Branham v. Colvin

Filing 19

MEMORANDUM OPINION. Signed by Magistrate Judge Pamela Meade Sargent on 09/21/2017. (Bordwine, Robin)

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

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Civil Action No. 2:16cv00016
MEMORANDUM OPINION
BY: PAMELA MEADE SARGENT
United States Magistrate Judge

I. Background and Standard of Review
Plaintiff, Russell W. Branham, (“Branham”), filed this action challenging
the final decision of the Commissioner of Social Security, (“Commissioner”),
determining that he 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
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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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
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 Branham protectively filed an application for DIB on
September 6, 2012, alleging disability as of September 4, 2012, due to problems
with his back, neck and lungs; breathing problems resulting from lung nodules;
arthritis; hands swelling; depression; shoulder injuries; and difficulty standing for
extended periods due to foot pain. (Record, (“R.”), at 182-83, 205, 209.) The claim
was denied initially and on reconsideration. (R. at 100-02, 109-16, 118-20.)
Branham then requested a hearing before an ALJ. (R. at 121.) The ALJ held a
video hearing on December 29, 2014, at which Branham was represented by
counsel. (R. at 41-66.)
By decision dated January 30, 2015, the ALJ denied Branham’s claim. (R. at
26-36.) The ALJ found that Branham met the nondisability insured status
requirements of the Act for DIB purposes through December 31, 2017. (R. at 28.)
The ALJ found that Branham had not engaged in substantial gainful activity since

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September 4, 2012, the alleged onset date. 2 (R. at 28.) The ALJ found that the
medical evidence established that Branham had severe impairments, namely
degenerative disc disease of the cervical/lumbar spine with radiculopathy in the
right arm; chronic obstructive pulmonary disease, (“COPD”); obesity; and
depression, but she found that Branham 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 28-29.) The ALJ
found that Branham had the residual functional capacity to perform simple,
routine, repetitive light work3 that did not require him to crawl or climb ladders,
ropes or scaffolds; that did not require more than occasional kneeling, crouching
and climbing of ramps and stairs; that did not require him to use his right arm for
frequent overhead reaching; that did not involve concentrated exposure to dust,
chemicals, fumes, unprotected heights or dangerous equipment; that did not require
him to have contact with the public; and that did not require him to have more than
occasional interaction with supervisors and co-workers. (R. at 31.) The ALJ found
that Branham was unable to perform his past relevant work. (R. at 34.) Based on
Branham’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 Branham could perform, including jobs
as an assembler, a garment folder and a packing line worker. (R. at 34-35.) Thus,
2

Therefore, Branham must show that he became disabled between September 4, 2012,
the alleged onset date, and January 30, 2015, the date of the ALJ’s decision.
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) (2016).
3

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the ALJ concluded that Branham was not under a disability as defined by the Act,
and was not eligible for DIB benefits. (R. at 35-36.) See 20 C.F.R. § 404.1520(g)
(2016).
After the ALJ issued her decision, Branham pursued his administrative
appeals, (R. at 21), but the Appeals Council denied his request for review. (R. at 16.) Branham then filed this action seeking review of the ALJ’s unfavorable
decision, which now stands as the Commissioner’s final decision. See 20 C.F.R. §
404.981 (2016). The case is before this court on Branham’s motion for summary
judgment filed January 18, 2017, and the Commissioner’s motion for summary
judgment filed February 9, 2017.
II. Facts
Branham was born in 1968, (R. at 67), which classifies him as a “younger
person” under 20 C.F.R. § 404.1563(c). Branham has an eleventh-grade education
and past work experience as a construction worker and a tire changer. (R. at 62,
210.) Branham testified that he constantly suffered with back and neck pain. (R. at
54.) He stated that he was unable to lift more than a gallon of milk; walk more than
five minutes; stand more than 20 minutes without interruption; or sit more than 30
minutes without interruption. (R. at 54-55.) He stated that his medications helped
dull the pain, but never totally eliminated it. (R. at 54.)
Asheley Wells, a vocational expert, was present and testified at Branham’s
hearing. (R. at 62-65.) Wells was asked to consider a hypothetical individual of
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Branham’s age, education and work history, who was limited to simple, routine,
repetitive light work that did not require more than frequent overhead reaching
with his right arm; that did not require him to climb ladders, ropes or scaffolds or
crawl; that did not require more than occasional climbing of stairs or ramps,
kneeling or crouching; that did not require working around concentrated exposure
to unprotected heights, dangerous equipment, dust, chemicals and fumes; and that
did not require the individual to have contact with the public or more than
occasional social interaction with co-workers and supervisors. (R. at 62-63.) Wells
stated that the individual could not perform Branham’s past work, but that jobs
were available existing in significant numbers in the national economy that such an
individual could perform, including those of an assembler, a garment folder and a
hand packager. (R. at 63.)
Wells was asked to consider the same individual, but who would be limited
to standing two hours a day. (R. at 63-64.) She stated that there would be jobs
available at the sedentary 4 level that such an individual could perform, including
jobs as an assembler, a cuff folder and a weight tester. (R. at 64.) She also stated
that, should the individual be required to rest three hours a day, there would be no
jobs that the individual could perform. (R. at 64.) Wells stated that all competitive
employment would be precluded should the individual have no useful ability to
deal with work stress or to demonstrate reliability. (R. at 64-65.)
4

