United States District Court, E.D. Virginia, Richmond Division
REPORT AND RECOMMENDATION
David
J. Novak, United States Magistrate Judge.
On July
15, 2013, William Woodson ("Plaintiff) applied for
Social Security Disability Benefits ("DIB") and, on
July 31, 2013, for Supplemental Security Income
("SSI") under the Social Security Act
("Act"), alleging disability from lumbar disc
problems, with an alleged onset date of August 20, 2012 -
later amended to August 8, 2013. The Social Security
Administration ("SSA") denied Plaintiffs claims
both initially and upon reconsideration. Thereafter, an
Administrative Law Judge ("ALJ") denied Plaintiffs
claims in a written decision and the Appeals Council denied
Plaintiffs request for review, rendering the ALJ's
decision as the final decision of the Commissioner.
Plaintiff
now seeks judicial review of the ALJ's decision pursuant
to 42 U.S.C. § 405(g), arguing that the ALJ erred in
failing to (1) consider all of Plaintiff s cervical
impairments at step two; (2) find that Plaintiff satisfied
all of the criteria for Listing 1.04A at step three; (3)
conduct a function-by-function analysis before formulating
the residual functional capacity ("RFC"); and, (4)
properly assess Plaintiffs credibility. Plaintiff further
argues that the Appeals Council erred in failing to remand in
light of new evidence submitted to the Appeals Council. (Mem.
in Supp. of Pl.'s Mot. For Summ. J. ("Pl.'s
Mem.") (ECF No. 18) at 2-29.) Lastly, Plaintiff requests
that the Court accept the after-acquired report of Arthur
Lorber, M.D. (Pl.'s Mot. for the Ct. to Receive the
After-Acquired Rep. of Dr. Lorber and Suppl. Br.
("Pl.'s Suppl. Mot.") (ECF No. 25).) This
matter now comes before the Court for a Report and
Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) on
the parties' cross-motions for summary judgment,
rendering the matter ripe for review.[1] For the reasons that follow,
the Court recommends that Plaintiffs Motion for Summary
Judgment (ECF No. 15) be DENIED, that Plaintiffs Motion for
the Court to Accept the After-Acquired Report of Dr. Lorber
(ECF No. 25) be DENIED, and Defendant's Motion for
Summary Judgment (ECF No. 28) be GRANTED and that the final
decision of the Commissioner be AFFIRMED.
I.
PROCEDURAL HISTORY
On July
15, 2013, Plaintiff filed an application for DIB and, on July
31, 2013, Plaintiff filed an application for SSI with an
alleged onset date of August 20, 2012. (R. at 74, 256, 266.)
The SSA denied these claims initially on December 11 and
December 12, 2013, and again upon reconsideration on August
11, 2014. (R. at 138-39, 156-57.) At Plaintiffs written
request, the ALJ held a hearing on February 4, 2016. (R. at
92-137, 211-12.) During the hearing, Plaintiff amended his
alleged onset date to August 8, 2013. (R. at 97.) On March 2,
2016, the ALJ issued a written opinion, denying Plaintiffs
claims and concluding that Plaintiff did not qualify as
disabled under the Act, because he could perform jobs
existing in significant numbers in the national economy. (R.
at 74-86.) On March 16, 2017, the Appeals Council denied
Plaintiffs request for review, rendering the ALJ's
decision as the final decision of the Commissioner subject to
review by this Court. (R. at 1-7.)
On
August 10, 2017, Plaintiff filed a motion requesting oral
argument. (ECF No. 16.) On October 10, 2017 - the day before
the deadline expired for Defendant to file her motion for
summary judgment - Plaintiff filed a motion to suspend the
current briefing schedule, so that Plaintiff could submit Dr.
Lorber's report and a supplemental brief in support of
Plaintiffs Motion for Summary Judgment. (ECF No. 23.) On
October 12, 2017, the Court granted Plaintiffs motion to
suspend the current briefing schedule, so that Plaintiff
could submit the additional records and a supplemental brief.
(ECF No. 24.) Finding that the issues Plaintiff raised in his
Brief in Support of Oral Argument (ECF No. 19) could be
sufficiently addressed in a supplemental brief, the Court
also denied Plaintiffs request for oral argument. (ECF No.
24.)
II.
STANDARD OF REVIEW
In
reviewing the Commissioners decision to deny benefits, a
court "will affirm the Social Security
Administration's disability determination 'when an
ALJ has applied correct legal standards and the ALJ's
factual findings are supported by substantial
evidence.'" Mascio v. Colvin, 780 F.3d 632,
634 (4th Cir. 2015) (quoting Bird v. Comm 'r of Soc.
Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012)).
Substantial evidence requires more than a scintilla but less
than a preponderance, and includes the kind of relevant
evidence that a reasonable mind could accept as adequate to
support a conclusion. Hancock v. Astrue, 667 F.3d
470, 472 (4th Cir. 2012); Craig v. Chater, 76 F.3d
585, 589 (4th Cir. 1996). Indeed, "the substantial
evidence standard 'presupposes ... a zone of choice
within which the decision makers can go either way, without
interference by the courts. An administrative decision is not
subject to reversal merely because substantial evidence would
have supported an opposite decision.'" Dunn v.
