Shelor v. Colvin

Filing 15

OPINION AND ORDER: denying 9 Motion for Summary Judgment; granting 11 Motion for Summary Judgment. The Court ORDERS that Ms. Shelors Motion for Summary Judgment (ECF No. 9) is DENIED, Defendants Motion for Summary Judgment (ECF No. 11) is GRANTED, and the final decision of the Commissioner is AFFIRMED. Signed by Magistrate Judge Tommy E. Miller and filed on 9/24/2014. (bgra)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

CONNIE L. SHELOR,
Plaintiff,
v.

ACTION NO. 2:13cv297

CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.

OPINION AND ORDER
Plaintiff Connie L. Shelor brought this action under 42 U.S.C. §§ 405(g), seeking judicial
review of the final decision of the Commissioner of Social Security (“Commissioner”) denying
her application for disability insurance benefits pursuant to section 205(g) of the Social Security
Act. This action was referred to the undersigned United States Magistrate Judge pursuant to the
provisions of 28 U.S.C. § 636(c)(1) and Rule 73 of the Federal Rules of Civil Procedure
following consent of the parties. ECF Nos. 13 and 14. For the reasons set forth below, Plaintiff’s
Motion for Summary Judgment (ECF No. 9) is DENIED, Defendant’s Motion for Summary
Judgment (ECF No. 11) is GRANTED, and the decision of the Commissioner is AFFIRMED.
I. PROCEDURAL BACKGROUND
Ms. Shelor protectively applied for DIB on April 8, 2010, alleging disability since
December 30, 2006, caused by anxiety, depression, panic attacks, fibromyalgia, arthritis, asthma,
migraine headaches, vertigo, bulging disc in her neck, obsessive compulsive disorder, attention

deficit disorder, memory problems, and nerve damage in her left leg and foot. R. 130-36, 168. 1
Ms. Shelor’s applications were denied initially and on reconsideration. R. 91-107. Ms. Shelor
requested a hearing by an Administrative Law Judge (ALJ), which occurred on December 2,
2011. R. 58-87. Ms. Shelor was represented by counsel, and testified before the ALJ along with
a vocational expert. R. 58.
On January 10, 2012, the ALJ found that Ms. Shelor was not disabled within the meaning
of the Social Security Act from December 30, 2006, the alleged onset date, through the date last
insured, December 31, 2011. R. 31. The Appeals Council denied Ms. Shelor’s request for
administrative review of the ALJ’s decision. R. 2-7. Therefore, the ALJ’s decision stands as the
final decision of the Commissioner for purposes of judicial review. See 42 U.S.C. § 405(g); 20
C.F.R. § 404.981 (2012).
Ms. Shelor timely filed this action for judicial review pursuant to 42 U.S.C. § 405(g). On
November 5, 2013, Ms. Shelor moved for summary judgment asserting the ALJ improperly
assessed Ms. Shelor’s shoulder impairment and improperly considered the opinions of the state
agency non-examining physicians. ECF No. 9. Defendant filed a cross-motion for summary
judgment on December 6, 2013, contending the ALJ appropriately considered the evidence and
the resulting opinion is supported by substantial evidence in the record. ECF No. 11. As neither
counsel in this case has indicated special circumstances requiring oral argument, the case is
deemed submitted for a decision based on the memoranda.
II. FACTUAL BACKGROUND
Born in 1961, Ms. Shelor was forty-five years old on her alleged onset date of December
30, 2006. R. 130. Ms. Shelor received a GED, and has past relevant work experience as a deli
1

The citations in this Report and Recommendation are to the Administrative Record.

2

and bakery clerk; cook, manager, and cashier of a billiards parlor; and, ticket collector at a
parking garage. R. 62.
A.

Medical Background

Prior to Ms. Shelor’s alleged onset date, from March 2006 through October 2006, she
was treated at Churchland Psychiatric Associates for anxiety and depression. R. 277-290. At her
appointment on October 12, 2006, Ms. Shelor reported her anxiety and mood symptoms were
well controlled, her emotions were better controlled, her neck pain had lessened, and her
headaches were less frequent. R. 277. Her therapist noted her symptoms were resolving and she
was tolerating medications well. R. 277. Ms. Shelor was encouraged to continue medications
and re-engage in therapy. R. 277.
Ms. Shelor was treated at the Spine Center of Hampton Roads in April 2006 for pain in
her lower back, right buttock, shoulders and between her shoulder blades.

R. 294.

On

examination, Ms. Shelor had a good range of motion in her upper and lower extremities, with
normal affect, normal gait, and no pain behaviors. R. 295.
X-rays of Ms. Shelor’s thoracic spine on April 3, 2006, revealed osteophytes, but
preserved disc spaces, intact pedicles, and no paraspinal stripe widening. R. 272. The results
were summarized as a degenerative change with no acute bony abnormality. R. 272. On April
6, 2006, x-rays of Ms. Shelor’s cervical spine revealed a narrowing of the disc space at C6-7,
anterior and posterior osteophytes with some encroachment upon the neural foramina bilaterally,
and no evidence of fracture, dislocation, or soft tissue swelling. R. 274. The same day, x-rays of
Ms. Shelor’s lumbar spine revealed appropriately positioned metal cages at the L4-5 and L5-S1
disc spaces, considerable facet arthritis involving the lower lumbar spine and possible spinal
3

