Moore v. Colvin
Filing
15
MEMORANDUM OPINION. Signed by Magistrate Judge Pamela Meade Sargent on 06/01/2016. (Bordwine, Robin)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION
TOLLIE D. MOORE,
Plaintiff
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant
)
)
)
)
)
)
)
)
Civil Action No. 2:14cv00048
MEMORANDUM OPINION
By: PAMELA MEADE SARGENT
United States Magistrate Judge
I. Background and Standard of Review
Plaintiff, Tollie D. Moore, (“Moore”), filed this action challenging the final
decision of the Commissioner of Social Security, (“Commissioner”), denying his
claims for disability insurance benefits, (“DIB”), and supplemental security
income, (“SSI”), under the Social Security Act, as amended, (“Act”), 42 U.S.C.A.
§§ 423 and 1381 et seq. (West 2011 & West 2012). Jurisdiction of this court is
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). This case is before the
undersigned magistrate judge upon transfer by consent of the parties pursuant to 28
U.S.C. § 636(c)(1). Neither party has requested oral argument, therefore, this case
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,
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
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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 Moore protectively filed his applications for SSI and
DIB on May 9, 2011, alleging disability as of April 9, 2011,1 due to lumbar spine
arthritis; bulging discs; depression; anxiety; difficulty remembering and
concentrating; difficulty being in crowds; neck pain; difficulty sleeping; high blood
pressure; and tendonitis. (Record, (“R.”), at 304-05, 308-12, 317, 322, 348.) The
claims were denied initially and upon reconsideration. (R. at 208-10, 215-17, 22123, 225-28, 230-35, 237-39.) Moore then requested a hearing before an
administrative law judge, (“ALJ”). (R. at 240.) A hearing was held by video
conferencing on June 20, 2013, at which Moore was represented by counsel. (R. at
71-106.)
By decision dated July 16, 2013, the ALJ denied Moore’s claims. (R. at 5565.) The ALJ found that Moore met the nondisability insured status requirements
of the Act for DIB purposes through December 31, 2011. (R. at 57.) She found that
Moore had not engaged in substantial gainful activity since April 9, 2011, the
alleged onset date. (R. at 57.) The ALJ found that the medical evidence established
that Moore had severe impairments, namely degenerative disc disease of the
cervical/lumbar spine; left shoulder arthritis; affective disorder; anxiety disorder;
and borderline intellectual functioning, but she found that Moore did not have an
1
Although Moore’s DIB and SSI applications specify April 27, 2006, as his alleged onset
date, this date was amended to April 9, 2011, the day after the ALJ’s most recent decision, at
Moore’s June 20, 2013, hearing. (R. at 75-76.)
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impairment or combination of impairments that met or medically equaled one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 57-59.)
The ALJ found that Moore had the residual functional capacity to perform simple,
repetitive, unskilled light work 2 that did not require more than frequent handling,
fingering, feeling and overhead reaching; that did not require concentrated
exposure to climbing ladders, ropes or scaffolds or working on vibrating surfaces,
at unprotected heights or near hazardous machinery; that did not require more than
occasional balancing, kneeling, crawling, stooping, crouching, climbing ramps or
stairs and pushing/pulling with the upper extremities; and that did not require more
than occasional interaction with the general public. (R. at 59-60.) The ALJ found
that Moore was able to perform his past relevant work as a chip mixer at a paper
plant. (R. at 63.) Based on Moore’s age, education, work history and residual
functional capacity and the testimony of a vocational expert, the ALJ also found
that a significant number of other jobs existed in the national economy that Moore
could perform, including jobs as a night cleaner, a mail routing clerk and a
cafeteria attendant. (R. at 64-65.) Thus, the ALJ concluded that Moore was not
under a disability as defined by the Act and was not eligible for DIB or SSI
benefits. (R. at 65.) See 20 C.F.R. §§ 404.1520(f), (g), 416.920(f), (g) (2015).
After the ALJ issued her decision, Moore pursued his administrative
appeals, (R. at 8), but the Appeals Council denied his request for review. (R. at 16.) Moore 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,
416.1481 (2015). This case is before this court on Moore’s motion for summary
2
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, he
also can perform sedentary work. See 20 C.F.R. §§ 404.1567(b), 416.967(b) (2015).
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judgment filed July 7, 2015, and the Commissioner’s motion for summary
judgment filed July 27, 2015.
II. Facts
Moore was born in 1962, (R. at 78, 304, 308), which, at the time of the
ALJ’s decision, classified him as a “person closely approaching advanced age”
under 20 C.F.R. §§ 404.1563(d), 416.963(d). He has a seventh-grade education and
past work experience as a factory laborer and a roof bolter in a coal mine, a forklift
operator in a warehouse and a worker in a board mill drying chips to make pressed
wood. (R. at 78-80, 323.) Moore testified that he stopped working in the coal mine
after suffering a work injury, for which he received Workers’ Compensation
benefits. (R. at 81.)
Moore stated that he was scheduled to undergo a decompression and fusion
surgery on his back the month following the hearing. (R. at 81.) He testified that he
had numbness in both legs, the right worse than the left. (R. at 95.) He stated that
he could stand and sit for up to 20 minutes at a time and that his doctor had
restricted him from lifting more than 8 or 9 pounds. (R. at 82.) Moore testified that
he had to lie down daily for about an hour and that he slept only three or four hours
nightly due to hand numbness and leg pain. (R. at 96-97.) He stated that he
sometimes needed a cane when walking “a hundred yards or so,” but that it was
not doctor-prescribed. (R. at 81-82.) He also stated that he sometimes had
difficulty with bathing and grooming due to pain. (R. at 86.)
Moore further noted that he experienced cramps in his neck, had tendonitis
in both wrists and had gout. (R. at 82-83.) Moore stated that he took anti-4-
inflammatory medication for the tendonitis and wore braces “about 90 percent of
the time” to immobilize his wrists, but he was not wearing them at the hearing. (R.
at 82-83.) He stated that he had experienced difficulty with his grip due to the
tendonitis for two or three years, and he had difficulty picking up smaller objects.
(R. at 93.) Moore testified that he also had a pinched nerve in his neck, which
caused his arms to go numb when he would lie down. (R. at 83, 94.) He stated that
he was receiving no treatment for this at the time of the hearing due to a lack of
insurance, although surgery had been mentioned. (R. at 83, 95.) He clarified that he
was able to undergo back surgery because his treating physician, Dr. Kaur, set it up
on a sliding fee schedule. (R. at 95.) Moore testified that he was in the first stage of
black lung disease, but was not having too many breathing problems. (R. at 84.)
He also stated that he suffered from hypertension and high cholesterol, which was
controlled with medication at times, but noted that pain caused his blood pressure
to rise. (R. at 91.) Moore testified that he was taking Lortab for pain, which helped
if he would lie down after taking it. (R. at 91.)
Moore also testified that he had been diagnosed with anxiety and depression,
for which he saw a counselor monthly, and for which he was taking Lexapro. (R. at
89-90.) He stated that he did not like to be around crowds. (R. at 89.) Moore
reported that he had been on medication since attempting suicide two years
previously. (R. at 90.)
Moore testified that he had no hobbies and did not do much throughout the
day. (R. at 84.) He stated that, in the past, he had ridden four-wheelers, walked
daily for exercise, hiked and fished, but had not done so since 2007 due to pain.
(R. at 85.) Moore testified that he had lived with his brother since 2007. (R. at 85.)
Moore stated that his brother did the cooking and cleaning. (R. at 85-87.)
