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Warner v. Berryhill

United States District Court, E.D. Virginia, Norfolk Division

January 24, 2018

NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.



         This matter is before the Court on Plaintiff Alvin Marshall Warner's ("Plaintiff") complaint filed pursuant to 42 U.S.C. § 405(g) seeking judicial review of the final decision of the Defendant Nancy A. Berryhill, the Acting Commissioner of the Social Security Administration ("the Commissioner"), denying Plaintiffs claim for Supplemental Security Income ("SSI") under the Social Security Act. Plaintiff filed a Motion for Summary Judgment and memorandum in support, ECF Nos. 10-11, and the Commissioner filed a cross-Motion for Summary Judgment and Memorandum in Support, ECF Nos. 12-13, which are now ready for recommended disposition. This 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), Eastern District of Virginia Local Civil Rule 72, and the April 2, 2002 Standing Order on Assignment of Certain Matters to United States Magistrate Judges. After reviewing the briefs, the undersigned makes this recommendation without a hearing pursuant to Federal Rule of Civil Procedure 78(b) and Local Civil Rule 7(J). For the following reasons, the undersigned RECOMMENDS that Plaintiffs Motion for Summary Judgment, ECF No. 10, be DENIED, the Commissioner's Motion for Summary Judgment, ECF No. 12, be GRANTED, and the final decision of the Commissioner be AFFIRMED, and that this matter be DISMISSED WITH PREJUDICE.


         On May 27, 2015, Plaintiff initially filed his application for SSI, alleging disability due to sleep apnea, bilateral flat feet, tendonitis Achilles, tinnitus, gastroesophageal reflux disease ("GERD"), right and left foot hallux values, lumbosacral strain, lumbar radiculopathy of right lower extremity, and left hip osteoarthritis, with an onset date of November 15, 2012. R. 22, 291.[1] His application was initially denied on June 26, 2015, and again denied upon reconsideration on December 2, 2015. R. at 22. Plaintiff then requested a hearing in front of an administrative law judge, which was conducted on April 4, 2016. R. at 22. The Administrative Law Judge Tom Duann ("the ALJ"), issued a decision denying Plaintiffs SSI application on June 2, 2016. R. at 22-33. On July 14, 2016, Plaintiff filed a request with the Appeals Council to reconsider the ALJ's decision. R. at 18. On August 22, 2016 the Appeals Council denied Plaintiffs request for review because the ALJ's decision was supported by substantial evidence and Plaintiffs claims did not warrant review, making the ALJ's decision the Commissioner's final decision. R. at 10-12. On December 14, 2016, the Appeals Council extended the time for Plaintiff to seek judicial review of the Commissioner's final decision. R. at 1-2.

         Having exhausted his administrative remedies, on January 17, 2017, Plaintiff filed the instant Complaint for judicial review of the Commissioner's decision. ECF No. 1.[2] The Commissioner filed an Answer on April 10, 2017. ECF No. 6. The matter was referred to the undersigned U.S. Magistrate Judge ("the undersigned") on April 12, 2017. ECF No. 8. Plaintiff filed his Motion for Summary Judgment and Memorandum in Support on May 15, 2017, ECF Nos. 10-11, and the Commissioner filed a Cross-Motion for Summary Judgment, a Memorandum in Support, and a Response in Opposition on June 14, 2017, ECF Nos. 12-14. The matter is now ripe for recommended disposition.


         Plaintiff alleged his disability onset date was November 15, 2012. R. at 22. Plaintiff was born on June 27, 1977 and was thirty-five years old on the alleged disability onset date, making him a "younger individual" under the SSA's regulations. See R. at 32. See also 20 C.F.R. § 416.963(c) (defining anyone under the age of 50 as a "younger person."). On April 4, 2016, Plaintiff appeared, represented by counsel Russell Fentress, and testified before the ALJ at the administrative hearing. R. at 22, 38-65. Linda Augins, an impartial vocational expert ("VE") also appeared and testified. R. at 22, 58-64. The record included the following factual background for the ALJ to review:

         Plaintiff graduated from high school in 1996 and has completed some college. R. at 46. Plaintiff joined the United States Navy on August 14, 2001, served as a Gunner Mate, and remained on active duty until his medical retirement on October 28, 2015. R. at 1716.

         Plaintiff testified that he lives in an apartment in Norfolk with his two children and his wife, who is a supervisor at the Naval Exchange. R. at 45, 48. Plaintiff is currently on one hundred percent disability from the VA. R. at 48. Plaintiffs medical history is significant for three bunion-related left foot surgeries in 2011, 2013, and 2014, R. at 187, 1156, 1251-53, one right ankle scope in 2003, R. at 187, a rhinoplasty at an unknown date, R. at 187, and at least two hip surgeries in 2015 and 2016, as well as chronic lower back pain that has not required surgery, hospitalization, or emergent treatment, R. at 613, 621, 1705. Plaintiffs ankle issues began in 2003 when he sprained his ankle. Following a scope and debriding of the soft issue, Plaintiff was returned to normal duty. R. at 187. In 2005, Plaintiff began experiencing bunion problems, which were initially treated conservatively with orthotics, stretching exercises, a footwear accommodation, and finally requiring surgery, and then corrective surgery as previously noted. R. at 186-87. In spring of 2015, Plaintiff underwent physical therapy for his knee complaints, as well as for his complaints of chronic neck pain. R. at 435-43, 448, 453, 461-68.

