Pilkenton v. Colvin

Filing 14

MEMORANDUM OPINION. Signed by Magistrate Judge Pamela Meade Sargent on 7/14/2016. (Bordwine, Robin)

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

)
)
)
)
)
)
)
)
)
)

Civil Action No. 2:15cv00010
MEMORANDUM OPINION
BY: PAMELA MEADE SARGENT
United States Magistrate Judge

I. Background and Standard of Review
Plaintiff, Vonda K. Pilkenton, (“Pilkenton”), filed this action challenging the
final decision of the Commissioner of Social Security, (“Commissioner”),
determining that she was not eligible for disability insurance benefits, (“DIB”),
under the Social Security Act, as amended, (“Act”), 42 U.S.C.A. § 423 (West
2011). Jurisdiction of this court is pursuant to 42 U.S.C. § 405(g). This case is
before the undersigned magistrate judge by transfer based on consent of the parties
pursuant to 28 U.S.C. § 636(c)(1). Oral argument has not been requested;
therefore, the matter is ripe for decision.
The court’s review in this case is limited to determining if the factual
findings of the Commissioner are supported by substantial evidence and were
reached through application of the correct legal standards. See Coffman v. Bowen,
829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence has been defined as
-1-

“evidence which a reasoning mind would accept as sufficient to support a
particular conclusion. It consists of more than a mere scintilla of evidence but may
be somewhat less than a preponderance.” Laws v. Celebrezze, 368 F.2d 640, 642
(4th Cir. 1966). ‘“If there is evidence to justify a refusal to direct a verdict were the
case before a jury, then there is “‘substantial evidence.’”” Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990) (quoting Laws, 368 F.2d at 642).
The record shows that Pilkenton protectively filed an application for DIB on
January 11, 2012, alleging disability as of December 7, 2011, due to fibromyalgia;
degenerative disc disease; arthritis; bulging discs; neck spurs; hypothyroidism; acid
reflux disease; hernia; ulcers; carpal tunnel in the right hand; neuropathy;
depression; and anxiety. (Record, (“R.”), at 170-73, 190, 232.) The claim was
denied initially and on reconsideration. (R. at 86-88, 92-94, 97-100, 102-104.)
Pilkenton then requested a hearing before an administrative law judge, (“ALJ”).
(R. at 105-06.) A hearing was held on September 6, 2013, at which Pilkenton was
represented by counsel. (R. at 26-59.)
By decision dated January 2, 2014, the ALJ denied Pilkenton’s claim. (R. at
9-25.) The ALJ found that Pilkenton meets the nondisability insured status
requirements of the Act for DIB purposes through June 30, 2017. (R. at 11.) The
ALJ also found that Pilkenton had not engaged in substantial gainful activity since
December 7, 2011, her alleged onset date. 1 (R. at 11.) The ALJ found that the
1

Therefore, Pilkenton must show that she became disabled between December 7, 2011,
the alleged onset date, and January 2, 2014, the date of the ALJ’s decision, in order to be entitled
to DIB benefits.
-2-

medical evidence established that Pilkenton suffered from severe impairments,
namely chronic pain disorder; generalized osteoarthritis; diagnosed fibromyalgia;
cervical spine arthritis; history of carpal tunnel syndrome with release procedures
bilaterally; depressive and anxiety disorders; and borderline intellectual
functioning, but he found that Pilkenton did not have an impairment or
combination of impairments listed at or medically equal to one listed at 20 C.F.R.
Part 404, Subpart P, Appendix 1. (R. at 11-12.) The ALJ found that Pilkenton had
the residual functional capacity to perform sedentary work 2 that did not require
more than occasional climbing, balancing, kneeling, crouching, crawling, stooping
and overhead reaching; that did not require more than frequent reaching in all other
directions, fingering and handling; that allowed her to shift positions in place at the
work station; that did not require more than short, simple instructions; that did not
involve interaction with the public; and that required no more than brief interaction
with others throughout the workday, lasting no more than one to three minutes at a
time. (R. at 14.) The ALJ found that Pilkenton was unable to perform her past
relevant work. (R. at 23.) Based on Pilkenton’s age, education, work history and
residual functional capacity and the testimony of a vocational expert, the ALJ
found that jobs existed in significant numbers in the national economy that
Pilkenton could perform, including jobs as a night cleaner and mail routing clerk.
(R. at 23-24.) Thus, the ALJ found that Pilkenton was not under a disability as
defined by the Act and was not eligible for DIB benefits. (R. at 25.) See 20 C.F.R.
2

Sedentary work involves lifting items weighing up to 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers and small tools. Although a
sedentary job is defined as one which involves sitting, a certain amount of walking or standing is
often necessary in carrying out job duties. Jobs are sedentary if walking or standing are required
occasionally and other sedentary criteria are met. See 20 C.F.R. § 404.1567(a) (2015).
-3-