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However, he stated that he “watch[ed] after” his elderly mother, who lived
approximately 140 miles away, about twice monthly for a week or two. (R. at 8788.) Moore testified that his brother drove him there. (R. at 88.) He stated that,
when there, his mother did the cooking, and her granddaughter cleaned for her
twice a week. (R. at 88.) Moore stated that he drove when he felt like it, but did not
drive as far as to his mother’s house, noting that he drove to the grocery store and
the pharmacy on occasion. (R. at 88-89.)
Asheley Wells, a vocational expert, also was present and testified at Moore’s
hearing. (R. at 98-105.) Wells classified Moore’s past work as a roof bolter as
medium3 and semi-skilled, but, as performed, at the heavy 4 exertional level. (R. at
99.) Wells further classified Moore’s past work as a chip mixer at the paper plant
as light and semi-skilled and as a forklift operator as medium and semi-skilled, but,
as performed, at the light exertional level. (R. at 99.) Wells testified that a
hypothetical individual of Moore’s age, education and work history, who could
perform simple, repetitive, unskilled light work that required no more than
occasional pushing and pulling with the upper extremities, no more than occasional
climbing of ramps and stairs, balancing, kneeling, crawling, stooping and
crouching, no more than frequent reaching overhead, handling, feeling and
fingering of objects, which did not require concentrated exposure to hazardous
machinery, unprotected heights, climbing ladders, ropes or scaffolds or working on
3
Medium work involves lifting items weighing up to 50 pounds at a time with frequent
lifting or carrying of items weighing up to 25 pounds. If an individual can do medium work, he
also can do sedentary and light work. See 20 C.F.R. §§ 404.1567(c), 416.967(c) (2015).
4
Heavy work involves lifting items weighing up to 100 pounds at a time with frequent
lifting or carrying of items weighing up to 50 pounds. If an individual can do heavy work, he
also can do medium, light and sedentary work. See 20 C.F.R. §§ 404.1567(d), 416.967(d)
(2015).
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vibrating surfaces, and which did not require more than occasional interaction with
the general public, could perform Moore’s past work as a chip mixer. (R. at 100.)
Wells also testified that such an individual could perform other jobs existing in
significant numbers in the national economy, including those of a night cleaner, a
mail routing clerk and a cafeteria attendant. (R. at 101.)
Wells next testified that the same individual, who could stand and walk for
no more than two hours in an eight-hour day, could not perform any of Moore’s
past work. (R. at 101.) However, Wells testified that such an individual could
perform other jobs existing in significant numbers in the national economy,
including those of an inspector/tester/sorter, a packaging and filling machine
operator, a production worker and a final assembler. (R. at 102.) Wells testified
that the same individual, who also would be off-task 10 to 20 percent of the
workday, would not be able to perform any of Moore’s past work or any other
work existing in the significant numbers in the national economy. (R. at 103-04.)
Wells testified that there were no jobs that an individual could perform if he were
expected to miss more than two days of work monthly. (R. at 104.) Wells further
testified that an individual who could stand and walk for two hours and sit for one
hour would be precluded from all employment. (R. at 105.) Likewise, Wells
testified that an inability to climb, stoop, kneel, crouch and crawl would eliminate
all employment. (R. at 105.)
In rendering her decision, the ALJ reviewed records from Piedmont
Community Services; Highlands Neurosurgery; Stone Mountain Health Services;
Appalachia Family Health Center; Wellmont Health System; B. Wayne Lanthorn,
Ph.D., a licensed psychologist; Dr. Travis Burt, M.D.; Norton Community
Hospital; Frontier Health; LabCorp; Wise County Behavioral Health Services;
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Lonesome Pine Hospital; University of Virginia Medication Center; University of
Virginia Hospital East; and Robert S. Spangler, Ed.D., a licensed psychologist.
Moore’s attorney submitted additional medical records from Appalachia Family
Health Center and University of Virginia Hospital East to the Appeals Council. 5
Moore saw B. Wayne Lanthorn, Ph.D., a licensed clinical psychologist, on
March 1, 2011, 6 at his attorney’s referral, for a psychological evaluation. (R. at
431-40.) Lanthorn previously saw Moore on September 18, 2007, at which time
testing revealed a full-scale IQ score of 74, and he diagnosed Moore with pain
disorder associated with both psychological factors and general medical
conditions, chronic; major depressive disorder, recurrent, moderate; generalized
anxiety disorder; borderline intellectual functioning; and rule out alcohol abuse.
(R. at 432.) Contrary to other places in the record, Moore informed Lanthorn in
March 2011 that he quit school as a high school freshman, was retained twice and
received special education services. (R. at 433.) Moore was then-currently
receiving counseling services and medication through Piedmont Community
Services. (R. at 434.) He displayed no clinical signs or symptoms associated with
delusional thinking, ongoing psychotic processes or hallucinations. (R. at 435.)
Moore reported continued depression even with medication and acknowledged that
“some days are better than others,” but he reported depression so severe on some
days that he could do almost nothing. (R. at 435.) Moore stated that he preferred to
be alone and that he no longer hunted or fished. (R. at 435.) He denied then-current
5
Since the Appeals Council considered and incorporated this additional evidence into the
record in reaching its decision, (R. at 1-6), this court also must take these new findings into
account when determining whether substantial evidence supports the ALJ’s findings. See
Wilkins v. Sec’y of Dep’t of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991).
6
The court notes that Lanthorn completed this evaluation the month prior to Moore’s
alleged onset date and that the prior ALJ considered this evaluation in his decision. However,
because the current ALJ discussed this evaluation in her decision, this court also will consider it.
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suicidal or homicidal ideation, plans or intent. (R. at 436.) Moore also reported
often feeling anxious, tense, on edge, shaky and nauseated, and he described
fatiguing quickly, having a “terrible” memory, being distractible, having poor
concentration and mind wandering and having difficulty initiating and completing
tasks. (R. at 436.)
Lanthorn administered the Minnesota Multiphasic Personality Inventory –
Second Edition, (“MMPI-2”), which indicated that Moore was very depressed and
had
significant
anxiety.
(R.
at
437.)
Lanthorn
opined
that
Moore’s
psychopathology was quite serious and included confused thinking, difficulties
with logic and concentration and impaired judgment. (R. at 437.) Test results also
indicated that Moore was experiencing comparatively severe emotional distress
and difficulty with concentration, memory problems and difficulty making
decisions. (R. at 438.) Lanthorn diagnosed major depressive disorder, recurrent,
severe; anxiety disorder with both panic attacks and generalized anxiety due to
chronic physical problems, pain, etc.; pain disorder associated with both
psychological factors and general medical condition, chronic; and borderline
intellectual functioning; and he placed Moore’s then-current Global Assessment of
Functioning, (“GAF”), 7 score at 45 to 50. 8 (R. at 438-39.) He opined that, from a
psychological standpoint, Moore’s difficulties were fully credible, and he strongly
encouraged him to continue with psychiatric and psychotherapeutic intervention.
(R. at 439.) Lanthorn noted that Moore’s functioning had worsened since 2007.
7
The GAF scale ranges from zero to 100 and “[c]onsider[s] psychological, social, and
occupational functioning on a hypothetical continuum of mental health-illness.” DIAGNOSTIC
AND STATISTICAL MANUAL OF MENTAL DISORDERS FOURTH EDITION, (“DSM-IV”), 32
(American Psychiatric Association 1994).
8
A GAF score of 41 to 50 indicates that the individual has “[s]erious symptoms … OR
any serious impairment in social, occupational, or school functioning. …” DSM-IV at 32.
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(R. at 439.) He concluded that Moore’s psychopathology represented a substantial
limitation and prevented him from sustaining gainful employment at that time. (R.
at 440.)
