he had been prescribed methotrexate, which Plaintiff
describes as a "miracle drug" for his psoriasis,
and also helps with the inflammation of his back. R. at 84,
alleged onset date, October 15, 2010, stems from a work
injury he sustained when lifting a cabinet. R. at 75.
According to Plaintiff, he was squatting down to move the
position of the cabinet when the weight of the cabinet
shifted and Plaintiff moved to catch it. R. at 75. On October
26, 2010, Plaintiff was diagnosed with left sacroiliac joint
sprain and referred for physical therapy. R. at 311-12. On
November 23, 2010, Plaintiff returned for a follow-up and
reported that he was making no progress in physical therapy.
R. at 310. At that time, Dr. Richard D. Guinand cleared
Plaintiff for light duty with a restriction on lifting more
than ten pounds, arranged for an MRI to be performed, and
directed Plaintiff to continue with physical therapy. R. at
310. In August 2011, after failed conservative treatment,
including physical therapy, epidural steroid injections, and
lumbar facet injections, R. at 354, Dr. David G. Goss
("Dr. Goss") performed a laminectomy and
decompression, R. at 63. Post-surgery, Plaintiff continued to
experience lower back pain and it was recommended that he
have a second surgery to "re-do" the first surgical
intervention. R. at 283. At the May 14, 2015 hearing,
Plaintiff indicated his intention to return to Dr. Goss
"next week" to discuss a second surgery. R. at 78.
reported that he can walk approximately fifty (50) feet
before experiencing significant pain and can only sit or
stand for a couple of minutes. For the majority of his day,
Plaintiff has to lie on the couch with his legs in an upright
position to achieve relief from his back pain. R. at 63, 82.
Plaintiff experiences additional minimal relief from soaking
in the shower for approximately one hour, at least three
times a day, beginning first thing in the morning. R. at 91.
In response to questioning by the ALJ, Plaintiff stated that
he has good days where he is "okay", but has
approximately twenty bad days in a thirty day month, during
which time he is "dependent totally 100 percent" on
his mother for dressing and bathing himself. R. at 83, 92. He
also stated that he relies on his mother for chores and
housework such as doing laundry and grocery shopping because
he "can't carry a gallon of milk." R. at 82.
Plaintiffs mother also buys his groceries. R. at 93, 205.
Plaintiff reports that at least once or twice a month,
Plaintiff has to be taken to the emergency room in an
ambulance because his back pain renders him incapable of
moving. R. at 92.
addition to physical ailments, Plaintiff alleges that he
suffers from anxiety disorder. Beginning in September 2011
Plaintiffs medical records are significant for references to
this disorder. On September 27, 2011, Plaintiff reported
feeling anxious to Dr. Goss. R. at 291. On July 26, 2012,
Plaintiff again informed Dr. Goss that he is experiencing
anxiety. On August 2, 2013, Plaintiff again stated to Dr.
Goss that he is experiencing anxiety. R. at 275. Plaintiff
similarly reported his anxiety to Dr. Tracey Pennington, M.D.
("Dr. Pennington") on three separate occasions:
June 3, 2013 (R. at 349), July 1, 2013 (R. at 356), and
September 16, 2013 (R. at 363). Plaintiffs records from Dr.
Ran Vijai Singh's ("Dr. Singh") office also
include historical diagnoses of depressive disorder, not
elsewhere classified, panic disorder without agoraphobia, and
substance abuse, as well as a past suicide attempt when
Plaintiff was eighteen. R. at 399, 401.
medical records reveal a history of narcotics abuse. R. at
399. Specifically, Plaintiffs treatment with Dr. Spear for
pain management ended on July 17, 2012 when the physician
discharged Plaintiff due to Plaintiffs noncompliance with the
narcotics agreement. R. at 84. On or about October 17, 2013,
Plaintiffs treatment with Dr. Pennington was similarly
discontinued when Dr. Pennington discharged Plaintiff for
noncompliance with the opioid medication agreement. R. at
386. Based on two separate urine screens and Plaintiffs self-
reporting, Dr. Pennington determined that Plaintiff was not
taking the narcotics on a daily basis as prescribed, namely,
by stockpiling pills, which violated the pain management
agreement executed by Plaintiff. R. at 390-91.