stenosis at L5-S1. R. 273.
A cervical MRI, performed on April 19, 2006, revealed prominent right central disc/spur
at C3-4 with potential neural impingement and right foraminal stenosis, and disc and osteophyte
complex at C6-7, causing right greater than left foraminal stenosis. R. 270-71. A lumbar MRI
performed the same day revealed normal alignment, and a mild spinal stenosis at L3-4. R. 26667.
After reviewing the MRIs, on April 26, 2006, Anuradha K. Datyner, M.D., Ph.D., with
the Spine Center of Hampton Roads, assessed degenerative changes at multiple levels in Ms.
Shelor’s spine, depression, anxiety, and chronic pain. R. 293. Dr. Datyner found Ms. Shelor’s
depression and anxiety were affecting her pain, and noted Ms. Shelor was seeing a psychologist
and psychiatrist for her depression. R. 293. Dr. Datyner outlined treatment options as physical
therapy, medications, and spinal injections, and did not recommend surgical intervention. R.
293.
During an examination with Dr. Datyner on October 24, 2006, Ms. Shelor indicated she
was feeling better and wished to return to work as a Kroger deli-bakery manager. R. 292. A
physical examination showed Ms. Shelor was neurologically intact.

R. 292.

Dr. Datyner

prescribed Celebrex for back pain, and indicated she would see Ms. Shelor back as needed. R.
292.
Ms. Shelor’s alleged onset date is December 30, 2006; however, the next treatment notes
in the record are from January 2009. In January and April 2009, Ms. Shelor was seen at
Portsmouth Orthopaedic Associates for right shoulder pain dating back to an injury in 2007,
when a box fell on her arm while she was working at Kroger. R. 302, 326. Ms. Shelor exhibited
4

joint tenderness and pain on abduction and flexion greater than 90 degrees. R. 302. She was
diagnosed with right shoulder bursitis and acromioclavicular joint arthritis. R. 302, 326. An
MRI revealed no evidence of any kind of tear, and although she had some AC joint arthritis, the
AC joint was not particularly tender. R. 302. She was given a steroid injection in her right
shoulder, which did not alleviate her pain. R. 302, 326.
From March through October 2009, Ms. Shelor was treated by Margaret Stiles, M.D., at
Churchland Family Practice, for right shoulder pain, migraines, asthma, Vitamin D deficiency,
fibromyalgia, and anxiety. R. 304-313. Ms. Shelor reported that her asthma symptoms were
“ok” when she was on Advair. R. 312. Having previously tried Zoloft, Prozac, and Celexa, Ms.
Shelor was prescribed Xanax. R. 308-309. She was also given some sample medications to treat
her migraines. R. 309. In September 2009, she reported that her fibromyalgia was better on her
current medications, and her anxiety had improved on Wellbutrin. R. 305. In October 2009, Ms.
Shelor was seen for a cough, which she believed may be bronchitis. R. 304. She was tearful and
tremulous, discussing her husband recently losing his job. R. 304. She was prescribed Medrol, a
Z-pack, and Robitussin. R. 304.
Ms. Shelor’s daughter, Raelena Pavey, completed a function report on May 3, 2010,
discussing Ms. Shelor’s daily activities and abilities. R. 187-94. Ms. Pavey indicated Ms.
Shelor’s daily activities included dressing and grooming herself, making her meals, taking care
of pets, watching television, reading mail, washing dishes, resting, and talking on the phone. R.
187. She stated Ms. Shelor occasionally ran errands and read. R. 187. She indicated Ms. Shelor
had difficulty sleeping, and needed help with shoes, socks, necklace clasps, styling hair, shaving
legs, and getting up from the toilet. R. 188. Ms. Shelor could drive, shop for groceries, pay
5

bills, count change, sweep the floor, load the dishwasher, make the bed, clean sinks and
countertops, and plant plants in the Spring. R. 189-90. Ms. Pavey indicated Ms. Shelor’s pain,
vertigo, migraines, and arthritis made almost all physical tasks difficult. R. 192. Ms. Shelor had
difficulty comprehending and following instructions, did not get along well with authority
figures, had anxiety attacks and claustrophobia. R. 193. Ms. Shelor’s sister, Nancy McNeely
completed a function report on December 21, 2010, making essentially the same observations
about Ms. Shelor’s daily activities and abilities. R. 218-28.
On June 26, 2010, Hani Souri, M.D., conducted a consultative examination of Ms.
Shelor. R. 336-40. The examination revealed clear lungs, a symmetric, steady gait, good handeye coordination, and five out of five muscle strength in all areas tested. R. 338-39. Ms. Shelor
was alert, had good eye contact, fluent speech, appropriate mood, clear thought processes,
normal memory, good concentration, and she was oriented to time, place, person and situation.
R. 339.

Ms. Shelor’s sensory examination was normal, straight leg testing was negative,

reflexes were symmetric, and range of motion was normal in all areas except her shoulder. R.
340. She stated she could not perform the full range of motion in her shoulder due to arthritis.
R. 340. Ms. Shelor had no joint swelling, erythema, effusion, tenderness or deformity. R. 340.
She could lift, carry and handle light objects, was able to rise from a sitting position without
assistance, and had no difficulty getting on or off the exam table. R. 340. She could dress and
undress, tandem walk, and hop on either foot bilaterally, but was unable to squat due to pain. R.
340. Dr. Souri noted Ms. Shelor did not give good effort during the examination. R. 340. Dr.
Souri concluded Ms. Shelor could sit for two hours, stand for two hours, and walk for two hours
at a time in an eight-hour workday before requiring a break; she could carry twenty pounds
6