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) (2016).
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In rendering her decision, the ALJ reviewed records from Jo McClain,
Psy.D., a state agency psychologist; Dr. Michael Hartman, M.D., a state agency
physician; Howard S. Leizer, Ph.D., a state agency psychologist; Dr. Walid Saado,
M.D.; Dr. Wyatt S. Beazley, III, M.D., a state agency physician; Robert S.
Spangler, Ed.D., a licensed psychologist; Dr. James Robert Snapper, M.D., a
pulmonologist; Pulmonary Associates of Kingsport; Dr. David M. Ratliff, M.D.;
Dr. Latisha Hilton, D.O.; Crystal Burke, L.C.S.W., a licensed clinical social
worker; James Kegley, M.S., a counselor; Dr. Wael El Minaoui, M.D.; Duke
University Medical Center, (“Duke”); Brandie Dotson, A.P.R.N., an advanced
practice registered nurse; Dr. Jason Fogg, M.D.; and Dr. Roy Deel, D.O.
Branham’s attorney also submitted medical reports from Mountain View Regional
Medical Center and Dr. Saado to the Appeals Council.5
The record shows that Dr. Walid Saado, M.D., saw Branham from 2008
through 2015 for COPD; lumbar or lumbosacral intervertebral disc degeneration;
hyperlipidemia; hypertension; bipolar disorder; obstructive sleep apnea; benign
prostatic hyperplasia; a lung mass; shortness of breath; basal cell carcinoma;
attention-deficit hyperactivity disorder; fatigue; pneumocystosis; 6 bursitis;
shoulder pain; left knee pain; chronic pain syndrome; depression; anxiety;
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

Pneumocystosis is defined as pneumonia that results from infection with Pneumocystis
carinii, occurs frequently among immunologically compromised individuals, and is
characterized by alveoli filled with a network of acidophilic material that enmeshes the
organisms. See STEDMAN'S MEDICAL DICTIONARY, (“Stedman’s”), 651 (1995).
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hypogonadism; 7 mixed or unspecified drug abuse; 8 and dysthymia. (R. at 627, 630,
634, 637, 641, 643, 646-47, 653, 656, 685, 732-35, 773, 783, 791, 798, 807, 816,
823.) During this time, Branham complained of low back, neck and right shoulder
pain; hypertension; anxiety; and depression. (R. at 626, 629, 633, 635, 640, 642,
645, 648, 654, 657, 772, 786-87, 793-94, 800-01, 809-10, 818-19, 825-26.) In
December 2010, x-rays of Branham’s shoulders were normal. (R. at 730.) In
September 2011, a PET scan of Branham’s skull base to mid thigh showed
multiple well-defined lung nodules. 9 (R. at 322.) Dr. Saado routinely reported that
Branham’s examinations were normal, 10 with the exception of tenderness in
Branham’s back and shoulder. (R. at 626-27, 629-30, 633-34, 636-37, 640-43, 64546, 653-54, 656-57, 772-73, 781-83, 789-91, 796-98, 804, 806-07, 813, 815-16,
821-23, 828.)
In August 2013, x-rays of Branham’s chest showed bilateral pulmonary
7

Hypogonadism is defined as inadequate functioning of the testes or ovaries as
manifested by deficiencies in gametogenesis or the secretion of gonadal hormones. See
Stedman’s at 395.
8

The diagnosis of mixed or unspecified drug abuse was given in February 2015 after
Branham tested positive for phentermine. (R. at 778, 784-85.) During that visit, Branham became
angry and threatened Dr. Saado after being told that he would not be prescribed Norco or
Klonopin. (R. at 784.)
9

In January 2014, a PET scan showed innumerable pulmonary nodules, many of which
had minimal to mild increase of fludeoxyglucose, (“FDG”), activity and slow growth since 2011,
possibly representing a slow-growing non-FDG avid tumor. (R. at 709.)
10

It was noted that Branham was in no respiratory distress; he had normal breath sounds;
he had full range of motion and muscle strength; normal gait; and negative straight leg raising
tests. (R. at 626-27, 629-30, 633-34, 636-37, 640-43, 645-48, 653-54, 656-57, 772-73, 782-83,
789-91, 796-98, 813, 815-16, 821-23.)
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nodules, probably related to old granulomatous disease, and metastasis or other
malignancy could not be excluded. 11 (R. at 765.) In September 2013, Branham
complained of low back and neck pain, shortness of breath, anxiety and depression.
(R. at 648.) Branham had no respiratory distress and clear bilateral breath sounds.
(R. at 648.) While Dr. Saado noted that Branham had a depressed affect and
anxious mood and diagnosed dysthymia, (R. at 647), subsequent office visits
revealed a normal mood and affect; intact memory; appropriate intellectual
functioning; and appropriate thought content/perception. (R. at 627, 630, 634, 637,
641, 643, 646, 653, 656, 773, 783, 791, 798, 807, 816, 823.) Branham reported on
numerous occasions in 2013 and 2014 that his symptoms of anxiety had improved.
(R. at 626, 633, 636, 640, 642, 645, 654, 657.)
In

