Penner v. Commissioner Of Social Security

Filing 15

MEMORANDUM OPINION. Signed by Magistrate Judge Pamela Meade Sargent on 2/17/2017. (Bordwine, Robin)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
ALICIA J. BROWN PENNER,
Plaintiff
v.
NANCY A. BERRYHILL,1
Acting Commissioner of
Social Security,
Defendant

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Civil Action No. 1:15cv00049
MEMORANDUM OPINION
BY: PAMELA MEADE SARGENT
United States Magistrate Judge

I. Background and Standard of Review
Plaintiff, Alicia J. Brown Penner, (“Penner”), filed this action challenging
the final decision of the Commissioner of Social Security, (“Commissioner”),
determining that she was not eligible for disability insurance benefits, (“DIB”),
under the Social Security Act, as amended, (“Act”), 42 U.S.C.A. § 423 (West
2011). Jurisdiction of this court is pursuant to 42 U.S.C. § 405(g). This case is
before the undersigned magistrate judge by transfer based on consent of the parties
pursuant to 28 U.S.C. § 636(c)(1). Oral argument has not been requested;
therefore, the matter is ripe for decision.
The court’s review in this case is limited to determining if the factual
findings of the Commissioner are supported by substantial evidence and were
reached through application of the correct legal standards. See Coffman v. Bowen,
1

Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23,
2017. Berryhill is substituted for Carolyn W. Colvin, the previous Acting Commissioner of
Social Security.
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829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence has been defined as
“evidence which a reasoning mind would accept as sufficient to support a
particular conclusion. 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). ‘“If there is evidence to justify a refusal to direct a verdict were the
case before a jury, then there is “‘substantial evidence.’”” Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990) (quoting Laws, 368 F.2d at 642).
The record shows that Penner protectively filed an application for DIB on
May 13, 2010, alleging disability as of July 29, 2009, due to tinnitus nitrous,
vertigo and mitral valve prolapse. (Record, (“R.”), at 308-09, 388, 392.) The claim
was denied initially and on reconsideration. (R. at 131-59.) Penner then requested a
hearing before an administrative law judge, (“ALJ”), and a hearing was held on
March 21, 2012, at which Penner was represented by counsel and a vocational
expert testified. (R. at 92-129, 163, 200.) By decision dated April 13, 2012, the
ALJ denied Penner’s claim. (R. at 163-80.) After the ALJ issued his decision,
Penner pursued her administrative appeals, (R. at 243), and the Appeals Council
remanded her claim to the ALJ for further evaluation. (R. at 185-89.)
On remand, by decision dated February 27, 2014, the ALJ, again, denied
Penner’s claim. (R. at 16-44.) The ALJ found that Penner met the nondisability
insured status requirements of the Act for DIB purposes through December 31,
2016. (R. at 18.) The ALJ also found that Penner had not engaged in substantial
gainful activity since her alleged onset date of July 29, 2009. 2 (R. at 18.) The ALJ
2

Therefore, Penner must show that she became disabled between July 29, 2009, the
alleged onset date, and February 27, 2014, the date of the ALJ’s decision denying DIB benefits.
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found that the medical evidence established that Penner suffered from severe
impairments, namely congenital hand and foot bone shortening, degenerative disc
disease, migraines, vestibular system disorder, obstructive sleep apnea, obesity,
affective disorder, anxiety disorder and somatoform disorder, but he found that
Penner did not have an impairment or combination of impairments listed at or
medically equal to one listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at
19-22.) The ALJ found that Penner had the residual functional capacity to perform
light work 3 that did not require occasionally lifting items weighing more than 50
pounds, frequently lifting items weighing more than 20 pounds, sitting for more
than five hours in an eight-hour workday, standing more than three hours in an
eight-hour workday or walking more than one hour in an eight-hour workday. (R.
at 22.) The ALJ also found that Penner could occasionally push/pull with both
hands, frequently handle, finger and feel with both hands, continuously reach both
overhead and in all other directions with both hands, frequently operate foot
controls with both feet, should never climb ladders, ropes and scaffolds, could
frequently stoop and crouch, occasionally climb ramps/stairs, balance, kneel and
crawl, occasionally work around unprotected heights or moving mechanical parts,
could be continuously exposed to operating a motor vehicle, humidity and wetness,
dusts, odors, fumes, temperature extremes and vibrations. (R. at 22.) He also found
that Penner could understand, remember and carry out simple and complex
instructions, make judgments on simple and complex, work-related decisions, but
she had a moderate limitation on her ability to interact appropriately with the

