Lovern v. Colvin

Filing 13

MEMORANDUM OPINION. Signed by Magistrate Judge Pamela Meade Sargent on 12/8/17. (ejs)

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

)
)
)
)
)
)
)
)
)
)

Civil Action No. 2:16cv00025
MEMORANDUM OPINION
BY: PAMELA MEADE SARGENT
United States Magistrate Judge

I. Background and Standard of Review
Plaintiff, Roland G. Lovern, Jr., (“Lovern”), 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 upon transfer pursuant to the consent of
the parties under 28 U.S.C. § 636(c)(1).
The court’s review in this case is limited to determining if the factual
findings of the Commissioner are supported by substantial evidence and were
reached through application of the correct legal standards. See Coffman v. Bowen,
829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence has been defined as
“evidence which a reasoning mind would accept as sufficient to support a
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.
-1-

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 Lovern protectively filed a previous DIB claim on
July 3, 2008, alleging disability as of April 30, 2008, which was denied by decision
dated October 28, 2009.2 (Record, (“R.”), at 64-74.) While this decision was on
appeal to the Appeals Council, Lovern protectively filed a new application for
DIB3 on October 28, 2009, alleging disability as of October 24, 2009,4 based on a
back/spinal injury, anxiety, depression and hypertension. (R. at 18, 210-13, 239,
243.) The claim was denied initially and on reconsideration. (R. at 108-12, 114-18,
119, 120-22, 124-26.) Lovern then requested a hearing before an administrative
law judge, (“ALJ”), (R. at 127.) The ALJ held a hearing on October 28, 2011, and
by decision dated February 2, 2012, the ALJ denied Lovern’s claims. (R. at 18-28,
35-60.) This denial was appealed, (R. at 13), and the Appeals Council denied
Lovern’s request for review. (R. at 1-4.) Lovern then filed an action in this court
2

Because Lovern filed a prior application for DIB, which was denied by decision dated
October 28, 2009, (R. at 64-74), this prior decision is res judicata as to the time period
considered. That being the case, the question before the court is whether Lovern was disabled at
any time between October 29, 2009, the date following the ALJ’s prior denial, and December 31,
2013, the date last insured. Any facts included in this Memorandum Opinion not directly related
to this time period are included for clarity of the record.
3

On October 10, 2012, Lovern filed a third application for DIB. (R. at 640, 711.) The
Appeals Council found this claim to be duplicate and consolidated it with the application at
issue. (R. at 640, 711.)
4

Lovern lists October 24, 2009, as his alleged onset date in his applications. However,
because this date was contained within the prior time period considered by the previous ALJ, the
earliest onset date that Lovern can allege is October 29, 2009, the date following the date of the
previous ALJ’s decision. (R. at 64-74.)
-2-

seeking review of the ALJ’s unfavorable decision.
By Opinion and Order entered September 29, 2014, in Case No.
2:13cv00014, the undersigned remanded Lovern’s claim to the Commissioner
based on her finding that substantial evidence did not support the ALJ’s finding
that Lovern did not suffer from a severe mental impairment. (R. at 713-53.) On
remand from this court, the Appeals Council vacated the ALJ’s decision and
remanded the case to the ALJ for further consideration.5 (R. at 709-11.) On
remand, a video hearing was held before an ALJ on June 9, 2015. (R. at 680-708.)
By decision dated January 28, 2016, the ALJ denied Lovern’s claim. (R. at
639-70.) The ALJ found that Lovern met the nondisability insured status
requirements of the Act for DIB purposes through December 31, 2013.6 (R. at
643.) The ALJ also found that Lovern had not engaged in substantial gainful
activity during the period October 29, 2009, through the date last insured,
December 31, 2013. (R. at 643.) The ALJ found that the medical evidence
established that Lovern suffered from severe impairments, namely lumbar spine
degenerative disc disease status-post laminectomy; cervical spine degenerative disc
disease; obesity; depression; anxiety; pain disorder; social phobia; and panic
5

The ALJ’s decision dated February 2, 2012, was vacated by the Appeals Council, (R. at
709-11); thus, the ALJ’s decision, having been vacated, never became final. Therefore, the
doctrine of res judicata does not apply. See Monroe v. Colvin, 826 F.3d 176, 187 (4th Cir. 2016);
see also Batson v. Colvin, 2015 WL 1000791, at *7 (E.D.N.C. Mar. 5, 2015) (“Here, Albright
and AR 00–1(4) did not require the second ALJ to consider the first ALJ’s decision because that
decision had been vacated, and thus no finding remained to be considered in the subsequent
determination.”); Sanford v. Colvin, 2016 WL 951539, at *3 (M.D.N.C. Mar. 9, 2016)(“[T]he
ALJ's prior decision had no preclusive effect on the decision at issue here, as the 2011 decision
was vacated and a new hearing was conducted.”).
6

