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Herschel G. v. Saul

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

August 22, 2019

HERSCHEL G.[1], Plaintiff,
ANDREW SAUL[2], Commissioner of Social Security, Defendant.


          Robert S. Ballou United States Magistrate Judge.

         Plaintiff 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.

         I 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. 13).


         This 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.[3] 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).


         Herschel 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[4] and denying his claim for benefits.[5] R. 15-27.

         The ALJ 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.[6] 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.

         The ALJ 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.


         Herschel 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.

         A. Medical History

         Herschel 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.[7] 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.

         Herschel 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.

         1. Medical Opinion Evidence

         State 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.

         In 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.

         In 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.

         B. ...

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