§ 404.1520(g) (2015).
After the ALJ issued his decision, Pilkenton pursued her administrative
appeals, (R. at 272-75), but the Appeals Council denied her request for review. (R.
at 1-4.) Pilkenton 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 (2015). The case is before this court on Pilkenton’s motion for summary
judgment filed December 31, 2015, and the Commissioner’s motion for summary
judgment filed February 2, 2016.
II. Facts
Pilkenton was born in 1964, (R. at 170), which, at the time of the ALJ’s
decision, classified her as a “younger person” under 20 C.F.R. § 404.1563(c).
Pilkenton obtained her general equivalency development, (“GED”), diploma. (R. at
31, 191.) She has past work experience as a telephone representative, a supervisor
for a call center and a deli worker. (R. at 36, 49.) Pilkenton stated that the
medication she took for arthritis, fibromyalgia and panic attacks gave her “some
relief,” but that she continued to experience pain. (R. at 34-35, 45.) She stated that
her medication caused drowsiness and an inability to concentrate. (R. at 38.)
Pilkenton stated that she participated in counseling and that it was “somewhat”
helpful. (R. at 40.) She stated that she worked on crafts for a couple of hours once
a week, including quilting. (R. at 42.)
Vocational expert, Asheley Wells, also testified at Pilkenton’s hearing. (R. at
49-56.) Wells classified Pilkenton’s work as a telephone representative as
-4-

sedentary and semi-skilled, her work as a deli worker as medium3 and unskilled
and her work as a chief telephone operator as sedentary and skilled. (R. at 49.)
Wells was asked to consider a hypothetical individual of Pilkenton’s age,
education and work experience, who would be limited to sedentary work that did
not require more than occasional stooping; kneeling; crouching; climbing of steps;
and overhead reaching; that did not require her to perform constant reaching,
handling or fingering; that would require only short, simple instructions; and that
did not require more than limited interaction with the public, co-workers and
supervisors. (R. at 50-51.) Wells stated that such an individual could perform
Pilkenton’s past work as a telephone representative. (R. at 50.) Wells stated that
the individual also could perform other jobs existing in significant numbers in the
national economy, including those of an inspector, tester and sorter; a peanuts
worker; an assembler; a production helper; and an almond blancher. (R. at 51.)
Wells was asked to consider the same individual, but who would be limited to
occasional handling and fingering. (R. at 52.) He stated that there would be no jobs
available that such an individual could perform. (R. at 52.)
Wells was asked to consider a hypothetical individual of Pilkenton’s age,
education and work experience, who could sit up to two hours in an eight-hour
workday, but no more than 30 minutes at a time; who could stand and/or walk up
to eight hours, if given the opportunity for brief hourly position changes; who had
no manipulative limitations; who could perform only frequent reaching, handling
and fingering; and who would require only limited interaction with co-workers and
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, she
also can do sedentary and light work. See 20 C.F.R. § 404.1567(c) (2015).
-5-

supervisors. (R. at 53-55.) Wells stated that there were light 4 jobs available that
such an individual could perform, including jobs as a night cleaner and a mail
routing clerk. (R. at 53-54.) Wells stated that the jobs identified would not be
available should the hypothetical individual be limited to occasional handling and
fingering. (R. at 56.) He also stated that there would be no jobs available that an
individual could perform should she have an inability to deal with work stresses.
(R. at 56.)
In rendering his decision, the ALJ reviewed medical records from Wise
County Public Schools; Dr. David Sheppard, D.O.; Norton Community Hospital;
Anthony E. Holt, D.O., a neurologist; Dr. Maurice E. Nida, D.O.; Christina K.
Hammonds, N.P., a nurse practitioner; Dr. David C. Williams, M.D., a state
agency physician; Patricia Bruner, Ph.D., a state agency psychologist; Dr. Bruce
M. Miller, M.D.; Julie Jennings, Ph.D., a state agency psychologist; Dr. Michael
Hartman, M.D., a state agency physician; Anne B. Jacobe, L.C.S.W., a licensed
clinical social worker with Solutions Counseling; Janet S. Elswick, F.N.P., a
family nurse practitioner; B. Wayne Lanthorn, Ph.D., a licensed clinical
psychologist; and Phil Pack, M.S. Pilkenton’s attorney also submitted medical
records from The Health Wagon; Jacobe; and Dr. Nida to the Appeals Council.5