Therefore, Lovern had to show that he was disabled between October 29, 2009, the day
following the date of the ALJ’s prior decision, and December 31, 2013, the date last insured, in
order to be eligible for DIB benefits.
-3-

attacks, but he found that Lovern 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 643, 655.) The ALJ found that Lovern had the
residual functional capacity to perform low-stress sedentary work7 which allowed
a sit/stand option at will; that did not require him to climb ladders, ropes or
scaffolds; that did not require more than occasional climbing of ramps and stairs,
balancing, stooping, kneeling, crawling or crouching; that did not require him to
work around moving machinery or heights; and did not require more than
occasional interaction with the public or co-workers. (R. at 657.) The ALJ found
that, through the date last insured and the date of his decision, Lovern could not
perform his past relevant work. (R. at 668.) Based on Lovern’s age, education,
work history and residual functional capacity and the testimony of a vocational
expert, the ALJ found that, through the date last insured and through the date of his
decision, jobs existed in significant numbers in the national economy that Lovern
could perform, including jobs as an assembler, a weight tester and a cuff folder. (R.
at 669.) Thus, the ALJ found that Lovern was not under a disability as defined
under the Act from October 24, 2009,8 through December 31, 2013, the date last
insured, and was not eligible for benefits. (R. at 670.) See 20 C.F.R. § 404.1520(g)
(2017).
II. Facts
Lovern was born in 1978, (R. at 210, 685), which classifies him as a
“younger person” under 20 C.F.R. § 404.1563(c). He has a high school education
7

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 and standing
is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are
required occasionally and other sedentary criteria are met. See 20 C.F.R. § 404.1567(a) (2017).
8

Again, the appropriate date that the ALJ should have considered is October 29, 2009.
-4-

and some college course work. (R. at 43, 250, 685.) He has past relevant work
experience as a field supervisor for a communications company, a butcher and a
product support advisor in a call center for a consumer electronics business. (R. at
244, 254, 686-88.)
At his June 2015 hearing, Lovern testified that counseling had been
beneficial. (R. at 694.) He stated that medication helped his symptoms of
depression. (R. at 694-95.) Lovern reported that he watched television, played
video games and read daily. (R. at 285.) He reported that he did not need reminders
to take care of his personal needs or to take his medications. (R. at 283.) Lovern
reported that he had no problems getting along with authority figures and that he
handled stress “fairly well.” (R. at 287.)
On December 12, 2011, AnnMarie E. Cash, a vocational expert, completed
vocational interrogatories concerning Lovern’s work-related abilities. (R. at 30407.) She was asked to assume a hypothetical individual of Lovern’s age, education
and work experience, who had the residual functional capacity to perform
sedentary work that required only occasional stooping, kneeling, crawling and
crouching and positional changes every 45 minutes. (R. at 305.) She stated that the
individual

could

perform

Lovern’s

past

work

as

a

product

support

advisor/customer service. (R. at 305.) Cash also stated that the individual could
perform other jobs that existed in significant numbers, including a ticket checker, a
telephone clerk and a general office clerk. (R. at 306.)
Cash completed a second set of interrogatories9 indicating that, an individual
of Lovern’s age, education, work experience who was limited to performing
9

These interrogatories are not dated; however, it appears that they were completed in
2012 since they were mailed to Cash on January 17, 2012. (R. at 314, 319.)
-5-

sedentary work that required no squatting, stooping, crouching, crawling, working
around unprotected heights, ladder climbing or stair stepping and who required
position changes every 30 to 45 minutes, could not perform Lovern’s past work.
(R. at 318, 320-21.) She stated that due to the hypothetical individual being limited
to sedentary work that did not allow stooping, there would be no jobs available that
the individual could perform. (R. at 320.) Cash was asked to assume the same
individual, but who would be limited to standing and/or walking a total of two
hours in an eight-hour workday, but without interruption for 30 minutes; sit for a
total of two hours in an eight-hour workday without interruption for 30 minutes;
never stoop, kneel, crouch or crawl; and who would be absent from work more
than two days a month. (R. at 320.) Cash stated that there would be no jobs
available that such an individual could perform. (R. at 320.) Cash was asked to
assume the same individual, but who had no useful ability to deal with work
stresses or to maintain attention/concentration and who would be absent from work
more than two days a month. (R. at 321.) She stated that there would be no jobs
available that such an individual could perform. (R. at 321.) Cash was asked to
consider the same individual, but who had an unsatisfactory ability to interact
appropriately with the public, supervisors or co-workers; to respond appropriately
to usual work situations and changes in a routine work setting; and who would be
absent from work more than two days a month. (R. at 321.) She stated that there
would be no jobs available that such an individual could perform. (R. at 321.)
Asheley Wells, a vocational expert, also was present and testified at
Lovern’s June 2015 hearing. (R. at 701-06.) Wells testified that a hypothetical
individual of Lovern’s age, education and work history, who could perform lowstress, light10 work that did not require him to climb ladders, ropes or scaffolds or
10