February 2014, Branham reported

difficulty sleeping, trouble

concentrating and mood swings, but stated that his symptoms of anxiety had
improved. (R. at 633.) Dr. Saado diagnosed dysthymia and bipolar disorder. (R. at
634.) In September 2014, Dr. Saado reported that Branham’s COPD, anxiety and
depression were controlled. (R. at 767-68.) Branham’s lungs were clear to
auscultation bilaterally with no wheezes, rhonchi or rales, and his breathing was
unlabored. (R. at 770.) In November 2014, chest x-rays showed multiple bilateral
nodular pulmonary opacities, and it was noted that coal worker’s pneumoconiosis
could not be excluded. (R. at 762-63.) In January and February 2015, Dr. Saado
reported that Branham’s mood was anxious, depressed and angry. (R. at 783, 791.)
Dr. Saado found that Branham’s memory was intact, he had appropriate
11

In January 2014, a biopsy of Branham’s lymph node showed no evidence of
malignancy. (R. 706.)
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intellectual functioning and appropriate thought content/perception. (R. at 783,
791.)
The record shows that Dr. Latisha Hilton, D.O., saw Branham from 2011
through 2013 for chest pain; right shoulder pain; hypertension; dyspnea; chronic
pain; arthritis; hypogonadism; a lung mass; dyspnea; hypercholesterolemia; lumbar
and cervical disc degeneration; low back pain; obstructive sleep apnea; bursitis;
neck pain; coal worker’s pneumoconiosis; and depression. (R. at 386, 389, 392,
396, 399, 403, 407, 410, 412, 416, 462, 468, 754, 758.) Diagnostic testing
performed in 2011 and 2012 showed that Branham had multiple bilateral
pulmonary nodules, (R. at 377, 380, 412, 419, 424); a negative stress test, (R. at
374); a transthoracic echocardiogram was normal, with the exception of mild
tricuspid regurgitation, (R. at 375); a right upper lobe lung biopsy showed
bronchial mucosa with mild chronic inflammation, (R. at 674); x-rays of
Branham’s right shoulder were normal, (R. at 372); x-rays of Branham’s cervical
spine showed degenerative changes, (R. at 373); an MRI of Branham’s cervical
spine showed multilevel disc degenerative disease, most prominent findings at the
C5-6 vertebrae where broad-based protrusion eccentric to the right caused mild
canal, thecal sac narrowing with effacement of the cerebrospinal fluid space
ventral to the cord on the right side and moderate right C5-6 foraminal stenosis by
an uncovertebral spur, (R. at 367-68); x-rays of Branham’s lumbar spine showed
degenerative changes, (R. at 434); and an MRI of Branham’s lumbar spine showed
mild spondylitic changes, mild narrowing of the neural foramen on the left side at
the L3-L4 and L4-L5 levels and mild narrowing of the neural foramina on both
sides of the L5-S1 level. (R. at 427.)
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In August 2011, Branham complained of intermittent episodes of mild
substernal chest pain caused by exertion and stress, low back pain and right
shoulder pain. (R. at 414.) Dr. Hilton reported that Branham had no respiratory
distress; normal respiratory rhythm and effort; and clear bilateral breath sounds.
(R. at 415.) Branham had a normal gait; no clubbing, cyanosis or joint swelling;
normal muscle tone and strength; and limited range of motion of the right shoulder.
(R. at 415.) In October 2011, Branham reported that his pain was controlled with
medication. (R. at 408.) In December 2011, Branham reported that he was doing
“okay.” (R. at 405.) He stated that he was tolerating his medications without any
issues and that his pain was stable. (R. at 405.)
In February 2012, Branham stated that his right shoulder pain improved with
his last injection. (R. at 401.) Dr. Hilton diagnosed bursitis, hypertension, neck
pain and hypercholesterolemia. (R. at 403.) In April 2012, Branham reported that
he tolerated his pain medications, but requested that they be increased. (R. at 397.)
In June 2012, Branham stated that he had to cut wood all year to ensure that his
father had wood for the winter. (R. at 394.) He complained of back pain and
requested an injection. (R. at 394.) Dr. Hilton reported that Branham had a normal
gait; tenderness with palpation of the paraspinous muscles of the back; and muscle
spasm on the right. (R. at 396.) In August 2012, Branham reported that he “get[s] a
lot of exercise with his daily activities.” (R. at 386.) He continued to report back
pain. (R. at 386.) Dr. Hilton reported that Branham had no respiratory distress;
normal respiratory rhythm and effort; and clear bilateral breath sounds. (R. at 388.)