4

Light work involves lifting items weighing up to 20 pounds at a time with frequent
lifting or carrying of items weighing up to 10 pounds. If someone can perform light work, she
also can perform sedentary work. See 20 C.F.R. § 404.1567(b) (2015).
5
Since the Appeals Council considered and incorporated this additional evidence into the
record in reaching its decision, (R. at 1-4), 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 record shows that Dr. David Sheppard, D.O., treated Pilkenton from
2005 through 2009 for numbness; paresthesia; gastroesophageal reflux disease,
(“GERD”); leg edema; cervical disc disease; questionable fibromyalgia;
osteoarthritis; carpal tunnel syndrome; neuropathy; multinodular goiter; anxiety;
hypothyroidism; back pain; fatigue; arthralgias; degenerative joint disease;
depression; questionable gout/foot pain; hiatal hernia; and palpitations. (R. at 42486.) On February 13, 2007, Pilkenton complained of back pain. (R. at 450.) X-rays
of Pilkenton’s lumbar spine showed mild degenerative change and disc space
narrowing. (R. at 411.) Dr. Sheppard diagnosed lumbar strain and radiculopathy.
(R. at 450.) On April 3, 2007, an ultrasound of Pilkenton’s thyroid showed
hypoechoic nodules in both lobes of the gland, which likely were degenerating
colloid nodules. (R. at 412.) On October 1, 2007, Pilkenton complained of pain all
over. (R. at 444.) She stated that she had to leave work because of the pain, and she
had not returned to work. (R. at 444.) Physical examination was normal. (R. at
444.) On January 19, 2009, Pilkenton complained of neck pain. (R. at 428-29.)
Examination revealed pain with palpation over the paraspinal muscles in the left
cervical neck region; normal muscle strength in the upper and lower extremities;
and deep tendon reflexes were 2/4 bilaterally. (R. at 428.) X-rays of Pilkenton’s
cervical spine showed mild spondylitic degenerative change. (R. at 422.) Dr.
Sheppard diagnosed cervical pain. (R. at 428.) On March 2, 2009, Pilkenton
reported that she was doing much better since participating in physical therapy and
using her medication. (R. at 424.) Examination was normal, including the finding
of no gross joint deformities; full range of motion of all extremities; no clubbing,
cyanosis or edema; and pedal pulses were 2/4 bilaterally. (R. at 424.)

-7-

On June 11, 2008, Pilkenton was admitted to Norton Community Hospital
for complaints of chest pain. (R. at 414-19.) An echocardiogram showed a normal
left ventricular size and systolic function with estimated ejection fraction of 60 to
65 percent and trace mitral and tricuspid regurgitation. (R. at 416-17.) She was
discharged the next day with a diagnosis of chest pain due to phentermine use. (R.
at 414.)
On July 15, 2008, Pilkenton saw Dr. Anthony E. Holt, D.O., a neurologist,
for complaints of left upper extremity pain and weakness, neck pain and
neuropathy in the feet. (R. at 391-92.) Dr. Holt diagnosed polyneuropathy, 6 left
arm pain and disturbance of sensation. (R. at 391.) On August 5, 2008, a nerve
conduction study showed evidence of a mild median neuropathy localized to the
left wrist. (R. at 394-96.) An electromyographic, (“EMG”), needle examination
was normal. (R. at 396.) On September 16, 2008, Pilkenton complained of
paresthesias and dysesthesias in both feet and left arm pain; however, she reported
improvement with medication. (R. at 388.) Dr. Holt diagnosed polyneuropathy,
most likely small fiber neuropathy; median neuropathy of the left wrist;
paresthesias; and dysesthesias. (R. at 387.)
On May 12, 2009, Dr. Maurice E. Nida, D.O., saw Pilkenton as a new
patient for her complaints of a goiter and hypothyroidism. (R. at 285-86.) Dr. Nida
diagnosed probable fibromyalgia; thyroid goiter; hypothyroidism; neuropathy; and
carpal tunnel syndrome. (R. at 286.) On May 21, 2009, an MRI of Pilkenton’s
6

Polyneuropathy is defined as a generalized disorder of peripheral nerves. See
STEDMAN'S MEDICAL DICTIONARY, (“Stedman's”), 657 (1995).
-8-

cervical spine showed moderately severe C5-6 spondylosis with combination disc
producing mild impression on the anterior margin of the thecal sac and cord and
narrowing of the left lateral recess. (R. at 287-88.) On September 17, 2009,
Pilkenton reported that she was doing fairly well. (R. at 283.) On January 21, 2010,
Pilkenton complained of a lot of muscle pain. (R. at 281.) Dr. Nida reported a
normal physical examination. (R. at 281.) On July 21, 2010, Pilkenton reported
that she was doing fairly well. (R. at 280.) She reported that her transcutaneous
electrical nerve stimulation, (“TENS”), unit helped with her fibromyalgia pain. (R.
at 280.) Dr. Nida reported a normal physical examination. (R. at 280.) On October
18, 2010, Pilkenton reported that she was doing fairly well. (R. at 278.) On
October 28, 2010, Pilkenton complained of anxiety and depression. (R. at 277.)
On May 13, 2011, Pilkenton reported that she was doing well. (R. at 306.)
Pilkenton’s physical examination was reported as normal. (R. at 306.) On August
18, 2011, Pilkenton complained of fibromyalgia pain and neck, shoulder and back
pain with radiculopathy, resulting from “direct trauma and a fall.” (R. at 302.) Dr.
Nida noted that Pilkenton had three bulging discs and spurs in her cervical spine.
(R. at 302.) Radiculopathy was noted in Pilkenton’s left arm. (R. at 302.)
Examination showed widespread trigger tender points in Pilkenton’s back, legs and
arm, as well as tenderness in her left ankle with decreased pulses. (R. at 304.) On
September 28, 2011, Pilkenton saw Christina K. Hammonds, N.P., a nurse
practitioner, for complaints of panic attacks. (R. at 299.) Pilkenton stated that the
panic attacks occurred daily and lasted for hours. (R. at 299.) Hammonds noted
that Pilkenton’s mood and affect were anxious and tearful. (R. at 301.) Pilkenton
reported that her symptoms of anxiety were fairly controlled. (R. at 299.)
-9-