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
-6-

to work around moving machinery or heights; that required only occasional
climbing of ramps or stairs, kneeling, stooping, crouching or crawling; and that
required occasional decision making, changes in the work setting or interaction
with the public or co-workers could not perform Lovern’s past work, but that he
could perform other jobs existing in significant numbers in the national economy,
including jobs as a night cleaner, an assembler and a packing line worker, all at the
light level of exertion. (R. at 703-04.) Wells next testified that the same
hypothetical individual, but who could stand and/or walk two hours in an eighthour workday, sit up to six hours of an eight-hour workday and occasionally
operate foot controls, could perform sedentary jobs such as an assembler, a weight
tester and a cuff folder. (R. at 704-05.) Wells stated that the same individual, but
who would be limited to lifting items weighing up to 10 pounds occasionally,
could perform the jobs previously identified. (R. at 705.) Wells was asked to
consider the same individual, but who could not engage in a production rate or
pace work; who would be distracted 20 percent of the workday; and who would be
absent from work at least two times a month. (R. at 705-06.) She stated that such
an individual could not perform any work. (R. at 706.)
On September 9, 2015, Wells completed a set of interrogatories indicating
that, an individual of Lovern’s age, education and work experience who was
limited to performing low-stress, sedentary work that required a sit/stand option,
provided the individual remained on task while in either position; that required no
climbing of ladders, ropes or scaffolds; that required only occasional climbing of
ramps or stairs, balancing, stooping, kneeling, crouching or crawling; that did not
require him to work around moving machinery or heights; and that required no
more than occasional interaction with the public or co-workers could perform a

also can perform sedentary work. See 20 C.F.R. § 404.1567(b) (2017).
-7-

significant number of medium11 exertion jobs, including jobs as a meat cutter, a
cable installer and a technical support advisor. (R. at 827-30.) She stated that there
also was a significant number of sedentary jobs available that such an individual
could perform, including jobs as an assembler, a weight tester and a cuff folder. (R.
at 829.)
In rendering his decision, the ALJ reviewed medical records from Dr.
Patricia Vanover, M.D.; Norton Community Hospital; B. Wayne Lanthorn, Ph.D.,
a licensed clinical psychologist; D. Kaye Weitzman, L.C.S.W., a licensed clinical
social worker; Holston Valley Medical Center; Solutions Counseling, LLC; Stone
Mountain Health Services; Dr. Kevin Blackwell, D.O.; Mountain View Regional
Medical Center; Johnston Memorial Hospital; Crystal Burke, L.C.S.W.; Arthritis
Associates of Kingsport, P.L.L.C.; Associated Neurologists of Kingsport; Dr. Ken
W. Smith, M.D.; Blue Ridge Neuroscience Center; and Wellmont Health System.
The record shows that on August 9, 2000, when Lovern was only 22 years
old, he underwent complete bilateral L4 and L5 and partial S1 laminectomies and
medial facetectomies with additional resection of the left L5-S1 herniated nucleus
pulposus by Dr. Ken W. Smith, M.D., a neurosurgeon. (R. at 373-76.) When
Lovern was discharged in satisfactory condition on August 11, 2000, it was noted
that he had significant improvement of leg pain. (R. at 377-78.)
X-rays of Lovern’s lumbar spine, dated July 24, 2009, showed postsurgical
changes at the L4-L5 level, some mild narrowing at the L4-L5 level, as well as
minimal change at L3-L4 level. (R. at 347.) Mild scattered degenerative spurring
11

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) (2017).
-8-

also was present with no spondylolysis. (R. at 347.) Mild degenerative changes
also were present in the lower facets. (R. at 347.) It was concluded that there was
no acute abnormality. (R. at 347.)
On September 21, 2009, B. Wayne Lanthorn, Ph.D., a licensed clinical
psychologist, evaluated Lovern at the request of Lovern’s attorney. (R. at 355-65.)
Lovern reported his daily activities to include watching television, reading and
playing computer games, but basically staying at home. (R. at 359-60.) Lovern’s
speech was clear and intelligible, and his grooming and hygiene were adequate. (R.
at 359-60.) His affect was described as mixed. (R. at 360.) Lovern reported that
antidepressant medication had been helpful and that he was only occasionally
irritable. (R. at 360.) He indicated no significant problems with memory or
concentration. (R. at 360.) Lanthorn noted no signs of ongoing psychotic processes
or any evidence of delusional thinking. (R. at 360.)
Lanthorn administered the Wechsler Adult Intelligence Sale – Fourth
Edition, (“WAIS-IV”), and Lovern achieved a full-scale IQ score of 108. (R. at
356, 361.) Lanthorn also administered the Minnesota Multiphasic Personality
Inventory – 2, (“MMPI-2”), which indicated the presence of some depression,
which contributed to social withdrawal and some erratic to poor concentration at
times. (R. at 362-63.) The test results also indicated the presence of some anxiety,
tension, worry and emotional discomfort. (R. at 363.) Lanthorn noted that Lovern
seemed to worry to excess, which also contributed to problems with concentration.
(R. at 363.) The test results also indicated that Lovern’s concentration skills and
memory were adequate. (R. at 363.)
Lanthorn diagnosed Lovern with a pain disorder associated with both
psychological factors and general medical conditions, chronic; a mood disorder
-9-