Lanthorn also completed a work-related mental assessment, finding that
Moore had a limited, but satisfactory, ability to understand, remember and carry
out simple job instructions; a seriously limited ability to follow work rules; to
maintain attention/concentration; to understand, remember and carry out detailed,
but not complex, job instructions; and to maintain personal appearance; and no
useful ability to relate to co-workers; to deal with the public; to use judgment; to
interact with supervisors; to deal with work stresses; to function independently; to
understand, remember and carry out complex job instructions; to behave in an
emotionally stable manner; to relate predictably in social situations; and to
demonstrate reliability. (R. at 709-11.) Lanthorn based these findings on his
diagnoses of Moore, stated above, and he opined that Moore would be absent from
work an average of more than two days monthly. (R. at 709, 711.)
Moore saw Dr. William M. Platt, M.D., at Highlands Neurosurgery, P.C., on
April 13, 2011, with complaints of chronic back pain. (R. at 442-43.) Dr. Platt
noted Moore’s diagnosis of lumbosacral strain superimposed on lumbosacral
spondylosis after suffering a work injury in December 2005. (R. at 442.) He opined
that Moore was at maximum medical improvement with permanent partial
impairment. (R. at 442.) Dr. Platt noted that Moore did well on Lortab. (R. at 442.)
Although Moore had called the office for a refill on March 29, 2011, Dr. Platt
calculated that he should have had enough Lortab to get him through the date of
the office visit. (R. at 442.) Moore rated his pain as an 8 on a 10-point scale, which
worsened with walking long distances, bending over and lifting much. (R. at 442.)
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He stated that he could do very little and was not able to work, exercise or walk
very far. (R. at 442.) However, Dr. Platt found that “there is not a lot of objective
evidence of injury,” and he noted that, when he asked Moore specifically about his
pain, it “[took] him a while to come up with an answer.” (R. at 442.) Moore
described his low back pain and right leg pain as constant. (R. at 442.) He stated
that he could perform his activities of daily living, but did not do much housework.
(R. at 442.) On physical examination, Moore could “come sit-to-stand,” he could
flex about 30 degrees, but did not extend, and he had pain in the right SI joint. (R.
at 442.) Dr. Platt diagnosed lumbosacral strain and pain in the pelvic region and
right thigh, and he administered an injection in the right SI joint. (R. at 442.) Dr.
Platt prescribed Lortab, advising Moore that he would perform a pill count and
drug screen follow-up. (R. at 443.)
Moore saw Dr. TaranDeep Kaur, M.D., his treating physician, at Appalachia
Family Health Center, on May 23, 2011, for a routine medication check. (R. at
453-55, 681-83.) A pill count produced 18 Lexapro pills. (R. at 453, 681.) His
blood pressure was described as “up and down.” (R. at 453, 681.) Moore was
fully oriented with normal memory, mood and affect. (R. at 454, 682.) Some
swelling of the extremities was noted. (R. at 454, 682.) He reported being bothered
nearly every day by little interest or pleasure in doing things, as well as feeling
down, depressed or hopeless. (R. at 456.) Moore was diagnosed with hypertension,
dyslipidemia and depression, and he was continued on Lexapro. (R. at 455, 683.)
On June 28, 2011, Moore returned to Dr. Platt for a follow-up visit after a
June 16, 2011, urine drug screen was positive for Oxycodone, which he was not
prescribed. (R. at 566.) A blood serum drug abuse panel was negative for opiates,
despite Moore being prescribed Lortab. (R. at 566.) Dr. Platt stated that, more than
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likely, he would continue to follow Moore for musculoskeletal pain, but would not
prescribe opiates. (R. at 566.)
When Moore saw Dr. Kaur on June 28, 2011, he noted that his blood
pressure was better, but complained of neck and back pain. (R. at 583, 678-80.)
On August 1, 2011, he complained of not sleeping well and worsened neck pain
that radiated into his back between his shoulders over the previous few days. (R. at
580-82, 675-77.) Moore stated that he was going to see Dr. Kotay for a surgical
consult. (R. at 580, 675.) Physical examination revealed normal extremities and
full orientation with normal memory, mood, affect and judgment/insight. (R. at
581, 676.) Dr. Kaur diagnosed neck pain and hypertension, and she prescribed
Prednisone. (R. at 582, 677.)
That same day, Dr. Kaur completed a physical assessment of Moore, finding
that he could lift and/or carry items weighing up to 5 pounds occasionally and up
to 10 pounds frequently and that, due to neck pain with radiculopathy, he could
stand/walk for a total of two hours in an eight-hour workday and sit for a total of
one hour in an eight-hour workday. (R. at 570-72.) She further found that, due to
impingement as shown on an MRI, Moore could never climb, stoop, kneel, crouch
or crawl, but could frequently balance. (R. at 571.) Dr. Kaur found that Moore’s
abilities to reach, to handle, to feel and to push/pull were affected by his
impairment due to decreased strength in the upper extremities, which was
confirmed by an MRI and exam. (R. at 571.)She further found that Moore had
restrictions on his abilities to work around heights, moving machinery, chemicals,
dust, fumes or vibration because he could not stay in humid environments due to
some black lung, and he had decreased strength in the upper and lower extremities
on examination. (R. at 572.) Dr. Kaur also noted that Moore suffered from lower
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back pain and that he would be absent, on average, more than two days monthly
due to his impairments. (R. at 572.)
On June 30, 2011, Dr. Michael Hartman, M.D., a state agency physician,
completed a physical assessment of Moore in connection with his initial disability
claims. (R. at 139-40.) Dr. Hartman found that Moore could lift and/or carry items
weighing up to 20 pounds occasionally and up to 10 pounds frequently, that he
could stand and/or walk, as well as sit, about six hours in an eight-hour workday,
that he could push and/or pull up to the lift/carry limitations and that he could
occasionally climb ramps, stairs, ladders, ropes and scaffolds, balance, stoop,
kneel, crouch and crawl. (R. at 139-40.)
Howard S. Leizer, Ph.D., a state agency psychologist, completed a
Psychiatric Review Technique form, (“PRTF”), of Moore on July 12, 2011, in
connection with his initial disability claims. (R. at 137-38.) Leizer found that
Moore was mildly restricted in his activities of daily living, had moderate
difficulties in maintaining social functioning and in maintaining concentration,
persistence or pace and had experienced no repeated episodes of decompensation
of extended duration. (R. at 137.) Leizer also completed a mental assessment of
Moore, finding that he was moderately limited in his ability to carry out detailed
instructions; to maintain attention and concentration for extended periods; to
perform activities within a schedule, to maintain regular attendance and to be
punctual within customary tolerances; to sustain an ordinary routine without
special supervision; to interact appropriately with the general public; to get along
with co-workers or peers without distracting them or exhibiting behavioral
extremes; and to respond appropriately to changes in the work setting. (R. at 14042.) In all other areas, Moore was deemed not significantly limited. (R. at 140-42.)
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Leizer suggested simple, unskilled work due to major depressive disorder,
recurrent, severe; anxiety disorder with both panic attacks and generalized anxiety;
panic disorder; and borderline intellectual functioning. (R. at 142.)
Moore saw Dr. Kaur on three occasions between September 6, 2011, and
January 10, 2012. (R. at 576-78, 666-68, 672-74.) Over this time, Moore
complained of pain in the right arm up into the neck, right shoulder pain with a
decreased range of motion, an inability to lie on the right shoulder and right SI
joint pain radiating down the lateral side of the thigh and lower back pain. (R. at
576-78, 666-68, 672-74.) A physical examination on September 6, 2011, revealed
normal extremities. (R. at 577, 673.) Moore consistently had full orientation with
normal mood, memory, affect and judgment/insight. (R. at 577, 667, 673.) Dr.