Colvin, 607 Fed.Appx. 264, 274 (4th Cir. 2015) (quoting
Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir.
1988)). To determine whether substantial evidence exists, the
court must examine the record as a whole, but may not
"undertake to re-weigh conflicting evidence, make
credibility determinations, or substitute [its] judgment for
that of the [ALJ]." Hancock, 667 F.3d at 472
(quoting Johnson v. Barnhart, 434 F.3d 650, 653 (4th
Cir. 2005)). In considering the decision of the Commissioner
based on the record as a whole, the court must "take
into account whatever in the record fairly detracts from its
weight." Breeden v. Weinberger, 493 F.2d 1002,
1007 (4th Cir. 1974) (quoting Universal Camera Corp. v.
N.L.R.B., 340 U.S. 474, 488 (1951)). The
Commissioner's findings as to any fact, if substantial
evidence in the record supports the findings, bind the
reviewing court to affirm regardless of whether the court
disagrees with such findings. Hancock, 667 F.3d at
477. If substantial evidence in the record does not support
the ALJ's determination or if the ALJ has made an error
of law, the court must reverse the decision. Coffman v.
Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
The
Social Security Administration regulations set forth a
five-step process that the agency employs to determine
whether disability exists. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4); see Mascio, 780 F.3d
at 634-35 (describing the ALJ's five-step sequential
evaluation). To summarize, at step one, the ALJ looks at the
claimant's current work activity. §§
404.1520(a)(4)(i), 416.920(a)(4)(i). At step two, the ALJ
asks whether the claimant's medical impairments meet the
regulations' severity and duration requirements.
§§ 404.1520(a)(4)(ii). 416.920(a)(4)(H). Step three
requires the ALJ to determine whether the medical impairments
meet or equal an impairment listed in the regulations.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). Between
steps three and four, the ALJ must assess the claimant's
RFC, accounting for the most that the claimant can do despite
his physical and mental limitations. §§
404.1545(a), 416.945(a). At step four, the ALJ assesses
whether the claimant can perform his past work given his RFC.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Finally,
at step five, the ALJ determines whether the claimant can
perform any work existing in the national economy.
§§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
III.
THE ALJ'S DECISION
On
February 4, 2016, the ALJ held a hearing during which
Plaintiff (represented by counsel) and a vocational expert
testified. (R. at 92-137.) On March 2, 2016, the ALJ issued a
written opinion, finding that Plaintiff did not qualify as
disabled under the Act. (R. at 74-86.)
The ALJ
followed the five-step evaluation process established by the
Social Security Act in analyzing Plaintiffs disability
claims. (R. at 75-85.) At step one, the ALJ found that
Plaintiff had not engaged in substantial gainful activity
since August 8, 2013, the amended alleged onset date. (R. at
76.) At step two, the ALJ found that Plaintiff suffered from
a single severe impairment - degenerative disc disease. (R.
at 76.) At step three, the ALJ held that Plaintiff did not
have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed
impairments. (R. at 77.)
In
assessing Plaintiffs RFC, the ALJ determined that Plaintiff
could perform a range of light work with additional
limitations. (R. at 77.) Specifically, Plaintiff could
frequently climb ramps and stairs, occasionally climb
ladders, ropes and scaffolds, and frequently balance, stoop,
kneel, crouch and crawl. (R. at 77.) At step four, the ALJ
found that Plaintiff could not perform any past relevant
work. (R. at 84.) At step five, the ALJ determined that
Plaintiff could perform jobs existing in significant numbers
in the national economy. (R. at 84-85.) Therefore, Plaintiff
did not qualify as disabled under the Act. (R. at 84-85.)
IV.
ANALYSIS
Plaintiff,
forty-nine years old at the time of this Report and
Recommendation, previously worked as chicken catcher, laborer
and a machine operator. (R. at 292, 298.) He applied for
Social Security Benefits, alleging disability from lumbar
disc problems, with an alleged onset date of August 20, 2013
- later amended to August 8, 2013. (R. at 97, 292.)
Plaintiffs appeal to this Court alleges that the ALJ erred in
(1) failing to consider all of Plaintiff s cervical
impairments at step two; (2) failing to find that Plaintiff
satisfied all of the criteria for Listing 1.04A at step
three; (3) failing to conduct a function-by-function analysis
before formulating the RFC; and, (4) in assessing Plaintiff s
credibility. (Pl.'s Mem. at 2-13, 19-29.) Plaintiff
further argues that the Appeals Council erred in failing to
remand Plaintiffs claims to the ALJ in light of new evidence.
(Pl.'s Mem. at 12-19.) Finally, Plaintiff requests that
this Court accept the after-acquired report of Dr. Lorber.
(Pl.'s Suppl. Mot.) For the reasons set forth below, the
ALJ did not err in his decision, the Appeals Council did not
err in rejecting Plaintiffs request for review and the Court
rejects Dr. Lorber's after-acquired report.