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Light work involves lifting items weighing up to 20 pounds at a time with frequent
lifting or carrying of items weighing up to 10 pounds. If someone can perform light work, she
also can perform sedentary work. See 20 C.F.R. § 404.1567(b) (2016).
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public, supervisors and co-workers and on her ability to respond appropriately to
usual work situations and to changes in a routine work setting. (R. at 22.) The ALJ
found that, through the date last insured, Penner was unable to perform her past
relevant work. (R. at 43.) Based on Penner’s age, education, work experience and
residual functional capacity and the testimony of a vocational expert, the ALJ
found that, through the date of his decision, jobs existed in significant numbers in
the national economy that Penner could perform, including jobs as a small parts
assembler, a laundry folder and an electronic worker. (R. at 43-44.) Thus, the ALJ
found that, through the date of his decision, Penner was not under a disability as
defined by the Act, and was not eligible for DIB benefits. (R. at 44.) See 20 C.F.R.
§ 404.1520(g) (2016).
After the ALJ issued his decision, Penner pursued her administrative
appeals, (R. at 12), but the Appeals Council denied her request for review. (R. at 13.) Penner then filed this action seeking review of the ALJ’s unfavorable decision,
which now stands as the Commissioner’s final decision. See 20 C.F.R. § 404.981
(2016). The case is before this court on Penner’s motion for summary judgment
filed February 10, 2016, and the Commissioner’s motion for summary judgment
filed March 21, 2016.
II. Facts
Penner was born in 1977, (R. at 308, 388), which, at the time of the ALJ’s
decision, classified her as a “younger person” under 20 C.F.R. § 404.1563(c).
Penner has high school education and past work as a cake decorator, a cashier, a
draw warp operator, a material handler and a waitress and baker. (R. at 393-94.)
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In rendering his decision, the ALJ reviewed records from Stuarts Draft
Family Practice; Blue Ridge Footcare & Surgery, PLC; Augusta Medical Center;
Meadowcrest E.N.T. & Facial Cosmetic Center; Harrisonburg Ob/Gyn Associates,
P.C.; University of Virginia Hospital Department of Neurology; Dr. Leslie
Ellwood, M.D., a state agency physician; Stonsa N. Insinna, Ph.D., LCP, a state
agency psychologist; Luc Vinh, a state agency medical consultant; Sandra Francis,
Psy.D., a state agency psychologist; Dr. Scott Kohler, M.D., a neurologist; RMH
Center for Sleep Medicine; Dr. Glenn E. Deputy, M.D., a neurologist with
Harrisonburg Medical Associates; Rockingham Memorial Hospital; Dr. Darin
Christensen, M.D., a psychiatrist with Shenandoah Psychiatric Medicine; Janet S.
Bienen, LPC, with Page County Counseling PLC; Joseph J. Cianciolo, Ph.D., a
consultative licensed clinical psychologist.
Since Penner contests only the ALJ’s finding as to her physical residual
functional capacity, the court will address only the evidence of record on this issue.
The medical evidence of record shows that Penner began treating for complaints of
severe headaches and dizziness as early as 2009. (R. at 588, 603-04, 610, 624.)
Based on a lack of objective findings, it was suggested that Penner’s symptoms
might have been functional in nature or due to a personality disorder. (R. at 593,
608, 614.)
Penner underwent a Neuropsychological Evaluation by Stephen Zieman,
Ph.D., of the University of Virginia Department of Neurology, on January 14,
2010, to rule out dementia versus pseudodementia. (R. at 598.) Penner complained
of worsening cognitive abilities, specifically for short-term memory, attention,
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concentration and motor coordination. (R. at 598.) Penner reported weakness in
both hands, swelling of her extremities, fatigue and dizziness and vertigo walking
