United States District Court, W.D. Virginia, Roanoke Division
REPORT AND RECOMMENDATION
S. BALLOU UNITED STATES MAGISTRATE JUDGE
Lester B. (“Lester”) filed this action
challenging the final decision of the Commissioner of Social
Security (“Commissioner”) determining that he was
not disabled and therefore not eligible for supplemental
security income (“SSI”), and disability insurance
benefits (“DIB”) under the Social Security Act
(“Act”). 42 U.S.C. §§ 401-433,
1381-1383f. Specifically, Lester alleges that the ALJ failed
to properly assess his impairments on a function-by-function
basis and failed to properly assess his subjective
statements. I find that the ALJ's decision is supported
by substantial evidence. Accordingly, I RECOMMEND
DENYING Lester's Motion for Summary Judgment
(Dkt. No. 16), GRANTING the
Commissioner's Motion for Summary Judgment (Dkt. No. 18),
and DISMISSING this matter from the docket.
court limits its review to a determination of whether
substantial evidence supports the Commissioner's
conclusion that Lester failed to demonstrate that he was
disabled under the Act. 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 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).
filed for SSI and DIB on February 19, 2014, alleging
disability beginning on September 18, 2012. Administrative
Record, hereinafter “R.” 135-88. The Commissioner
denied the application at the initial and reconsideration
levels of administrative review. R. 135-90. On May 5, 2017,
ALJ Daniel Balutis held a hearing to consider Lester's
disability claim. R. 38-89. Lester was represented by an
attorney at the hearing, which included testimony from Lester
and vocational expert Nadine Henzes. Id.
5, 2017, the ALJ entered his decision analyzing Lester's
claim under the familiar five-step process,  and denying
Lester's claim for benefits. R. 24-33. The ALJ found that
Lester suffered from the severe impairments of mild scoliosis
and multilevel stress related changes in the lumbar spine;
mild to moderate cervical and thoracic spondylosis; moderate
osteoarthrosis of the acromioclavicular joint(s); mild
osteoarthrosis of the visualized glenohumeral joint(s); and
chronic obstructive pulmonary disease. R. 27. The ALJ found
that these impairments did not meet or medically equal a
listed impairment. R. 29-30. The ALJ further found that
Lester had the residual functional capacity
(“RFC”) to perform medium work, except that he
can never climb ladders, ropes, or scaffolds; can frequently
climb ramps and stairs; can frequently kneel, crouch and
crawl; can have frequent exposure to unprotected heights and
moving mechanical parts; and can have frequent exposure to
dust, odors, fumes and vibrations. R. 30.
determined that Lester is capable of performing past relevant
work as a perioperative assistant and personal care
attendant, and thus is not disabled. R. 33. Lester requested
that the Appeals Council review the ALJ's decision and
submitted additional records in support of his claim. R.
10-20. On October 5, 2017, the Appeals Council denied
Lester's request for review (R. 1-4), and this appeal
claims that the ALJ erred by failing to conduct a
function-by-function analysis, failing to properly evaluate
his allegations regarding pain, “cherry-picking”
the evidence, and failing to “build an accurate and
logical bridge from the evidence to his conclusion.”
Pl. Br. Summ. J. p. 9-11. In support of his allegations,
Lester simply recites social security case law and restates
his subjective allegations with regard to his limitations.
Lester does not identify any treatment records or other
medical evidence in support of his claim that the ALJ failed
to consider, or that the ALJ improperly weighed. Lester does
not identify any subjective complaints that the ALJ failed to
consider. Lester does not identify specific instances in this
case where the ALJ improperly applied the legal standards.
Rather, Lester's appeal simply asks this court to
re-evaluate his subjective allegations and come to a
different conclusion from that of the ALJ. That is not the
standard of a social security appeal. The issue before me is
whether the ALJ applied correct legal standards and his
factual findings are supported by substantial evidence.
Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d
337, 340 (4th Cir. 2012). Having reviewed the record, I find
that the ALJ's decision is supported by abundant
received treatment at Piedmont Community Services beginning
in December 2012 for complaints of depression and anxiety,
continued to seek treatment with Piedmont through 2017.
Lester's visits to Piedmont focused on his mental health
issues. He routinely reported that he had no physical
limitations and his objective examinations noted normal
muscle strength, no atrophy, normal gait and ambulation.
See R. 341-79, 389-99, 400-75.
sought treatment from the Free Clinic of Franklin County in
January through October 2013, and reported arthritis pain in
his knees, elbows and hands, but received no treatment for
pain or arthritis. R. 321-40.
August 12, 2014, Lester underwent a consultative physical
examination by William Humphries, M.D. R. 381-84. Lester
complained of aching in his knees that is worse with standing
and walking. Lester reported no surgery or injections in
either knee, and that he could not walk more than an eighth
of a mile on level ground without stopping. R. 381. Lester
also complained of pain in multiple joints, including his
shoulders, elbow, wrist and hand. Id. Lester noted
intermittent low-back pain, worse with use, and occasional
ankle pain. Id. Upon exam, Lester's neck and
back were tender with palpation, and his straight leg raising
was negative to 90 degrees. R. 382. He had moderate
enlargement and diffuse tenderness in most of his upper
extremity joints, and no tenderness or deformity in his lower
extremity joints. Id. He was able to move on and off
the exam table without difficulty; his Tinel's sign was
negative; he had mild atrophy of both thenar regions of his
hands; no tremor or involuntary movements; adequate fine
manipulation; and mild antalgic gait on the right.
Lester's strength was within normal limits in his four
extremities and he had no muscle wasting. He had mild
parasthesias to light touch of both feet. R. 383.
Humphries diagnosed diastolic hypertension; polyarthralgias,
including shoulders, left elbow, knees and ankles with
possible degenerative joint disease; degenerative joint
disease mild to moderate in both hands; chronic lumbar
strain; and mild chronic obstructive pulmonary disease.
Id. Dr. Humphries concluded that Lester would be
limited to sitting 6 hours in an 8 hour day; standing and
walking 6 hours in an 8 hour day; lifting 50 pounds
occasionally and 20 ...