1.
The ALJ Satisfied Step Two by Finding that Plaintiff Suffered
from a Single Severe Impairment.
Plaintiff
argues that the ALJ erred at step two by failing to classify
his cervical spinal stenosis, cervical myelomalcia and
cervical myelopathy as severe impairments. (Pl.'s Mem. at
2-7.) Defendant responds that the ALJ sufficiently discussed
Plaintiffs cervical impairments throughout his opinion and
properly explained why the medical evidence supported the
ALJ's finding that Plaintiff could perform light work.
(Def.'s Mot. for Summ. J. and Br. in Supp. Thereof
("Def.'s Mem.") (ECF No. 29) at 18-21.).
At step
two, the ALJ must consider the claimant's medically
determinable impairments. 20 C.F.R. §§ 404.1521,
416.921 ("a physical or mental impairment must be
established by objective medical evidence from an acceptable
medical source" - a claimant's statements of
symptoms alone are insufficient). "The Supreme Court has
held that this step of the disability evaluation is a de
minimis threshold." Williams v. Astrue,
2010 WL 395631, at * 14 (E.D. Va. Feb. 2, 2010) (citing
Bowen v. Yuckert, 482 U.S. 137, 146-47 (1987)). In
Yuckert, the Supreme Court explained that step two
of the sequential analysis "increases the efficiency and
reliability of the evaluation process by identifying at an
early stage those claimants whose medical impairments are so
slight that it is unlikely they would be found to be disabled
even if their age, education, and experience were taken into
account." 482 U.S. at 153.
An ALJ
satisfies step two by finding a severe impairment and
proceeding through the rest of the sequential analysis.
McCormick v. Soc. Sec. Admin., Comm 'r, 619
Fed.Appx. 855, 858 (11th Cir. 2015); Jamison v.
Bowen, 814 F.2d 585, 588 (11th Cir. 1987) ("The
finding of any severe impairment, whether or not it qualifies
as a disability and whether or not it results from a single
severe impairment or a combination of impairments that
together qualify as severe, is enough to satisfy the
requirement of step two.").
Here,
the ALJ satisfied step two, because he found that Plaintiff
suffered from a severe impairment - degenerative disc disease
- and proceeded to the next step of the sequential analysis.
(R. at 76.) Plaintiff argues that "this is not a
scenario where the ALJ found at least one, severe impairment,
but then considered all of the claimant's impairments and
related functional limitations in assessing how much work the
plaintiff could still do." (Pl.'s Mem. at 4 (citing
Kirkland v. Comm' r of Soc. Sec, 528
Fed.Appx. 425, 427 (6th Cir. 2013)).) Defendant asserts that
the ALJ's failure to address Plaintiffs cervical spinal
stenosis, myelomalacia and myelopathy at step two constitutes
harmless error, because the ALJ appropriately considered and
discussed Plaintiffs cervical impairments throughout his
opinion. (Def.'s Mem. at 18-19.)
An
ALJ's incorrect characterization of a severe impairment
as "non-severe" or failure to address a medically
determinable impairment at step two does not automatically
require remand. Rather, courts will find no reversible error
- or treat the error as harmless - provided that the ALJ
considered all of the claimant's impairments in the
sequential analysis. Compare Maziarz v. Sec'y of
Health & Human Servs., 837 F.2d 240, 244 (6th Cir.
1987) (finding no reversible error where the ALJ labeled an
impairment non-severe, but properly considered the impairment
in the RFC assessment), with McCormick, 619
Fed.Appx. at 858 ("[S]tep two is merely a filter, and
any error in considering an additional impairment is harmless
since it does not factor into the determination of
disability."), and Lewis v. Astrue, 498 F.3d
909, 911 (9th Cir. 2007) (omission of the plaintiffs bursitis
at step two constituted harmless error, because the ALJ
"extensively discussed" the plaintiffs bursitis at
step four of the analysis).
While
the Fourth Circuit has not addressed the precise issue,
district courts in this Circuit have adopted the view that an
ALJ does not commit reversible error by omitting an
impairment at step two, so long as the ALJ considers the
impairment in subsequent steps. Clark v. Comm' r
of Soc. Sec, 2010 WL 2730622, at *11 (E.D. Va. June
3, 2010), report and recommendation adopted, 2010 WL
2731380 (E.D. Va. July 9, 2010) (quoting Jones v.
Astrue, 2009 WL 455414, at *2 (E.D. N.C. Feb. 23, 2009)
("[I]t is not reversible error where an ALJ does not
consider whether an impairment is severe at step two of the
sequential evaluation provided the ALJ considers that
impairment in subsequent steps.")); see also Jones
v. Comm 'r of Soc. Sec, 2011 WL 3273129, at *14
(E.D. Va. June 9, 2011), report and recommendation
adopted, 2011 WL 3268120 (E.D. Va. July 28, 2011)
(citing Clark, 2010 WL 2730622, at * 11) (finding no
error where the ALJ considered omitted impairment in
subsequent steps); Nuckles v. Astrue, 2009 WL
3208685, at *9 n.4 (E.D. N.C. Oct. 5, 2009)
(same).[2]
For
example, in Clark, the court found no reversible
where the ALJ failed to discuss whether Clark's cervical
herniated discs qualified as a severe impairment at step two.