with major depressive-like episode, moderate, due to chronic physical problems,
pain and limitations; and alcohol abuse in sustained full remission; and he assessed
Lovern’s then-current Global Assessment of Functioning, (“GAF”),12 score at 55.13
(R. at 364.) Lanthorn felt that Lovern had no limitations regarding learning simple
or moderately complicated tasks in the work setting and only mild limitations with
regard to sustaining concentration and persisting at tasks. (R. at 365.) He opined
that Lovern had mild to moderate difficulties dealing with the changes and
requirements in a work setting. (R. at 365.)
Lanthorn also completed a mental assessment, indicating Lovern had an
unlimited ability to understand, remember and carry out simple job instructions; a
satisfactory ability to follow work rules, to relate to co-workers, to maintain
attention and concentration and to understand, remember and carry out detailed job
instructions; and a seriously limited ability to deal with the public, to use judgment,
to interact with supervisors, to deal with work stresses, to function independently,
to understand, remember and carry out complex job instructions, to maintain
personal appearance, to behave in an emotionally stable manner, to relate
predictably in social situations and to demonstrate reliability. (R. at 366-68.)
Lanthorn opined that Lovern would be absent more than two days monthly from
work due to his impairments or treatment. (R. at 368.)
The record shows that Lovern saw D. Kaye Weitzman, L.C.S.W., a licensed

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).
13

A GAF score of 51 to 60 indicates that an individual has moderate symptoms or
moderate difficulty in social, occupational or school functioning. See DSM-IV at 32.
-10-

clinical social worker, from September 2009 through April 2013. Weitzman
diagnosed Lovern with a mood disorder; a generalized anxiety disorder; a major
depressive disorder; agoraphobia with panic disorder; social phobia; and anxiety.
(R. at 369, 502-04, 539-42, 558-65, 613, 624, 851-60, 908-09.) In September 2009,
Weitzman assessed Lovern’s then-current GAF score at 40,14 with his highest score
being 7515 within the past year. (R. at 369.) During this time, Weitzman repeatedly
described Lovern’s mood as depressed with an anxious affect, his orientation and
thought processes were intact, and his judgment and insight were deemed fair. (R.
at 369, 503-04, 539-42, 558-65, 613, 624, 851-60.) In May 2010, September 2011,
April 2012 and May 2012, Weitzman noted that Lovern displayed paranoia and
delusions. (R. at 540, 624, 857-58.) In March 2010, Lovern reported that his
medication helped him to rest, which improved his mood. (R. at 542.) In
September 2010, Lovern reported that he felt “much better” and was without panic.
(R. at 563.) Weitzman noted that Lovern was “maintaining decreased panic.” (R. at
563.) In May 2011, Lovern reported that he was “doing well” with his medications.
(R. at 559.) In September 2011, Lovern complained of increased panic. (R. at
624.) Weitzman noted that Lovern’s mood was depressed and irritable with an
anxious affect, his orientation and thought processes were intact, and his judgment
and insight were deemed fair. (R. at 624.) Weitzman noted that Lovern was
decompensating due to increased pain. (R. at 624.) In February 2012, Weitzman
reported that Lovern was not functioning at a competitive level despite Lovern’s
reports that he was doing well on medications. (R. at 860.) In January 2013 and

14

A GAF score of 31 to 40 indicates some impairment in reality testing or
communication or major impairment in several areas, such as work or school, family relations,
judgment, thinking or mood. See DSM-IV at 32.
15

A GAF score of 71 to 80 indicates that “[i]f symptoms are present, they are transient
and expectable reactions to psychosocial stressors …; no more than slight impairment in social,
occupational, or school functioning….” DSM-IV at 32.
-11-

February 2013, Weitzman reported that Lovern was decompensating secondary to
pain, panic attacks and depression. (R. at 851-82.)
On March 22, 2013, Weitzman completed a mental assessment,16 finding
that Lovern had a seriously limited ability to maintain personal appearance. (R. at
862-64.) She found that Lovern had no useful 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 complex,
detailed and simple job instructions; to behave in an emotionally stable manner; to
relate predictably in social situations; and to demonstrate reliability. (R. at 862-63.)
Weitzman found that Lovern would be absent from work more than two days
monthly due to his impairments or treatment. (R. at 864.)
On October 12, 2009, Lovern saw Dr. Patricia Vanover, M.D.,17 with
complaints of increasingly severe low back pain. (R. at 505-06.) Lovern stated
that he could care for his own needs and that he took pain medication sparingly due
to fear of addiction. (R. at 505.) Lovern had marked tenderness of the lumbosacral
paraspinal muscles, and range of motion was restricted. (R. at 505.) Station was
normal, but gait was slow and ambling. (R. at 505.) Dr. Vanover diagnosed
hypertension, chronic low back pain, depression and chronic gout. (R. at 505.) On
April 28, 2010, physical examination showed that Lovern’s gait was slow and
16

Weitzman completed four other mental assessments on September 23, 2009, (R. at
499-501); November 23, 2009, (R. at 513-15); July 21, 2011, (R. at 566-68); and October 11,
2011, (R. at 625-27.)
17

