Salyers v. Colvin

Filing 21

MEMORANDUM OPINION. Signed by Magistrate Judge Pamela Meade Sargent on 05/27/2016. (Bordwine, Robin)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION
ROY LEE SALYERS,
Plaintiff
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant

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Civil Action No. 2:15cv00005
MEMORANDUM OPINION
By: PAMELA MEADE SARGENT
United States Magistrate Judge

I. Background and Standard of Review
Plaintiff, Roy Lee Salyers, (“Salyers”), 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).
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
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
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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 Salyers protectively filed his applications for SSI and
DIB on February 14, 2012, alleging disability as of January 24, 2012, due to
chronic obstructive pulmonary disease, (“COPD”) and back and hip problems.
(Record, (“R.”), at 172-79, 195, 199.) The claims were denied initially and upon
reconsideration. (R. at 80-82, 87-89, 93-97, 99-104, 106-08.) Salyers then
requested a hearing before an administrative law judge, (“ALJ”). (R. at 109.) A
hearing was held on November 25, 2013, at which Salyers was represented by
counsel. (R. at 25-41.) At his hearing, Salyers amended the date of his alleged
onset of disability to December 1, 2012. (R. at 28.)
By decision dated January 17, 2014, the ALJ denied Salyers’s claims. (R. at
11-20.) The ALJ found that Salyers met the nondisability insured status
requirements of the Act for DIB purposes through December 31, 2016. (R. at 13.)
He found that Salyers had not engaged in substantial gainful activity since
December 1, 2012, the amended alleged onset date. (R. at 13.) The ALJ found that
the medical evidence established that Salyers had severe impairments, namely
chronic back pain, back spasms and hip and right knee pain, but he found that
Salyers did not have an 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 13-14.) The ALJ found that Salyers had the residual functional
capacity to perform medium1 work that did not require him to crawl; that did not
require more than occasional climbing, balancing, stooping, kneeling and
crouching; and that did not require him to work around fumes, odors, dusts, gases
1

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).
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or poor ventilation. (R. at 15.) The ALJ found that Salyers was unable to perform
any of his past relevant work. (R. at 18.) Based on Salyers’s age, education, work
history and residual functional capacity and the testimony of a vocational expert,
the ALJ found that a significant number of jobs existed in the national economy
that Salyers could perform, including jobs as a hand packager, a stock clerk and a
material handler. (R. at 18-19.) Thus, the ALJ concluded that Salyers was not
under a disability as defined by the Act and was not eligible for DIB or SSI
benefits. (R. at 19-20.) See 20 C.F.R. §§ 404.1520(g), 416.920(g) (2015).
After the ALJ issued his decision, Salyers pursued his administrative
appeals, (R. at 6), but the Appeals Council denied his request for review. (R. at 14.) Salyers 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 Salyers’s motion for summary
judgment filed December 23, 2015, and the Commissioner’s motion for summary
judgment filed March 15, 2016.
II. Facts
Salyers was born in 1954, (R. at 172, 176), which classifies him as a “person
of advanced age” under 20 C.F.R. §§ 404.1563(e), 416.963(e). Salyers obtained his
general equivalency development, (“GED”), diploma and has past relevant work
experience as a laborer for a drilling operation, a maintenance man and a painter.
(R. at 28-29, 38, 200.) Salyers testified that he could not work because of pain in
his low back and joints, including his hips and right knee. (R. at 30.) He testified
that the medications he took helped with the pain. (R. at 30.)