Pilkenton’s examination was normal. (R. at 300-01.) On October 28, 2011,
Pilkenton reported that her anxiety symptoms had improved and that she felt “a lot
better.” (R. at 296.) She also reported that she had good symptom control of her
depression. (R. at 296.) Hammonds reported that Pilkenton’s examination was
normal. (R. at 297-98.) On December 8, 2011, Pilkenton reported that she
experienced panic attacks daily. (R. at 291.) She stated that she had a lot of stress
at home with her family and was unable to work because she could not
concentrate. (R. at 291.) Pilkenton reported that her pain and symptoms of
depression were relieved with medication. (R. at 291.) She stated that her
symptoms of anxiety were improving. (R. at 291.) Pilkenton’s examination was
reported as normal. (R. at 292-93.)
On January 31, 2012, Dr. Nida completed a mental assessment, indicating
that Pilkenton had a limited, but satisfactory, ability to use judgment; to function
independently; to understand, remember and carry out simple job instructions; to
maintain personal appearance; to behave in an emotionally stable manner; to relate
predictably in social situations; and to demonstrate reliability. (R. at 326-28.) Dr.
Nida opined that Pilkenton had a seriously limited ability to follow work rules; to
relate to co-workers; to interact with supervisors; and to understand, remember and
carry out complex and detailed job instructions. (R. at 326-27.) He found that
Pilkenton had no useful ability to deal with the public; to deal with work stresses;
and to maintain attention and concentration. (R. at 326.) He noted that it was
“unknown” the number of days that Pilkenton would be expected to be absent from
work due to her impairments. (R. at 328.)

-10-

Also on January 31, 2012, Dr. Nida completed a medical assessment,
indicating that Pilkenton could occasionally lift and carry items that weighed “very
little” and that she could frequently lift and carry items up to one-third of an eighthour workday. (R. at 376-78.) He opined that Pilkenton could stand and walk up to
eight hours in an eight-hour workday and that she could do so for up to one hour
without interruption. (R. at 376.) He opined that Pilkenton could sit up to two
hours in an eight-hour workday and that she could do so for up to 30 minutes
without interruption. (R. at 377.) Dr. Nida opined that Pilkenton could occasionally
climb, stoop, kneel, balance and crawl and crouch “very little.” (R. at 377.) Dr.
Nida reported that Pilkenton’s abilities to reach, to handle and to push and pull
were affected by her impairments. (R. at 377.) He opined that Pilkenton was
restricted from working around heights, moving machinery, temperature extremes,
noise and vibration. (R. at 378.) Dr. Nida noted that it was “unknown” as to how
many days a month that Pilkenton would be absent from work as a result of her
impairments. (R. at 378.)
On March 13, 2012, Pilkenton reported that she felt well and voiced no
complaints. (R. at 321.) She reported that her symptoms of depression were
relieved by medication. (R. at 321.) Pilkenton stated that her anxiety was
improving and that she had fair symptom control. (R. at 321.) Hammonds reported
that Pilkenton had poor symptom control of her fibromyalgia. (R. at 321.)
Pilkenton stated that she experienced right shoulder pain, which was aggravated by
physical activity and overhead activity. (R. at 321.) She stated that she was on
medication for her fibromyalgia around the clock, which kept her from being able
to function at work. (R. at 321.) Hammonds reported that Pilkenton’s mood and
-11-

affect were anxious, and she exhibited multiple areas of trigger point tenderness.
(R. at 323.) On July 19, 2012, Pilkenton reported that her symptoms of depression,
panic attacks, anxiety and fibromyalgia were controlled with medication. (R. at
357.) On September 27, 2012, Pilkenton reported that her symptoms of
fibromyalgia and anxiety were controlled with medication. (R. at 353.) Physical
examination was normal, with the exception of tenderness in Pilkenton’s left
shoulder. (R. at 355.)
On January 24, 2013, Pilkenton reported that her anxiety was moderate in
severity, but that her symptoms were improving with medication. (R. at 350.) She
reported that she was feeling well and was able to perform her activities of daily
living. (R. at 350.) Pilkenton reported that her symptoms of fibromyalgia and
depression were relieved by medication. (R. at 350.) On September 17, 2013,
Pilkenton reported that her symptoms of fibromyalgia occurred intermittently. (R.
at 621.) She reported that her anxiety symptoms were relieved by medication. (R.
at 621.) Dr. Nida noted that Pilkenton’s physical examination was normal, with the
exception of tenderness in her left shoulder and tenderness to palpation of her left
elbow. (R. at 622.)
On March 7, 2012, Dr. David C. Williams, M.D., a state agency physician,
reported that Pilkenton had the residual functional capacity to perform medium7
work. (R. at 65-66.) No manipulative, visual, communicative or environmental
limitations were noted. (R. at 66.)
7