frequently and thirty pounds occasionally; and, had no manipulative limitations on reaching,
handling, feeling, grasping, or fingering. R. 340. Dr. Souri found Ms. Shelor could only
occasionally bend, stoop, or crouch. R. 340.
On July 3, 2010, Jeffrey S. Goodman, Ph.D., performed a consultative psychological
examination of Ms. Shelor. R. 342-49. She arrived on time, having driven herself, was neat,
clean and intelligible, but tense and anxious during the examination. R. 346. Dr. Souri noted
that Ms. Shelor “display[ed] fairly significant symptoms of both anxiety and depression.” R.
346. Dr. Goodman assigned Ms. Shelor a GAF of 49, and concluded that until she was able to
address her issues in “more encompassing psychological treatment,” she “will probably not be
successful in returning to competitive employment.” R. 348. Lastly, Dr. Goodman stated Ms.
Shelor’s psychiatric problems would negatively impact any work effort as she was inconsistent
in completing even simple tasks due to distraction, would have difficulty attending work
regularly due to anxiety, depression and her physical complaints, would have difficulty accepting
instruction, and her ability to interact with others and deal with stress in a competitive work
setting were compromised. R. 349.
On July 16, 2010, state agency physician Karen Sarpolis, M.D., reviewed Ms. Shelor’s
record and filled out portions of a physical RFC assessment. R. 351-57. Dr. Sarpolis left the
majority of the seven-page form blank, but did find that Ms. Shelor suffered from shoulder
arthritis and should never climb ladder, ropes or scaffolds. R. 352, 354. Dr. Sarpolis also found
Ms. Shelor’s statements regarding her limitations were “partially credible.” R. 356.
In June, July and October 2010, Ms. Shelor was treated at Churchland Family Practice
for asthma, depression, anxiety, vitamin D deficiency, and fibromyalgia.
7

R. 382-84.

She

reported having been off of many of her medications due to no insurance, but had started back on
Wellbutrin and Neurontin. R. 386-82.
On December 21, 2010, a non-examining state agency physician, reviewed Ms. Shelor’s
medical record and completed a Disability Determination Explanation indicating Ms. Shelor was
capable of occasionally lifting twenty pounds, frequently lifting ten pounds, standing or walking
for two hours, and sitting for six hours in an eight-hour workday. R. 98. The assessment further
limited Ms. Shelor’s reaching overhead on the right side, and restricted any climbing because her
shoulder could not bear weight. R. 99. The physician determined Ms. Shelor was not disabled.
R. 100.
On February 4, 2011, Ms. Shelor was treated by Margaret Stiles, M.D., at Churchland
Family Medicine. R. 412-14. Ms. Shelor reported anxiety, depression, asthma, foot pain,
headaches, shoulder pain, and fatigue. R. 412. Examination revealed pain in the right groin,
pelvic region, and thigh consistent with hip arthritis. R. 414. Ms. Shelor was instructed to
continue medications, consider counseling, and consider a joint injection for her hip pain. R.
414.
Dr. Stile’s examination of Ms. Shelor on February 16, 2011, revealed good judgment,
normal mood and affect, limited ambulation, limited range of motion, neck pain, back pain, and
pain consistent with hip arthritis.

R. 411.

Again, Ms. Shelor was advised to continue

medications, proceed with counseling, and to consider a joint injection for her hip pain. R. 411.
The same day, Dr. Stiles filled out a Medical Source Statement regarding Ms. Shelor’s
physical limitations. R. 400-403. Dr. Stiles indicated Ms. Shelor could occasionally lift up to
ten pounds and could rarely lift up to twenty pounds, could walk one-half of a city block or sit
8

for fifteen minutes before needing to rest, could stand or walk for a total of two hours and sit for
a total of two hours in an eight-hour work day, and would need to take multiple breaks. R. 400401.

Due to medication, Dr. Stiles indicated Ms. Shelor could reasonably be expected to

experience sleepiness or fatigue, dizziness, confusion, and concentration difficulties. R. 401.
Ms. Shelor should only rarely look down, turn her head to the left, twist, stoop, push or pull. R.
402-403. She should never turn her head to the right, crouch, squat, crawl, kneel, or climb stairs,
ladders or scaffolds. R. 402-403. Due to her claustrophobia, fear of heights, and asthma, Ms.
Shelor should avoid fumes, odors, gases, chemicals, dust, humidity, temperature extremes, or
hazards such as machinery or heights. R. 403. Dr. Stiles indicated she had been treating Ms.
Shelor since March 2009, and that Ms. Shelor had experienced these limitations for over five
years. R. 403.
On February 16, 2011, Dr. Stiles also completed a form Medical Assessment of Ability to
do Work-Related Activities in light of Ms. Shelor’s mental limitations. R. 405-407. Dr. Stiles
indicated that due to anxiety and panic attacks, Ms. Shelor had poor or no ability to relate to coworkers, deal with the public, use judgment with the public, interact with supervisors, deal with
work stresses, maintain attention and concentration, understand, remember and carry out
complex or detailed job instructions, behave in an emotionally stable manner, or demonstrate
reliability. R. 405-406. Although, Dr. Stiles did find Ms. Shelor could manage benefits in her
own best interests. R. 407.
Ms. Shelor was seen by Dr. Stiles in March 2011 for asthma and medical clearance for
shoulder surgery.

