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Lester B. v. Berryhill

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

January 22, 2019

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

          REPORT AND RECOMMENDATION

          ROBERT S. BALLOU UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         STANDARD OF REVIEW

         This 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.[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 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

         Lester 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.

         On June 5, 2017, the ALJ entered his decision analyzing Lester's claim under the familiar five-step process, [3] 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.

         The ALJ 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 followed.

         ANALYSIS

         Lester 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 evidence.

         Medical Evidence

         Lester received treatment at Piedmont Community Services beginning in December 2012 for complaints of depression and anxiety, [4] and 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.

         Lester 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.

         On 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.

         Dr. 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 ...


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