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, she
also can do sedentary and light work. See 20 C.F.R. § 404.1567(c) (2015).
-12-

On March 8, 2012, Patricia Bruner, Ph.D., a state agency psychologist,
completed a Psychiatric Review Technique form, (“PRTF”), indicating that
Pilkenton suffered from an affective disorder and anxiety-related disorders. (R. at
63-64.) She found that Pilkenton had mild limitations on her ability to perform her
activities of daily living, to maintain social functioning and to maintain
concentration, persistence or pace. (R. at 63-64.) Bruner found that Pilkenton had
not experienced any episodes of decompensation of extended duration. (R. at 64.)
Bruner noted that Pilkenton’s ability to function was not significantly impaired by
her mental health issues as long as she remained compliant with treatment. (R. at
64.)
Pilkenton underwent a right endoscopic carpal tunnel release on June 8,
2012.8 (R. at 343.) She was seen for follow up on June 19, 2012, by Dr. Bruce M.
Miller, M.D. (R. at 342.) At that time, Pilkenton had no complaints and reported
that her numbness and tingling had resolved. (R. at 342.) Examination revealed
radial, median and ulnar nerves to be intact to motor and sensory. (R. at 342.) She
had excellent grip and full range of motion. (R. at 342.)
On June 12, 2012, Julie Jennings, Ph.D., a state agency psychologist,
completed a PRTF, indicating that Pilkenton suffered from a nonsevere affective
disorder and anxiety-related disorder. (R. at 75-76.) She found that Pilkenton had
mild limitations on her ability to perform her activities of daily living, to maintain
social functioning and to maintain concentration, persistence or pace. (R. at 75.)
Jennings
8

found that

Pilkenton had not experienced any episodes of

Pilkenton underwent a left endoscopic carpal tunnel release in July 2009. (R. at 345.)
-13-

decompensation of extended duration. (R. at 75.)
On June 13, 2012, Dr. Michael Hartman, M.D., a state agency physician,
reported that Pilkenton had the residual functional capacity to perform medium
work. (R. at 77-78.) No manipulative, visual, communicative or environmental
limitations were noted. (R. at 77-78.)
On June 13, 2012, Pilkenton began counseling with Anne B. Jacobe,
L.C.S.W., a licensed clinical social worker with Solutions Counseling. (R. at 330.)
The record shows that Pilkenton continued to see Jacobe through December 2013.
(R. at 330-36, 361-73, 384-85, 488.) Pilkenton reported having significant financial
concerns, conflict with her son and pain. (R. at 330-36, 361-73.) During this time,
Pilkenton’s depression and anxiety were described as moderate to severe. (R. at
330-36, 361-67, 369-73, 384-85, 488, 602-04.) Her thought processes were
described as “racing” and “slowed,” and she had fair judgment and insight. (R. at
330-36, 361-67, 369-73, 384-85, 488, 602-04.) Pilkenton was diagnosed with
major depressive disorder. (R. at 330.)
On September 12, 2012, Jacobe completed a mental assessment, indicating
that Pilkenton had a limited, but satisfactory, ability to follow work rules; to
interact with supervisors; to understand, remember and carry out simple job
instructions; and to maintain personal appearance. (R. at 338-40.) She opined that
Pilkenton had a seriously limited ability to relate to co-workers; to use judgment;
to function independently; to maintain attention and concentration; to understand,
remember and carry out detailed job instructions; and to demonstrate reliability.
-14-