R. 508-511.

Dr. Stiles continued Ms. Shelor on her current asthma

medications and added a short course of steroids. R. 501. Due to an upper respiratory infection,
9

she recommended putting the shoulder surgery on hold for a week. R. 510.
Ms. Shelor was referred to physical therapy following surgery on her right shoulder, and
completed an initial evaluation on April 29, 2011. R. 444. Ms. Shelor participated in eight
sessions of physical therapy in May 2011, where she progressed and obtained an excellent range
of motion. R. 428-38, 443.
Ms. Shelor began counseling sessions with Churchland Psychiatric Associates, P.C., in
April 2011. R. 462. Notes from her initial assessment indicate Ms. Shelor was having problems
with her marriage, and had recently undergone arthroscopic shoulder surgery. R. 462. During
her first session, her therapist checked boxes to indicate Ms. Shelor exhibited the following
symptoms: anger, anxiousness, chronic pain, depressed mood, isolation, panic attacks, migraines,
and weight gain. R. 461. Ms. Shelor stated she was depressed because of her weight. R. 461.
She tried exercise, but it caused too much pain. R. 461. She indicated she did not want to leave
the house, and that her husband of twenty-one years caused daily stress and anger, but she could
not leave due to finances. R. 461.
Counseling notes from May 2011 indicate Ms. Shelor underwent surgery for kidney
stones, which caused stress due to a lack of insurance. R. 459-60. She found it hard to hold her
temper, had an altercation with her brother, and felt her entire family was against her. R. 460.
She was experiencing nightmares, and not resting well as a result. R. 458-59. She discussed a
sexual assault that occurred when she was sixteen. R. 458. She indicated she felt better, but still
did not want to get out of bed often. R. 458.
On June 9, 2011, Ms. Shelor also indicated she was feeling better. R. 457. Progress
notes from June 9 and July 19, 2011, indicate Ms. Shelor was alert and cooperative, had
10

appropriate eye contact and a neat appearance, her speech was spontaneous, her thought
processes logical, her mood was euthymic and her affect congruent, her memory and
concentration were adequate, and her insight and judgment were fair. R. 454, 457. She had no
hallucinations, delusions, suicidal ideations or homicidal ideations. R. 454, 457.
On June 15, 2011, Ms. Shelor attended physical therapy to be instructed on how to use a
home cervical traction device prescribed by her physician. R. 427. Ms. Shelor did not wish to
attend physical therapy, but was instructed on a home exercise program. R. 427. Ms. Shelor
indicated in the intake questionnaire that she suffered from pain and numbness in her neck, head,
shoulders, arms and hands. R. 420. Her discharge summary on June 24, 2011, indicated Ms.
Shelor had excellent passive range of motion in her right shoulder, and was waiting for her
doctor to prescribe treatment for her neck. R. 426.
On June 21, 2011, Ms. Shelor’s counseling notes state the pain in her back and neck were
worse, and she was suffering from fibromyalgia and migraines. R. 456. The pain was not as bad
in July 2011, but Ms. Shelor indicated she was having difficulty remembering to turn off the
stove and to pay bills. R. 455. In August 2011, her back and neck pain caused her to sit on the
edge of her chair. R. 453. Ms. Shelor stated vertigo, asthma, back pain, and neck pain prevented
most activity. R. 453. She was anxious about driving through the tunnel or driving on bridges.
R. 453.
A chest x-ray in August 2011 showed no acute cardiopulmonary process and clear lung
fields. R. 472. Pulmonary function tests performed in September 2011 were normal with normal
flows, volumes, and diffusion capacity. R. 472. Amit D. Patel, M.D., a pulmonary specialist,
referred Ms. Shelor for a sleep study, increased the dosage of her inhaler, encouraged her to
11

increase her activity and consider measures to reduce her weight. R. 472.
Ms. Shelor had monthly appointments with Churchland Psychiatric Associates from
August 2011 through November 2011. R. 482-86. Therapy notes indicate Ms. Shelor was
anxious, in pain, depressed, experiencing concentration and memory problems, and having
nightmares. R. 486. Ms. Shelor indicated she was stressed due to her husband, her family, gall
bladder surgery, and pain in her neck and arm. R. 482-86. Her September 2011 progress note
continues to indicate Ms. Shelor was alert and cooperative, had appropriate eye contact and a
neat appearance, her speech was spontaneous, her thought processes logical, her mood was
euthymic and her affect congruent, her memory and concentration were adequate, and her insight
and judgment were fair. R. 484.
Ms. Shelor was treated by Wayne T. Johnson, M.D., in August 2011 for shoulder pain.
R. 493. Despite some discomfort, Ms. Shelor’s range of motion was normal, and her portal sites
looked “quite good,” with no inflammation. R. 493. Her internal and external rotation were
essentially pain free. R. 493. Dr. Johnson recommended Naprosyn and use of heat. R. 493.
Ms. Shelor again saw Dr. Johnson in October 2011 for shoulder, hip and buttocks pain.
R. 489. Physical examination of her shoulder showed no tenderness, swelling, or increased
warmth. R. 489. Range of motion of both hips was normal, her gait was normal, and a standing
AP pelvis radiograph showed no hip arthritis. R. 489. After discussing options, Ms. Shelor
elected a Cortisone injection for what Dr. Johnson suspected was residual inflammation from her
shoulder surgery.