The record shows that Lovern treated with Dr. Vanover from 2006 through 2015 for
hypertension; chronic low back pain; chronic gouty arthritis; depression; anxiety; obesity;
abdominal pain; degeneration of intervertebral disc site, unspecified; testicular hypofunction,
unspecified; and hyperlipidemia. (R. at 327-28, 330-32, 334-35, 337, 345, 474, 505, 538, 545-46,
600, 603, 606, 609, 612, 871, 874, 879, 936, 939, 969.)
-12-

ambling, he exhibited marked tenderness in the lumbosacral area with spasm, and
his range of motion was restricted. (R. at 537.) Lovern was oriented, and his
memory, mood, affect, judgment and insight were normal. (R. at 537.) Dr. Vanover
reminded Lovern to remain as active as possible. (R. at 538.) On July 27, 2010,
Lovern reported that his medications helped his symptoms of depression and
anxiety, but that they did not completely alleviate them. (R. at 543.) Lovern was
oriented, and his memory, affect, judgment and insight were normal. (R. at 544.)
He had a depressed mood. (R. at 544.)
On September 7, 2010, Lovern stated that he was “extremely anxious” most
of the time. (R. at 610.) Lovern reported taking an occasional Xanax, which helped
him. (R. at 610.) He further reported that his pain medication worked “fairly well,”
but he still had a great deal of pain. (R. at 610.) Lovern described his hypertension
as under good control. (R. at 610.) Physical examination showed that Lovern’s gait
was slightly unsteady, and there was tenderness over the lumbosacral area. (R. at
611.) Range of motion of the back was decreased secondary to pain and body
habitus. (R. at 611.) Lovern’s orientation, memory, mood, affect, judgment and
insight all were deemed normal. (R. at 611.) On October 25, 2010, Lovern reported
that Xanax XR was helping with anxiety, but he remained “quite anxious” and had
difficulty sleeping due to pain. (R. at 607.) Lovern exhibited tenderness over the
lumbosacral area and decreased range of motion secondary to pain and habitus. (R.
at 608.) His orientation, memory, mood, affect, judgment and insight all were
deemed normal. (R. at 608.) On December 29, 2010, Lovern exhibited tenderness
over the lumbosacral muscles and decreased range of motion secondary to pain and
body habitus. (R. at 605.) Lovern’s orientation, memory, mood, affect, judgment
and insight all were deemed normal. (R. at 605.)
On April 26, 2011, Lovern reported that his anxiety was not controlled even
-13-

with an increased dose of Xanax XR. (R. at 601.) He further noted continued
“quite severe” pain. (R. at 601.) Lovern stated that, although his pain medication
helped, he still could not do much of anything. (R. at 601.) Dr. Vanover noted that
Lovern exhibited tenderness over the lumbosacral muscles and decreased range of
motion secondary to pain and body habitus. (R. at 602.) Orientation, memory,
mood, affect, judgment and insight all were deemed normal. (R. at 602.) On July
26, 2011, Lovern complained of increased right leg pain. (R. at 598.) He reported
continued anxiety, but noted his medication was working “fairly well.” (R. at 598.)
Lovern exhibited tenderness over the lumbosacral muscles and decreased range of
motion secondary to pain. (R. at 599.) Orientation, memory, mood, affect,
judgment and insight all were deemed normal. (R. at 599.) On August 30, 2011, an
MRI of Lovern’s lumbar spine showed previous laminectomies at L4 and L5 and
small central disc protrusions at these levels with only mild foraminal
encroachment on the left at the L5-S1 level. (R. at 614-15.)
On September 9, 2011, Dr. Vanover completed a mental assessment,18
finding that Lovern had a limited, but satisfactory ability 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 617-19.) She found that Lovern 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 function independently; to
maintain attention and concentration; and to understand both detailed and complex
job instructions. (R. at 617-18.) Dr. Vanover found that Lovern had no useful
ability to deal with work stresses. (R. at 617.) She found that Lovern would miss
more than two work days monthly due to his impairments or treatment. (R. at 619.)
18

The record shows that Dr. Vanover completed two prior mental and physical
assessments in June 2009 and August 2010. (R. at 339-44, 552-57.)
-14-

She did not state any medical or clinical findings to support her assessment. (R. at
617-19.)
On that day, Dr. Vanover also completed medical assessment, finding that
Lovern could lift and carry items weighing up to 15 pounds occasionally and up to
eight pounds frequently. (R. at 620-22.) She found that Lovern could stand and
walk a total of two hours in an eight-hour workday, but for 30 minutes at a time,
and that he could sit for a total of two hours in an eight-hour workday, but for 30
minutes at a time. (R. at 620-21.) Dr. Vanover found that Lovern could frequently
balance, occasionally climb and never stoop, kneel, crouch or crawl. (R. at 621.)
She found that his ability to push/pull was affected by his impairments, but she did
not specify how. (R. at 621.) Dr. Vanover found that Lovern could not work
around moving machinery or vibration. (R. at 622.) She opined that he would miss
more than two days of work monthly due to his impairments or treatment. (R. at
622.) Dr. Vanover failed to specify what medical findings supported her
assessment. (R. at 620-22.)
On October 11, 2011, Dr. Vanover opined that Lovern’s condition met or
equaled the medical listing found at 20 C.F.R. Part 404, Subpart P, App. 1, §
1.04(A), for disorders of the spine. (R. at 623.) On October 25, 2011, Lovern
reported that his medications were working, but they did not completely alleviate
his symptoms. (R. at 937.) Lovern was oriented, and his memory, mood, affect,
judgment and insight were normal. (R. at 938.)
On October 16, 2012, Lovern reported that his medications were helping his
pain and that he was able to take care of his own needs and those of his household
without difficulty. (R. at 877.) On February 13, 2013, Lovern complained of low
back and leg pain and anxiety. (R. at 872.) He reported that his medications were
-15-