Kaur diagnosed pain in the neck and right shoulder, dyslipidemia, back pain,
sacroiliitis and hypertension, and she prescribed Flexeril and Lopid and
administered a Depomedrol injection. (R. at 578, 668, 674.) The results of a urine
drug screen were positive for Hydromorphone and Hydrocodone. (R. at 648.)
On January 12, 2012, Dr. Robert McGuffin, M.D., a state agency physician,
completed a physical assessment in connection with the reconsideration of
Moore’s disability claims, finding that he could lift and/or carry items weighing up
to 50 pounds occasionally and up to 25 pounds frequently. (R. at 171-72.) Dr.
McGuffin found that Moore could stand and/or walk, as well as sit, about six hours
in an eight-hour workday, that Moore’s ability to push and/or pull was unlimited,
other than the lift/carry restrictions, that he could occasionally climb ramps, stairs,
ladders, ropes and scaffolds, balance, stoop, kneel, crouch and crawl and that he
was limited in his ability to reach overhead bilaterally. (R. at 171-72.)
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On January 17, 2012, Dr. Andrew Bockner, M.D., a state agency physician,
completed a PRTF in connection with the reconsideration of Moore’s disability
claims. (R. at 169.) Dr. Bockner found that Moore was mildly restricted in his
activities of daily living, had moderately difficulties in maintaining social
functioning and in maintaining concentration, persistence or pace and had
experienced no repeated episodes of decompensation of extended duration. (R. at
169.) Dr. Bockner also completed a mental assessment of Moore, finding that he
was moderately limited in his ability to understand, remember and carry out
detailed instructions; to maintain attention and concentration for extended periods;
to perform activities within a schedule, maintain regular attendance and be
punctual within customary tolerances; to sustain an ordinary routine without
special supervision; to interact appropriately with the general public; to get along
with co-workers or peers without distracting them or exhibiting behavioral
extremes; and to respond appropriately to changes in the work setting. (R. at 17375.) Dr. Bockner concluded that Moore could perform simple, unskilled work due
to major depressive disorder, recurrent, severe; anxiety disorder with both panic
attacks and generalized anxiety; panic disorder; and borderline intellectual
functioning. (R. at 175.)
Moore presented to the emergency department at Norton Community
Hospital on March 20, 2012, with complaints of suicidal ideations for the previous
two weeks. (R. at 589-99.) However, he noted that he had been out of Lexapro,
which was helpful, for about three weeks. (R. at 589.) Moore’s psychiatric status
was deemed normal upon examination. (R. at 590.) Daphne Blanton, BS with
Frontier Health, completed a mental status examination of Moore, finding that he
had normal grooming and hygiene, was cooperative with normal speech, was
moderately depressed with a blunted affect, had normal orientation, attention,
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memory and thought processes, had no hallucinations, had good judgment and
impulse control, had dangerous thoughts earlier in the day, but none then, and had
past substance dependence. (R. at 633.) Moore was discharged home. (R. at 590.)
The next day, Blanton saw Moore for a mental health consult and completed
a Screening/Crisis Intervention/Crisis Stabilization Assessment & Authorization.
(R. at 627-30.) Moore reported that he was doing okay and was feeling better,
denying any suicidal or homicidal ideation or psychosis. (R. at 628.) Blanton
diagnosed Moore with major depressive disorder, single episode, moderate; and
she assessed his then-current GAF score at 50. (R. at 628.) On clinical assessment,
Moore was depressed and withdrawn with anxiety and sleep disturbance. (R. at
628-29.) Blanton noted that Moore had experienced a marked reduction in his
psychiatric, adaptive or behavioral functioning or an extreme increase in personal
distress after being out of Lexapro for two weeks until the previous day. (R. at
629.) However, she further noted that Moore received a prescription for a twoweek supply of Lexapro in the emergency department and that he was seeing Dr.
Kaur later that afternoon. (R. at 629.) Blanton concluded that Moore did not meet
the criteria for hospitalization and/or commitment, and she recommended
outpatient counseling and referral back to his primary care provider for medication
management. (R. at 629.)
When Moore saw Dr. Kaur that evening, he reported that he had not been
taking his Lexapro. (R. at 663-65.) He stated that he looked for his brother’s
medications to take as an attempt at suicide. (R. at 663.) Dr. Kaur found Moore
fully oriented with normal memory, mood, affect and judgment/insight, she
diagnosed hypertension and depression and gave him samples of Cymbalta. (R. at
664-65.)
-16-
Moore was seen for another Crisis Intervention screening on March 22,
2012, by Pamela Varner, RN with Frontier Health. (R. at 623-26.) He reported
being very depressed, having lost interest in things he used to enjoy and having
racing thoughts, but that he felt some better after Dr. Kaur increased his Lexapro
dosage. (R. at 624.) He denied suicidal or homicidal thoughts, as well as
hallucinations or paranoia. (R. at 624.) Varner diagnosed major depressive
disorder, single episode, moderate; and she assessed his then-current GAF score at
50. (R. at 624.) On clinical assessment, Moore was depressed and withdrawn with
appetite and sleep disturbance. (R. at 624-25.) Moore stated that he would return
to stay with his mother in a few days and noted that felt like things were looking
up. (R. at 625.) Varner found that Moore did not meet the criteria for
hospitalization and/or commitment. (R. at 625.)
On April 10, 2012, Moore saw James Kegley, a social worker, for an intake
assessment at Frontier Health. (R. at 601-22.) Moore reported depression and lack
of energy, despite the increased Lexapro dosage, and he admitted getting “nervous
and sweaty” whenever he was around many people. (R. at 601.) He stated that he
did not participate in any leisure activities. (R. at 605.) Kegley found that Moore
had age appropriate activities of daily living skills, but that he had experienced
significant psychiatric decompensation in the previous three months. (R. at 606.)
Moore endorsed mild tearfulness and moderate decrease in energy or fatigue;
social withdrawal; anxiety; panic attacks; distractibility; memory impairment; poor
attention or concentration; inability to maintain normal body weight; apathy;
depressed mood; feeling worthless; helplessness; hopelessness; loss of interest or
pleasure; low self-esteem; and insomnia. (R. at 610-12.) He noted recent suicidal
ideation, but none then. (R. at 611.) Kegley diagnosed possible depressive
disorder; and anxiety disorder, not otherwise specified, and he placed Moore’s
-17-
then-current GAF score at 50. (R. at 614.) He found that Moore was of average
intelligence or above. (R. at 614.) Kegley recommended that Moore begin
individual and group therapy. (R. at 616.)
Also on April 10, 2012, Moore reported continued depression to Dr. Kaur
after being back on Lexapro for two weeks. (R. at 660-62.) Moore again was fully
oriented with normal memory, mood, affect and judgment/insight. (R. at 661.) Dr.
Kaur diagnosed depression and planned to continue him on Lexapro for two to
three more weeks before considering a medication change. (R. at 662.) His
hypertension was stable. (R. at 662.)
On April 23, 2012, Moore again advised Kegley that he was unable to be in
crowds, preferring to be by himself. (R. at 634.) He gave no indication of suicidal
or homicidal ideation during the session. (R. at 634.) Moore’s mood was mildly
depressed with congruent affect. (R. at 634.) He continued to counsel with Kegley
on May 15, June 4, and July 5, 2012. (R. at 692-94.) Moore reported that he
probably could have continued working if allowed to work “high coal” because he
would not have to bend over that much. (R. at 694.) He continually gave no
indication of suicidal or homicidal ideation, and his mood was mildly depressed
with congruent affect. (R. at 692-94.) He continued to report that being around
people made him nervous all over, gave him “hot flashes” and that he could not
“get out fast enough.” (R. at 692-94.) Kegley challenged Moore to accompany
someone to the grocery store or Walmart, which he did, but not for long. (R. at
692-94.) Moore stated his belief that his pain was a major contributing factor to his
negative moods. (R. at 692.)