R. 489.

Dr. Johnson recommended conservative care for her hip pain,

including heat. R. 489.
Ms. Shelor was also treated by Reeta M. Arora, M.D., with Virginia Orthopaedic and
12

Spine Specialists in October 2011 for neck pain and poor balance. R. 491. Ms. Shelor indicated
that while her right hand numbness had gotten better, it was coming back with intermittent
weakness. R. 491. Physical examination showed pain with extension and left lateral bending,
but negative Spurling’s sign, negative Hoffman’s sign, no difficulty with tandem gait,
symmetrical deep tendon reflexes, and upper extremity strength of four out of five. R. 491. Dr.
Arora diagnosed cervical spondylosis with a flare of right-sided radiculopathy. R. 491. Dr.
Arora changed Ms. Shelor’s pain medication and referred her for a “refresher course” of physical
therapy. R. 491.
In November 2011, Ann D. Mingione, Ph.D., completed a Medical Assessment of Mental
Ability to do Work-Related Activities. R. 513-16. Dr. Mingione found Ms. Shelor was limited
in her ability to follow work rules, use judgment with the public, function independently,
understand, remember and carry out simple job instructions, maintain personal appearance, and
relate predictably in social situations. R. 513-14. Dr. Mingione further found Ms. Shelor was
seriously limited in her ability to relate to co-workers, deal with the public, interact with
supervisors, deal with work stresses, maintain attention and concentration, understand,
remember, and carry out detailed or complex job instructions, and demonstrate reliability. R.
513-14. Dr. Mingione found Ms. Shelor’s medications caused sleepiness, fatigue, headaches,
weight changes, dizziness, confusion, agitation, concentration difficulties, and insomnia. R. 515.
Dr. Mingione concluded Ms. Shelor forgets what she is supposed to do while cooking, has
problems focusing, is isolative around the home, and “cannot work.” R. 515.
Dr. Stiles completed a Medical Source Statement regarding Ms. Shelor’s physical
limitations in November 2011. R. 518-21. Dr. Stiles indicated Ms. Shelor had been diagnosed
13

with fibromyalgia, headaches, and asthma, and had undergone two back surgeries. R. 518. Dr.
Stiles found Ms. Shelor could occasionally lift up to ten pounds, and rarely lift twenty pounds.
R. 518. Ms. Shelor could stand or walk less than two hours in an eight-hour workday and sit less
than two hours in an eight-hour workday. R. 518. Ms. Shelor’s medication side effects included
sleepiness, fatigue, dizziness, confusion, and concentration difficulties, which would interfere
with the attention and concentration needed to perform even simple work tasks. R. 519. Ms.
Shelor would need multiple unscheduled breaks. R. 519. Ms. Shelor should only occasionally
use her right hand, and only rarely use her left hand, to grasp, turn, or twist objects, for fine
manipulation, or to handle objects. R. 520. She could only rarely look down, turn her head to
the left, twist, stoop, push or pull. R. 520. She should never turn her head to the right, crouch,
squat, crawl, kneel, or climb stairs, ladders or scaffolds. R. 520-21. Due to her claustrophobia,
fear of heights, asthma and migraines, Ms. Shelor should avoid fumes, odors, gases, chemicals,
dust, humidity, temperature extremes, or hazards such as machinery or heights. R. 521. Dr.
Stiles indicated she had been treating Ms. Shelor since March 2009, and that Ms. Shelor had
experienced these limitations for over five years. R. 403.
On December 1, 2011, due to neck pain radiating into Ms. Shelor’s left arm with
numbness, an MRI was performed on her thoracic spine. R. 523-32. The MRI showed mild
enhancement of the right S1 nerve root, but no definite impingement of the nerve was
demonstrated. R. 523. In reviewing the MRI results, Dr. John K. Plemmons, M.D., concluded
“[a]s the clinical symptoms referenced in history are left-sided, finding is of uncertain clinical
significance if any.” R. 523.

14

B.

The Administrative Hearing – December 2, 2011
During the administrative hearing, counsel informed the ALJ that Ms. Shelor suffered

from cervical issues and problems involving her hands, in addition to the list of impairments
given on her application, including anxiety, depression, fibromyalgia, degenerative joint disease,
arthritis in the right shoulder, neck, mid and low back and hip, asthma, migraine headaches,
vertigo, obsessive compulsive disorder, attention deficit disorder, memory problems, and nerve
damage in the left leg and foot. R. 62-63. Ms. Shelor testified that she had to stop working as a
deli and bakery head clerk due to issues with her neck and back, severe anxiety, panic attacks,
and pain in her hips and shoulder. R. 63.
At the time of the hearing, Ms. Shelor lived with her husband and twenty-six year old
daughter. R. 63-64. She was five foot five inches tall and weighed two-hundred and sixty
pounds. R. 64.
Ms. Shelor testified that she could lift ten pounds, but had difficulty standing and walking
due to pain in her back, hips, and feet, as well as asthma. R. 69. Ms. Shelor testified that she
could walk less than a block before needing to stop and rest, and could sit less than twenty
minutes before needing a break. R. 78-79. Sitting could cause her back, hips and legs to hurt,
especially her left leg, which goes numb. R. 70. In addition, three fingers on Ms. Shelor’s left
hand were numb, and her right hand had intermittent pain making it difficult to handle small
items like jewelry and buttons. R. 79. She also needed help putting on her shoes and socks. R.
68.
Ms. Shelor testified that her medications helped. R. 65-66. She had constant back and
neck pain, which was eased to a tolerable level by taking Vicodin. R. 70. She also took
15

