United States District Court, E.D. Virginia, Norfolk Division
REPORT AND RECOMMENDATION
Douglas E. Miller United States Magistrate Judge.
Raymond Barefoot seeks judicial review of the Commissioner of
Social Security's denial of his claim for disability
insurance benefits ("DIB"). Specifically, Barefoot
claims that the Administrative Law Judge ("ALJ")
failed to properly consider his claim under the criteria for
amputation, one of the Listing of Impairments; that the ALJ
failed to properly weigh the evidence in the record when
evaluating opinions from Barefoot's treating physician, a
state consultative examiner, and Barefoot's own
testimony; and that, because the RFC was improperly formed,
issued a finding not supported by vocational expert
testimony. Barefoot claims correcting for these alleged
errors could result in his being found disabled and therefore
seeks remand of his claim. This action was referred to the
undersigned United States Magistrate Judge pursuant to
provisions of 28 U.S.C. § 636(b)(1)(B) and (C), and Rule
72(b) of the Federal Rules of Civil Procedure.
reviewing the parties' briefs and the administrative
record of the Agency's findings, this Report concludes
that the ALJ complied with the law and regulations governing
disability benefits under the Social Security Act.
Accordingly, for the reasons stated in detail 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. 14) and DENYING Barefoot's
Motion for Summary Judgment (ECF No. 12).
January 11, 2013, Barefoot filed an application for DIB. R.
at 156-57, 168. He alleged that he was disabled as of
September 29, 2012, due to a crush injury to his left foot
and the subsequent amputation of his left leg below the knee.
R. at 168, 171. The state agency denied his application
initially and again upon reconsideration. R. at 93, 101.
Barefoot then requested an administrative hearing, which was
conducted October 14, 2015. R. at 41-82.
determined Barefoot was last eligible for DIB under the
Social Security Act on March 31, 2013, identifying this as
Barefoot's Date Last Insured ("DLI"). R. at 25.
The ALJ denied Barefoot's claim for DIB, finding he was
not disabled between September 29, 2012, and March 31, 2013.
R. at 33. The Appeals Council denied Plaintiffs request for
review on December 14, 2016. R. at 1-3. Barefoot then filed
the Complaint in the present action seeking review of the
administrative proceedings. Compl. (ECF No. 1).
was born in 1970. R. at 46. On his DLI, he was 43 years old;
at the time of the ALJ's decision, he was 45 years old.
He completed a GED, and has worked in construction. R. at 63.
Although he was primarily occupied prior to the accident
caring for his young son, he had previously worked in
construction as recently 2011. R. at 48, 52. The relevant
portions of Barefoot's medical history are summarized
here, as are the portions of the administrative proceedings
below that are relevant to her arguments in this court.
History of Treatment.
October 14, 2012, Barefoot was in a motor vehicle accident.
R. at 45. He sustained crush trauma to his left foot. After
efforts to treat the injured feet were unsuccessful,
Barefoot allowed his doctors to amputate the foot below his
left knee on January 28, 2013. R. at 261-62, 246-47.
a follow-up examination ten days after the amputation, the
orthopedic specialist who performed the surgery, Dr. Michael
Campbell, noted that Barefoot was doing well. He had
"some phantom sensations but no severe phantom pain. He
has been intermittently using pain medication at this point .
. . There is an outstanding appearance to the stump. The
staples are removed. A soft dressing is applied. He has full
range of motion of the knee. He has full range of motion of
the hip." R. at 258. Dr. Campbell prescribed stump
shrinkers and referred him to Coastal Orthotics for a
February 6, 2013, Barefoot visited Coastal Orthotics to be
fitted for a prosthesis. R. at 282. The Certified Prosthetics
Orthotist who assisted him, Steve Siverd, observed Barefoot
had a well-healing suture line with dog ears. Id. A
week later, Siverd noted Barefoot's stump had decreased
in circumference. Id. Barefoot told the orthotist
his phantom pains were increasing, but he was managing them
with massage. Id.
a follow-up examination with Dr. Campbell on March 8, 2013,
Barefoot reported having fallen several weeks previous and
that he was still in pain from that fall, though the pain was
decreasing in intensity. R. at 256. Dr. Campbell observed,
"Well-healed incision. Healing scab. Mild ecchymosis in
the stump. Full range of motion of the knee and hip. No. dog
ears. Moderate swelling. No. evidence of infection."
Id. Dr. Campbell directed him to physical therapy
once his prosthesis was fitted and prescribed Percocet for
pain management. R. at 256.
returned to Coastal Orthotics on March 14, 2013, for a trial
fitting of his prosthetic leg. R. at 280. Although Barefoot
required an "inner socket" and an extra sock to
account for volume loss on his stump, he was able to use the
prosthesis to walk in the parallel bars with the use of his
right hand. Id. Siverd did record that Barefoot
reported discomfort using the prosthesis, but Siverd also
offered the opinion that the discomfort would decrease as
Barefoot desensitized the residual limb to using the
later, Siverd saw Barefoot again, noting he was "doing
very well." R. at 279. Barefoot could walk with a walker
and "bear slight pressure as he is ambulating."
Id. Barefoot demonstrated "a good heel strike,
mid stance and toe off and good weight shifting."
