Thacker v. Colvin

Filing 12

MEMORANDUM OPINION. Signed by Magistrate Judge Pamela Meade Sargent on 03/24/2017. (Bordwine, Robin)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION
CALVIN W. THACKER,
Plaintiff
v.
NANCY A. BERRYHILL,1
Acting Commissioner of
Social Security,
Defendant

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Civil Action No. 2:16cv00003
MEMORANDUM OPINION

By: PAMELA MEADE SARGENT
United States Magistrate Judge

I. Background and Standard of Review
Plaintiff, Calvin W. Thacker, (“Thacker”), 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,
1

Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23,
2017. Berryhill is substituted for Carolyn W. Colvin, the previous Acting Commissioner of
Social Security.
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829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence has been defined as
“evidence which a reasoning mind would accept as sufficient to support a
particular conclusion. It consists of more than a mere scintilla of evidence but may
be somewhat less than a preponderance.” Laws v. Celebrezze, 368 F.2d 640, 642
(4th Cir. 1966). “‘If there is evidence to justify a refusal to direct a verdict were the
case before a jury, then there is “substantial evidence.”’” Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990) (quoting Laws, 368 F.2d at 642).
The record shows that Thacker protectively filed his applications for DIB
and SSI on August 20, 2012, alleging disability as of May 2, 2012, due to left
shoulder problems with his rotator cuff. (Record, (“R.”), at 208-15, 216-17, 232,
236.) The claims were denied initially and upon reconsideration. (R. at 80-121,
122-23, 128-30, 134-36, 140-41, 142-44, 146-48.) Thacker then requested a
hearing before an administrative law judge, (“ALJ”). (R. at 150-51.) The ALJ held
a video hearing on August 28, 2014, at which Thacker was represented by counsel.
(R. at 32-59.)
By decision dated October 16, 2014, the ALJ denied Thacker’s claims. (R. at
17-26.) The ALJ found that Thacker met the nondisability insured status
requirements of the Act for DIB purposes through December 31, 2018. (R. at 19.)
The ALJ found that Thacker had not engaged in substantial gainful activity since
May 2, 2012, the alleged onset date. (R. at 19.) The ALJ found that the medical
evidence established that Thacker had severe impairments, namely degenerative
joint disease and left shoulder rotator cuff tear status-post two surgeries, but she
found that Thacker 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 19-20.) The ALJ found that Thacker had the residual
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functional capacity to perform light work 2 that did not require crawling or climbing
ladders, ropes or scaffolds or more than occasional reaching, pushing or pulling or
any overhead reaching with his left upper extremity. (R. at 20-25.) The ALJ found
that Thacker was unable to perform his past relevant work. (R. at 25.) Based on
Thackers’s age, education, work history and residual functional capacity and the
testimony of a vocational expert, the ALJ found that a significant number of other
jobs existed in the national economy that Thacker could perform, including jobs as
a cashier, a sales attendant and a rental clerk. (R. at 25-26.) Thus, the ALJ
concluded that Thacker was not under a disability as defined by the Act, and was
not eligible for DIB or SSI benefits. (R. at 26.) See 20 C.F.R. §§ 404.1520(g)
416.920(g) (2016).
After the ALJ issued her decision, Thacker pursued his administrative
appeals, (R. at 9-12), but the Appeals Council denied his request for review. (R. at
1-5.) Thacker 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 (2016). This case is before this court on Thacker’s motion for