Naproxen when the discs in her neck were swollen and causing headaches. R. 71. However,
Ms. Shelor stated the medications made her tired, dizzy and confused. R. 71.
She took two naps per day lasting from thirty minutes to two hours, had difficulty
sleeping at night, and had been diagnosed with mild sleep apnea. R. 72-73. Ms. Shelor had a
hard time focusing, experienced panic attacks two to five times each week, and migraine
headaches one to three times per week. R. 73, 75.
She drove only short distances due to back and neck pain as well as numbness in her hip
and leg. R. 68, 76. In addition, she could become confused or have panic attacks when driving.
R. 78. She helped with the housework by sweeping the kitchen, washing dishes, putting laundry
in the washer, or dusting. R. 67. She could only cook using the microwave due to previously
causing a small fire on the stove and burning her hand. R. 77. Her daughter helped Ms. Shelor
shop, by helping her find her way as well as loading and unloading groceries. R. 68, 78. Ms.
Shelor could not manage a checkbook. R. 78. She watched a little television and read. R. 6768.
Ms. Shelor visited her mother, but did not socialize otherwise. R. 68. She had difficulty
communicating with people, got angry fast, and sometimes felt embarrassed and depressed as a
result. R. 77. She related an episode where her coworkers locked her in the freezer at Kroger
and turned the lights out, which has caused her to have nightmares where she felt she was
suffocating. R. 75.
A vocational expert, Ms. Paula Day, testified that Ms. Shelor’s past relevant work as a
cook, manager and cashier of a restaurant was skilled, medium work. R. 81. Her work as a deli
and bakery clerk was semiskilled, heavy work, and her work as a ticket collector was unskilled,
16

light work. R. 82. The ALJ asked whether there were jobs available for a hypothetical person
with Ms. Shelor’s age, education, and work experience who was capable of a limited range of
light work, who could lift and carry ten pounds frequently and twenty pounds occasionally, could
sit for eight hours in an eight-hour day and could walk or stand for four hours in an eight-hour
day, who would need to alternate sitting and standing at least every thirty minutes, and who
could not climb or work at unprotected heights or around dangerous machinery, could only
occasionally bend or squat, and was limited to simple, repetitive, non-production job tasks
without frequent interaction with the public. R. 82. The vocational expert testified jobs were
available for a person with those limitations, including mail clerk, warehouse checker, and office
helper. R. 83. The vocational expert testified that, based on her experience and job analysis,
these jobs would allow for alternating sitting and standing. R. 83.
The vocational expert testified that the additional limitations of inconsistency in
completing even simple work tasks, difficulty attending work regularly and consistently due to
anxiety and depression, difficulty accepting instructions, and difficulty dealing with stress in a
competitive work setting, would preclude all competitive work. R. 84. Further, all jobs would
be eliminated if the hypothetical person were seriously limited in relating to coworkers, dealing
with the public, interacting with supervisors, dealing with work stresses, and maintaining
attention and concentration. R. 85. The vocational expert also testified that absence from work
two or more days per month, or being off-task fifteen to twenty percent of the workday would
eliminate any employment. R. 85.
III. STANDARD OF REVIEW
In reviewing a decision of the Commissioner denying benefits, the Court is limited to
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determining whether the Commissioner’s decision was supported by substantial evidence on the
record, and whether the proper legal standard was applied in evaluating the evidence. 42 U.S.C.
§ 405(g) (2012); Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (citing Johnson v.
Barnhart, 434 F.3d 650, 653 (4th Cir. 2005)). Substantial evidence is “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales,
402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229
(1938)). It consists of “more than a mere scintilla” of evidence, but may be somewhat less than a
preponderance. Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966).
When reviewing for substantial evidence, the Court does not “undertake to re-weigh
conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the
Commissioner.” Hancock, 667 F.3d at 472 (citations omitted); Mastro v. Apfel, 270 F.3d 171,
176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)). “Where
conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the
responsibility for that decision falls on the Secretary (or the [Secretary’s] designate, the ALJ).”
Craig, 76 F.3d at 589. The Commissioner’s findings as to any fact, if supported by substantial
evidence, are conclusive and must be affirmed, unless the decision was reached by means of an
improper standard or misapplication of the law. Perales, 402 U.S. at 390; Hancock, 667 F.3d at
476 (citations omitted). Thus, reversing the denial of benefits is appropriate only if either (A) the
ALJ’s determination is not supported by substantial evidence on the record, or (B) the ALJ made
an error of law. Coffman v. Brown, 829 F.2d 514, 517 (4th Cir. 1987).
To qualify for disability insurance benefits (“DIB”), an individual must meet the insured
status requirements of these sections, be under age sixty-five, file an application, and be under a
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“disability” as defined in the Social Security Act. The Social Security Regulations define
“disability” for the purpose of obtaining disability benefits under the Act as the inability to do
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. 20 C.F.R. § 404.1505(a) (2012); see also
42 U.S.C. §§ 423(d)(1)(A) and 416(i)(1)(A) (2012). To meet this definition, the claimant must
have a “severe impairment” making it impossible to do previous work or any other substantial
gainful activity that exists in the national economy. Id.
In evaluating disability claims, the regulations promulgated by the Social Security
Administration provide that all material facts will be considered to determine whether a claimant
has a disability. The Commissioner follows a five-step sequential analysis to ascertain whether
the claimant is disabled. 20 C.F.R. § 404.1520; Mastro, 270 F.3d at 177. The ALJ must
consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe
impairment, (3) has an impairment that equals a condition contained within the Social Security
Administration’s official listing of impairments, (4) has an impairment that prevents her from
past relevant work, and (5) has an impairment that prevents her from any substantial gainful
employment. Id. An affirmative answer to question one, or negative answers to questions two
or four, result in a determination of no disability. Id. Affirmative answers to questions three or
five establish disability.