(R. at 338-39.) Jacobe found that Pilkenton had no useful ability to deal with the
public; to deal with work stresses; to understand, remember and carry out complex
job instructions; to behave in an emotionally stable manner; and to relate
predictably in social situations. (R. at 338-39.) She opined that Pilkenton would be
absent from work more than two days a month. (R. at 340.)
In April 2013, Pilkenton considered herself “spread too thin,” caring for her
mother and grandchildren. (R. at 361.) On July 23, 2013, Jacobe completed a
mental assessment, indicating that Pilkenton had a limited, but satisfactory, ability
to follow work rules; to interact with supervisors; to maintain personal appearance;
and to demonstrate reliability. (R. at 380-82.) She opined that Pilkenton had a
seriously limited ability to relate to co-workers; to use judgment; to function
independently; to understand, remember and carry out simple job instructions; to
behave in an emotionally stable manner; and to relate predictably in social
situations. (R. at 380-81.) Jacobe found that Pilkenton had no useful ability to deal
with the public; to deal with work stresses; to maintain attention and concentration;
and to understand, remember and carry out complex and detailed job instructions.
(R. at 380-81.) She opined that Pilkenton would be absent from work more than
two days a month. (R. at 382.)
On January 23, 2014, Jacobe completed a mental assessment, indicating that
Pilkenton had a limited, but satisfactory, ability to follow work rules. (R. at 62527.) She opined that Pilkenton had a seriously limited ability to relate to coworkers; to deal with the public; to use judgment; to interact with supervisors; to
function independently; to understand, remember and carry out simple job
-15-

instructions; to maintain personal appearance; and to behave in an emotionally
stable manner. (R. at 625-26.) Jacobe found that Pilkenton had no useful ability to
deal with work stresses; to maintain attention and concentration; to understand,
remember and carry out complex and detailed job instructions; to relate predictably
in social situations; and to demonstrate reliability. (R. at 625-26.) She opined that
Pilkenton would be absent from work more than two days a month. (R. at 627.)
On May 23, 2013, Pilkenton visited The Health Wagon for the first time. (R.
at 496-98.) She reported hypothyroidism and cervicalgia, but an examination of her
neck was supple with no lymphadenopathy. (R. at 496-97.) Pilkenton’s lungs were
clear, and examination of her spine was normal. (R. at 497.) She was advised not to
lift or to participate in any activity that would cause additional neck injury. (R. at
497.) On June 6, 2013, Pilkenton reported cervical pain which radiated into her
arms. (R. at 492-93.) Pilkenton had a reduced range of motion of the cervical
spine. (R. at 492.) Examination of Pilkenton’s spine was normal. (R. at 492.) Her
neck was supple with no lymphadenopathy. (R. at 492.) Janet S. Elswick, F.N.P., a
family nurse practitioner, diagnosed hypothyroidism, cervicalgia, anxiety,
depression and a goiter. (R. at 492.) On June 24, 2013, while receiving treatment
for fever blister, an examination of Pilkenton’s neck was supple with full motion
and no lymphadenopathy. (R. at 490.)
On August 12, 2013, Elswick completed a medical assessment, indicating
that Pilkenton could occasionally lift and carry items weighing up to 25 pounds
and frequently lift and carry items weighing up to 10 pounds. (R. at 504-06.) She
indicated that Pilkenton could stand and walk two to three hours in an eight-hour
-16-

workday and that she could do so for 15 to 20 minutes without interruption. (R. at
504.) Elswick indicated that Pilkenton could sit for two to three hours in an eighthour workday and that she could do so for up to 30 minutes without interruption.
(R. at 505.) Elswick opined that Pilkenton could occasionally climb, stoop, kneel,
balance and crouch and never crawl. (R. at 505.) She opined that Pilkenton’s
abilities to reach, to handle, to feel and to push and pull were affected by her
impairments. (R. at 505.) Elswick noted that Pilkenton was restricted from working
around heights, temperature extremes, noise and vibration. (R. at 506.) She opined
that Pilkenton would be absent from work more than two days a month. (R. at
506.) Elswick also noted that Pilkenton had not been seen since May 23, 2013,
which made it difficult to accurately complete the assessment. (R. at 506.)
That same day, Elswick also completed a mental assessment, indicating that
Pilkenton had a limited, but satisfactory, ability to follow work rules; to relate to
co-workers; to use judgment; to interact with supervisors; to understand, remember
and carry out detailed and simple job instructions; to maintain personal
appearance; to behave in an emotionally stable manner; and to demonstrate
reliability. (R. at 508-10.) She opined that Pilkenton had a seriously limited ability
to function independently and to relate predictably in social situations. (R. at 50809.) Elswick found that Pilkenton had no useful ability to deal with the public; to
deal with work stresses; to maintain attention and concentration; and to understand,
remember and carry out complex job instructions.9 (R. at 508-09.) She opined that
9

Elswick found that Pilkenton had no useful ability to deal with the pubic and to deal
with work stresses. (R. at 508.) It appears that Elswick’s findings concerning these two areas of
occupational adjustments were based on Pilkenton’s statements. (R. at 508.) With regard to
Pilkenton’s inability to deal with the public, Elswick noted that, “patient states she avoids
-17-