summary judgment filed July 29, 2016, and the Commissioner’s motion for
summary judgment filed August 31, 2016.
II. Facts
Thacker was born in 1963, (R. at 25), which classified him as a “younger
person” under 20 C.F.R. §§ 404.1563(c), 416.963(c) on his alleged onset date and
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) (2016).
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a “person closely approaching advanced age” under 20 C.F.R. §§ 404.1563(d),
416.963(d) prior to the ALJ’s decision. Thacker graduated from high school and
has past work experience as a maintenance pipefitter. (R. at 25, 237-38.) The
record shows that Thacker suffered a work-related injury to his left shoulder in
April 2011.
In rendering her decision, the ALJ reviewed records from Dr. Christopher
M. Basham, M.D.; Dr. Danny A. Mullins, M.D.; Dr. Souhail Shamiyeh, M.D.; Dr.
Joseph Duckwall, M.D., a state agency physician; Dr. Wyatt S. Beazley III, M.D.,
a state agency physician; and physical therapists, Dewey T. Peck and Charles
Williams, Jr.
On June 22, 2011, Thacker saw Dr. Christopher M. Basham, M.D., for an
injury to his left shoulder that he said he suffered at work changing out a water
heater. (R. at 293.) Physical examination revealed left shoulder tenderness. (R. at
294.) Dr. Basham diagnosed left shoulder pain and biceps tendonitis with
impingement syndrome. (R. at 294.) Thacker declined a referral for physical
therapy, and Dr. Basham prescribed Naprosyn. (R. at 294.) A July 13, 2011, MRI
of Thacker’s left shoulder showed significant degenerative joint disease of the
acromioclavicular joint and a full-thickness tear of the supraspinatus tendon. (R. at
301.)
Thacker saw Dr. Danny A. Mullins, M.D., an orthopedic surgeon, on May 3,
2012. (R. at 321-45.) Dr. Mullins diagnosed left shoulder rotator cuff tear with
impingement and acromioclavicular osteoarthritis. (R. at 321.) Dr. Mullins
performed diagnostic arthroscopy with arthroscopic rotator cuff repair, extensive
debridement and arthroscopic acromioplasty and arthroscopic distal clavicle
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excision. (R. at 321.) On June 13, 2012, Dr. Mullins released Thacker to return to
light-duty work with no use of his left arm. (R. at 424.) He also prescribed
physical therapy. (R. at 424.)
On July 25, 2012, Dr. Mullins provided Thacker with an injection of
Lidocaine and Celestone into his left shoulder. (R. at 423.) On July 25, 2012,
Thacker stated that the injection did not provide any relief. (R. at 423.) Dr. Mullins
suggested a second surgery and an open revision acromioplasty. (R. at 423.) Dr.
Mullins performed this surgery on November 6, 2012, (R. at 542-43.)
On December 31, 2012, Thacker complained of continued shoulder pain,
decreased range of motion and a popping sensation. (R. at 556.) Dr. Mullins noted
that Thacker was 10 weeks post surgery and should continue to improve. (R. at
556.) He stated that Thacker could perform light duty with no use of his left arm.
(R. at 556.)
Thacker attended physical therapy from November 2012 to February 2013,
making little progress toward his therapy goals. (R. at 635-95.) On February 8,
2013, Dewey T. Peck, physical therapist, stated that Thacker had a catching pain in
his shoulder with movement, inability to tolerate aggressive stretching with
shoulder freezing as a result and inability to perform his job activities as a heavy
equipment operator. (R. at 694-95.) Peck stated that Thacker was unable to lift
medium weight objects and had severe difficulty reaching overhead with his left
upper extremity. (R. at 692-95.) Peck stated that Thacker was unable to tuck his
shirt in with his left arm or use his left arm to perform self-care. (R. at 695.)