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In April 2013, Branham’s physical examination was normal, and Dr. Hilton
diagnosed coal worker’s pneumoconiosis, hypertension, hypercholesterolemia and
obstructive sleep apnea. (R. at 461-62.) In July 2013, Branham complained of
shortness of breath on exertion. (R. at 752.) Dr. Hilton reported that Branham had
no respiratory distress; normal respiratory rhythm and effort; and clear bilateral
breath sounds. (R. at 754.) She reported that Branham had a depressed mood, but
his insight and judgment were intact. (R. at 754.) Dr. Hilton diagnosed
hypertension; coal worker’s pneumoconiosis; obstructive sleep apnea; depression;
and chronic pain. (R. at 754.)
On September 21, 2011, Branham was seen by Dr. Wael El Minaoui, M.D.,
a pulmonologist at Pulmonary Associates of Kingsport, for complaints of shortness
of breath with occasional coughing. (R. at 313-15.) He denied depression or
bipolar disorder. (R. at 315.) Dr. Minaoui reported that Branham’s pulmonary
examination revealed good air entry bilaterally that was clear to auscultation. (R. at
314.) The remainder of the examination showed a normal gait; no sensory deficits;
and good muscle power. (R. at 314.) A pulmonary function study showed moderate
obstruction with good post-bronchodilator response; moderate small airways
disease, but no signs of air trapping on hyperinflation; and normal diffusing
capacity of the lung for carbon monoxide. (R. at 348.)
On October 3, 2011, Branham complained of shortness of breath. (R. at 27375.) He denied gait problems, depression or bipolar disorder. (R. at 274.) Dr.
Minaoui reported that Branham’s pulmonary examination revealed good air entry
bilaterally that was clear to auscultation. (R. at 274.) The remainder of the
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examination showed a normal gait and no sensory or motor deficits. (R. at 274.)
Branham refused testing for sleep apnea. (R. at 275.) On October 7, 2011, a
bronchoscopy was performed and showed bilateral secretions; inflamed mucosa
bilaterally; extrinsic compression of the right middle lobe; extrinsic compression of
the right upper lobe with almost complete narrowing of the airway; and narrowing
in the anterior segment of the right upper lobe. (R. at 276-77, 279-83.) On
December 19, 2011, Branham reported that he continued to have shortness of
breath and that he used his inhalers. (R. at 304-05.) Branham stated that he did not
want to continue doing any further investigations regarding his lung nodules. (R. at
304.) Dr. Minaoui noted that a CT scan of Branham’s chest showed some
improvement in the size of his lung nodules. (R. at 304.) Pulmonary examination
showed good air entry bilaterally with no wheezing or rhonchi. (R. at 305.) Dr.
Minaoui diagnosed moderate COPD, secondary to secondhand smoke or
occupational pneumoconiosis; bilateral upper lobe nodules with negative PET
scan; positive hemosiderin-laden macrophages, possible idiopathic pulmonary
hemosiderosis; secondhand smoking; hypertension; and symptoms of obstructive
sleep apnea. (R. at 305.) Branham again refused testing for sleep apnea. (R. at
305.)
On October 26, 2011, Dr. James Robert Snapper, M.D., a pulmonologist at
Duke, saw Branham for an abnormal chest CT scan and x-ray. (R. at 567-69.)
Branham complained of fatigue, frequent coughing and shortness of breath. (R. at
568.) Dr. Snapper reported that the etiology of Branham’s abnormal CT scan and
multiple pulmonary nodules was unclear. (R. at 568.) On January 22, 2014,
Branham underwent a bronchoscopy, which was normal. (R. at 593-95, 739-42.)
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On January 29, 2014, Dr. Snapper noted that it was probable that Branham’s lung
nodules represented pneumoconiosis. (R. at 738.)
On September 28, 2012, Dr. David M. Ratliff, M.D., saw Branham for
complaints of pain in his back, neck, bilateral shoulders, right hand and left leg. (R.
at 447-51.) Branham reported that pain medication relieved his pain. (R. at 452.)
Examination of Branham’s cervical spine showed tenderness with palpation and
moderate pain with movement. (R. at 450.) Dr. Ratliff reported that Branham’s
memory was intact, and he demonstrated an appropriate mood and affect. (R. at
450.) Dr. Ratliff diagnosed degeneration of the cervical intervertebral disc;
degeneration of the lumbosacral intervertebral disc; lumbar radiculopathy; and
lumbosacral spondylosis without myelopathy. (R. at 450-51.) On October 22,
2012, Branham complained of pain in his back, neck, legs and shoulders. (R. at
495-500.) Brandie Dotson, A.P.R.N., an advanced practice registered nurse with
Dr. Ratliff’s office, reported that Branham’s gait was antalgic; he had tenderness
and limited range of motion of the cervical and lumbar spine; he had normal deep
tendon reflexes; his memory was intact; and his mood and affect were appropriate.
(R. at 498-99.) Dotson diagnosed lumbago; lumbosacral spondylosis without
myelopathy; degeneration of the lumbar or lumbosacral intervertebral disc;
radiculitis of the thoracic or lumbar; cervicalgia; cervical spondylosis without
myelopathy; and degeneration of the cervical intervertebral disc. (R at 499.)
On November 20, 2012, Branham reported that his back pain was relieved
with heat and pain medications. (R. at 504-09.) He stated that he was “doing well
with medical control of the pain.” (R. at 504.) Dr. Ratliff reported that Branham’s
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respiratory effort was normal; his gait was full weight bearing with no assistive
device; he had tenderness in the cervical and lumbar spine with moderate pain with
motion; he had normal strength in the bilateral upper and lower extremities; he had
normal muscle tone; he had mild lumbar spasm; he had limited range of motion of
the lumbar spine; he had normal deep tendon reflexes; his memory was intact; and
he had an appropriate mood and affect. (R. at 507-08.) On December 13, 2012,
Branham reported that his back pain was relieved with heat and pain medications.