Pilkenton would be absent from work more than two days a month due to her
impairments. (R. at 510.) Again, Elswick also noted that Pilkenton had not been
seen since May 23, 2013, which made it difficult to accurately complete the
assessment. (R. at 510.)
On August 15, 2013, B. Wayne Lanthorn, Ph.D., a licensed clinical
psychologist, evaluated Pilkenton at the request of Pilkenton’s attorney. (R. at 51221.) The Wechsler Adult Intelligence Scale - Fourth Edition, (“WAIS-IV”), was
administered, and Pilkenton obtained a full-scale IQ score of 75. (R. at 513.)
Lanthorn reported that Pilkenton exhibited no signs of ongoing psychotic
processes, delusional thinking or hallucinations. (R. at 516.) Pilkenton reported
that she cried occasionally; was frequently irritable; had erratic to poor
concentration; had ongoing anxiety; and experienced two panic attacks a month.
(R. at 517.) The Minnesota Multiphasic Personality Inventory – 2, (“MMPI-2”),
was administered, indicating that Pilkenton had concentration difficulties. (R. at
519-20.) Lanthorn diagnosed major depressive disorder, recurrent, moderate;
dysthymic disorder, late onset; panic disorder without agoraphobia; and borderline
intellectual functioning. (R. at 520.) Lanthorn assessed Pilkenton’s then-current
Global Assessment of Functioning, (“GAF”), 10 score at 55. 11 (R. at 521.)
public.” (R. at 508.) With regard to Pilkenton’s inability to deal with work stresses, Elswick
noted that Pilkenton reported that she had “no patience.” (R. at 508.)
10

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).
11

A GAF score of 51-60 indicates that the individual has “[m]oderate symptoms ... OR
-18-

Lanthorn completed a mental assessment, indicating that Pilkenton had an
unlimited ability to understand, remember and carry out simple job instructions.
(R. at 523-25.) He found that Pilkenton had a seriously limited ability to follow
work rules; 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
maintain attention and concentration; to understand, remember and carry out
detailed job instructions; to maintain personal appearance; to behave in an
emotionally stable manner; and to demonstrate reliability. (R. at 523-24.) Lanthorn
opined that Pilkenton had no useful ability to understand, remember and carry out
complex job instructions and to relate predictably in social situations. (R. at 524.)
He found that Pilkenton would be absent from work more than two days a month.
(R. at 525.)
On September 28, 2013, Phil Pack, M.S., a licensed psychological
practitioner, evaluated Pilkenton at the request of Disability Determination
Services. (R. at 573-78.) Pack diagnosed dysthymic disorder; anxiety disorder, not
otherwise specified; and personality disorder, not otherwise specified. (R. at 577.)
He assessed Pilkenton’s then-current GAF score at 60. (R. at 577.) Pack opined
that Pilkenton had an unlimited ability to understand straightforward direction and
instruction, as she did not present with deficits in her cognitive or memory
functions. (R. at 577.) He noted that Pilkenton’s ability to complete a typical work
week without disruption from psychiatric issues was deemed as “fair.” (R. at 577.)
Pack reported that Pilkenton’s abilities to secure and arrange travel, to live
independently and to attend to her personal needs were deemed as “good.” (R. at
moderate difficulty in social, occupational, or school functioning....” DSM-IV at 32.
-19-

577.)
On November 3, 2013, Pack completed a mental assessment, indicating that
Pilkenton’s ability to understand, remember and carry out instructions was not
affected by her impairments. (R. at 592-94.) Pack reported that Pilkenton was not
limited in her ability to interact appropriately with supervisors. (R. at 593.) He
found that Pilkenton had mild limitations in her ability to interact appropriately
with the public and with co-workers and was moderately limited in her ability to
respond appropriately to usual work situations and to changes in a routine work
setting. (R. at 593.)
On October 18, 2013, Dr. Saeed Jadali, M.D., examined Pilkenton at the
request of Disability Determination Services. (R. at 580-85.) Dr. Jadali reported
that Pilkenton had normal muscle tone and strength; normal gait; normal and
symmetric reflexes; normal sensation; finger-to-nose normal; negative Romberg
test; no tremors or rigidity was noted; cranial nerves were intact; normal strength
and grip; normal upper and lower extremity strength, sensation and reflexes; and
negative straight leg raising tests. (R. at 584.) Dr. Jadali diagnosed fibromyalgia;
chronic pain disorder; hypothyroidism; and degenerative joint disease. (R. at 584.)
Dr. Jadali completed a medical source statement, indicating that Pilkenton
could continuously lift items weighing up to 20 pounds; frequently carry items
weighing up to 20 pounds; and occasionally lift and carry items weighing up to 50
pounds. (R. at 586-91.) He opined that Pilkenton could sit, stand and walk a total
of six hours in an eight-hour workday and that she could do so for up to two hours
-20-

without interruption. (R. at 587.) Dr. Jadali reported that Pilkenton could
continuously reach overhead and in all directions; handle; finger; feel; push and
pull; and operate foot controls. (R. at 588.) He reported that Pilkenton could
occasionally crawl; frequently climb stairs, ramps, ladders and scaffolds, kneel and
crouch; and continuously balance and stoop. (R. at 589.) Dr. Jadali reported that
Pilkenton could occasionally work around dust, odors, fumes and pulmonary
irritants, extreme cold and heat, vibration and moderate noise and frequently work
around unprotected heights, moving machinery, operation of a vehicle and
humidity and wetness. (R. at 590.) He found that Pilkenton could take care of her
personal needs. (R. at 591.)
III. Analysis
The Commissioner uses a five-step process in evaluating DIB claims. See 20
C.F.R. § 404.1520 (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 her past relevant work; and 5) if not, whether
she can perform other work. See 20 C.F.R. § 404.1520. If the Commissioner finds
conclusively that a claimant is or is not disabled at any point in this process, review
does not proceed to the next step. See 20 C.F.R. § 404.1520(a) (2015).
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.
-21-