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Barry Hensley, a vocational expert, was present and testified at Salyers’s
hearing. (R. at 38-40, 156.) Hensley was asked to consider a hypothetical
individual of Salyers’s age, education and work history who had the residual
functional capacity to perform medium work, who could occasionally climb,
balance, stoop, kneel and crouch, but never crawl, and who could not work in
poorly ventilated areas. (R. at 38.) Hensley testified that such an individual could
not perform Salyers’s past work, but that there were other jobs existing in
significant numbers in the national economy that he could perform, including those
of a hand packager, a stock clerk and a materials handler or mover. (R. at 38-39.)
Hensley testified that an individual who could lift and/or carry items weighing five
to 10 pounds occasionally; who could occasionally stoop, balance, reach, handle,
push and pull; who could never climb, kneel, crouch or crawl; who should avoid
concentrated exposure to heights, moving machinery, temperature extremes,
chemicals, trucks, noise, fumes, humidity and vibration; and who would be absent
from work more than two days per month, could not perform any work. (R. at 39.)
In rendering his decision, the ALJ reviewed records from Wise County
Public Schools; Dr. Thomas M. Phillips, M.D., a state agency physician; Dr. Amor
Barongan, M.D.; Mountain View Regional Medical Center; Wellmont Lonesome
Pine Hospital; Norton Community Hospital; NightHawk Radiology Services; Dr.
Robert McGuffin, M.D., a state agency physician; and Medical Associates of
Norton.
Prior to December 1, 2012, Salyers was intermittently treated for complaints
of low back and hip pain; gastroesophageal reflux disease, (“GERD”); COPD;
seasonal allergies; hyperlipidemia; goiter; and right shoulder pain. (R. at 270-72,
274-81, 291-330, 337, 347-51, 356-79.) On August 21, 2007, Salyers was admitted
to Norton Community Hospital with complaints of right lower extremity pain and
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swelling. (R. at 361-68.) A CT scan of Salyers’s chest showed moderately
prominent mediastinal lymph nodes and a right renal cyst. (R. at 345-46.) A CT
venography of Salyers’s lower extremities showed no evidence of deep vein
thrombosis and a possible Baker’s cyst. (R. at 358.) Salyers was diagnosed with
Baker’s cyst of the right gastrocnemius muscle, deep vein thrombosis was ruled
out and cellulitis. (R. at 364.)
On December 3, 2007, x-rays of Salyers’s sacrum and coccyx showed
degenerative changes in the lower lumbar spine and degenerative changes at the
sacroiliac joints bilaterally. (R. at 357.) On February 1, 2008, an ultrasound of
Salyers’s thyroid gland showed a goiter. (R. at 356.) On April 24, 2008, a CT scan
of Salyers’s chest showed small lymph nodes in the mediastinum and pleural-based
nodules in both lung apices. (R. at 350.) On July 1, 2008, an MRI of Salyers’s
lumbar spine showed spondylitic changes; bulging discs at the L2-L3, L3-L4 and
L4-L5 levels; narrowing of the L5-S1 disc space with desiccation of the discs; and
a tear in the annulus with mild protrusion of the disc posterolaterally on the left
side at the L5-S1 level, resulting in slight narrowing of the neural foramen. (R. at
348-49.) On April 22, 2009, an x-ray of Salyers’s right shoulder showed arthritic
changes at the head of the humerus. (R. at 347.)
On October 24, 2011, and November 23, 2011, Salyers saw Dr. Amor A.
Barongan, M.D., for complaints of joint pain, swelling, stiffness and decreased
range of motion. (R. at 311-13, 317-19.) Salyers had a normal posture and gait and,
his mood and affect were described as normal. (R. at 312, 318.) His examination
was normal with the exception of moderate tenderness in his lumbosacral spine
and large areas of skin color loss below his knees. (R. at 312, 318.) A chest x-ray
showed COPD. (R. at 278.) Throughout 2012, Salyers reported low back pain;
joint pain, swelling and stiffness; dyspnea upon exertion; wheezing; productive
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cough; and decreased range of motion. (R. at 291, 296, 300, 305-06, 308, 399411.) Dr. Barongan’s examinations revealed tenderness, limited ranges of motions
and swelling, but normal gait, posture, mood and affect. (R. 292, 296, 301, 306-07,
310, 407, 410-11.)
On February 22, 2012, examination of Salyers’s lumbosacral spine revealed
tenderness and abnormal curvature. (R. at 307.) He had limited range of motion in
his right shoulder and tenderness in both shoulders. (R. at 307.) Examination of
Salyers’s hands revealed tenderness and swelling, and he had tenderness, crepitus
and abnormal sensation in his right knee. (R. at 307.) X-rays of Salyers’s lumbar
spine showed moderately severe multilevel spondylosis. (R. at 276.) On February
24, 2012, a pulmonary function study showed only mild airway obstruction. 2 (R. at
379.) On February 28, 2012, a CT scan of Salyers’s lumbar spine showed
multilevel spondylosis, especially at the L5-S1 level, with suspect right posterior
paracentral disc protrusion and multilevel disc bulges. (R. at 270-71.) On April 16,
2012, Dr. Barongan completed paperwork for Highlands Drilling concerning
Salyers’s ability to perform his past work. (R. at 298-99.) Salyers previously
indicated that he planned to file for disability; however, he had been called to
return to work and wanted to do so. (R. at 298.) Dr. Barongan noted that Salyers
was able to perform all duties of “floor hand” and that his judgment was not
impaired. (R. at 299.)
During 2013, Salyers continued to report symptoms associated with his low
back pain; COPD; joint pain; seasonal allergies; and GERD. (R. at 385-98, 41528.) Salyers reported that Lortab helped his pain. (R. at 385, 390, 394, 402, 419,
423, 426.) Physical examinations showed tenderness of Salyers’s lumbosacral
spine, with radiation down his posterior right leg, occasional decreased breath
2

