IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ...

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA

Harrisonburg Division

TERESA S., Plaintiff,

v.

NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration,

Defendant.

)

)

Civil Action No. 5:17-cv-00110

)

)

REPORT & RECOMMENDATION

)

)

By: Joel C. Hoppe

)

United States Magistrate Judge

)

)

Plaintiff Teresa S. asks this Court to review the Acting Commissioner of Social

Security's ("Commissioner") final decision denying her application for disability insurance

benefits ("DIB") under Title II of the Social Security Act (the "Act"), 42 U.S.C. ?? 401?434.

The case is before me by referral under 28 U.S.C. ? 636(b)(1)(B). Having considered the

administrative record, the parties' briefs and oral arguments, and the applicable law, I find that

the Commissioner's decision is supported by substantial evidence and should be affirmed.

I. Standard of Review

The Social Security Act authorizes this Court to review the Commissioner's final

decision that a person is not entitled to disability benefits. 42 U.S.C. ? 405(g); see also Hines v.

Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). The Court's role, however, is limited--it may not

"reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment" for

that of agency officials. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Instead, a court

reviewing the merits of the Commissioner's final decision asks only whether the Administrative

Law Judge ("ALJ") applied the correct legal standards and whether substantial evidence supports

the ALJ's factual findings. Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011); see Riley v. Apfel,

88 F. Supp. 2d 572, 576 (W.D. Va. 2000) (citing Melkonyan v. Sullivan, 501 U.S. 89, 98?100

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(1991)). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). It is "more than a mere scintilla" of evidence, id., but not necessarily "a large or considerable amount of evidence." Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence review takes into account the entire record, and not just the evidence cited by the ALJ. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 487?89 (1951); Gordon v. Schweiker, 725 F.2d 231, 236 (4th Cir. 1984). Ultimately, this Court must affirm the ALJ's factual findings if "conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled." Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) (quoting Craig v. Chater, 76 F.3d 585, 594 (4th Cir. 1996)). However, "[a] factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law." Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).

A person is "disabled" within the meaning of the Act if he or she is unable to engage in "any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. ? 423(d)(1)(A). Social Security ALJs follow a five-step process to determine whether a claimant is disabled. The ALJ asks, in sequence, whether the claimant (1) is working; (2) has a severe impairment that satisfies the Act's duration requirement; (3) has an impairment that meets or equals an impairment listed in the Act's regulations; (4) can return to his or her past relevant work based on his or her residual functional capacity; and, if not (5) whether he or she can perform other work. See Heckler v. Campbell, 461 U.S. 458, 460?62 (1983); Lewis v. Berryhill, 858 F.3d 858, 861 (4th

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Cir. 2017); 20 C.F.R. ? 404.1520(a)(4).1 The claimant bears the burden of proof through step four. Lewis, 858 F.3d at 861. At step five, the burden shifts to the agency to prove that the claimant is not disabled. See id.

II. Procedural History Teresa S. filed for DIB in November 2014. See Administrative Record ("R.") 142, 303? 07. She alleged onset of disability ("AOD") as August 11, 2011, caused by bilateral plantar fasciitis, depression, left-foot nerve damage, and tennis elbow. See R. 142, 191, 202. She was forty-three years old on her AOD, R. 191, classifying her as a "younger person" under the regulations, 20 C.F.R. ? 404.1563(c). Disability Determination Services ("DDS"), the state agency, denied her claim initially in February 2015, R. 191?200, and upon reconsideration that July, R. 202?12. On October 13, 2016, Teresa S. appeared with counsel and testified at an administrative hearing before ALJ Brian Kilbane. R. 157?80. A vocational expert ("VE") also testified at the hearing. R. 175?80. ALJ Kilbane issued an unfavorable decision on January 11, 2017. R. 142?52. He noted that Teresa S. had filed a prior DIB application in July 2012, alleging disability from the same medical conditions as of August 20, 2011. R. 142; see R. 182?89. On November 7, 2012, the state agency denied that application at the initial review, R. 181, and Teresa S. did not appeal that decision, making it final, R. 142. ALJ Kilbane construed the current application as a request to reopen the prior decision, but he found no error in the prior decision. He thus declined to reopen the prior application and stated that the remainder of his decision would address the period beginning on November 8, 2012, id., and ending on June 30, 2016, the last date on which Teresa S. met the Act's insured-status requirements, see R. 144?52.