(R. at 517-22.) He stated that he was doing well on his medications and that he was
pleased with the amount of pain control that he achieved. (R. at 517.) Branham’s
examination was unchanged. (R. at 520-22.)
On March 12, 2013, Branham reported that pain medication relieved his
back and pain. (R. at 489-94.) Branham’s examination was unchanged. (R. at 49294.) On June 13, 2013, Branham reported that his back pain was relieved by lying
down and pain medication. (R. at 537-40.) Branham’s memory was intact, and his
mood and affect were appropriate. (R. at 540.)
On January 7, 2013, Jo McClain, Psy.D., a state agency psychologist,
completed a Psychiatric Review Technique form, (“PRTF”), indicating that
Branham had no mental impairments. (R. at 70-71.) She noted that the record
indicated that Branham had active problems with depression, but that there was no
“actual diagnosis on file.” (R. at 71.) McClain also noted that Branham did not take
any medication for a mental impairment and was not participating in any outpatient
counseling. (R. at 71.) She reported that Branham’s daily activities did not appear
to be limited by a mental impairment. (R. at 71.)
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Also, on January 7, 2013, Dr. Michael Hartman, M.D., a state agency
physician, completed a medical assessment, indicating that Branham had the
residual functional capacity to perform light work. (R. at 72-74.) He opined that
Branham could occasionally climb ramps and stairs, stoop, kneel and crouch and
never climb ladders, ropes or scaffolds or crawl. (R. at 72-73.) Dr. Hartman opined
that Branham was limited in his ability to reach overhead with is right arm. (R. at
73.) No visual or communicative limitations were noted. (R. at 73.) Dr. Hartman
opined that Branham should avoid concentrated exposure to fumes, odors, dusts,
gases, poor ventilation and work hazards, such as machinery and heights. (R. at
73.)
On January 16, 2013, Crystal Burke, L.C.S.W., a licensed clinical social
worker, saw Branham for complaints of multiple stressors, including financial and
family issues. (R. at 458.) Burke reported that Branham was depressed and
anxious, but appropriately groomed and displayed no psychosis. (R. at 458.) She
diagnosed depressive disorder, not elsewhere classified. (R. at 458.) She noted that
“the level of diagnoses or management options of this case is minimal.” (R. at
458.) On July 15, 2013, Branham continued to report significant depression and
chronic pain. (R. at 563.) Burke reported that Branham had a depressed mood; his
thought content was depressed; he displayed problems with concentration; his
hygiene and grooming were poor; and he spoke in a monotone voice. (R. at 563.)
She diagnosed depressive disorder, not elsewhere classified, and anxiety state,
unspecified. (R. at 563.) On August 19, 2013, Branham reported multiple stressors
with his health and finances. (R. at 561.) Burke reported that Branham had poor
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concentration; his mood was depressed with congruent affect; his thought content
was depressed; and his hygiene and grooming were fair. (R. at 561.) Burke
diagnosed anxiety state, unspecified; major depressive disorder, recurrent episode,
severe without psychotic behavior; and chronic pain. (R. at 562.) She opined that
Branham remained disabled from gainful employment. (R. at 561.)
On June 13, 2013, Robert S. Spangler, Ed.D., a licensed psychologist,
evaluated Branham at the request of Branham’s attorney. (R. at 470-73.) Spangler
noted that Branham had awkward gross motor movements and a slow, stiff gait.
(R. at 470.) His fine motor skills were age-appropriate, but slow. (R. at 470.)
Branham demonstrated erratic concentration, secondary to major depression and
discomfort. (R. at 470.) Spangler reported that Branham had adequate recall of
remote and recent events; his motor activity was psychomotor retardation; his right
hand was swollen; his affect was appropriate; his mood was depressed; his
judgment and insight were consistent with low average intelligence; his stream of
thought was concrete; his associations were logical; his thought content was
nonpsychotic; perceptual abnormalities were not noted, except slowness; and he
displayed adequate social skills. (R. at 471-72.) The Wechsler Adult Intelligence
Scale - Fourth Edition, (“WAIS-IV”), was administered, and Branham obtained a
full-scale IQ score of 74. (R. at 472.) Spangler noted that Branham’s perceptual
reasoning index score, working memory index score, processing speed index score
and full-scale IQ score were considered invalid. (R. at 472.) He reported that these
scores were an underestimate of Branham’s abilities due to psychomotor
retardation for his major depressive disorder and swollen right hand. (R. at 472.)
Spangler diagnosed major depressive disorder, recurrent, moderate to severe on
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medication, and low average intelligence. (R. at 473.) He assessed Branham’s
then-current Global Assessment of Functioning, (“GAF”), 12 score at 50 13 to 55.14
(R. at 473.) Spangler opined that Branham’s prognosis was guarded and that he
needed to continue mental health treatment for a period to exceed 12 months. (R. at
473.)
Spangler completed a mental assessment, 15 indicating that Branham had a
seriously limited ability to follow work rules; to relate to co-workers; to use
judgment; to interact with supervisors; to function independently; to maintain
attention and concentration; to understand, remember and carry out simple job
instructions; and to maintain personal appearance. (R. at 474-76.) He opined that
Branham had no useful ability to deal with the public; to deal with work stresses;
to understand, remember and carry out complex and detailed job instructions; to
behave in an emotionally stable manner; to relate predictably in social situations;
and to demonstrate reliability. (R. at 474-75.) Spangler opined that Branham would
be absent from work more than four days a month. (R. at 476.)
12