received Worker's Compensation benefits from October 27,
2010 until July 18, 2012. R. at 86. Benefits were terminated
due to noncompliance when Plaintiff was allegedly unable and
unwilling to comply when directed to return to his previous
employer as a security guard because he claimed that due to
his back pain, he was unable to sit and stand as required by
the job. R. at 86-91.
hearing, Robin Stromberg, an impartial Vocational Expert
("VE") also testified. R. at 95. During her
testimony, the VE recounted Plaintiffs prior employment
history, which was significant for medium duty skilled
employment as an electrician, as well as heavy duty
semiskilled employment as a shift maintenance and dock
maintenance worker. R. at 95. The ALJ presented the VE with a
hypothetical assuming an individual with an RFC that would
allow for sedentary work, with no climbing or crawling, and
occasional stooping or squatting, and limited to simple,
repetitive tasks, if such hypothetical individual had the
same age, education, and work experience as Plaintiff. R. at
95. The VE testified that available jobs included an officer
helper, of which there were approximately 99, 000 positions
available, a general information clerk, of which there were
approximately 86, 000 positions available, and an
interviewer, of which there were approximately 33, 000
positions available, and that such jobs comported with the
Dictionary of Occupational Titles. R. at 95-96. When
Plaintiffs counsel was given an opportunity to question the
VE regarding the availability of those same jobs if the
hypothetical individual needed to miss three to four days of
work per month due to back pain and if such individual needed
to elevate his legs at least twenty inches, the VE testified
that those jobs would not be available. R. at 96.
THE ALJ'S FINDINGS OF FACT AND CONCLUSIONS OF
sequential evaluation of a claimant's work and medical
history is required in order to determine if the claimant is
eligible for benefits. 20 C.F.R. §§ 404.1520,
416.920; Mastro v. Apfel, 270 F.3d 171, 177 (4th
Cir. 2001). The ALJ conducts a five-step sequential analysis
for the Acting Commissioner, and it is this process that the
Court examines on judicial review to determine whether the
correct legal standards were applied and whether the
resulting final decision of the Acting Commissioner is
supported by substantial evidence in the record. Id.
The ALJ must determine if "(1) the claimant is engaged
in substantial gainful activity; (2) the claimant has a
severe impairment; (3) the impairment meets or equals an
impairment included in the Administration's Official
Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P,
App. 1; (4) the impairment prevents the claimant from
performing past relevant work; and (5) the impairment
prevents the claimant from having substantial gainful
employment." Strong v. Astrue, No.
8:10-cv-357-CMC-JDA, 2011 WL 2938084, at *3 (D.S.C. June 27,
2011) (citing 20 C.F.R. §§ 404.1520, 416.920);
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.
1999) (noting that substantial gainful activity is "work
activity performed for pay or profit."); Underwood
v. Ribicoff 298 F.2d 850, 851 (4th Cir. 1962) (noting
that there are four elements of proof to make a finding of
whether a claimant is able to engage in substantial gainful
activity). "An affirmative answer to question one, or
negative answers to questions two or four, result in a
determination of no disability. Affirmative answers to
questions three or five establish disability."
Jackson v. Colvin, No. 2:13cv357, 2014 WL 2859149,
at *10 (E.D. Va. June 23, 2014) (citing 20 C.F.R. §
this five-step sequential analysis, the ALJ made the
following findings of fact and conclusions of law. First, the
ALJ determined that Plaintiff had not engaged in substantial
gainful activity ("SGA") since October 15, 2010,
the date of his work injury and the date of his alleged onset
of disability. R. at 61.
the ALJ found that Plaintiff has the following severe
impairments: degenerative disc disease ("DDD") and
obesity. R. at 61. The ALJ concluded these physical
impairments "significantly limit [Plaintiffs] ability to
perform basic work activities" Plaintiffs DDD and
obesity "represent severe impairments within the meaning
of the Social Security Act. R. at 62. The ALJ found that
Plaintiffs medical history was also significant for three
other alleged impairments-substance abuse, psoriasis, and
psoriatic arthritis-but found these impairments do not
significantly limit Plaintiffs ability to perform work. R. at
62. The ALJ employed an extensive analysis before rejecting
Plaintiffs other alleged impairments as not severe. First,
with regard to substance abuse, the ALJ noted that in October
2013 Plaintiff was discharged by his pain management
specialist for abusing his pain medication, but Plaintiff
testified that he no longer takes narcotic pain medication.