helping, which allowed him to attend to his activities of daily living and to do
small chores around the house. (R. at 872.) Lovern had a normal gait, and he
exhibited tenderness in the lower back and decreased range of motion. (R. at 874.)
He had appropriate judgment; good insight; intact recent and remote memory; an
anxious mood; and appropriate affect. (R. at 874.) On March 25, 2013, Dr.
Vanover reported that Lovern had a normal gait, and he exhibited tenderness in the
lower back and decreased range of motion. (R. at 871.) He had appropriate
judgment; good insight; intact recent and remote memory; an anxious mood; and
appropriate affect. (R. at 871.) On May 14, 2013, Lovern reported that his
medications helped his pain. (R. at 913.) On April 16, 2015, Lovern reported that
he was doing better since having surgery and with seeing a counselor. (R. at 1137.)
He reported that he had not experienced any recent panic attacks. (R. at 1137.)
Physical examination was normal with the exception of tenderness and limited
range of motion in the cervical, lumbar and thoracic spine. (R. at 1139.) His mood
was anxious with an appropriate affect. (R. at 1139.)
On April 2, 2010, Dr. Kevin Blackwell, D.O., completed a consultative
examination at the request of the state agency. (R. at 527-31.) Dr. Blackwell noted
that Lovern did not appear to be in any acute distress, was alert, cooperative,
oriented and had good mental status. (R. at 529.) Physical examination revealed
symmetrical and balanced gait and good and equal shoulder and iliac crest height
bilaterally. (R. at 530.) There was tenderness in the lumbar musculature on the left
and in the thoracic muscles on the right, but upper and lower joints had no
effusions or obvious deformities. (R. at 530.) Upper and lower extremities were
normal for size, shape, symmetry and strength, and Lovern’s grip strength was
good. (R. at 530.) Fine motor movements and skill activities of the hands were
normal, as were reflexes. (R. at 530.) Dr. Blackwell diagnosed chronic low back
pain, depression and poorly-controlled hypertension. (R. at 530.) Dr. Blackwell
-16-

opined that Lovern could occasionally lift items weighing up to 35 pounds and
frequently lift items weighing up to 20 pounds. (R. at 531.) He opined that Lovern
should be able to sit for six hours in an eight-hour workday and stand for two hours
in an eight-hour workday, assuming a positional change every 30 to 45 minutes.
(R. at 530.) Dr. Blackwell further opined that Lovern should be able to operate a
vehicle, as well as bend at the waist and kneel, one-third of the day. (R. at 530.)
He opined that Lovern could not squat, stoop, crouch, crawl, work at unprotected
heights or climb ladders or stairs. (R. at 530.) Dr. Blackwell opined that Lovern
could perform above-head reaching activities one-third of the day with either arm
and perform foot pedal operating one-third of the day with either foot. (R. at 530.)
He placed no limitations on hand usage, including fine motor movements and skill
activities of the hands, and he imposed no vision, communication, hearing or
environmental limitations. (R. at 530-31.) Dr. Blackwell noted that his objective
findings would correlate with Lovern’s subjective complaints to the degree
supported in his report. (R. at 531.) He further noted his belief, within a reasonable
degree of medical probability, that Lovern was at maximum medical improvement,
and he did not anticipate a significant change in limitations over the next 12
months. (R. at 531.)
On April 27, 2010, Dr. Richard Surrusco, M.D., a state agency physician,
completed a medical assessment, indicating that Lovern could lift and carry items
weighing up to 20 pounds occasionally and up to 10 pounds frequently. (R. at 8384.) He found that Lovern could stand and/or walk a total of two hours in an eighthour workday with normal breaks and could sit for about six hours in an eight-hour
workday with normal breaks. (R. at 83.) Dr. Surrusco found that Lovern must
periodically alternate between sitting and standing to relieve pain and discomfort.
(R. at 83.) He found that Lovern could occasionally climb ramps and stairs, stoop,
kneel, crouch and crawl; never climb ladders, ropes or scaffolds; and his ability to
-17-