2010 WL 2730622, at * 11. Rather, the ALJ sufficiently
considered Clark's cervical herniated discs in the RFC
assessment, noting that Clark's doctors endorsed chronic
back pain in their treatment records, but conservative
treatment, such as medication, reasonably controlled
Clark's pain. Id. Similarly, the court in
Jones found no reversible error where the ALJ failed
to discuss Jones' back pain at step two, but sufficiently
considered his lower back pain in later steps, "though
not necessarily in the most straightforward manner."
2009 WL 455414, at *2-3.
Like
the ALJs in Clark and Jones, the ALJ here
omitted discussion of Plaintiffs cervical spinal stenosis,
cervical myelomalcia and cervical myelopathy at step two, but
gave appropriate consideration to those impairments later in
the RFC assessment. (R. at 78-84); Clark, 2010 WL
2730622, at * 11; Jones, 2009 WL 455414 at, *2-*3.
First, the ALJ noted that Plaintiff cited, inter
alia, "cervical stenosis with cord
compression" as one of the impairments that rendered him
disabled. (R. at 78.) Second, in the ALJ's discussion of
the medical evidence, he noted that "[a] February 27,
2014 MRI of the cervical spine ... revealed disc osteophyte
complex at C3-C4 causing stenosis and increased ...
signal and cord volume loss consistent with
myelomalacia[.]" (R. at 80 (emphasis added).) Third, the
ALJ noted that in April 2014, Plaintiff presented to
University of Virginia Health Systems ("UVA Health
Systems") with cervical stenosis and cervical cord
signal change; he underwent an anterior cervical discectomy
and fusion ("ACDF") and tolerated the procedure
"well and without complication;" and, UVA Health
Systems discharged Plaintiff the day after the procedure
"with the diagnosis of cervical stenosis[.]" (R. at
80.) Fourth, the ALJ stated that a May 2014 x-ray of
Plaintiff s cervical spine revealed normal findings. (R. at
80-81.)
Next,
the ALJ discussed the results of a September 2014 physical
examination conducted by Gregory Helm, M.D., in which
Plaintiff experienced "some numbness in his right
leg," but showed no signs of myelopathy. (R. at 81.)
Finally, the ALJ discussed Plaintiffs December 2015 emergency
room visit to Centra Southside Community Hospital ("CSC
Hospital"), in which Plaintiff displayed cervical
tenderness upon physical examination, "but he was
neurologically intact, and the remainder of the exam was
unremarkable[.]" (R. at 81.) The ALJ further discussed
the results of an x-ray and MRI taken of Plaintiff s cervical
spine during that visit. (R. at 81.) The x-ray revealed
"surgical and degenerative changes," while the MRI
showed "some mild compression of the cervical
spine." (R. at 81.) The ALJ noted that the hospital
discharged Plaintiff "in stable condition with the
diagnosis of cervical spine pain." (R. at 81.)
Plaintiff
argues that mere recitation of the medical evidence does not
satisfy the ALJ's duty to "build an accurate and
logical bridge from the evidence to his conclusion."
(Pl.'s Mem. at 5 (quoting Monroe v. Colvin, 826
F.3d 176, 189 (4th Cir. 2016) (additional citation
omitted)).) But the ALJ did more than merely regurgitate
Plaintiffs medical records. In discounting the alleged
severity of Plaintiff s limitations and in formulating the
RFC, the ALJ explained (i) inconsistencies between Plaintiffs
stated capabilities and those reported by his spouse in a
third-party function report, (ii) the conservative nature of
Plaintiffs treatment and (iii) Plaintiffs failure to remain
compliant with his prescribed course of treatment. (R. at
81-82.) Finally, the ALJ stated that Plaintiffs
"reasonably good health... and relatively benign
physical examinations belie[d] [his] allegations of disabling
symptoms or functional limitations." (R. at 82.)
Although the ALJ failed to classify Plaintiffs cervical
stenosis, myelomalacia and myelopathy as severe or non-severe
impairments at step two, the ALJ adequately discussed those
impairments in the RFC assessment. While, "collapsing of
the analysis of the evidence by an ALJ is not the preferred
form of opinion writing for an ALJ because it makes review of
his opinions more difficult, ... it is not necessarily
reversible error." Jones, 2009 WL 455414, at *3
(citation omitted). Here, the ALJ sufficiently discussed
Plaintiffs conditions throughout his decision such that he
did not commit reversible error at step two.
2.
The ALJ Did Not Err at Step Three.
Next,
Plaintiff argues that the ALJ erred in concluding that
Plaintiff did not satisfy the requirements of Listing 1.04A.
(Pl.'s Mem. at 7-13.) First, Plaintiff asserts that the
ALJ failed to "correlate the medical evidence of record
with the criteria set forth in [the listing]."