-18-
When Moore saw Dr. Kaur on July 6, 2012, he was fully oriented with
normal memory, mood, affect and judgment/insight. (R. at 658.) Dr. Kaur deemed
his depression and hypertension stable, continued him on Lexapro and gave him
samples of Crestor. (R. at 659.)
Moore continued to treat with Kegley on July 24, and August 9, 2012,
reporting that his depression “[was] not really good” and that it had been “pretty
bad.” (R. at 688-89.) He stated that the anxiety “is a hard thing to break,” and he
reported continued panic attacks. (R. at 688-89.) In August 2012, Moore continued
to report anxiety when around larger crowds of people and having hot flashes over
the previous several months with profuse sweating and shaking. (R. at 688.)
However, in July 2012, he had reported going to the grocery store and Walmart
with his girlfriend and mother two or three times since his prior session. (R. at
689.) Moore repeatedly gave no indication of suicidal or homicidal ideation, and
his mood was mildly depressed with congruent affect. (R. at 688-89.) Kegley
continued to encourage him to get out to the store and the library. (R. at 688-89.)
On August 29, 2012, Moore saw Dr. Kaur with complaints of constant
bilateral back pain radiating down the leg to the medial side of the right foot, worse
for the previous week and not helped by Aleve. (R. at 732-34.) On physical
examination, Moore was tender in the right SI joint. (R. at 733.) He was fully
oriented with normal memory, mood, affect and judgment/insight. (R. at 733.) Dr.
Kaur diagnosed sacroiliitis and prescribed a six-day course of prednisone. (R. at
734.) She also gave him home exercises, but Moore refused an injection. (R. at
734.)
-19-
Moore continued to treat with Kegley from September 18, 2012, through
February 21, 2013. (R. at 696-703.) Over this time, Moore described his depression
as “up and down” and stated that he was “down most of the time.” (R. at 702-03.)
However, on November 13, 2012, he stated that Lexapro helped his depression and
that he was able to get out more. (R. at 701.) On February 21, 2013, Moore stated
that he was depressed all the time, noting his belief that his pain was the biggest
cause of his depression. (R. at 696.) Moore continued to report that he could not
tolerate a lot of people and that “crowds still tear [him] up.” (R. at 698, 702.) He
stated that Lexapro did not help his anxiety. (R. at 701.) Moore had not visited the
library as Kegley suggested, and an attempt to hunt was unsuccessful. (R. at 70203.) In November 2012, he stated that he would push himself to go to the grocery
store before his next session, which he did. (R. at 698, 701.) Moore reported
traveling to visit his mother and other relatives in Stuart, Virginia, on occasion.
(R. at 703.) On January 7, 2013, Moore advised Kegley he was leaving that day for
his mother’s house to care for her during the winter months. (R. at 698.) During
this time, Moore repeatedly gave no indication of suicidal or homicidal ideation,
and his mood was mildly depressed with congruent affect. (R. at 696, 698, 701,
703.)
Moore returned to Dr. Kaur on February 22, 2013, complaining of constant,
chronic, left-sided lower back pain, which radiated to the right leg, and requesting
an injection. (R. at 723-26.) He rated his pain as a 7 on a 10-point scale, aggravated
by activity and walking, and which subsided when lying down. (R. at 723.) Moore
was awake and alert and in no acute distress. (R. at 725.) There was normal lumbar
lordosis and normal range of motion of the lumbar spine, but tenderness and
muscle spasms in the right lower back. (R. at 725.) The lumbar spine was
-20-
described as “stable.” (R. at 725.) Straight leg raise testing and fabere sign 9 were
positive, and Moore was tender in the SI area. (R. at 725.) He had appropriate
judgment, good insight, proper orientation, intact recent and remote memory and a
euthymic mood and appropriate affect. (R. at 725.) Dr. Kaur administered a hip
injection to the right SI joint without complication, and Moore had mild relief
within five minutes. (R. at 725, 727.) Dr. Kaur diagnosed depressive disorder, not
elsewhere classified; and sacroiliitis, not elsewhere classified, among other things.
(R. at 725.)
Moore returned to Kegley on March 25, 2013, again giving no indication of
suicidal or homicidal ideation during the session. (R. at 756.) His mood was mildly
depressed with congruent affect. (R. at 756.)
A lumbar spine MRI from April 19, 2013, showed a prominent right
paracentral disc extrusion at the L2-L3 level, resulting in severe right lateral recess
stenosis; grade 1 anterolisthesis of L5 on S1 with bilateral pars defects at the L5
level; and severe bilateral neuroforaminal narrowing at the L5-S1 level, slightly
worse on the left. (R. at 713-14.)
On May 2, 2013, Dr. Kaur informed Moore that the MRI showed bulging
discs at the L2-L3 level and the L5-S1 level. (R. at 716.) Moore rated his rightsided back pain as a 4 to 9 on a 10-point scale and noted an inability to do any
activity due to back pain. (R. at 716.) On physical examination, Moore was awake,
alert and in no acute distress. (R. at 718.) He had appropriate judgment, good
9
Fabere sign, also referred to as Patrick’s test, is used to determine the presence of
arthritis in the hip. See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY FOURTH EDITION,
(“Dorland’s”), 1522, 1688 (27th ed. 1988).
-21-
insight, proper orientation, intact recent and remote memory and euthymic mood
and appropriate affect. (R. at 718.) Moore stated his willingness to undergo back
surgery. (R. at 716.) Dr. Kaur again diagnosed depressive disorder, not elsewhere
classified; sacroiliitis, not elsewhere classified; and unspecified backache; among
other things. (R. at 718.) Dr. Kaur planned to refer Moore to University of
Virginia, (“UVA”), for surgery, and she prescribed Lortab. (R. at 718.)
Moore saw Dr. Gregory Helm, M.D., a neurosurgeon at the Spine Center at
UVA, on May 14, 2013, for a surgical consultation. (R. at 752.) Moore was grossly
neurologically intact and had negative straight leg raise testing. (R. at 752.) Dr.
Helm noted that the April 2013 lumbar MRI findings, and Moore decided to
proceed with a surgical decompression and fusion on July 11, 2013. (R. at 752.)
Moore returned to Kegley on June 6, 2013, stating that he could not get over
his anxiety and noting difficulty when in stores. (R. at 754.) He stated that
“everybody moving” around him seemed to be a trigger and that he would break
out in a cold sweat. (R. at 754.) Moore stated that he had become afraid of heights
despite previously working for a cable company and climbing poles without
difficulty. (R. at 754.) He gave no indication of suicidal or homicidal ideation, and
his mood was mildly depressed with congruent affect. (R. at 754.) Kegley again
challenged him to visit the local grocery store prior to his next appointment to push
himself. (R. at 754.)
Robert S. Spangler, Ed.D., a licensed psychologist, completed a
psychological evaluation of Moore on June 15, 2013. (R. at 759-62.) He was clean
and appropriately dressed, cooperative and medicated. (R. at 759.) Moore had
awkward gross motor movements and a slow, stiff gait secondary to chronic low
-22-
back pain, but age-appropriate fine motor skills and a slow general activity level.
(R. at 759.) He seemed socially confident, but anxious and depressed. (R. at 759.)
He generally understood the instructions for each task and demonstrated good
concentration for 30 minutes, then erratic concentration secondary to pain. (R. at
759.) Moore was appropriately persistent on the tasks, but pace was impacted, and
he stood frequently between tasks and shifted in his seat secondary to chronic low
back and neck pain. (R. at 759.) He described chronic anxiety and depression
symptoms, and he stated that he worried chronically to an unrealistic extent. (R. at
759.)