1 Unless otherwise noted, citations to the Code of Federal Regulations refer to the version in effect on the date of the ALJ's written decision.

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Turning to her current application, at step two, the ALJ found that Teresa S.'s

"dysfunction of major joint(s) and disorders of [the] muscle, ligament and fascia" were "severe"

medical impairments, R. 145, but that her obesity, restless leg syndrome, and affective disorder

were "nonsevere" impairments because they did not have "more than a minimal" impact on her

functional capabilities during the relevant period, R. 145?46. Her severe impairments, alone or

combined, did not meet or equal the relevant Listing. R. 146 (citing 20 C.F.R. pt. 404, subpt. P,

app. 1 ? 1.02(A)?(B)). ALJ Kilbane then evaluated Teresa S.'s residual functional capacity ("RFC") and found she could perform "light work,"2 except that she could stand/and or walk for

a total of four hours in an eight-hour workday; occasionally push or pull bilateral foot controls

and climb ramps, stairs, ladders, ropes, and scaffolds; and frequently balance and reach overhead

and laterally with her left upper extremity. R. 147. She also needed to "avoid concentrated

exposure to hazards." Id. The ALJ concluded at step four that Teresa S. was unable to perform

any of her past relevant work. R. 150?51. Nevertheless, based on his RFC finding and the VE's

testimony, the ALJ concluded at step five that Teresa S. was not disabled before June 30, 2016,

because she could still perform certain widely available light occupations such as cashier, routing

clerk, and furniture retail consultant. R. 152.

Teresa S. asked the Appeals Council to review ALJ Kilbane's decision, noting that she

was "unable to work at SGA level[s], due to severe impairments." R. 300. She also submitted

approximately 120 pages of additional evidence related to her impairments and alleged

2 Light work involves lifting no more than twenty pounds at a time, but frequently lifting or carrying objects weighing ten pounds. 20 C.F.R. ? 404.1567(b); see R. 147. A person who can meet these modest lifting requirements can perform light work only if he or she can also "do a good deal of walking or standing, or do some pushing and pulling of arm or leg controls while sitting." Hays v. Sullivan, 907 F.2d 1453, 1455 n.1 (4th Cir. 1990). The full range of light work requires an ability to sit for about six hours in an eight-hour work day, see R. 147, or to stand/walk for up to six hours and to sit intermittently during the remaining two hours of an eight-hour workday, see Neal v. Astrue, Civ. No. JKS-09-2316, 2010 WL 1759582, at *2 (D. Md. Apr. 29, 2010); SSR 83-10, 1983 WL 31251, at *5?6 (Jan. 1, 1983).

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functional limitations. R. 11?13, 22?138. The Appeals Council refused to consider this evidence before denying Teresa S.'s request for review. R. 1?2. This appeal followed.

III. Discussion Teresa S. makes four arguments why ALJ Kilbane's decision should be reversed or remanded. First, she argues that the ALJ erred in failing to consider certain findings in the record from DDS physicians as well as one of her own treating physicians. Pl.'s Br. 11?16, ECF No. 14-1. Second, she argues that the ALJ erred in failing to consider the effects of her obesity on her RFC. Id. at 16?17. Third, she argues the ALJ erred in finding that her plantar fasciitis and nerve damage did not meet Listing ? 1.02(A). Id. at 17?18. Finally, she argues that the Appeals Council erred in failing to consider a letter submitted from one of her treating physicians after the ALJ's decision. Id. at 18. The Court does not find these arguments to be persuasive. A. Summary of Record Evidence 1. Teresa S.'s Medical History On November 30, 2010, Teresa S. visited the Rockingham Memorial Hospital emergency room with complaints of right lateral foot pain that had been ongoing for two months. R. 477. She had also noticed similar pain in her left foot beginning the previous day. Id. On exam, she was in no acute distress with full bilateral foot strength, but had "some slightly mild swelling" in her right foot and "very prominent bony structure" in both feet. R. 478. She also had "moderate tenderness over the fifth metatarsal," but the "lateral aspect of the plantar surface was free of any pain with palpation." Id. Imaging of her right foot showed evidence of a small osteochondral defect along the base of her fifth metatarsal with an adjacent loose bony body. R. 479, 481. This was consistent with osteochondritis dissecans. Id. The attending nurse practitioner advised her to follow up with an orthopedist. R. 478.

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