(Pl.'s Mem. at 7-8.) Second, Plaintiff argues that the
ALJ failed to properly apply the medical evidence to the
listing criteria. (Pl.'s Mem. at 8-13.) Defendant
responds that substantial evidence supports the ALJ's
step three finding and that the ALJ's discussion of the
medical evidence in the RFC analysis satisfied the ALJ's
duty to correlate the evidence with the listing criteria.
(Def.'s Mem. at 21-26.)
When
issuing a decision, an ALJ "is not required to use
particular language or adhere to a particular format in
conducting his analysis;" the decision must only show
that "there is sufficient development of the record and
explanation of findings to permit meaningful review."
Moore v. Astrue, 2010 WL 3394657, at *6 n.12 (E.D.
Va. July 27, 2010). But an ALJ only needs to review medical
evidence once in his opinion. McCartney v. Apfel, 28
Fed.Appx. 277, 279-80 (4th Cir. 2002). Therefore, the
reviewing court will determine if the ALJ's decision as a
whole provides substantial evidence supporting the step three
evaluation.
To meet
Listing 1.04A, Plaintiff must have a disorder of the spine
that results in compromise of a nerve root or the spinal
cord, with:
Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion of
the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or reflex
loss and, if there is involvement of the lower back, positive
straight-leg raising test (sitting and supine).
20 C.F.R. Pt. 404, Subpt. P, App'x 1, § 1.04A. To
satisfy Listing 1.04A, the impairment must also last or be
expected to last for at least twelve months. §§
404.1509; 416.909.
At step
three, the ALJ held that Plaintiff did not have an impairment
or combination of impairments that met or medically equaled
the severity of Listing 1.04. (R. at 77.) The ALJ
acknowledged that Plaintiffs representative testified at the
hearing that Plaintiff satisfied the Listing 1.04 criteria.
(R. at 77.) After reviewing the evidence, the ALJ found
otherwise. (R. at 77.) In support of his finding, the ALJ
explained that "the evidence of record does not
establish evidence resulting in" the criteria set forth
in Listing 1.04. (R. at 77.) Further, the ALJ noted that
state agency physicians reviewed Plaintiffs medical records
and likewise concluded that Plaintiff did not meet or
medically equal the listing criteria. (R. at 77.) Nor did any
evidence submitted after the state agency physicians
completed their review "warrant a different
determination." (R. at 77.) Finally, the ALJ explained
that no treating or examining physician opined that Plaintiff
met the listing criteria. (R. at 77.)
Contrary
to Plaintiffs argument, the ALJ correlated the medical
evidence to his opinion. (R. at 77-84; Pl.'s Mem. at
7-8.) In Radford v. Colvin, the Fourth Circuit held
that the district court abused its discretion by awarding
benefits, rather than remanding the case for further
explanation from the ALJ as to why the plaintiff did not
satisfy the criteria for Listing 1.04A. 734 F.3d 288, 295-96
(4th Cir. 2013). The ALJ in that case "summarily
concluded that Radford's impairment did not meet or equal
a listed impairment, but he provided no explanation other
than writing that he 'considered, in particular,' a
variety of listings, including Listing 1.04A, and noting that
state medical examiners had also concluded 'that no
listing [was] met or equaled.'" Id. at 295
(describing the ALJ's decision as "devoid of
reasoning"). The court also took issue with the fact
that the ALJ "reject[ed] the opinions of Radford's
treating physicians in favor of the state medical
examiners" without sufficient explanation. Id.
at 295-96.
Arguing
that the ALJ in this case provided similar conclusory
reasoning at step three, Plaintiff urges the Court to remand
his case. (R. at 77; Pl.'s Mem. at 7-8.) Indeed, the
Fourth Circuit made clear that an ALJ's citation to state
agency physicians' opinions alone did not constitute
substantial evidence in support of the ALJ's step three
finding. 734 F.3d at 295-96. But unlike the ALJ in
Radford, the ALJ here additionally cited the fact
that no treating or examining physician found that Plaintiff
satisfied the criteria for Listing 1.04A. (R. at 77.) The ALJ
also properly explained the weight that he afforded to the
opinions of the state agency physicians and Plaintiffs
treating physician in the RFC assessment. (R. at 77, 83.)
In
August 2013, Plaintiffs treating physician, Cynthia Sessums,
D.O., instructed Plaintiff not to work for two days and to
avoid heavy lifting until his follow-up appointment three to
four days later. (R. at 448.) The ALJ afforded Dr.
Sessums' opinion that Plaintiff could not work no weight,
because she imposed the work restriction for only a limited
time period. (R. at 83.) With respect to the state agency
physicians' opinions, the ALJ afforded partial weight to
the opinion of Michael Cole, D.O., who conducted the initial
disability determination. (R. at 83, 150-53.) Dr. Cole opined
that Plaintiff could occasionally climb ladders, ropes and
scaffolds, frequently stoop, kneel, crouch and crawl, and had
no limitation with respect to climbing ramps and stairs. (R.
at 153.) The ALJ afforded great weight to the more
restrictive opinion of Catherine Howard, M.D., who reviewed
Plaintiffs claim on reconsideration. (R. at 83, 168.) Dr.