On mental status examination, Moore was alert and fully oriented with
adequate recall of remote and recent events. (R. at 760.) He had fair eye contact,
and his motor activity was tense. (R. at 760.) Moore’s mood was depressed and
anxious with an appropriate affect, and he was cooperative, compliant and
forthcoming. (R. at 760.) Moore repeated two words after five minutes, seven
numbers presented serially forward and five numbers presented backward. (R. at
760.) He could not perform Serial 7s or Serial 3s, but he did do Serial 5s
adequately, and he interpreted common proverbs adequately. (R. at 760.) There
was no illogical language or loose associations, he could spell “world” backward
and forward, his judgment and insight were consistent with low average
intelligence, his stream of thought was unremarkable, associations were logical,
thought content was nonpsychotic and perceptual abnormalities were not noted
except for slow speed. (R. at 760.) Moore appeared to be functioning in the low
average range of intelligence and was emotionally labile secondary to chronic pain.
(R. at 760.) He denied then-current suicidal or homicidal ideation, and delusional
thought was not evident. (R. at 760.) Spangler found Moore to be credible. (R. at
760.) Spangler deemed Moore’s social skills to be adequate, as he related well to
-23-
him. (R. at 760.) However, he found that Moore did not have the judgment
necessary to handle his financial affairs if awarded benefits. (R. at 761.)
Spangler administered the Wechsler Adult Intelligence Scale – Fourth
Edition, (“WAIS-IV”), on which Moore received a full-scale IQ score of 79,
placing him in the borderline range of intelligence. (R. at 761.) Spangler also
administered the Wide Range Achievement Test – Fourth Edition, (“WRAT-4”),
which placed Moore at the 8.9 grade level in word reading and in sentence
comprehension and the 5.1 grade level in arithmetic computation. (R. at 761.)
Moore’s pace was inadequate as objectively tested. (R. at 761.) Spangler diagnosed
Moore with generalized anxiety disorder, mild to moderate; major depressive
disorder, recurrent, moderate to severe; and borderline intelligence, and he placed
his then-current GAF score at 50 to 55. (R. at 762.) He deemed Moore’s prognosis
guarded, noting that he need to continue mental health treatment for a period
greater than 12 months. (R. at 762.)
Spangler also completed a work-related mental assessment, finding that
Moore had a limited, but satisfactory, ability to maintain attention/concentration
for 30 minutes; a seriously limited ability to follow work rules; to relate to coworkers; to deal with the public; to use judgment; to interact with supervisors; to
function independently; to maintain attention/concentration for periods longer than
30 minutes; to understand, remember and carry out simple job instructions; and to
maintain personal appearance; and no useful ability to deal with work stresses; to
understand, remember and carry out both detailed and complex job instructions; to
behave in an emotionally stable manner; to relate predictably in social situations;
and to demonstrate reliability. (R. at 764-66.) He based these findings on Moore’s
borderline intelligence; erratic concentration after 30 minutes, moderate to severe;
-24-
marginal
education
math
skills;
limited
education
reading
skills
and
comprehension; slow pace which impacted the ability to carry out simple tasks in a
timely manner; major depressive disorder, recurrent, moderate to severe; and
generalized anxiety disorder, mild to moderate. (R. at 765-66.) Spangler agreed
with Lanthorn’s finding that Moore could not sustain gainful employment. (R. at
766.) He opined that Moore could manage benefits in his own best interest and that
he would be absent from work an average of more than four days monthly. (R. at
766.)
Moore advised Dr. Kaur on June 13, 2013, that he was looking forward to
undergoing back surgery at UVA on July 11, 2013, and that Lortab had helped his
pain. (R. at 768-70.) Moore’s hypertension was stable at that time, and he was alert
and in no acute distress. (R. at 768.) He had appropriate judgment, good insight,
proper orientation, intact recent and remote memory and a euthymic mood and
appropriate affect. (R. at 770.) Dr. Kaur diagnosed benign essential hypertension;
other and unspecified hyperlipidemia; depressive disorder, not elsewhere
classified; sacroiliitis, not elsewhere classified; and unspecified backache. (R. at
770.) She continued Moore on Lortab. (R. at 770.)
On July 3, 2013, Moore saw Choi Mei Adams, a nurse practitioner at UVA,
for a sleep apnea consultation prior to his back surgery. (R. at 819-22.) Moore
endorsed back pain, myalgias and arthralgias, as well as problems with memory,
concentration, weakness and tingling, burning and/or aching in the legs at night,
depression and anxiety. (R. at 820-21.) On physical examination, Moore was
cooperative and in no acute distress. (R. at 821.) He had a normal gait with no
cyanosis, clubbing or bilateral pretibial pitting edema of the extremities. (R. at
821.) He was alert and fully oriented with a normal mood and affect. (R. at 821.)
-25-
Adams ordered a polysomnogram, which was performed on July 5, 2013, at UVA
by Dr. Paul M. Suratt, M.D. (R. at 810-17.) This study reveled moderate to severe
obstructive sleep apnea with mild oxyhemoglobin desaturation. (R. at 811.) Dr.
Suratt recommended treatment with a nasal CPAP machine. (R. at 811.)
On July 10, 2013, Moore saw Kimberly Skinner, PA-C, a physician’s
assistant at UVA, prior to his back surgery. (R. at 804-06.) On physical
examination, he was alert and oriented with a normal gait, full strength, except H/F
was 4/5 bilaterally, and normal muscle bulk, overall muscle tone and sensation to
light touch. (R. at 806.) He had a normal mood and affect with normal behavior,
judgment and thought content. (R. at 806.)
On July 11, 2013, Dr. Helm performed a posterior decompression and fusion
with bilateral L5-S1 pedicle screw fixation without complication. (R. at 777-84.)
Following the procedure, Moore was awake, alert and oriented, and he rated his
pain as a 5 on a 10-point scale. (R. at 786.) Post-operative standing and supine xrays of the lumbar spine showed no evidence of complication. (R. at 795.) Moore
was discharged on July 14, 2013, at which time examination showed full strength
and sensation. (R. at 796-97.) At that time, he rated his pain as a 2 on a 10-point
scale. (R. at 801.) Moore’s cognition and extremity range of motion were within
functional limits, as demonstrated by his performance of basic activities of daily
living. (R. at 801.) No impairments were noted in his motor control and
coordination, and he could sit and stand independently. (R. at 801.) He was
discharged home in stable condition and was advised to perform activity as
tolerated, with the exception of no lifting over 10 pounds. (R. at 796, 798-99.)
-26-
On July 24, 2013, Moore returned to Dr. Kaur for suture removal. (R. at 4851.) He reported that his right leg numbness was improving, but continued to
complain about a lot of pain, not relieved by Lortab. (R. at 48.) On physical
examination, Moore was alert and in no acute distress. (R. at 50.) There was no
tenderness to palpation of the lumbar spine, he had normal range of motion, and
the lumbar spine was “stable.” (R. at 50.) Moore’s mood was euthymic with
appropriate affect, and he had appropriate judgment, good insight, proper
orientation and intact recent and remote memory. (R. at 50.) Moore reported that
over the previous two weeks, more than half of the time he had had little or no
interest in doing things, and several days he had felt down, depressed or hopeless.
(R. at 50.) Dr. Kaur diagnosed unspecified backache, and she prescribed Percocet.
(R. at 50-51.)