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).
A GAF score of 41-50 indicates that the individual has “[s]erious symptoms ... OR any
serious impairment in social, occupational, or school functioning....” DSM-IV at 32.
13

14

A GAF score of 51-60 indicates that the individual has “[m]oderate symptoms... OR
moderate difficulty in social, occupational, or school functioning....” DSM-IV at 32.
15

The assessment is dated June 7, 2013, nearly a week before Branham’s evaluation of
June 13, 2013. There is no explanation as to why this is dated six days before the date of the
evaluation. It is assumed that this is a typographical error. (R. at 476.)
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On September 26, 2013, Howard S. Leizer, Ph.D., a state agency
psychologist, completed a PRTF, finding that Branham had moderate limitations in
his activities of daily living; experienced 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
86.)
Leizer also completed a mental assessment, indicating that Branham had
moderate limitations in his ability to understand, remember and carry out detailed
instructions; to maintain attention and concentration for extended periods; to work
in coordination with or in proximity to others without being distracted by them; to
complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods; to interact appropriately with the
general public; to accept instructions and respond appropriately to criticism from
supervisors; 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 90-92.) Leizer found that Branham was not significantly
limited in all other work-related areas. (R. at 90-92.) Leizer opined that Branham
was capable of performing simple, unskilled work with limited contact with others.
(R. at 92.)
On September 30, 2013, Dr. Wyatt S. Beazley, III, M.D., a state agency
physician, completed a medical assessment, indicating that Branham had the
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residual functional capacity to perform light work. (R. at 88-90.) He opined that
Branham could occasionally climb ramps and stairs, stoop, kneel and crouch and
never climb ladders, ropes or scaffolds or crawl. (R. at 88-89.) Dr. Beazley opined
that Branham was limited in his ability to reach overhead with is right arm. (R. at
89.) No visual or communicative limitations were noted. (R. at 89.) Dr. Beazley
opined that Branham should avoid concentrated exposure to fumes, odors, dusts,
gases, poor ventilation and work hazards, such as machinery and heights. (R. at 8990.)
On February 11, 2014, Branham saw James Kegley, M.S., a counselor, for
complaints of depression and anxiety. (R. at 597-616.) Branham stated that he had
no prior hospitalizations nor had he been prescribed psychotropic medications. (R.
at 597.) Kegley diagnosed major depressive disorder, single episode, moderate,
and anxiety disorder, not otherwise specified. (R. at 610.) He assessed Branham’s
then-current GAF score at 50, with his highest and lowest GAF score being 50
within the past six months. (R. at 610.) On March 31, 2014, Branham reported that
he had no energy and that he chose to sleep much of the time. (R. at 591.) Kegley
reported that Branham was mildly depressed with a congruent affect. (R. at 591.)
On April 22, 2014, Branham reported that he recently went turkey and mushroom
hunting. (R. at 589.) He stated that he cared for a horse daily, but was unable to
ride it. (R. at 589.) Kegley reported that Branham was mildly depressed with a
congruent affect. (R. at 589.) Kegley reported that Branham became frustrated
during the session and left prior to possible completion. (R. at 589.) On June 24,
2014, Branham reported that he did not like being around people. (R. at 583.)
Kegley reported that Branham moved frequently during the session as if he was in
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physical discomfort. (R. at 583.) On July 15, 2014, Branham reported that his
depression was getting worse. (R. at 582.) Kegley reported that Branham’s mood
was mildly to moderately depressed with a congruent affect. (R. at 582.) In August
and September 2014, Kegley reported that Branham was mildly depressed with a
congruent affect. (R. at 576, 578, 581.) He noted that Branham moved frequently
during the session as if he was in physical discomfort. (R. at 576, 578.) In October
2014, Branham reported that he was anxious about his upcoming disability hearing
and about a decision in his black lung case. (R. at 573.) Kegley reported that
Branham was mildly to moderately depressed with a congruent affect. (R. at 573.)
In November 2014, Kegley reported that Branham had a mildly depressed mood
with congruent affect. (R. at 571.)
On March 25, 2015, Branham saw Dr. Roy Deel, D.O., to establish medical
care. (R. at 10.) Dr. Deel diagnosed central pain syndrome with degenerative disc
disease of the lumbar spine; benign prostatic hyperplasia; depression; and
generalized anxiety disorder. (R. at 10.) On June 25, 2015, Branham complained of
chronic pain and tingling in his arms that radiated from his shoulders into his
hands. (R. at 9.) Dr. Deel diagnosed central pain syndrome with degenerative disc
disease of the lumbar spine; hypertension; and chronic widespread pain. (R. at 9.)
On August 4, 2015, Branham complained of right shoulder pain. (R. at 8.) Dr. Deel
reported that Branham had tenderness in the acromioclavicular joint of the right
shoulder with decreased range of motion. (R. at 8.) He diagnosed
acromioclavicular joint bursitis of the right shoulder and administered a lidocaine
injection. (R. at 8.)