Howard opined that Plaintiff could frequently climb ramps and
stairs, occasionally climb ladders, ropes and scaffolds, and
frequently balance, stoop, kneel, crouch and crawl. (R. at
168.) The ALJ described these opinions as "balanced and
objective, consistent with the overall evidence of
record" and supportive of the RFC. (R. at 83.)
As
Defendant points out, the ALJ also gave sufficient
consideration to the medical evidence showing that Plaintiff
did not satisfy the Listing 1.04 A criteria in the RFC
assessment. (R. at 79-81; Def.'s Mem. at 22-23.) For
example, at step three the ALJ stated that the record did not
show evidence of limited motion of the spine or motor loss
accompanied by sensory or reflex loss associated with Listing
1.04A. (R. at 77.) In the RFC assessment, the ALJ correlated
the medical evidence to his step three finding by discussing
the following: in December 2013, Plaintiffs physical
examination showed that Plaintiff produced positive straight
leg test results and felt some numbness in his feet, but he
experienced no tenderness in his lumbar spine and had normal
reflexes in his lower extremities. (R. at 79.) Plaintiff
complained of numbness, weakness and loss of sensation in
January and April 2014, but he displayed "normal 5/5
strength" during his April 2014 physical examination.
(R. at 80.) That same month, Plaintiff underwent a cervical
discectomy and fusion and subsequently reported "no arm
pain, sensory changes, or weakness." (R. at 80.) In May
2014, Plaintiff displayed good strength and sensation in both
the upper and lower extremities, and an x-ray of
Plaintiff's cervical spine looked normal. (R. at 81.)
Although Plaintiff reported experiencing numbness and pain in
September 2014, he displayed normal strength during a
physical examination. (R. at 81.) In December 2015, Plaintiff
again complained of "numbness, tingling and pain in his
right side[, ]" but physical examination revealed
tenderness in the cervical spine at C4 only, with otherwise
unremarkable results. (R. at 81 (noting that Plaintiff
"was neurologically intact").) Although the ALJ
discussed the medical evidence in the RFC assessment - rather
than at step three - the ALJ only needed to discuss the
medical evidence once. McCartney, 28 Fed.Appx. at
279-80. Thus, the ALJ satisfied his duty to explain his step
three findings. Moreover, substantial evidence - including
Plaintiffs medical records and the opinions of the state
agency physicians - supports the ALJ's step three
finding.
a.
Plaintiffs medical records show that Plaintiff did not
satisfy all of the requirements of Listing 1.04A.
Plaintiff
relies on instances in the record showing that he experienced
pain, weakness, tenderness and loss of sensation to establish
that he satisfies the criteria for Listing 1.04A, but
complete review of the medical records considered by the ALJ
and Appeals Council reveal that Plaintiff did not suffer from
the requisite motor, sensory or reflex loss under Listing
1.04A. (Pl.'s Mem. at 9-13.)
On
August 8, 2013, Plaintiff presented to CSC Hospital,
complaining of back pain. (R. at 442.) Plaintiff experienced
tenderness in his lower back, displayed a decreased range of
motion of the back secondary to pain and had positive
straight leg raise test results bilaterally. (R. at 445.) But
Plaintiff displayed a normal range of motion in his other
extremities and full range of motion in his neck. (R. at
445.) He also experienced normal sensation in his lower
extremities bilaterally and moved all extremities "with
good strength and coordination." (R. at 445.) An x- ray
of Plaintiff s lumbar spine revealed no fracture, subluxation
or destructive lesion; and, the disc spaces appeared
"essentially normal." (R. at 446-47.) Dr. Sessums
diagnosed Plaintiff with lumbar spine strain and lumbosacral
radiculopathy. (R. at 447.) Dr. Sessums described Plaintiffs
condition as "stable" and "good" upon
discharge. (R. at 447-48.) She instructed Plaintiff to
follow-up with John Andrew Kona, M.D., in three to four days.
(R. at 448.) Dr. Sessums also instructed Plaintiff to avoid
heavy lifting until his follow-up examination. (R. at 448.)
The record contains no evidence that Plaintiff followed up
with Dr. Kona.
On
December 17, 2013, Plaintiff presented to Adam C. Godsey,
M.D., at UVA Health Systems, complaining of low back pain,
radiating to his thigh and down his leg. (R. at 461.)
Plaintiff stated that his pain had worsened in the past two
to three months. (R. at 461.) Plaintiff denied experiencing
relief from medication, but also said that he "tries to
avoid medications as much as possible." (R. at 461.)
Although Plaintiff had positive straight leg raise test
results due to pain and experienced numbness on the right
side, Dr. Godsey observed no tenderness to palpitation over
the lumbar spine. (R. at 463.) On physical examination,
Plaintiff displayed normal reflexes in his lower extremities.
(R. at 463.) Dr. Godsey diagnosed Plaintiff with lumbar disc
disease, but noted "no red flag symptoms," and he
prescribed Naproxen and Gabapentin for Plaintiffs low back
pain. (R. at 463.)