Salyers smoked one-half pack of cigarettes per day in February 2012. (R. at 305.)
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sounds and tenderness, crepitus and abnormal sensation of his right knee. (R. at
387, 392, 397, 417, 421.) Salyers’s gait and posture remained normal. (R. at 387,
392, 397, 417, 421.) On January 31, 2013, x-rays of Salyers’s hips were normal
with minimal enthesopathy 3 of the ischial tuberosities. 4 (R. at 380.) On February
27, 2013, Salyers reported good compliance with treatment and fair symptom
control. (R. at 390.) Dr. Barongan noted that Salyers’s lumbar disease had been
stable since his diagnosis. (R. at 390.) In March 2013, Salyers reported that he was
unemployed and looking for work; however, by May 2013, he reported that he was
“waiting on disability.” (R. at 386, 423.) On August 1, 2013, Salyers reported that
he felt well and that his energy level was good. (R. at 419.) On October 1, 2013,
Salyers presented for pain management. (R. at 415.) He reported that he had been
laid off and that he was applying for disability. (R. at 415.)
On November 1, 2013, Dr. Barongan completed a medical assessment
indicating that Salyers could occasionally lift and carry items weighing five to 10
pounds. (R. at 342-44.) She opined that Salyers could stand, walk and/or sit a total
of two hours in an eight-hour workday and that he could do so for 30 minutes
without interruption. (R. at 342-43.) Dr. Barongan found that Salyers could
occasionally stoop and balance and never climb, kneel, crouch or crawl. (R. at
343.) Salyers’s abilities to reach, to handle and to push/pull were limited. (R. at
343.) Dr. Barongan found that Salyers would be restricted from working around
heights, moving machinery, temperature extremes, chemicals, dust, noise, fumes,
3

Enthesopathy is defined as a disease occurring at the site of attachment of muscle
tendons and ligaments to bones or joint capsules. See STEDMAN'S MEDICAL DICTIONARY,
(“Stedman's”), 269-70 (1995).
4

Ischial tuberosity is defined as a rounded protuberance of the lower part of the ischium.
It forms a bony area on which the human body rests when in a sitting position. See
http://www.medical-dictionary.thefreedictionary.com/ischial+tuberosity (last visited May 27,
2016).
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humidity or vibration. (R. at 344.) She opined that Salyers would be absent from
work more than two days a month. (R. at 344.)
On December 13, 2012, Dr. Robert McGuffin, M.D., a state agency
physician, noted that Salyers’s claim was being denied based on insufficient
evidence and for Salyers’s failure to respond. (R. at 64.)
On May 30, 2012, Dr. Thomas M. Phillips, M.D., a state agency physician,
found that Salyers had the residual functional capacity to perform medium work.
(R. at 46-47.) He found that Salyers could frequently climb ramps and stairs, kneel,
crouch and crawl and occasionally climb ladders, ropes and scaffolds. (R. at 47.)
No manipulative, visual, communicative or environmental limitations were noted.
(R. at 47.)
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).