down stairs. (R. at 598.) She reported a history of post-parturm depression, but
denied any then-current problem. (R at 599.) Penner presented somewhat
disheveled with a slow gait, but no significant deficits in mobility. (R. at 599.)
Sensory-motor coordination appeared normal; there were no observed significant
deficits in her speech, language, expression or comprehension; she gave up easily
on tasks; and she voiced physical complaints, then appeared to recover. (R. at 599.)
Dr. Zieman stated that the results of her evaluation might underestimate her thencurrent capabilities. (R. at 599.) He estimated her intelligence in the average range.
(R. at 600.) She performed poorly on numerous tests, but Dr. Zieman noted that
her effort was poor. (R. at 600-01.) Dr. Zieman stated that Penner was not
experiencing the early stages of a neurodegenerative etiology and, instead, stated
that she appeared to meet the criteria for a conversion disorder. (R. at 602.)
Dr. Glenn E. Deputy, M.D., a neurologist, eventually diagnosed Penner with
occipital neuraligia bilaterally, which he treated successfully with nerve block
injections. (R. at 836-46, 878, 881-82.) In 2010, when Penner suggested to Dr.
Deputy that she was disabled, he noted: “So far it is unclear to me as to whether
there is any neurological disability.” (R. at 846.)
State agency physician Dr. Leslie Ellwood, M.D., completed a Residual
Functional Capacity Assessment on Penner on November 30, 2010. (R. at 138-39.)
Dr. Ellwood stated that Penner could lift items weighing up to 50 pounds
occasionally and 25 pounds frequently and could stand and/or walk up to six hours
and sit up to six hours in an eight-hour workday. (R. at 138.) Dr. Ellwood stated
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that Penner could frequently climb ramps/stair, ladders, ropes and scaffolds, stoop,
kneel, crouch and crawl and occasionally balance. (R. at 138.)
Penner was treated at the Augusta Health Pain Management Clinic by Dr.
Victor C. Lee, M.D., and John T. Rhodes, PA-C, beginning on January 4, 2013. (R.
at 1065-1122). At her initial visit, Penner reported numbness and weakness in her
upper and lower extremities and dizziness, but did not report any problems walking
or falling. (R. at 1066.) Penner’s upper and lower extremity ranges of motion were
full with no erythema, edema or increased temperature. (R. at 1066.) Congenital
deformities of her hands and feet were noted. (R. at 1066.) Range of motion in her
cervical and lumbar spine was full. (R. at 1066.) Penner complained of some
bilateral greater occipital tenderness and bilateral lower lumbar facet tenderness
with palpation. (R. at 1066.) Bilateral sacroiliac tenderness, mild piriformis
tenderness and paraverterbral lumbar muscle spasm was noted. (R. at 1066-67.)
Straight leg raise test was negative. (R. at 1067.) Although this practice treated
Penner through at least November 12, 2013, none of the physicians ever placed any
restrictions on her activities or provided any assessment of her work-related
abilities.
Dr. Matthew S. Hogenmiller, M.D., with Augusta Health Rheumatology and
Osteoporosis, saw Penner on July 5, 2013, with regard to a possible connective
tissue disease. (R. at 1032-34.) Penner reported treatment by a pain clinic for years
for back pain and migraine headaches. (R. at 1032.) Penner said her primary
problem was pain in her hands and feet. (R. at 1032.) She also complained of pain
throughout her body, as well. (R. at 1032.) Dr. Hogenmiller noted a mild decrease
in active range of motion of Penner’s neck. (R. at 1033.) He noted no tenderness in
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her hands or feet, but more than 11 tender points throughout her body. (R. at 1033.)
Dr. Hogenmiller noted that Penner’s muscle strength was normal everywhere
except her grip strength, which was decreased in both hands. (R. at 1033.) Dr.
Hogenmiller stated that there were no findings suspicious for inflammatory
arthritis. (R. at 1033.)