On
January 29, 2014, Plaintiff presented to Kimberly Skinner,
PA-C, at UVA Health Systems, complaining of pain in his lower
back, numbness in his right side, weakness and gait
instability. (R. at 465-69.) In her progress notes, Skinner
described Plaintiffs history of low back pain and the results
from a 2010 MRI showing that Plaintiff had "a small disc
bulge at L4-5." (R. at 469.) Plaintiffs treatment
providers had prescribed "conservative treatment with
physical therapy and epidural steroid injections," but
Plaintiff told Skinner that he had not sought such treatment
since 2010. (R. at 469.) On physical examination, Plaintiff
demonstrated "good strength in his upper
extremities" and, despite some "mild hip flexor
weakness on the right side," Plaintiff displayed 5/5
strength in his lower extremities. (R. at 469.) He
experienced decreased sensation on the right side, but had
good sensation on the left side in both his upper and lower
extremities. (R. at 469.) Plaintiff walked with an antalgic
gait and ambulated with a cane. (R. at 469.) Skinner ordered
a follow-up MRI. (R. at 469.)
Plaintiff
returned to UVA Health Systems on February 4, 2014, for an
MRI of the thoracic and lumbar spine. (R. at 477-78.) David
Joyner, M.D., and David. A. Oman, M.D., observed degenerative
changes on the lumbar spinal canal, including mild spinal
canal stenosis at L3-4 and foraminal stenoses most prominent
at L4-5 and L5-S1. (R. at 478.) Drs. Joyner and Oman also
observed "moderate to severe spinal canal stenosis at
C6-C7 secondary to disc protrusion/disc osteophyte complex
and questionable abnormal signal in the cervical spinal
cord." (R. at 478.) Finally, Drs. Joyner and Oman
observed no disc herniation, spinal canal or foraminal
stenosis in the thoracic spine. (R. at 478.) Plaintiff had a
follow-up MRI of the cervical spine on February 27, 2014. (R.
at 520.) Erin McCrum, M.D., and David Abdullah, M.D.,
observed the following: disc bulges at C3-C4 and C6-C7
showing cord volume loss consistent with myelomalacia;
increased central cord T2W1 signal extending from C7 to Tl;
and, central canal and neural foraminal stenosis. (R. at
520.)
On
April 14, 2014, Plaintiff presented to Dr. Helm, whom
Plaintiff had previously seen in 2010, at UVA Health Systems.
(R. at 542.) Dr. Helm performed an anterior cervical
discectomy and fusion procedure to treat Plaintiffs cervical
stenosis with cord compression and cord edema. (R. at 542,
562.) During the procedure, Dr. Helm found that Plaintiff
suffered from a herniated disc causing pathology compression
of the cervical spine. (R. at 543.) Sze Chun Winson Ho, M.D.,
described Plaintiffs spinal cord as "thoroughly
decompressed" after the discectomy. (R. at 563.)
Post-operative notes also describe Plaintiffs condition as
stable, although he experienced some residual numbness in his
right leg. (R. at 543.) The day after his surgery, Chad
Aldridge, P.T., visited Plaintiff to determine whether he
required further inpatient services. (R. at 543, 549.)
Aldridge noted improvement in Plaintiffs condition since the
previous day and observed Plaintiff ambulate and climb stairs
using a cane. (R. at 550.) Pain did not interfere with
Plaintiffs physical therapy session. (R. at 550.) Plaintiff
reported that he felt better and that the sensation in his
right leg continued to improve. (R. at 550.) Plaintiff also
reported improved sensation in his right leg to the on-call
occupational therapist. (R. at 552.) Aldridge assessed that
Plaintiff would benefit from outpatient physical therapy, but
noted that Plaintiff "ha[d] no acute [physical therapy]
needs" and could return home. (R. at 550.) Plaintiffs
discharge instructions called for activity "as
tolerated." (R. at 662.)
Plaintiff
had several postoperative phone calls with treating staff at
UVA Health Systems. About a week after his surgery, Plaintiff
called Natalie B. Krovetz, R.N., complaining that he had not
had a bowel movement since his surgery. (R. at 700.) Nurse
Krovetz discussed laxative options with Plaintiff but noted
that Plaintiff was "[o]therwise doing fairly well."
(R. at 700.) On April 23, 2014, Plaintiff called Nurse
Krovetz again, requesting a refill of his pain medication and
complaining of neck pain when changing position. (R. at 700.)
Plaintiff reported no arm pain, sensory changes or weakness.
(R. at 700.) On April 29, 2014, Plaintiff called again,
inquiring as to whether he should continue taking Gabapentin.
(R. at 699.) Plaintiff told a nurse that he felt tingling in
his right knee cap, which ran down his leg to his foot. (R.
at 699.) He requested a higher dosage of Gabapentin. (R. at
699.) The next day, Dr. Godsey faxed Plaintiff a prescription
for Gabapentin to treat his pain. (R. at 698.) On May 14,
2014, Plaintiff called Nurse Krovetz complaining of upper arm
pain. (R. at 697.) Plaintiff stated that he could not afford
physical therapy or the $6 copay for his Gabapentin. (R. at
697.) Nurse Krovetz advised Plaintiff to use his collar as
needed and to "take it easy" until his next
appointment. (R. at 697.)
