United States District Court, W.D. Virginia, Big Stone Gap Division
M. Williams, Wolfe, Williams & Reynolds, Norton,
Virginia, for Plaintiff; Theresa A. Casey, Special Assistant
United States Attorney, Social Security Administration,
Philadelphia, Pennsylvania, for Defendant.
P. Jones United States District Judge.
Acting Commissioner of Social Security
(“Commissioner”) has filed objections to the
Report and Recommendation (“Report”) of the
magistrate judge recommending that the plaintiff's
disability claims be remanded to the Commissioner. For the
reasons that follow, I will overrule the defendant's
objections, adopt the Report, deny both parties' Motions
for Summary Judgment, and remand the case to the Commissioner
for further development.
plaintiff, Joseph Gabriel Wireman, seeks disability insurance
and supplemental security income benefits under Titles II and
XVI of the Social Security Act (“Act”). Following
a hearing and decision by an administrative law judge
(“ALJ”), his claims were denied and he thereafter
filed this action under 42 U.S.C. §§ 405(g) and
1383(c)(3), requesting review of the Commissioner's
decision. The case was referred to the magistrate judge
pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate
judge filed her detailed Report on May 10, 2018, and the
Commissioner filed timely objections on May 22, 2018. Those
objections are now before me for de novo
is now 50 years old, but as of the alleged disability onset
date of October 27, 2012,  he was a younger individual. He has a
history of colon cancer. As a lingering effect of his cancer
treatment and surgery, he experiences episodes of abdominal
discomfort, constipation, and diarrhea. He also claims back
pain and joint pain that worsen with movement.
previously drove a coal truck, which requires a medium level
of exertion. The ALJ found that his residual functional
capacity (“RFC”) renders him unable to perform
that work, but that he can perform sedentary work with some
additional limitations. The ALJ concluded, based on
Wireman's RFC and vocational expert testimony, that
Wireman is able to perform several jobs that exist in
significant numbers in the regional and national economy.
accordance with the Act, I must uphold the Commissioner's
findings if substantial evidence supports them and the
findings were reached through the application of the correct
legal standard. Craig v. Chater, 76 F.3d 585, 589
(4th Cir. 1996). Substantial evidence means “such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (internal quotation
marks and citation omitted). Substantial evidence is
“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). It is not
the role of the court to substitute its judgment for that of
the Commissioner. Hays v. Sullivan, 907 F.2d 1453,
1456 (4th Cir. 1990).
plaintiff's appeal and the defendant's objections to
the Report involve the ALJ's formulation of Wireman's
RFC. The plaintiff contends that in determining the RFC, the
ALJ failed to properly consider the two examining source
opinions, those of Kevin Blackwell, D.O., and Sung-Joon Cho,
M.D. The ALJ stated that he afforded these opinions some
weight, but he ultimately found that Wireman had fewer
limitations than either physician had determined. He did not
expressly explain why he had rejected Dr. Blackwell's
kneeling limitation and Dr. Cho's general reaching
limitation. The ALJ found that Wireman could occasionally
kneel, while Blackwell had stated that Wireman would need to
avoid kneeling. The ALJ did not mention Dr. Cho's
statement that Wireman could only occasionally reach.
Report, the magistrate judge noted that “it appears
that the ALJ intended to give Dr. Blackwell's postural
limitations controlling weight.” R. & R. 15, ECF
No. 17. “Nonetheless, the ALJ found that Wireman could
occasionally operate foot controls and kneel, ” while
Dr. Blackwell restricted these activities. Id. at
16. The magistrate judge pointed out that despite stating
that Dr. Blackwell's push-pull and postural limitations
were reasonably necessary, the ALJ did not include those
limitations in his RFC. Moreover, “the ALJ specifically
rejected the state agency medical consultant's physical
assessment and the portion of Dr. Cho's physical
assessment stating that Wireman could occasionally
kneel.” Id. at 17. Based on these
inconsistencies, the magistrate judge recommended denying
both parties' Motions for Summary Judgment and remanding
the case for further development.
objections, the defendant argues that Dr. Blackwell did not
outright prohibit kneeling and foot pedal operating, but
merely stated that Wireman should avoid those activities.
According to the defendant, avoiding an activity is
tantamount to performing the activity only occasionally. The
ALJ, however, did not offer any such explanation of his
findings, and it was his obligation to fully analyze Dr.
Blackwell's opinion and adequately explain the weight he
gave to it.
defendant argues that any such error was harmless because
even if the ALJ had found that Wireman could never kneel or
use foot controls, two of the jobs identified by the
vocational expert do not require either of those activities.
However, that argument does not account for the ALJ's
unexplained rejection of Dr. Cho's general reaching
limitation. The ALJ, in accord with Dr. Blackwell, found that
Wireman could reach overhead only occasionally, but he did
not find any limitation in terms of other reaching. Dr. Cho,
on the other hand, had indicated that Wireman could perform
all other reaching only occasionally due to his chronic back
pain and limited shoulder abduction. The ALJ noted this
limitation in passing but did not explain why he declined to
adopt it. One of the vocational experts ...