Penner underwent nerve conduction studies of her upper extremities on
August 30, 2013, at the University of Virginia Department of Neurology. (R. at
1048-51.) These studies were normal. (R. at 1051.)
Dr. Scott Kohler, M.D., performed a consultative examination of Penner on
August 31, 2013. (R. at 988-94.) Dr. Kohler stated that Penner alleged disability
due to migraine headaches, fatigue, depression and leg pain and numbness. (R. at
988.) Penner reported that she had suffered from migraine headaches since 2013.
(R. at 988.) She described these headaches as throbbing pain exacerbated by stress
with a pain intensity of a 10 on a 10-point scale. (R. at 988.) Penner said that her
headaches affected her work ability, in that they resulted in poor focus and
decreased concentration. (R. at 988.) She said that her fatigue affected her work
ability because she would frequently fall asleep. (R. at 988.) She said that her
depression affected her work ability, in that it made it difficult to be around others.
(R. at 988.)
Penner also reported a history of leg weakness and numbness secondary to
somatoform disorder. (R. at 988.) She said that these symptoms were exacerbated
by increased physical activity and that she had difficulty standing, walking and
lifting. (R. at 988-89.) Dr. Kohler noted that Penner was 5 feet, 4 inches tall and
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weighed 259 pounds. (R. at 990.) He also noted bilateral foot and hand deformity
with very short metatarsal and metacarpal bones bilaterally. (R. at 991.) Dr.
Kohler noted that Penner had a symmetric, steady gait, good hand-eye coordination
and no palpable muscle spasms with full muscle strength with the exception of
mild decrease in her hand grip bilaterally. (R. at 991.) He noted that Penner’s
sensory examination was decreased to light touch in her left arm, and straight leg
raise test was negative bilaterally. (R. at 991.) Penner’s reflexes were normal. (R.
at 992.) There was no joint swelling, erythema or effusion, but there was some
tenderness to palpation in her bilateral lumbar paraspinal muscles. (R. at 992.) Dr.
Kohler noted that Penner was able to rise from a sitting position without assistance
and had no difficulty getting up and down from the exam table. (R. at 992.) All
range of motion testing was normal. (R. at 992-93.)
Dr. Kohler wrote that, based on his examination, Penner could lift and carry
items weighing up to 50 pounds occasionally and 20 pounds frequently. (R. at
994.) He said that Penner could occasionally bend, stoop, crouch and squat. (R. at
994.) He said that she had no limitations with reaching. (R. 994.) He said that she
could occasionally handle, feel, grasp and finger. (R. at 994.)
On August 31, 2013, Dr. Kohler completed a Medical Source Statement Of
Ability To Do Work-Related Activities (Physical) form, which stated that Penner
could occasionally lift and carry items weighing up to 50 pounds; frequently lift
items weighing up to 20 pounds, walk for up to one hour, stand for up to two hours
and sit for up to five hours in an eight-hour day. (R. at 996-1001.) On this form,
Dr. Kohler indicated that Penner could frequently handle, finger, feel, stoop and
crouch. (R. at 998-99.)
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III. Analysis
The Commissioner uses a five-step process in evaluating DIB claims. See 20
C.F.R. § 404.1520 (2016); see also Heckler v. Campbell, 461 U.S. 458, 460-62
(1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981). This process requires
the Commissioner to consider, in order, whether a claimant 1) is working; 2) has a
severe impairment; 3) has an impairment that meets or equals the requirements of a
listed impairment; 4) can return to her past relevant work; and 5) if not, whether
she can perform other work. See 20 C.F.R. § 404.1520. If the Commissioner finds
conclusively that a claimant is or is not disabled at any point in this process, review
does not proceed to the next step. See 20 C.F.R. § 404.1520(a) (2016).