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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
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).
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. §§
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404.1527(c), 416.927(c), if he sufficiently explains his rationale and if the record
supports his findings.
Salyers argues that the ALJ erred by improperly determining his residual
functional capacity. (Plaintiff’s Memorandum In Support Of His Motion For
Summary Judgment, (“Plaintiff’s Brief”), at 4-5). Salyers also argues that the ALJ
erred by failing to give controlling weight to the opinions of his treating physician,
Dr. Barongan (Plaintiff’s Brief at 4-5.)
The ALJ found that Salyers had the residual functional capacity to perform
medium work that did not require him to crawl; that did not require more than
occasional climbing, balancing, stooping, kneeling and crouching; and that did not
require him to work around fumes, odors, dusts, gases or poor ventilation. (R. at
15.) Salyers argues that the ALJ failed to give controlling weight to the opinions of
his treating physician, Dr. Barongan, in assessing his residual functional capacity.
(Plaintiff’s Brief at 4-5.)
Based on my review of the record, 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)(2),
416.927(c)(2) (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.

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The ALJ noted that he considered Dr. Barongan’s opinion dated November
1, 2013, wherein she opined that Salyers was limited to a reduced range of
sedentary work. (R. at 18.) The ALJ noted that he was giving this opinion limited
weight because the severity of Dr. Barongan’s assessed restrictions were not fully
supported by the longitudinal conservative treatment record and Salyers’s reported
ongoing capabilities. (R. at 18.) Based on my review of the record, I find that
substantial evidence exists to support this finding. Although diagnostic studies
confirmed moderately severe degenerative lumbar irregularities, COPD and
periodic swelling in the lower extremities, physical examinations repeatedly noted
normal gait and posture, and a pulmonary function study noted no more than mild
obstruction. (R. at 387, 392, 397, 404, 417, 421.) In fact, in 2012, Dr. Barongan
stated that Salyers’s lumbar disease had been stable since his diagnosis and that he
was capable of returning to work without any restrictions. (R. at 298-99, 390.)
Salyers reported good compliance with treatment and fair symptom control. (R. at
390, 402, 419, 426.) He took medications as needed for pain and frequently
reported that it helped his pain. (R. at 385, 390, 394, 402, 419, 423, 426.) “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).
Despite recurrent symptoms of pain and shortness of breath, there is no
evidence of acute complications requiring hospitalization or further evaluation. In
April 2012, Salyers reported that he retained the capacity to perform his assigned
work responsibilities, with some modification, at the gas drilling company. (R. at
298-99.) The ALJ also noted that Salyers retained the capacity to take care of most
personal needs, household chores, take walks outside and do whatever needed to
be done. (R. at 32-33, 35, 220-24.) In addition, the ALJ also considered the
findings of Dr. McGuffin and did not fully accept his opinion because it was
contrary to the longitudinal record submitted at the hearing, the history of
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conservative treatment and Salyers’s documented ongoing capabilities. (R. at 17.)
Although and ALJ must consider the findings made by state agency medical
consultants at the initial and reconsideration levels of review, an ALJ is not bound
by their findings. See 20 C.F.R. §§ 404.1527(e)(2)(i), (ii), 416.927(e)(2)(i), (ii)
(2015).
Based on the above reasoning, I conclude that substantial evidence does
support the ALJ’s weighing of the evidence, and I further find that substantial
evidence exists in the record to support the ALJ’s residual functional capacity
finding. An appropriate Order and Judgment will be entered.
DATED:

May 27, 2016.
/s/

Pamela Meade Sargent

UNITED STATES MAGISTRATE JUDGE

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