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III. Analysis
The Commissioner uses a five-step process in evaluating DIB claims. See 20
C.F.R. § 404.1520 (2016); see also Heckler v. Campbell, 461 U.S. 458, 460-62
(1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981). This process requires
the Commissioner to consider, in order, whether a claimant 1) is working; 2) has a
severe impairment; 3) has an impairment that meets or equals the requirements of a
listed impairment; 4) can return to his past relevant work; and 5) if not, whether he
can perform other work. See 20 C.F.R. § 404.1520. If the Commissioner finds
conclusively that a claimant is or is not disabled at any point in this process, review
does not proceed to the next step. See 20 C.F.R. § 404.1520(a) (2016).
As stated above, the court’s function in this case is limited to determining
whether substantial evidence exists in the record to support the ALJ’s findings.
The court must not weigh the evidence, as this court lacks authority to substitute its
judgment for that of the Commissioner, provided her decision is supported by
substantial evidence. See Hays, 907 F.2d at 1456. In determining whether
substantial evidence supports the Commissioner’s decision, the court also must
consider whether the ALJ analyzed all of the relevant evidence and whether the
ALJ sufficiently explained her findings and her rationale in crediting evidence.
See Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
Branham argues that the ALJ erred by failing to give full consideration to
Spangler’s findings as to the severity of his mental impairments. (Plaintiff’s
Memorandum In Support Of His Motion For Summary Judgment, (“Plaintiff’s
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Brief”), at 5-6.) Branham also argues that the ALJ erred by failing to give
appropriate weight to his testimony and to properly assess the effect of pain on his
ability to perform substantial gainful activity. (Plaintiff’s Brief at 6-7.)
Branham argues that the ALJ erred by failing to properly weigh the medical
evidence of record. (Plaintiff’s Brief at 5-6.) In particular, Branham argues that the
ALJ should have given the opinion of Spangler controlling weight. (Plaintiff’s
Brief at 5-6.) It is the ALJ’s responsibility to weigh the evidence, including the
medical evidence, in order to resolve any conflicts which might appear therein.
See Hays, 907 F.2d at 1456; Taylor v. Weinberger, 528 F.2d 1153, 1156 (4th Cir.
1975). Furthermore, while an ALJ may not reject medical evidence for no reason
or for the wrong reason, see King v. Califano, 615 F.2d 1018, 1020 (4th Cir. 1980),
an ALJ may, under the regulations, assign no or little weight to a medical opinion,
even one from a treating source, based on the factors set forth at 20 C.F.R. §
404.1527(c), if she sufficiently explains her rationale and if the record supports her
findings.
It is well-settled that, in determining whether substantial evidence supports
the ALJ’s decision, the court 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., 131 F.3d at 43940. “[T]he [Commissioner] must indicate explicitly that all relevant evidence has
been weighed and its weight.” Stawls v. Califano, 596 F.2d 1209, 1213 (4th Cir.
1979). “The courts … face a difficult task in applying the substantial evidence test
when the [Commissioner] has not considered all relevant evidence. Unless the
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[Commissioner] has analyzed all evidence and has sufficiently explained the
weight she has given to obviously probative exhibits, to say that her decision is
supported by substantial evidence approaches an abdication of the court’s ‘duty to
scrutinize the record as a whole to determine whether the conclusions reached are
rational.’” Arnold v. Sec’y of Health, Educ. & Welfare, 567 F.2d 258, 259 (4th Cir.
1977) (quoting Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974)).
The ALJ found that Branham had the residual functional capacity to perform
simple, routine, repetitive light work that did not require him to crawl or climb
ladders, ropes or scaffolds; that did not require more than occasional kneeling,
crouching and climbing of ramps and stairs; that did not require him to use his
right arm for frequent overhead reaching; that did not involve concentrated
exposure to dust, chemicals, fumes, unprotected heights or dangerous equipment;
that did not require him to have contact with the public; and that did not require
him to have more than occasional interaction with supervisors and co-workers. (R.
at 31.) The ALJ stated that she was giving Spangler’s opinion “little weight”
because it was not supported by the clinical findings of record. (R. at 34.) The ALJ
also noted that she was giving Burke’s statement that Branham “remains disabled
for gainful employment” little weight because it was not supported by the objective
clinical findings relative to Branham’s mental status. (R. at 34, 561.) The ALJ gave
“great weight” to Leizer’s assessment in determining that Branham had the
residual functional capacity to perform simple, routine, repetitive work involving
limited interaction with others. (R. at 33-34, 90-92.)
Dr. Ratliff noted in September, October and November 2012 and in March
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and June 2013 that Branham’s memory was intact, and he had an appropriate mood
and affect. (R. at 450, 494, 499, 508, 540.) In June 2013, Spangler noted that
Branham had adequate recall of recent and remote events; he had an appropriate
affect and depressed mood; his stream of thought was concrete; his thought content
was nonpsychotic; and he had adequate social skills. (R. at 471-72.) In July 2013,
Dr. Hilton noted that Branham’s insight and judgment were intact. (R. at 754.) The
record shows that, in July and August 2013, Burke reported that Branham had a
depressed mood, depressed thought content and problems with concentration. (R.