As stated above, the court’s function in this case is limited to determining
whether substantial evidence exists in the record to support the ALJ’s findings.
The court must not weigh the evidence, as this court lacks authority to substitute its
judgment for that of the Commissioner, provided her decision is supported by
substantial evidence. See Hays, 907 F.2d at 1456. In determining whether
substantial evidence supports the Commissioner’s decision, the court also must
consider whether the ALJ analyzed all of the relevant evidence and whether the
ALJ sufficiently explained his findings and his rationale in crediting evidence. See
Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
Penner argues that the ALJ’s decision is not based on substantial evidence of
record. (Plaintiff’s Brief In Support Of Motion For Summary Judgment,
(“Plaintiff’s Brief”), at 10.) In particular, Penner argues that the ALJ erred by
failing to properly evaluate the opinion evidence of Dr. Kohler. (Plaintiff’s Brief at
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11-14.) Penner also claims that the ALJ erred in not presenting a proper
hypothetical to the vocational expert. (R. at 15-17.)
Based on my review of the record, I find that the ALJ erred in his weighing
of the medical evidence. It is the ALJ’s responsibility to weigh the evidence,
including the medical evidence, in order to resolve any conflicts which might
appear therein. See Hays, 907 F.2d at 1456; Taylor v. Weinberger, 528 F.2d 1153,
1156 (4th Cir. 1975). Furthermore, while an ALJ may not reject medical evidence
for no reason or for the wrong reason, see King v. Califano, 615 F.2d 1018, 1020
(4th Cir. 1980), an ALJ may, under the regulations, assign no or little weight to a
medical opinion, even one from a treating source, based on the factors set forth at
20 C.F.R. § 404.1527(c), if he sufficiently explains his rationale and if the record
supports his findings.
In this case, the ALJ stated in his opinion that he was giving the opinions of
Dr. Kohler, contained in his assessment of Penner’s work-related abilities, “greater
weight.” (R. at 42.) In his assessment, Dr. Kohler stated that Penner could stand up
to only two hours in an eight-hour day. (R. at 997.) The only other medical
evidence contained in the record of Penner’s work-related abilities was provided
by the state agency physician, Dr. Ellwood, who stated that Penner could stand
and/or walk up to six hours in an eight-hour work day. (R. at 138.) The ALJ,
however, stated that he was giving this opinion “only partial weight” because it did
not account for Penner’s pain clinic treatment, congenital hand and foot
deformities or her spinal problems with subsequent epidural steroid injection
treatments. (R. at 41.) There is no other weighing of the opinion evidence
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regarding Penner’s work-related physical abilities. Nonetheless, the ALJ rejected
Dr. Kohler’s opinion that Penner could stand only two hours in an eight-hour
workday. Instead, he found that Penner could stand up to three hours in an eighthour workday. This finding simply is not consistent with the ALJ’s statement that
he was giving Dr. Kohler’s opinion the greater weight. Therefore, I find that
substantial evidence does not exist to support the ALJ’s finding as to Penner’s
physical residual functional capacity.
It is important to note that the vocational expert testified that, if Penner
could stand only two hours in an eight-hour workday, there would be no jobs
available that she could perform. (R. at 82.)
Based on the above, I find that substantial evidence does not exist in the
record to support the ALJ’s finding that Penner was not disabled. An appropriate
Order will be entered remanding Penner’s claim to the Commissioner for further
development.
ENTERED: February 17, 2017.
s/

Pamela Meade Sargent

UNITED STATES MAGISTRATE JUDGE

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