On May
28, 2014, Plaintiff returned to Skinner for a follow-up
appointment. (R. at 668.) Although Plaintiff experienced some
numbness and tingling in his right lower extremity, he
reported that the numbness on his right side had improved
post-surgery. (R. at 668-69.) He also reported experiencing
significant pain in his left tricep. (R. at 669.) On physical
examination, Plaintiff appeared in no acute distress and
displayed good strength and sensation in both his upper and
lower extremities. (R. at 669.) Skinner described Plaintiffs
anterior cervical incision as "well healed without
evidence of infection or complication." (R. at 669.)
Skinner had additional radiographs taken of Plaintiff s
cervical spine. (R. at 673.) Manal Nicolas-Jilwan, M.D.,
observed "postoperative changes C3-C4 and C6-C7 ACDF,
without interval complications," and he described
Plaintiffs vertebral body heights and degenerative changes as
stable. (R. at 673.) Skinner diagnosed Plaintiff with
cervical stenosis of the spine, prescribed Gabapentin for his
pain and instructed Plaintiff to contact Skinner's office
if he had persistent left upper extremity pain. (R. at 669,
672.)
On
September 16, 2014, Plaintiff returned to Dr. Helm,
complaining of increasing numbness in his right flank and
right leg and pain in his low back, leg and in the triceps
region of his left arm. (R. at 692.) On physical examination,
Plaintiff experienced some numbness in his right leg, but Dr.
Helm noted that Plaintiff "[was] not myelopathic."
(R. at 692.) Plaintiff also displayed normal strength. (R. at
692.) Dr. Helm increased Plaintiffs Neurontin dosage and
instructed Plaintiff to schedule a cervical and lumbar CT
scan/myelogram. (R. at 692.) Treating staff also advised
Plaintiff that treatment for his spine could prove more
effective if he quit smoking. (R. at 693.) On October 20,
2014, Plaintiffs wife informed Nurse Krovetz that Plaintiff
could not afford to have the cervical and lumbar
CT/myelogram, because he had no insurance and could not make
payments while he "await[ed] disability." (R. at
692.) Nurse Krovetz asked Plaintiffs wife to contact UVA
Health Systems if anything changed, so that they could
schedule Plaintiffs study. (R. at 692.)
Plaintiff
did not seek treatment again until June 2, 2015, when he
returned to Dr. Helm, complaining of continued neck pain and
significant numbness and weakness in his right leg. (R. at
738.) Plaintiff displayed "some weakness of dorsiflexion
on the right side, as well as some numbness in the L5
distribution on the right side." (R. at 738.) Dr. Helm
again recommended a cervical and lumbar CT scan/myelogram and
decided to "keep [Plaintiff] off work for two months[,
]" while Plaintiff obtained a functional capacity
evaluation. (R. at 738.) On June 9, 2015, treating staff at
UVA Health Systems took additional scans of Plaintiff s
cervical and lumbar spine, which revealed the following:
Plaintiffs cervical spine showed postsurgical changes of
C3-C4 and C6-C7 ACDF with partial fusion of the disc spaces,
but no evidence of hardware complication; multilevel central
canal stenosis (mild to moderate with cord atrophy at C3-C4
and C6-C7); and, multilevel neuroforaminal stenosis (severe
at C3-C4 on the right). (R. at 740-43.) Plaintiffs lumbar
spine showed no significant central canal stenosis;
multilevel neuroforaminal stenosis (moderate at C4-L5); and,
mild disc degeneration from T9-T10 to T11-T12. (R. at 743.)
The record lacks evidence that Plaintiff sought follow-up
treatment during the months following those scans.
On
December 28, 2015, Plaintiff presented to the emergency
department at CSC Hospital, complaining of weakness, as well
as numbness and tingling in his right side that began to
bother him two days before his visit. (R. at 723.) Plaintiff
described his neck pain as ongoing, and he told treating
staff that he had not felt better since his cervical spine
surgery in August 2014. (R. at 723, 725.) Benjamin D.
Wallace, D.O., conducted Plaintiffs physical examination and
noted no tenderness in Plaintiffs neck or back. (R. at 725.)
Although Plaintiff displayed 4/5 strength in his right upper
and lower extremities, reduced (1/4) patellar reflexes and
tenderness in the cervical spine, he had grossly intact
sensory functioning. (R. at 725.) James Hall, Jr., M.D.,
reviewed an MRI of Plaintiff s cervical spine and described
Plaintiffs spinal cord as having an abnormal appearance,
including flattening of the spinal cord at C2-C3. (R. at
732-33.) Dr. Wallace's treatment notes showed "some
mild compression." (R. at 728.) Dr. Wallace sought
further consultation from the neurosurgery department
regarding Plaintiffs MRI, and they found that ...