Moore continued to treat with Dr. Kaur from August 12, 2013, through
March 25, 2014. (R. at 11-47.) On August 12, 2013, Moore complained of severe,
constant right foot pain of three days’ duration, which he attributed to gout. (R. at
44-47.) He was alert and in no acute distress. (R. at 46.) There was erythema of the
right lower extremity and tenderness to palpation, but range of motion was normal
without joint instability. (R. at 46.) Dr. Kaur diagnosed gouty arthropathy,
unspecified, and she prescribed Indomethacin and prednisone. (R. at 46.)
However, on August 21, 2013, Moore complained of pain on the lateral side of the
right leg and a stinging and burning pain in the foot, not relieved by medication or
steroids. (R. at 36-39.) Moore again was alert and in no acute distress. (R. at 38.)
The right lower extremity was normal with tenderness to palpation, but Moore had
normal range of motion and no joint instability. (R. at 38.) He was very tender to
touch on the lateral side of the right leg. (R. at 38.) Dr. Kaur ordered x-rays and
prescribed Neurontin. (R. at 38.) These x-rays showed soft tissue swelling
-27-
proximal to the fifth metatarsal with foreign body suspicious for a piece of glass in
the right foot. (R. at 35.) X-rays of the right tibia and fibula were normal. (R. at
35.) By September 20, 2013, Moore reported a continued inability to walk, and he
was limping, but he advised that his back pain was controlled with Neurontin, and
he was in no acute distress. (R. at 30, 32.) His right lower extremity again was
tender to palpation with normal range of motion and no joint instability. (R. at 32.)
Moore remained very tender on the lateral side of the right leg. (R. at 32.) Dr. Kaur
diagnosed pain in joint, lower leg. (R. at 32.)
From November 19, 2013, through January 22, 2014, Moore continued to
complain of right leg numbness, and physical examinations were positive for
tenderness in the right lower extremity to palpation and tenderness on the lateral
side of the right leg. (R. at 15-18, 26-29.) However, range of motion was normal
without joint instability. (R. at 17, 28.) Dr. Kaur diagnosed pain in joint, lower leg
and prescribed medications. (R. at 17-18, 28.) By March 25, 2014, Moore stated
that he was doing “fine” and was taking his pain medication as needed. (R. at 1114.) His hypertension was stable. (R. at 11.)
Over this same time, Moore also complained of depression symptoms to Dr.
Kaur. For instance, in July 2013, he reported that over the previous two weeks, he
had little or no interest in doing things more than half the time, and several days he
felt down, depressed or hopeless. (R. at 50.) Nonetheless, at each of the six visits
over this time, Dr. Kaur found that Moore’s mood was euthymic with an
appropriate affect, and he had appropriate judgment, good insight, proper
orientation and intact recent and remote memory. (R. at 13, 17, 28, 32, 38, 46.) Dr.
Kaur diagnosed Moore with depressive disorder, not elsewhere classified. (R. at
13, 17, 28, 32, 38.)
-28-
III. Analysis
The Commissioner uses a five-step process in evaluating DIB and SSI
claims. See 20 C.F.R. §§ 404.1520, 416.920 (2015). 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 his past relevant
work; and 5) if not, whether he can perform other work. See 20 C.F.R. §§
404.1520, 416.920. 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), 416.920(a) (2015).
Under this analysis, a claimant has the initial burden of showing that he is
unable to return to his past relevant work because of his impairments. Once the
claimant establishes a prima facie case of disability, the burden shifts to the
Commissioner. To satisfy this burden, the Commissioner must then establish that
the claimant has the residual functional capacity, considering the claimant’s age,
education, work experience and impairments, to perform alternative jobs that exist
in the national economy. See 42 U.S.C.A. §§ 423(d)(2)(A), 1382c(a)(3)(A)-(B)
(West 2011 & West 2012); McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir.
1983); Hall, 658 F.2d at 264-65; Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir.
1980).
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.
This court must not weigh the evidence, as this court lacks authority to substitute
-29-
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 her findings and her rationale in crediting evidence.
See Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
Thus, 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), 416.927(c), if she sufficiently explains her rationale and if the record
supports her findings.
Moore argues that the ALJ erred by improperly determining his residual
functional
capacity.
(Plaintiff’s
Motion
For
Summary
Judgment
And
Memorandum Of Law, (“Plaintiff’s Brief”), at 6-8). Moore also argues that the
ALJ erred by making incomplete findings at step three of the sequential evaluation
process. (Plaintiff’s Brief at 8-9.)
The ALJ found that Moore had the residual functional capacity to perform
simple, repetitive, unskilled light work that did not require concentrated exposure
to climbing ladders, ropes or scaffolds or working on vibrating surfaces, at
unprotected heights or near hazardous machinery, that did not require more than
-30-
occasional balancing, kneeling, crawling, stooping, crouching, climbing ramps or
stairs or pushing/pulling with the upper extremities and that did not require more
than occasional interaction with the general public. (R. at 59-60.) Based on my
review of the record, I find that substantial evidence exists to support the ALJ’s
finding with regard to Moore’s residual functional capacity.
Moore argues that the ALJ, in arriving at her physical residual functional
capacity finding, should have given more weight to the opinions of his treating
physician, Dr. Kaur. I find this argument unpersuasive. The ALJ must generally
give more weight to the opinion of a treating physician because that physician is
often most able to provide “a detailed, longitudinal picture” of a claimant’s alleged
disability. 20 C.F.R. §§ 404.1527(c), 416.927(c) (2015). However, “[c]ircuit
precedent does not require that a treating physician’s testimony ‘be given
controlling weight.’” Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996) (quoting
Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (per curiam)). In fact, “if a
physician’s opinion is not supported by clinical evidence or if it is inconsistent
with other substantial evidence, it should be accorded significantly less weight.”
Craig, 76 F.3d at 590.
Here, the ALJ stated that she was giving Dr. Kaur’s opinion little weight, as
it was not supported by the objective medical evidence of record. (R. at 63.) While
Dr. Kaur found that Moore could lift and carry items weighing up to 10 pounds, sit
no more than one hour and stand/walk no more than two hours in an eight-hour
period, could not climb, stoop, kneel, crouch or crawl and had a limited capacity
for reaching, handling, feeling, pushing, pulling and performing jobs involving
exposure to heights, moving machinery, chemicals, dust, fumes or vibration, a
November 2010 MRI showed facet joint arthritis and osteophytes from C3 to C7
-31-
with various degrees of impingement, but there was no evidence of herniated
nucleus pulposus or spinal stenosis. Moreover, Dr. Platt noted in April 2011 that
there was “not a lot of objective evidence of injury.” At that time, Moore was able
to “come sit-to-stand” and could flex to 30 degrees. Dr. Kaur’s own treatment
notes also do not support the harsh limitations he imposed upon Moore in the
August 2011 assessment. For instance, treatment notes from May 23, 2011, reflect
that Moore did not complain of back or neck pain, and Dr. Kaur imposed no
restrictions on Moore’s physical activities. Dr. Kaur’s physical examination of
Moore on August 1, 2011, revealed normal extremities, and Dr. Kaur again placed
no restrictions on Moore’s activities. Likewise, physical examinations by Dr. Kaur
between September 6, 2011, and January 10, 2012, continued to reveal normal
extremities. Thus, aside from the objective medical testing, Dr. Kaur’s August 1,
2011, assessment is not supported by his own treatment notes from the same day.
