United States District Court, W.D. Virginia, Roanoke Division
REPORT AND RECOMMENDATION
S. Ballou United States Magistrate Judge.
Herschel G. (“Herschel”) filed this action
challenging the final decision of the Commissioner of Social
Security (“Commissioner”) finding him not
disabled and therefore ineligible for disability insurance
benefits (“DIB”) under the Social Security Act
(“Act”). 42 U.S.C. §§ 401-433. Herschel
alleges that the Administrative Law Judge (“ALJ”)
erred by: (1) improperly weighing the medical opinions; (2)
finding he can perform his past relevant work as it is
generally performed; and (3) failing to properly consider his
cervical and thoracic disc degeneration.
conclude that substantial evidence supports the
Commissioner's decision in all respects. Accordingly, I
RECOMMEND DENYING Herschel's Motion for
Summary Judgment (Dkt. No. 12) and GRANTING
the Commissioner's Motion for Summary Judgment (Dkt. No.
court limits its review to a determination of whether
substantial evidence exists to support the Commissioner's
conclusion that Herschel 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 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.
filed for DIB in August 2014, claiming that his disability
began on March 1, 2013, due to prostate cancer (stage II),
type II diabetes, degenerative disc disease, leg numbness,
limitations in sitting or standing, carpal tunnel syndrome,
anxiety, panic attacks, loss of right hand grip and strength,
chronic back pain, difficulty raising arm, and stomach
ulcers. R. 162, 165, 182. Herschel's date last insured
was December 31, 2018; thus he must show that his disability
began on or before this date and existed for twelve
continuous months to receive DIB. R. 179; 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
Herschel's applications at the initial and
reconsideration levels of administrative review. R. 57-64,
66-74. On February 16, 2017, ALJ Geraldine H. Page held a
hearing to consider Herschel's claims for DIB. R. 27-56.
Counsel represented Herschel at the hearing, which included
testimony from vocational expert (“VE”) Asheley
Wells. On June 9, 2017, the ALJ entered her decision
analyzing Herschel's claims under the familiar five-step
process and denying his claim for
benefits. R. 15-27.
found that Herschel was insured at the time of the alleged
disability onset and that he suffered from the severe
impairments of obesity, prostate cancer status post
prostatectomy, right upper extremity neuropathy, diabetes
mellitus II, chronic obstructive pulmonary disease, and right
shoulder arthralgia. R. 14. The ALJ determined that these
impairments, either individually or in combination did not
meet or medically equal a listed impairment. R. 16. The ALJ
specifically considered listings 1.02 (major dysfunction of a
joint), 1.04 (disorders of the spine), 3.02 (chronic
respiratory disorders), 9A(B)(5)(a)(ii) (chronic
hyperglycemia), 11.14 (peripheral neuropathy), and 13.24
(prostate gland - carcinoma), as well as obesity. R. 16-17.
concluded that Herschel retained the residual functional
capacity (“RFC”) to perform a limited range of
light work. R. 17-18. Specifically, Herschel can frequently
handle, feel, finger, and reach overhead with the right upper
extremity, can occasionally climb ramps and stairs, balance,
kneel, crouch, and stoop, can never crawl, climb ladders,
ropes, or scaffolds, should avoid concentrated exposure to
extreme temperatures, excess humidity, and pulmonary
irritants, and should avoid all exposure to hazardous
machinery, unprotected heights, and vibrating surfaces. R.
18. The ALJ determined that Herschel was capable of
performing his past relevant work as a biomedical equipment
technician as it is generally performed. R. 22. Thus, the ALJ
determined that Herschel was not disabled. R. 22. Herschel
appealed the ALJ's decision and the Appeals Council
denied his request for review on April 14, 2018. R. 1-3.
alleges that the ALJ erred by: (1) improperly weighing the
medical opinions of his treating physician and therapist; (2)
finding he could perform his past relevant work as a
biomedical equipment technician as it is generally performed;
and (3) finding his cervical and thoracic disc degeneration
not a severe impairment.
was diagnosed with prostate cancer in June 2014, and
underwent prostate surgery in October 2014. R. 280, 348-49.
At follow-up appointments through 2016, he initially
indicated he was experiencing “some incontinence”
(R. 392-94), but later reported no incontinence (R. 404,
408), and “occasional stress incontinence.” (R.
412). Herschel complained of pain and numbness in his right
upper extremity, and nerve studies in July 2014 showed
moderately severe right carpal tunnel syndrome. R. 284-85,
291. Herschel also complained of back and neck pain,
beginning in August 2016, and an MRI showed degenerative disc
disease, degenerative joint disease, and
spondylosis. R. 407, 419-20. On examination, in
December 2016 he continued to complain of back pain, and
indicated that taking Tylenol and meloxicam provided
“moderate [pain] relief.” R. 411-12. At the
hearing before the ALJ, Herschel stated he was not receiving
any treatment for his back pain, other than over the counter
medications. R. 32.
had complained of depression to his providers, but did not
agree to counseling until January 2017, at which point he
began seeing therapist Linda Ely, DNP. R. 392, 412, 417.
After a few appointments, in February 2017, Ms. Ely indicated
Herschel had normal mood, affect, and mental status, was
responding to treatment as expected, and assessed a Global
Assessment of Functioning (“GAF”) of 70. R. 427.
Medical Opinion Evidence
agency physicians Wyatt S. Beazley, III, and Tony Constant,
M.D., reviewed the record and both concluded that the
evidence available in the record did not show disability. R.
63, 74. They noted that the evidence was insufficient,
stating, that Herschel was responsible for providing evidence
to support his claim, and that “although [Herschel was
asked] to furnish additional evidence, [he has] not done
so.” Id. Likewise, state agency psychologists
Julie Jennings, Ph.D. and Howard Leizer, Ph.D., denied the
claim for insufficient evidence, noting Herschel did not
respond to requests for additional evidence. R. 62-72.
However, the ALJ gave all these opinions limited weight on
the grounds that subsequent medical evidence provided
sufficient documentation to find both nonsevere and severe
impairments. R. 16, 21.
January 2017, Herschel's primary care doctor, David D.
Bradley, M.D., completed a Medical Source Statement
(Physical), indicating that Herschel can only infrequently
sit, stand, walk, and stoop, would likely miss five days of
work a month due to his impairments, would be off task 50% of
the workday due to pain, and would need to lie down 30
minutes a day due to back pain, among other limitations. R.
415-16. The ALJ gave this opinion partial weight, finding
that it overstated Herschel's limitations. R. 21.
February 2017, Linda Ely, DNP, Herschel's therapist,
wrote a letter titled “Disability Determination.”
R. 417. Ms. Ely noted that she had seen Herschel for four
therapy sessions for anxiety and depression, and indicated
that Herschel is “not able to work” due to his
incontinence. R. 417. The ALJ gave this opinion little
weight. R. 21.