balance was unlimited. (R. at 83.) No manipulative, visual or communicative
limitations were noted. (R. at 84.) Dr. Surrusco found that Lovern must avoid all
exposure to hazards, such as machinery and heights. (R. at 84.)
On April 28, 2010, Jeanne Buyck, PC, a state agency psychological
consultant, completed a Psychiatric Review Technique form, (“PRTF”), indicating
that Lovern had no restrictions on his activities of daily living, experienced only
mild difficulties in maintaining social functioning, experienced moderate
difficulties maintaining concentration, persistence or pace and had experienced no
repeated episodes of extended-duration decompensation. (R. at 80-81.) Buyck also
completed a mental assessment, finding that Lovern’s symptoms would result in
moderate difficulties with extended attention and concentration and with his ability
to respond appropriately to changes in the work setting. (R. at 84-86.) She found
that Lovern had mild difficulties with social interactions. (R. at 85.) Buyck
concluded that Lovern’s mental impairments were nonsevere and limited him to
simple, routine work with limited contact with the public. (R. at 86.)
On July 26, 2010, Jo McClain, PC, a state agency psychological consultant,
completed a PRTF, finding that Lovern was mildly restricted in his activities of
daily living, experienced mild difficulties in maintaining social functioning,
experienced moderate difficulties in maintaining concentration, persistence or pace
and had experienced no repeated episodes of decompensation of extended duration.
(R. at 96.) McClain also completed a mental assessment, finding that Lovern was
moderately limited in his ability to understand, remember and carry out detailed
instructions; to maintain attention and concentration for extended periods; to
perform activities within a schedule, maintain regular attendance and be punctual
within customary tolerances; to work in coordination with or in proximity to others
without being distracted by them; to interact appropriately with the general public;
-18-

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; to respond appropriately to changes in the work setting; and
to set realistic goals or make plans independently of others. (R. at 99-101.)
McClain specified that Lovern’s depression, anxiety and irritability resulted in
some difficulties with social interactions. (R. at 101.)
On July 26, 2010, Dr. Bert Spetzler, M.D., a state agency physician,
completed a medical assessment, finding that Lovern could lift and carry items
weighing up to 20 pounds occasionally and up to 10 pounds frequently. (R. at 9799.) Dr. Spetzler found that Lovern could stand/walk a total of about six hours in
an eight-hour workday and sit a total of about six hours in an eight-hour workday,
but that he must periodically alternate between sitting and standing to relieve pain
and discomfort. (R. at 98.) He found that Lovern could occasionally climb ramps
and stairs, stoop, kneel, crouch and crawl, but never climb ladders, ropes or
scaffolds. (R. at 98.) Dr. Spetzler found that Lovern should avoid all exposure to
hazards, such as machinery and heights. (R. at 99.)
Lovern received counseling for depression and anxiety from Crystal Burke,
L.C.S.W., a licensed clinical social worker, from August 2013 through April 2015.
(R. at 996-1011, 1106-23, 1164-72.) In August 2013, Lovern reported that his
symptoms of depression had improved, but that he continued to struggle with
anxiety. (R. at 1008.) He stated that he spent his days at home watching television,
playing video games and being on the computer. (R. at 1008.) Burke reported that
Lovern was alert and oriented; his memory was intact; and his thoughts were free
of any delusions and perceptual disturbances. (R. at 1008.) In December 2013,
Lovern reported that significant pain interfered with his daily activities. (R. at
1120.) In February 2014, Burke reported that Lovern was only mildly depressed.
-19-

(R. at 998.) In March 2014, Lovern reported that his panic attacks were not as
severe since taking medication. (R. at 996.) In May 2014, Lovern complained of
being more irritable, depressed, withdrawn and struggling with concentration. (R.
at 1116.) He reported that his grandmother was ill, which caused him additional
stress. (R. at 1116.) Burke reported that Lovern’s mood and thought process were
depressed. (R. at 1116.) In July 2014, Lovern reported significant stress with health
issues, family and finances. (R. at 1111.) His mood was depressed and anxious. (R.
at 1111.) In September 2014, Lovern reported that he was not as depressed. (R. at
1109.) He stated that he was irritable and agitated. (R. at 1109.) In January 2015,
Lovern stated that he was trying to keep his mind busy and that he was not as
depressed. (R. at 1170.) Burke reported that Lovern was mildly depressed. (R. at
1170.) In March 2015, Lovern reported that he was not as depressed, but still
complained of anxiety. (R. at 1167.) In April 2015, Lovern reported that he was
benefiting from pain and anti-anxiety medication, stating that his depression was
not as severe. (R. at 1164.)
On May 5, 2015, Burke completed a mental assessment,19 finding that
Lovern had a satisfactory ability to understand, remember and carry out simple job
instructions and to demonstrate reliability. (R. at 1180-82.) She found that Lovern
had an unsatisfactory 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 relate predictably in
social situations. (R. at 1180-81.) Burke opined that Lovern had no useful ability to
understand, remember and carry out complex job instructions. (R. at 1181.) Burke
19