at 561, 563.) Burke noted that “[t]he level of diagnoses or management options of
this case is minimal.” (R. at 458, 563-64.) In September 2013, Leizer found that
Branham had moderate limitations in his ability to perform his activities of daily
living, in maintaining attention and concentration and in maintaining social
functioning and opined that Branham was capable of performing simple, unskilled
work with limited contact with others. (R. at 86, 90-92.) Dr. Saado noted on
numerous occasions throughout 2013 and 2014 that Branham had a normal mood
and affect; he had intact memory; appropriate intellectual functioning; and
appropriate thought content and perception. (R. at 627, 630, 634, 637, 641, 643,
646, 653, 656, 773, 783, 791, 798, 807, 816, 823.) The record shows that
psychotherapy notes since March 2014 document that Branham was casually
dressed and groomed, gave no indication of suicidal or homicidal ideation and was
only mildly depressed with congruent affect. (R. at 571, 573, 589, 591.) In January
and February 2015, Dr. Saado reported that Branham’s memory was intact, he had
appropriate intellectual functioning and appropriate thought content and
perception. (R. at 783, 791.) Branham reported on numerous occasions that his
symptoms of anxiety had improved. (R. at 626, 633, 636, 640, 642, 645, 654, 657.)
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Based on this, I find that substantial evidence exists to support the ALJ’s weighing
of the evidence with regard to Branham’s mental residual functional capacity.
Branham also argues that the ALJ erred by failing to give appropriate weight
to his testimony and to properly assess the effect of pain on his ability to perform
substantial gainful activity. (Plaintiff’s Brief at 6-7.) Based on my review of the
record, I find that the ALJ considered Branham’s allegations of pain in accordance
with the regulations. The Fourth Circuit has adopted a two-step process for
determining whether a claimant is disabled by pain. First, there must be objective
medical evidence of the existence of a medical impairment which could reasonably
be expected to produce the actual amount and degree of pain alleged by the
claimant. See Craig v. Chater, 76 F.3d 585, 594 (4th Cir. 1996). Second, the
intensity and persistence of the claimant’s pain must be evaluated, as well as the
extent to which the pain affects the claimant’s ability to work. See Craig, 76 F.3d
at 595. Once the first step is met, the ALJ cannot dismiss the claimant’s subjective
complaints simply because objective evidence of the pain itself is lacking. See
Craig, 76 F.3d at 595. This does not mean, however, that the ALJ may not use
objective medical evidence in evaluating the intensity and persistence of pain. In
Craig, the court stated:
Although a claimant’s allegations about [his] pain may not be
discredited solely because they are not substantiated by objective
evidence of the pain itself or its severity, they need not be accepted to
the extent they are inconsistent with the available evidence, including
objective evidence of the underlying impairment, and the extent to
which that impairment can reasonably be expected to cause the pain
the claimant alleges [he] suffers....
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76 F.3d at 595.
I find that the ALJ reasonably found that Branham’s subjective complaints
of disabling functional limitations were not credible. (R. at 33.) The ALJ found
Branham’s statements concerning the intensity, persistence and limiting effects of
his symptoms “not entirely credible.” (R. at 33.) The ALJ noted that Branham had
received only conservative treatment and had not been referred to an orthopedist or
neurosurgeon for further evaluation. (R. at 33.) The ALJ also noted that Branham
had not sought treatment from a pulmonary specialist since December 2011. (R. at
33.) At that time, Branham stated that he did not wish to pursue any further studies
and would manage his condition with inhalers. (R. at 304-06.)
While the diagnostic evidence shows that Branham has degeneration in his
neck and back, (R. at 367-68, 373, 427, 434), clinical findings were unremarkable,
aside from some tenderness and restricted range of motion. (R. at 626-27, 629-30,
633-34, 636-37, 640-43, 645-46, 653-54, 656-57, 772-73, 781-83, 789-91, 796-98,
804, 806-07, 813, 815-16, 821-23, 828.) In addition, pulmonary clinical findings
consistently showed that Branham was in no respiratory distress; he had normal
breath sounds; he had good air entry bilaterally that was clear to auscultation, with
no wheezes, rhonchi or rales; and unlabored breathing. (R. at 388, 396, 399, 403,
410, 415, 462, 468, 492, 754, 770.) Branham reported in June 2012 that he had to
cut wood all year to ensure that his father had wood for the winter. (R. at 394.) In
August 2012, Branham reported that he “gets a lot of exercise with his daily
activities.” (R. at 386.) In April 2014, Branham reported that he recently went
turkey and mushroom hunting and that he cared for a horse on a daily basis. (R. at
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589.) Branham consistently reported that he tolerated his medications without any
issues and that his medications controlled his pain. (R. at 397, 405, 408, 452, 489,
494, 504, 517, 537.) “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). Drs. Hartman and Beazley opined that Branham could perform a limited
range of light work. (R. at 72-74, 88-90.) The ALJ considered these limitations and
included them in her residual functional capacity findings. (R. at 33.) Based on
this, I find that the ALJ properly analyzed Branham’s allegations of pain.
Based on the above, I find that substantial evidence exists in the record to
support the ALJ’s finding that Branham was not disabled. An appropriate Order
and Judgment will be entered.
ENTERED: September 21, 2017.
s/

Pamela Meade Sargent

UNITED STATES MAGISTRATE JUDGE

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