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Wendell D. v. Berryhill

United States District Court, W.D. Virginia, Roanoke Division

January 9, 2019

WENDELL D.[1], Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          Robert S. Ballou, United States Magistrate Judge.

         Plaintiff Wendell D. (“Wendell”) filed this action challenging the final decision of the Commissioner of Social Security (“Commissioner”) finding him not disabled and therefore ineligible for supplemental security income (“SSI”) and disability insurance benefits (“DIB”) under the Social Security Act (“Act”). 42 U.S.C. §§ 401-433, 1381-1383f. Wendell alleges that the Administrative Law Judge (“ALJ”) erred by failing to properly: (1) weigh the opinion of his treating physician; and (2) assess the consistency of Wendell's complaints about his symptoms with the evidence.

         I conclude that substantial evidence supports the Commissioner's decision in all respects. Accordingly, I RECOMMEND DENYING Wendell's Motion for Summary Judgment (Dkt. No. 13) and GRANTING the Commissioner's Motion for Summary Judgment (Dkt. No. 15).

         STANDARD OF REVIEW

         This court limits its review to a determination of whether substantial evidence exists to support the Commissioner's conclusion that Wendell failed to demonstrate that he was disabled under the Act.[2] Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (internal citations and alterations omitted). The final decision of the Commissioner will be affirmed where substantial evidence supports the decision. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).

         CLAIM HISTORY

         Wendell filed for SSI and DIB in May 2013, claiming that his disability began on April 1, 2011, due to cardiomyopathy, chest pain, fatigue, shortness of breath, lightheadedness, tachycardia, anxiety, and depression. R. 183-85, 249. Wendell's date last insured was December 31, 2016; thus he must show that his disability began on or before this date and existed for twelve continuous months to receive DIB.[3] R. 55; 42 U.S.C. §§ 423(a)(1)(A), (c)(1)(B), (d)(1)(A); 20 C.F.R. §§ 404.101(a), 404.131(a). The state agency denied Wendell's applications at the initial and reconsideration levels of administrative review. R. 55-65, 66-76, 79-90, 91- 102. On June 29, 2016, ALJ Thomas W. Erwin held a hearing to consider Wendell's claims for SSI and DIB. R. 33-54. Counsel represented Wendell at the hearing, which included testimony from vocational expert Asheley Wells. On August 2, 2016, the ALJ entered his decision analyzing Wendell's claims under the familiar five-step process[4] and denying his claim for benefits.[5] R. 15-27.

         The ALJ found that Wendell was insured at the time of the alleged disability onset and that he suffered from the severe impairments of cardiomyopathy, congestive heart failure, mitral regurgitation, osteoarthritis of the shoulder, and gastroesphageal reflux disease (“GERD”).[6]R. 18. The ALJ determined that these impairments, either individually or in combination did not meet or medically equal a listed impairment. R. 18. The ALJ specifically considered listing 1.02 (major dysfunction of a joint), 4.02 (chronic heart failure), and 5.01 (digestive system). Id.

         The ALJ concluded that Wendell retained the residual functional capacity (“RFC”) to perform light lifting, but sedentary standing and walking. R. 19. Further, he can only occasionally climb, balance, kneel, stoop, crouch, crawl, reach overhead with the right arm, and tolerate exposure to extreme heat. Id. The ALJ determined that Wendell was unable to perform his past relevant work as a window assembler, forklift operator, restaurant owner, fishing guide, and furniture sales clerk, but that he could perform jobs that exist in significant numbers in the national economy, such as addressing clerk, assembler, and weight tester. R. 26-27. Thus, the ALJ determined that Wendell was not disabled. R. 27. Wendell appealed the ALJ's decision and the Appeals Council denied his request for review on June 2, 2017. R. 1-3.

         ANALYSIS

         Wendell alleges that the ALJ failed to properly: (1) weigh the opinion of his treating physician Andrew Maiolo, M.D. and (2) assess the consistency of Wendell's complaints about his symptoms with the evidence of record.

         A. Medical History

         Wendell was assessed with cardiomyopathy, a disease of the heart muscle, shortly prior to his alleged onset date in April 2011, and has had regular office visits with his treating cardiologists and been prescribed medication for his condition.[7] R. 313-14. In June 2011, Wendell reported he was “generally getting along fairly well” and his treating cardiologist Krish Ramachandran, M.D noted Wendell's “history of dyspnea [shortness of breath] on moderate exertion consistent with New [York Heart Association (“NYHA”)[8] class II heart failure, ” and advised him against engaging in any sudden bursts of activity. R. 312. An echocardiogram in December 2011 showed Wendell's overall systolic function was mildly reduced with an estimated left ventricular ejection fraction of 45-50%. R. 707. A second echochardiogram in November 2013 showed that his overall left ventricular ejection fraction was 50-55%. R. 588. Wendell continued with regular follow-up visits to a cardiologist through 2016, and in November 2013, May and November 2014, and May 2015, his NYHA class II congestive heart failure was unchanged. R. 582, 624, 631, 648. Echocardiograms in February 2014 and August 2015, showed left ventricular ejection fractions of 46% and between 35-45%, respectively. R. 587, 669. In September 2015, Matthew Bowles, PA-C, assessed Wendell as having a history of “significant fatigue and shortness o[f] breath with exertion with class III/IV heart failure by NYHA.” R. 697. However, Wendell denied any “recent angina symptoms.” Id.

         1. Medical Opinion Evidence

         State agency physicians Richard Surrusco, M.D., and Bert Sptezler, M.D., in December 2013 and June 2014, respectively, reviewed the record and both found that Wendell could occasionally lift and carry up to 20 pounds, frequently lift and carry up to 10 pounds, stand and walk two hours and sit six hours in an eight hour workday, with some postural limitations.[9] R. 61-62, 86-87.

         In August 2014 and 2015, Dr. Ramachandran completed Cardiac Residual Functional Capacity Questionnaires. R. 614-20, 657-63. In both assessments, Dr. Ramachandran found Wendell had cardiomyopathy NYHA class II, and was capable of standing and walking for six hours in a workday, with certain postural and environmental limitations. Id. On November 11, 2015, Dr. Maiolo likewise completed a Cardiac Residual Functional Capacity Questionnaire and found Wendell had cardiomyopathy NYHA class II/III, and was capable of standing and walking for six hours in a workday with certain postural and environmental limitations. R. 671-77. Dr. Maiolo also found that Wendell would need to rest during the workday by lying down one hour per day, and would likely miss work about twice a month. R. 675, 677.

         In February 2016, John A. Pella, M.D. responded to medical interrogatories as an impartial medical expert, where he diagnosed Wendell, among other things, with idiopathic cardiomyopathy with variable dyspnea and fatigue, but found he did not meet a listing. R. 679- 681. Dr. Pella completed a medical source statement of ability to do work-related activities (physical) where he indicated that Wendell could sit for eight hours, stand for ...


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