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On February 11, 2013, Thacker returned to see Dr. Mullins continuing to
complain of left shoulder pain, popping and a catching-type sensation. (R. at 554.)
Dr. Mullins was not able to elicit any palpable or audible popping during his
physical examination. (R. at 554.)

Dr. Mullins’s examination did reveal a

decreased range of motion and well-healed wounds. (R. at 554.) Dr. Mullins
advised that he did not have much to offer and recommended a functional capacity
evaluation. (R. at 554.)
Thacker saw Dr. Souhail Shamiyeh, M.D., on February 18, 2013. (R. at 55962.) Dr. Shamiyeh’s examination revealed limited shoulder range of motion. (R. at
561.) On May 20, 2013, Dr. Shamiyeh wrote a letter stating that Thacker was
totally and permanently disabled as a result of his left shoulder injury which had
left him with an inability to use his left upper extremity in some circumstances. (R.
at 579.)

On August 15, 2013, Thacker underwent a functional capacity evaluation by
Charles Williams, Jr., physical therapist, on referral from Dr. Mullins. (R. at 696721.) During testing, Thacker was capable of performing work requiring reaching,
handling, fingering and feeling with his right upper extremity. (R. at 699.) Thacker
had difficulty using his left upper extremity above shoulder level. (R. at 699.) He
worked at a slower rate when using his left upper extremity and showed decreased
tolerance to repetitive forward reaching with his left upper extremity. (R. at 699.)
Thacker was able to use his left hand below chest level. (R. at 699.) Williams
stated that Thacker demonstrated the ability to lift on an occasional basis, waist to
shoulder, 20 pounds; floor to waist, 30 pounds; floor to shoulder, 20 pounds; and
shoulder to overhead, 20 pounds, with the right upper extremity only. (R. at 700.)
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Williams said that Thacker demonstrated the ability to lift on a frequent basis,
waist to shoulder, 15 pounds and floor to waist, 20 pounds. (R. at 700.) He said
that, with both arms, Thacker could carry a loaded box weighing 25 pounds for 50
feet. (R. at 700.) Williams found that Thacker could carry a loaded bucket
weighing 10 pounds for 50 feet with his left arm. (R. at 700.) Williams stated that
Thacker could perform sedentary, 3 light and some medium4 work with lifting up to
30 pounds on an occasional basis. (R. at 698-99.)
On October 3, 2013, Dr. Mullins wrote a letter stating that Thacker was at
maximum medical improvement and had the physical capacity to perform
sedentary, light and some medium work on an occasional basis with significant
limitations on the use of his left upper extremity with permanent restriction against
using his left upper extremity above chest level or any repetitive use. (R. at 586.)
On November 8, 2012, Dr. Joseph Duckwall, M.D., a state agency
physician, completed a residual functional capacity assessment stating that Thacker
could perform light work with limited reaching and some postural limitations. (R.
at 84-88, 93-95.) On August 5, 2013, Dr. Wyatt S. Beazley, III, a state agency
physician, affirmed Dr. Duckwall’s assessment. (R. at 106-08, 117-19.) Dr.

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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), 416.967(a)
(2016).
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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) (2016).
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Beazley stated that Thacker could not reach overhead, and his lateral front reaching
was limited to occasional with his left arm. (R. at 108, 119.)
III. Analysis
The Commissioner uses a five-step process in evaluating DIB and SSI
claims. See 20 C.F.R. §§ 404.1520, 416.920 (2016). See also Heckler v. Campbell,
461 U.S. 458, 460-62 (1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981).
This process requires the Commissioner to consider, in order, whether a claimant
1) is working; 2) has a severe impairment; 3) has an impairment that meets or
equals the requirements of a listed impairment; 4) can return to 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) (2016).
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).

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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 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.
The ALJ found that Thacker had the residual functional capacity to perform
light work that did not require crawling or climbing ladders, ropes or scaffolds or
more than occasional reaching, pushing or pulling or any overhead reaching with
his left upper extremity. (R. at 20-25.) Thacker 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 5-7.) In

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particular, Thacker argues that the ALJ erred by rejecting the assessments of his
treating physicians, Dr. Shamiyeh and Dr. Mullins. (Plaintiff’s Brief at 6-7.)
Based on my review of the record, I find that the ALJ’s residual functional
capacity assessment credits, rather than rejects, Dr. Mullins’s opinion that Thacker
could perform light work with limitations on the use of his left upper extremity
with permanent restriction against using his left upper extremity above chest level
or any repetitive use. The ALJ’s finding also is supported by Williams’s functional
capacity evaluation of Thacker’s remaining work-related abilities. Dr. Shamiyeh’s
disability statement provides no residual functional capacity assessment. It simply
states that, in his opinion, Thacker is totally and permanently disabled. The
determination of disability is an issue reserved to the Commissioner, and such
opinions, even from treating physicians, are not binding on the Commissioner. See
20 C.F.R. §§ 404.1527(d)(1), (2), 416.927(d)(1), (2) (2016). Thus, I find that the
substantial evidence of record supports the ALJ’s decision to reject this opinion.
Based on the above, I find that substantial evidence exists to support the
ALJ’s weighing of the medical evidence and her finding as to Thacker’s residual
functional capacity. Therefore, I find that substantial evidence exists to support the
ALJ’s conclusion that Thacker was not disabled and not entitled to benefits. An
appropriate Order and Judgment will be entered.
DATED:

March 24, 2017.
/s/

Pamela Meade Sargent

UNITED STATES MAGISTRATE JUDGE

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