         Due to problems sitting, standing, and walking, Plaintiff was put on light duty in June 2013 and remained at this status until his medical retirement in October 2015. R. at 49-51. Plaintiff attributed these problems to pain in his feet and hips that required him to lay down or elevate his legs on a couch because his feet would swell from standing and his hips hurt when he sat in a normal chair. R. at 49-52. Since June 2013, Plaintiff has been unable to assist with housework such as cooking, chores, cleaning, and laundry, and his wife recently applied for caregiver status with the VA. R. at 55. Plaintiff testified that he began using the CPAP machine in 2012 to treat his sleep apnea and has used it consistently from that time to the present. R. at 56. Plaintiff indicated that although he still wakes up tired, he reported sleeping better, "not waking up gasping for air, " and that his snoring was noticeably reduced. R. at 56. Additionally, the April 2, 2015 "Sleep Apnea Disability Benefits Questionnaire" indicated that Plaintiffs sleep apnea did not affect his ability to work. R. at 1765. Plaintiff is prescribed medication to treat his GERD. 57.

         On February 11, 2015, the Naval Medical Review Board issued a report which indicated that Plaintiffs "medical condition interferes with the reasonable performance of his assigned duties, " and referred Plaintiff to the Physical Evaluation Board for a fitness for duty determination. R. at 190. This February 11, 2015 report was supplemented by the April 3, 2015 addendum report of Dr. R. Randolph ("Dr. Randolph"), an orthopedic surgeon, who indicated that Plaintiff should be returned to full duty with activity modification, but that Plaintiffs claimed chronic hip and lower back pain "have not interrupted [Plaintiffs] Naval career and the above noted conditions do not constitute a disability at this time and are not likely to be a disability in the near future." R. at 178-79. A second addendum to the February 11, 2015 Report was filed in August 2015, wherein Dr. Austin C. Nabet and Dr. L. Balsamo opined that Plaintiff was unable to fulfill his military duties, but also suffered from "significant limitations in achieving his activities of daily living, " and recommended surgical intervention to resolve some of the issues and/or improve Plaintiffs quality of life. R. at 180-84. On August 28, 2015, Dr. Angela M. Myers and Dr. Thomas Douglas submitted a third addendum to the February 11, 2015 Medical Board Report, which indicated that Plaintiff would continue to experience moderate pain during high-impact and moderate impact activities due to complications with his feet and ankles, and recommended that Plaintiff continue with physical therapy, possible surgical intervention, and be given a job that does not require him to be on his feet for long periods of time. R. at 256-58.

         At the April 4, 2016 hearing, the VE was presented with a total of three hypotheticals by the ALJ. For the first hypothetical, the VE testified that for a hypothetical individual of Plaintiffs age, education, and work history, with limitations of light work, only frequent ramp and stair climbing, occasional ladder, rope, and scaffold climbing, frequent balancing, stooping, kneeling, crouching, and crawling, and occasional exposure to unprotected heights and hazards, such an individual could perform work as a counter clerk, cashier, or officer helper. R. at 59-60.

         For the second hypothetical, the VE testified that, assuming the same hypothetical individual, but with the limitations of sedentary work, occasional ramp and stair climbing, no ladder, rope, or scaffold climbing, occasional balancing, stooping, kneeling, crouching, and crawling, and no exposure to unprotected heights and hazards, available jobs included that of an addressing clerk, a charge account clerk, or a document preparer. R. at 60. For the final hypothetical, the ALJ asked the VE whether, for either of the first two hypotheticals, if the same jobs would be available if the individual also needed to have more than three unscheduled absences in a month due to symptom flare-ups, to which the VE responded "[n]o, Your Honor." R. at 61. In response to questioning by Plaintiffs attorney, the VE testified that if an individual needed to lay down more than one hour a day, no jobs would be available. R. at 62-63.


         A 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 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 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. § 404.1520).

         Under this sequential analysis, the ALJ made the following findings of fact and conclusions of law: First, the ALJ found that although Plaintiff engaged in substantial gainful activity from the alleged onset date of November 15, 2012 through October 28, 2015, "there [was] a continuous 12-month period [following Plaintiffs October 28, 2015 medical retirement] during which [Plaintiff] did not engage in substantial gainful activity." R. at 25. Although Plaintiff alleges that from November 2012 when he had his first foot surgery until his medical retirement on October 28, 2015 he was only on a paid status due to an accommodation from the Navy for his medical conditions, the ALJ rejected this characterization, based on Plaintiffs Enlisted Evaluation Reports from February 2013 through October 2014. R. at 24 (citing 1716-22 ("Exhibit 6F")). Therefore, "[t]he remaining findings address[ed] the period(s) [Plaintiff] did not engage in substantial gainful activity." R. at 25. However, the ALJ noted that even if Plaintiff s paid duty status ...

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