R. at 61-62. With regards to the psoriasis and psoriatic
arthritis, the ALJ found that Plaintiffs symptoms were
well-controlled with medication management and that any
recent symptoms were attributed to noncompliance with
treatment. R. at 62. Ultimately, the ALJ found that these
three other impairments (substance abuse, psoriasis, and
psoriatic arthritis), were not severe because they did not
exist for any continuous period of at least twelve months,
were responsive to medication, did not require any
significant medical treatment, and did not result in any
continuous exertional or non-exertional functional
limitations. R. at 62. Inexplicably, and as discussed in
greater detail in Part V, infra, the ALJ failed to
consider Plaintiffs alleged mental health impairments,
despite acknowledging at the beginning of the hearing that
Plaintiffs disability application was based in part on his
claimed "anxiety disorder." R. at 75.
the ALJ found that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled on
of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. R. at 62. Specifically, the ALJ found that
Plaintiffs back disorder did not meet or equal Listing 1.04.
R. at 62. In order to meet this listing, Plaintiffs spinal
condition must have been established by findings on
appropriate medically acceptable imaging, manifested by
chronic non-radicular pain and weakness, and resulted in the
inability to ambulate effectively, as defined by 1.00B2b. R.
at 62. The ALJ noted that in July of 2014, Plaintiff reported
to the emergency room with complaints of lower back pain.
Upon examination, the emergency room doctor found no
localized midline tenderness to the cervical, thoracic,
lumbar or sacral bodies. Although Plaintiff reported pain
with back movement, he had no bony tenderness to the hip, his
sensation was intact to light touch, his motor strength was
equal and symmetric, and Plaintiffs reflexes were intact. R.
at 62. The emergency room physician concluded that Plaintiff
suffered from sciatica. R. at 62. The ALJ also reviewed the
treatment records of Dr. Goss, the Spine Center of
Chesapeake, Dr. Pennington, Dr. Singh, and Plaintiffs
dermatologist before concluding that nothing in said records
indicated that Plaintiff was unable to walk effectively. R.
at 62, 70. As for his obesity, the ALJ found that after
considering the applicability of SSR-02-lp and its effect on
Plaintiffs other impairments, nothing in the record shows
complications satisfying those requirements. R. at 63.
the ALJ found that Plaintiff had the residual functional
capacity ("RFC") to perform unskilled, sedentary
work as defined in 20 C.F.R. § 404.1567(a), provided the
work only involved occasional stooping and squatting, but no
climbing or crawling and only work involving simple, routine,
and repetitive tasks, "due to his chronic pain
complaints." R. at 63-64. The ALJ performed a
credibility analysis, noting that "[Plaintiffs]
testimony regarding significant limitations is not well
supported by the medical evidence of record, " and found
that Plaintiff "could not adequately explain the number
of surgeries he had, the doctor who performed those surgeries
or why he no longer took medication for symptom
control." R. at 64. The ALJ found it significant that
Plaintiff "has been discharged from pain management on
two occasions due to abusing his narcotic medication."
R. at 64. The ALJ concluded that after considering the
evidence, Plaintiffs "medically determinable impairments
could reasonably be expected to cause the alleged symptoms;
however, [Plaintiffs] statements concerning the intensity,
persistence and limiting effects of these symptoms are not
fully credible, " and that Plaintiff can perform
unskilled sedentary work. R. at 63-64. The ALJ determined
that Plaintiff was unable to perform his relevant past work
as an electrician and ship worker, which were medium skilled
and heavy semi-skilled levels, respectively. R. at 65.
Regardless, the ALJ found that sedentary, unskilled jobs
existed in significant numbers in the national economy that
Plaintiff could perform notwithstanding Plaintiffs