The court must not weigh the evidence, as this court lacks authority to substitute its
judgment for that of the Commissioner, provided her decision is supported by
substantial evidence. See Hays, 907 F.2d at 1456. In determining whether
substantial evidence supports the Commissioner’s decision, the court also must
consider whether the ALJ analyzed all of the relevant evidence and whether the
ALJ sufficiently explained his findings and his rationale in crediting evidence. See
Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
Pilkenton argues that the ALJ erred by improperly determining her residual
functional capacity. (Plaintiff’s Memorandum In Support Of Her Motion For
Summary Judgment, (“Plaintiff’s Brief”), at 6-9.) Pilkenton further argues that the
ALJ erred by relying on the post-hearing reports of consulting evaluators without
granting her the right to cross-examine the evaluators. (Plaintiff’s Brief at 5-6.)
The ALJ found that Pilkenton had the residual functional capacity to
perform sedentary work that did not require more than occasional climbing,
balancing, kneeling, crouching, crawling, stooping and overhead reaching; that did
not require more than frequent reaching in all other directions, fingering and
handling; that allowed her to shift positions in place at the work station; that did
not require more than short, simple instructions; that did not involve interaction
with the public; and that required no more than brief interaction with others
throughout the workday, lasting no more than one to three minutes at a time. (R. at
14.)
It is the ALJ’s responsibility to weigh the evidence, including the medical
-22-

evidence, in order to resolve any conflicts which might appear therein. See Hays,
907 F.2d at 1456; Taylor v. Weinberger, 528 F.2d 1153, 1156 (4th Cir. 1975).
Furthermore, while an ALJ may not reject medical evidence for no reason or for
the wrong reason, see King v. Califano, 615 F.2d 1018, 1020 (4th Cir. 1980), an
ALJ may, under the regulations, assign no or little weight to a medical opinion,
even one from a treating source, based on the factors set forth at 20 C.F.R.
§ 404.1527(c), if he sufficiently explains his rationale and if the record supports his
findings.
Based on my review of the record, I do not find that substantial evidence
exists to support the ALJ’s finding that there are a significant number of jobs that
exist in the national economy that Pilkenton could perform. The ALJ found that
Pilkenton had the residual functional capacity to perform a limited range of
sedentary work. (R. at 14.) While the ALJ found that Pilkenton could not perform
any of her past relevant work, he found that she could perform other jobs that
existed in significant numbers in the national economy, such as a night cleaner and
a mail routing clerk. (R. at 23-24.) Based upon the vocational expert’s testimony,
however, the jobs of a night cleaner and a mail routing clerk are classified as light
work. (R. at 53-54.) Therefore, the vocational expert’s testimony does not support
the ALJ’s finding.
Pilkenton argues that the ALJ erred by relying on the post-hearing reports of
consulting evaluators without granting her the right to cross-examine the
evaluators. (Plaintiff’s Brief at 5-6.) I find this argument unpersuasive. The ALJ
sent a proffer letter dated November 5, 2013, to Jason A. Mullins, counsel for
-23-

Pilkenton, with a copy to Pilkenton, apprising them of the new evidence. (R. at
266-67.) Based on my review of the letter, it comports with the requirements to be
deemed a proffer letter, as set forth in HALLEX I-2-7-30:

•

•
•

•

A time limit to object to, comment on, or refute the proffered evidence, and
to submit a written statement as to the facts and law that the claimant
believes apply to the case in light of the evidence submitted;
A time limit to submit written questions to the author(s) of the proffered
evidence;
When applicable (see HALLEX I-2-7-1), an opportunity to request a
supplemental hearing, including the opportunity to cross-examine the
author(s) of any posthearing evidence; and
The opportunity and instructions for requesting a subpoena for the
attendance of witnesses or the submission of records.

Based on this, I find that substantial evidence does not exist to support
Pilkenton’s argument that the ALJ erred by failing to grant her the right to crossexamine Pack and Dr. Jadali.
Based on the above reasoning, I further find that substantial evidence does
not exist in the record to support the ALJ’s finding that Pilkenton was not disabled.
An appropriate Order and Judgment will be entered.
ENTERED: July 14, 2016.
s/

Pamela Meade Sargent

UNITED STATES MAGISTRATE JUDGE

-24-