I also find that it is not supported by the physical assessments of Moore
completed by state agency physicians, Drs. Hartman and McGuffin, on June 30,
2011, and January 12, 2012, respectively. Dr. Hartman opined that Moore could
lift/carry items weighing up to 20 pounds occasionally and up to 10 pounds
frequently. He also opined that Moore could stand/walk, as well as sit, about six
hours in an eight-hour workday, that he could push/pull up to the lift/carry
limitations and that he could occasionally climb ramps, stairs, ladders, ropes and
scaffolds, balance, stoop, kneel, crouch and crawl. Dr. McGuffin’s findings echoed
those of Dr. Hartman for the most part, except he found that Moore could lift/carry
items weighing up to 50 pounds occasionally and up to 25 pounds frequently, and
he opined that Moore was limited in his ability to reach overhead bilaterally. In his
decision, the ALJ stated that he was giving great weight to the opinions of the state
agency physicians, as they were consistent and well-supported. (R. at 62-63.)
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A subsequent MRI in April 2013 showed an L2-L3 disc herniation, grade 1
anterolisthesis of L5 on S1 with bilateral pars defects at the L5 level and severe
bilateral neuroforaminal narrowing at the L5-S1 level. However, Moore underwent
back surgery to correct these issues on July 11, 2013, without complication.
Moore’s back and leg condition improved following surgery, and he consistently
exhibited normal range of motion and no joint instability of the right leg. The
record reveals that Moore’s back pain was controlled with medication. “If a
symptom can be reasonably controlled by medication or treatment, it is not
disabling.” Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986).
Moore also argues that the ALJ, in arriving at her mental residual functional
capacity finding, should have given more weight to the opinions of psychologists
Spangler and Lanthorn. Again, I find this argument unpersuasive. The ALJ stated
that she was giving little weight to both of these opinions, as neither source was a
treating psychologist, and their opinions were not supported by the objective or
other medical evidence of record. (R. at 63.) In March 2011, Lanthorn opined that
Moore’s psychopathology prevented him from sustaining gainful employment.
Without repeating all of their findings, Lanthorn opined that Moore had no useful
ability to carry out the majority of work-related mental functions assessed, and
Spangler opined that Moore had mostly either seriously limited or no useful
abilities in these same areas. Lanthorn’s assessment was completed in March 2011
and Spangler’s in June 2013. Spangler agreed with Lanthorn’s opinion that Moore
could not sustain substantial gainful employment.
I first note that, despite Spangler’s finding that Moore had a seriously
limited ability to interact with supervisors and no useful ability to relate
predictably in social situations, in his report, Spangler noted that Moore’s social
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skills were adequate, that he related well to the examiner, and he seemed socially
confident. Spangler also found that Moore’s memory was intact, that he had
adequate recall of remote and recent events, and associations were logical. I note
that Spangler’s report and assessment are further inconsistent, as the report states
that Moore does not have the judgment necessary to handle his financial affairs if
awarded benefits, while the assessment states that he could handle benefits in his
own best interest. Thus, at least parts of Spangler’s mental assessment of Moore
are inconsistent with his accompanying report.
Spangler’s and Lanthorn’s harsh restrictions also are not supported by the
other substantial evidence of record. For instance, Dr. Kaur’s treatment notes
reflect that Moore’s memory was normal, as were his mood, affect, judgment and
insight. In February, May and June 2013, Moore’s mood was even described as
euthymic. Dr. Kaur treated Moore’s psychological symptoms with Lexapro, which
Moore reported was helpful. Spangler’s and Lanthorn’s restrictions also are not
supported by the opinions of state agency psychologist Leizer and state agency
physician Dr. Bockner, who both opined that Moore could perform simple,
unskilled work. Also, upon presentation to the emergency department at Norton
Community Hospital for suicidal ideations in March 2012, Moore’s psychiatric
status was deemed “normal” and, later that day, “moderately depressed with a
restricted affect,” but he had normal attention, memory and thought processes, as
well as good judgment. During that same hospitalization, Moore’s condition
stabilized, and he reported feeling better with medications. Treatment notes from
social worker Kegley reveal that Moore’s depression was consistently mild, with
the exception of being described as moderate on one occasion. In July 2013, nurse
practitioner Adams and physician’s assistant Skinner both described Moore’s
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mood and affect as normal, and Skinner further noted that he had normal behavior,
judgment and thought content.
Lastly, Moore argues that the ALJ erred by making incomplete findings at
step three of the sequential evaluation process. Moore specifically argues that the
ALJ did not specify which sections of the Listings she considered, nor did she
explain how she determined that his impairments did not meet or equal those
Listings. For the reasons that follow, I agree with regard to Moore’s physical
impairments, but not his mental impairments.
It is well-settled that “ALJs have a duty to analyze ‘all of the relevant
evidence’ and to provide a sufficient explanation for their ‘rationale in crediting
certain evidence.’” Bill Branch Coal Corp. v. Sparks, 213 F.3d 186, 190 (4th Cir.
2000) (citations omitted). “Judicial review of an administrative decision is
impossible without an adequate explanation of that decision by the administrator.”
DeLoatch v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983). Therefore, judicial review
may be impossible, and remand necessary, if (1) the ALJ “fail[s] to make requisite
findings or to articulate the bases for his conclusions,” DeLoatch, 715 F.2d at 150;
and (2) the record provides an inadequate explanation of the Commissioner’s
decision, Meyer v. Astrue, 662 F.3d 700, 707 (4th Cir. 2011) (citing DeLoatch, 715
F.2d at 150) (explaining that judicial review is possible so long as the record
provides an adequate explanation of the Commissioner’s decision)). Here, with
regard to Moore’s mental impairments, he simply is incorrect that the ALJ did not
specify the Listings considered or explain her findings as to why his impairments
did not meet or equal those Listings. In fact, a review of the ALJ’s decision reveals
that she set forth a rather detailed analysis in this regard. In her decision, the ALJ
stated that she was considering Listing §§ 12.02, 12.04, 12.05 and 12.06. (R. at
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58.) She then proceeded to explain in detail why Moore’s impairments did not
meet the criteria for each of these Listings. (R. at 58-59.) Therefore, I find this
argument to be without merit.
With regard to Moore’s physical impairments, however, I agree that the ALJ
erred. The ALJ simply stated that the “appropriate sections of the Listings” had
been considered, but the objective medical evidence of record did not support a
conclusion that Moore’s physical impairments were of listing-level severity. (R. at
58.) This court has held that a “remand is not warranted … ‘where it is clear from
the record which [L]isting … was considered, and there is elsewhere in the ALJ’s
opinion an equivalent discussion of the medical evidence relevant to the [s]tep
[t]hree analysis which allows [the reviewing court] readily to determine whether
there was substantial evidence to support the ALJ’s [s]tep [t]hree conclusion.’”
Meador v. Colvin, 2015 WL 1477894, at *3 (W.D. Va. Mar. 27, 2015) (quoting
Schoofield v. Barnhart, 220 F. Supp. 2d 512, 522 (D. Md. 2002)). However, a
“sweeping, naked conclusion” by an ALJ that a claimant’s impairment does not
meet or equal a Listing does not constitute a sufficient step three analysis.
Schoofield, 220 F.Supp. 2d at 520. I find that this is the case here. The ALJ made
very specific mention of the Listings considered and made a detailed analysis of
whether Moore’s mental impairments met or equaled those Listings, but, with
regard to his physical impairments, she merely stated that she had considered the
“appropriate sections,” and they had not been met. The ALJ did not even make
reference to the evidence contained in her step four residual functional capacity
analysis of Moore. I find that this is the kind of “sweeping, naked conclusion”
found insufficient in Schoofield.
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Based on the above reasoning, I conclude that substantial evidence does not
support the ALJ’s step three analysis with regard to Moore’s physical impairments,
and I, therefore, further find that substantial evidence does not exist in the record to
support the ALJ’s conclusion that Moore was not disabled and not entitled to
benefits. An appropriate Order and Judgment will be entered.
DATED:
June 1, 2016.
/s/
Pamela Meade Sargent
UNITED STATES MAGISTRATE JUDGE
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