Id. Barefoot did "not show any signs of
discomfort in his gait pattern with his body motions or
facial expressions." Id. Barefoot reported the
overall fit of the prosthesis was comfortable. Id.
April 11, Barefoot reported some "distal anterior tib
pain" when using his prosthesis, but Siverd attributed
this to Barefoot not using the correct thickness of sock
lining. Id. Siverd directed Barefoot to return to
Dr. Campbell to be prescribed a replacement socket because of
how the stump's size changed as it healed. Id.
insurance plan did not cover the replacement socket for his
prosthesis. R. at 278. Nevertheless, he secured funds for a
replacement. In July, during a casting session for a
replacement socket, Siverd noted that Barefoot's gait was
"fairly poor due to the ill-fitting socket."
August 22, 2013, after several test fittings and
modifications to the replacement socket, Barefoot reported
that the fit was "greatly improved." R. at 277. At
the session during which Barefoot would take delivery of the
replacement socket, Siverd observed Barefoot could
"ambulate in the office without any distal end
another session at Coastal Orthotics On August 30, 2013,
Barefoot reported the replacement socket's fit was
"greatly improved" over the original socket. R. at
276. Siverd noted that Barefoot could walk without the use of
a single point cane, though he would occasionally use the
cane because walking long distances caused him pain.
Id. Barefoot stated "that his limb pain is
decreasing on a daily basis." Id.
September 25, 2013, Barefoot was able to walk in the Coastal
Orthotics office without the use of any assistive device. R.
at 290. Siverd made some modifications to the length of the
prosthesis' pylon and ordered more socks to adjust the
fit for the still-shrinking stump. Id. Barefoot
asked about ordering a third socket, but opted to use socks
to adjust the fit because of the cost of fabricating a new
Campbell examined Barefoot again In December 2013. R. at 311.
Campbell noted Barefoot "was having some pain with
irritation around the proximal fibular from the peroneal
nerve." Id. Campbell also observed that the
"actual stump is doing quite well." Id.
Barefoot was not experiencing any significant phantom pains
but did have some phantom sensation. Id. Barefoot
could walk with an antalgic gait. Id. He had full
motion of the knee. He had some irritation of the skin of the
lateral aspect of the leg. Id. Dr. Campbell noted
that Barefoot's socket fit well and that his hip and knee
strength were "excellent." Id. Dr.
Campbell recorded that Barefoot would benefit from physical
therapy but could not afford it. Id. He also noted
his opinion that Barefoot could never return to manual labor
and that Barefoot would consequently need retraining to a
sedentary job. Id.
addition to his treatment related to the amputation of his
left foot, Barefoot has also been diagnosed and treated for
opioid dependence. R. at 316. From April 2012 to April 2013
and again from October 2014 to the date of the hearing,
Barefoot was under care from an addiction specialist medical
doctor named Robert Lowe. R. at 314-29. During his testimony
at the hearing, Barefoot did not offer a coherent explanation
for this 16-month gap in treatment for his addiction. See R.
of 2015, more than two years after the amputation, Dr.
Campbell first recorded that Barefoot was experiencing pain
in his hip. R. at 309. This is the first indication of
Barefoot's hip pain in the medical record. Previous
examinations revealed full range of motion in his hips.
See, e.g., R. at 258 (from Campbell in February
2013: "He has full range of motion of the hip.");
R. at 256 (Mar. 7, 2013: Dr. Campbell observes full range of
motion in hip); R. at 256 (Dr. Campbell on March 8, 2013:
"Full range of motion of the knee and hip.").
During Barefoot's alleged period of disability, there was
no indication in the medical records of hip pain that would
have limited his functioning and lasted for more than 12
Campbell completed a "Physical Capacities
Assessment" for Barefoot on January 9, 2014. Campbell
opined Barefoot could not stand or walk without difficulty
even for household distances and that he was in pain
requiring daily medication. R. at 305-07. The doctor offered
the opinion that Barefoot would need frequent breaks
throughout a workday to remove his prosthesis to mitigate
irritation from it. R. at 307. He also wrote that Barefoot
could not "tolerate even sedentary work at this
point." He estimated Barefoot would be off task 80% of a
workday and would not be able to report to work 15 days per
month on average due to pain. R. at 305.
October 2013, Dr. John Shane, a state medical consultant,
reviewed Barefoot's treatment records. He determined
Barefoot could lift 20 pounds occasionally and 10 pounds
frequently; could stand or walk for about two hours out of an
eight-hour workday; and could sit for five hours in an
eight-hour workday. R. at 89. He noted limitations in
operating foot pedals and in climbing, crawling, and in
navigating hazards and heights in general. R. at 88-89. The
consultative expert wrote, "Symptoms are exaggerated-at
this point in time, his artificial prosthesis is expected top
[sic] far advanced from his stated capability. Records
reflect that he is more capable than he admits. Allegations
are partly credible." R. at 89. Dr. Shane recommended a
finding of "Not Disabled." Id.
March 2014, another state consultative expert, Dr. Robert
Weisberg, reviewed Barefoot's records a second time and
reached the same conclusion as Dr. Shane: "Not
Disabled." R. at 96, 99.
Testimony Before the ...