The claimant bears the burden of proof through step four of the

analysis; the burden then shifts to the Commissioner at step five. 20 C.F.R. § 404.1520. With
this standard in mind, the Court will address Ms. Shelor’s arguments.

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IV. ANALYSIS
The ALJ found Ms. Shelor was not disabled, as defined by the Social Security Act, from
December 30, 2006, the alleged onset date, through December 31, 2011, the date last insured. R.
31. At step one of the five-step analysis, the ALJ concluded that Ms. Shelor did not engage in
substantial gainful activity from December 30, 2006, through December 31, 2011. R. 22. At
step two, the ALJ found that Ms. Shelor’s degenerative disc disease, obesity, fibromyalgia,
depression, and anxiety were severe impairments. R. 22. The ALJ found Plaintiff’s other
impairments were non-severe. R. 23. At the third step, the ALJ concluded Ms. Shelor did “not
have an impairment or combination of impairments that met or medically equaled one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” R. 23.
The ALJ found that, through the date last insured, Ms. Shelor had the residual functional
capacity (“RFC”) to perform a limited range of light work. R. 25. In reaching this conclusion,
the ALJ summarized Ms. Shelor’s testimony regarding her symptoms, including pain. R. 25-26.
The ALJ found Ms. Shelor’s statements concerning the intensity, persistence and limiting effects
of her symptoms were not credible. R. 26.
The ALJ next summarized Ms. Shelor’s medical history, including treatment notes,
consultative examination notes, and state agency physicians.

R. 26-30.

Lastly, the ALJ

discussed the function reports submitted by Ms. Shelor’s daughter and sister. R. 30. The ALJ
concluded Ms. Shelor could perform a limited range of light work, but found Ms. Shelor was not
capable of performing any of her past relevant work at step four. R. 30. The ALJ found at step
five that, with Ms. Shelor’s age, education, and residual functional capacity, there were jobs that
exist in the national economy she could perform, such as mail clerk, warehouse checker, and
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office helper. R. 31.
Ms. Shelor asserts (1) the ALJ erred by failing to find Ms. Shelor suffered from a severe
impairment of her right upper extremity; and, (2) the ALJ failed to properly address the opinions
of the state agency non-examining physicians. Pl.’s Mem. 2. The undersigned disagrees, finding
there is substantial evidence in the record to support the ALJ’s decision with regard to Ms.
Shelor’s shoulder impairment and the state agency non-examining physicians.
A.

The ALJ Did Not Commit Reversible Error at Step Two When He Found
Ms. Shelor’s Shoulder Impairment was Non-Severe

Ms. Shelor asserts the ALJ erred in finding Ms. Shelor’s shoulder impairment was
“nonsevere.” Pl.’s Mem. 9-11; R. 23. At the second step of the sequential analysis, the ALJ
must determine whether the claimant has a severe impairment. See 20 C.F.R. § 404.1520. An
impairment is severe if it “significantly limit[s] your physical or mental ability to do basic work
activities.” 20 C.F.R. § 404.1521(a). An impairment is not severe if it “has such a minimal
effect on the individual that it would not be expected to interfere with the individual’s ability to
work.” Evans v. Heckler, 734 F.2d 1012, 1014 (4th Cir. 1982). The Court finds the ALJ did
commit error in finding Ms. Shelor’s shoulder impairment was not severe. However, because
the ALJ found Ms. Shelor had other severe impairments, and appropriately addressed her
shoulder impairment throughout the remainder of his decision, the error was harmless.
Though the ALJ found Ms. Shelor’s shoulder impairment was not a severe impairment,
he found Ms. Shelor had several other severe impairments and continued with the sequential
evaluation process. R. 22. Courts have determined that failing to find a particular impairment to
be severe at step two is harmless error as long as the ALJ considers the combined effect of all
impairments throughout the remaining steps of the process. See Maziarz v. Sec’y of Health &
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Human Servs., 837 F.2d 240, 244 (6th Cir. 1987) (holding ALJ’s erroneous conclusion that some
of Plaintiff’s impairments were non-severe could not constitute reversible error where ALJ
identified other severe impairments, and considered all impairments in the remaining steps of the
analysis); Cook ex rel A.C. v. Colvin, 2013 WL 1288156, at *4 (E.D. Va. Mar. 1, 2013) (finding,
“[t]he failure of an ALJ to find an impairment to be severe at Step 2, however, is harmless if the
ALJ finds the claimant to suffer from another severe impairment, continues in the evaluation
process, and considers the effects of the impairment at the other steps of the evaluation
process.”).
The ALJ appropriately considered Ms. Shelor’s shoulder impairment throughout the
remainder of the five-step analysis. See 20 C.F.R. § 416.945(a)(2). At step three, the ALJ
evaluated Ms. Shelor’s physical impairments, and found they did not rise to the level of a listing,
specifically citing Listing 1.00 for the Musculoskeletal System. R. 23.
In determining Ms. Shelor’s RFC, the ALJ considered, that Ms. Shelor was given a
cortisone injection for right shoulder bursitis in April 2009, and discussed the results from an
MRI of her shoulder. R. 27, 302-303. The ALJ summarized findings following a consultative
physical exam that Ms. Shelor had no palpable muscle spasm, full muscle strength (5/5) in her
arms and hands bilaterally, no joint swelling, erythemia, effusion, tenderness or deformity. R.
27, 340. The ALJ discussed the consultative examiner’s findings that Ms. Shelor could lift, carry
and handle light objects, could dress and undress adequately, and had no manipulative
limitations on reaching. R. 27, 340. The ALJ noted that following arthroscopic surgery on her
right shoulder, and physical therapy, Ms. Shelor obtained an “excellent passive range of motion,”
and four out of five muscle strength in her upper extremities. R. 28, 426-27, 430. He discussed
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that in August 2011, Ms. Shelor’s internal and external rotation were essentially pain free. R.
493. Lastly, the ALJ considered that Ms. Shelor received a steroid injection in October 2011 for
what her doctor suspected was residual inflammation from her shoulder surgery, and
examination revealed the shoulder showed no tenderness, swelling, or increased warmth, and
Ms. Shelor had nearly full flexion and abduction. R. 28, 489.
The ALJ appropriately addressed all of the evidence in the record regarding Ms. Shelor’s
shoulder impairment at steps three, four, and five. R. 25-29. Accordingly, the ALJ’s error at
step two of the analysis was harmless, and Ms. Shelor’s motion for summary judgment due to the
ALJ’s failure to find Ms. Shelor’s shoulder impairment was severe is DENIED.
B.

The ALJ Properly Considered the Opinions of the Non-Examining State
Agency Physicians

Next, Plaintiff asserts the ALJ erred by not adopting certain portions of the findings made
by two non-examining State agency physicians.

Pl.’s Mem. 12-13.

Specifically, Plaintiff

contends the ALJ failed to explain why the reaching limitation, and the standing and walking
limitation contained in the opinions, were not adopted in the RFC despite the ALJ assigning the
opinions moderate weight. Pl.’s Mem. 12.
Plaintiff is correct that the ALJ cannot ignore the opinions of the non-examining state
agency physicians, and must explain the weight assigned to the opinions. Pl.’s Mem. 12; See 20
C.F.R. §§ 404.1527(f)(2). However, the ALJ is only required to consider State agency opinions
when determining the RFC, and is not bound by such opinions if they are not consistent with the
record. SSR 96-6p (Policy Interpretation). See also Lambert-Newsome v. Astrue, No. 11-1141,
2012 WL 2922717, at *6 (S.D. Ill. 2012) (assigning great weight to an opinion “does not mean
[the ALJ] was required to adopt it wholesale”). In Ms. Shelor’s case, the ALJ appropriately
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addressed these opinions, assigned them moderate weight, and explained the reasons for making
his RFC assessment. R. 25-30.
A Disability Determination Explanation completed by a non-examining state agency
physician in December 2010 indicated Ms. Shelor was capable of occasionally lifting twenty
pounds, frequently lifting ten pounds, standing or walking for two hours, and sitting for six hours
in an eight-hour workday. R. 98. The assessment limited Ms. Shelor’s reaching overhead on the
right side, and prohibited climbing ladders, ropes or scaffolds because her shoulder could not
bear weight. R. 99. Similarly, a non-examining state agency physician indicated in July 2010
that Ms. Shelor suffered from shoulder arthritis and should never climb ladders, ropes or
scaffolds. R. 352, 354.
The ALJ assigned these opinions moderate weight, and restricted Ms. Shelor to jobs that
did not require climbing, but found “the reaching limitations are not necessary due to objective
clinical findings of near full range of motion in the shoulder.” R. 25, 29. The ALJ further found
Plaintiff could stand or walk for four hours in an eight-hour workday, with the option to alternate
between sitting and standing every thirty minutes.

R. 25.

The ALJ noted, Ms. Shelor’s

“consistent reports of pain and difficulty sitting for prolonged periods supports a sit stand
option.” R. 29.
The ALJ appropriately addressed Ms. Shelor’s ability to stand, walk, and reach. The ALJ
considered Ms. Shelor’s reports of pain in both feet and heels making it difficult to walk, and
statements that she could walk less than a block and sit less than twenty minutes. R. 26. The
ALJ summarized treatment records showing that, in 2009, Ms. Shelor was diagnosed with right
shoulder bursitis and acromioclavicular joint arthritis, and was treated with a shoulder injection;
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in 2010, during a consultative examination she had a symmetric steady gait, five out of five
muscle strength in all muscle groups, was able to rise from a sitting position, had no difficulty
getting on and off the examination table, was able to walk on heels and toes, and could hop on
either foot bilaterally; and, in 2011, she had an excellent passive range of motion in her right
shoulder following physical therapy and four out of five muscle strength in her upper
extremities, and her hip pain was managed with conservative care including heat. R. 26-28.
The ALJ appropriately addressed the opinions of the non-examining state agency physicians, and
substantial evidence in the record supports the ALJ’s RFC assessment as it pertains to Ms.
Shelor’s ability to stand, walk, reach, and sit. Accordingly, Ms. Shelor’s motion for summary
judgment due to the ALJ’s failure to properly consider the opinions of the state agency nonexamining physicians is DENIED.

V. ORDER
For the foregoing reasons, the Court ORDERS that Ms. Shelor’s Motion for Summary
Judgment (ECF No. 9) is DENIED, Defendant’s Motion for Summary Judgment (ECF No. 11) is
GRANTED, and the final decision of the Commissioner is AFFIRMED.

_____________/s/_________________
Tommy E. Miller
United States Magistrate Judge

Norfolk, Virginia
September 24, 2014

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