Burke completed two other mental assessments on October 21, 2013, and January 5,
2015. (R. at 941-43, 1125-27.)
-20-

found that Lovern would be absent from work more than two days monthly due to
his impairments or treatment. (R. at 1182.)
On May 26, 2015, Burke reported that, overall, Lovern’s mood was stable.
(R. at 1184.) While treating Lovern, Burke reported that Lovern’s hygiene and
grooming were deemed fair to good. (R. at 1002, 1004, 1111, 1114, 1118, 1164,
1170.)
Lovern was treated by Dr. Annette Marie Abril, M.D., from December 2013
through January 2015 for gout management and low back, neck and ankle pain. (R.
at 954-64, 1018-41, 1130-35.) During this time, Lovern reported that medications
helped his pain and weight loss, and diet helped his gout. (R. at 954, 1023.) In
January 2015, Lovern reported that his pain had resolved since having surgery. (R.
at 1130.)
Lovern was treated by Dr. Ken W. Smith, M.D., for complaints of cervical
pain and left upper extremity pain from August 2014 through March 2015. (R. at
1043-59, 1155-62.) On September 29, 2014, an electroneuromyography showed
bilateral median mononeuopathies at the wrists with no other signs of entrapment
neuropathy or cervical neuropathy noted. (R. at 1016-17.) On November 21, 2014,
Lovern underwent an anterior cervical diskectomy and fusion of the C5-C6 disc
space. (R. at 1066-69, 1073-80.) Following surgery, Lovern reported that he was
doing well and rated his health as excellent. (R. at 1043, 1155, 1159.) Examination
showed that Lovern had difficulty performing tandem gait; he had no limitation of
motion in his upper extremities; and he had normal muscle strength and tone in his
upper and lower extremities. (R. at 1044, 1048, 1156-57, 1160.) On April 27, 2015,
an x-ray of Lovern’s cervical spine showed a fracture of the C6 screws, and
interbody bone graft remained intact and in good position. (R. at 1174.)
-21-

III. Analysis
The Commissioner uses a five-step process in evaluating DIB claims. See 20
C.F.R. § 404.1520 (2017); 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) (2017).
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 his findings and his rationale in crediting evidence. See
Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
Lovern argues that the ALJ failed to give full consideration to Weitzman’s
assessment when determining his mental impairments. (Plaintiff’s Memorandum In
Support Of His Motion For Summary Judgment, (“Plaintiff’s Brief”), at 7-10.) He
contends that Weitzman’s assessment is supported by the opinions of Dr. Vanover,
Lanthorn and Burke. (Plaintiff’s Brief at 7-10.) Lovern also argues that the ALJ
improperly determined his residual functional capacity by mischaracterizing the
-22-

assessments of Dr. Vanover and Dr. Blackwell. (Plaintiff’s Brief at 10-14.) Lovern
further argues that the ALJ failed to give appropriate credence to his testimony and
to properly assess the effect of pain on his ability to perform substantial gainful
activity. (Plaintiff’s Brief at 14-17.)
Lovern first argues that the ALJ failed to give full consideration to
Weitzman’s assessment when determining his mental impairments. (Plaintiff’s
Brief at 7-10.) He contends that Weitzman’s assessment is supported by the
opinions of Dr. Vanover, Lanthorn and Burke. (Plaintiff’s Brief at 7-10.)
The ALJ noted that Weitzman’s November 2009 opinion that Lovern was
either moderately or markedly limited in his ability to perform all work-related
mental abilities “provides little explanation or rationale except to say the physical
pain will cause limitation in claimant’s ability to focus.” (R. at 513-14, 666.) See
20 C.F.R. § 404.1527(c)(3) (2017) (stating that the more a medical source explains
and provides relevant evidence to support an opinion, particularly medical signs
and laboratory findings, the more weight will be given to that an opinion).
Furthermore, Weitzman’s opinion was inconsistent with her September 2009
opinion that Lovern had only mild to moderate impairments in mental functioning.
(R. at 499-501, 666.) The ALJ noted that Weitzman’s own treatment notes did not
support any decline in Lovern’s mental functioning that would support such a
dramatic change in her opinion. (R. at 499-501, 666.) Rather, Weitzman’s October
2009 treatment notes reflected that Lovern had only mildly decreased attention and
concentration abilities. (R. at 504.) See Johnson v. Barnhart, 434 F.3d 650, 656,
n.8 (4th Cir. 2005) (stating that an ALJ can reject a medical opinion that conflicts
with earlier opinions from the same source when there has been no intervening
change in diagnosis).
-23-

In addition to being inconsistent with her own recent September 2009
opinion, the ALJ noted that Weitzman’s November 2009 opinion was inconsistent
with Lovern’s description of his functioning. (R. at 666.) In his November 2009
Adult Function Report, Lovern did not indicate any significant limitation in his
functioning due to pain-related concentration difficulties. Rather, Lovern indicated
that he had no difficulties with his memory, understanding, completing tasks or
following instructions. (R. at 269.) Lovern also indicated that he was able to
perform activities requiring a great deal of attention such as driving a car,
managing his own finances, reading and playing video games, which he did
“daily” and “very well.” (R. at 267-68.) Lovern’s own description of his functional
abilities also cast doubt upon Weitzman’s opinion that he had moderate to marked
limitations of mental functioning.
The ALJ explained that he discounted Weitzman’s August 2010 opinion
because it appeared to be based primarily on Lovern’s self-reported physical
condition. (R. at 548-50, 666.) For example, as support for finding that Lovern had
“fair” to “poor/none” ability to function in all areas of mental work-related
functioning, Weitzman stated, “[p]atient has had 2-3 back surgeries. He has
debilitating chronic pain. He will not react in a stable manner. He is very limited in
what he can do physically. He is not a malingerer. His pain & limits are real.” (R.
at 550.) However, the ALJ noted that Lovern had not undergone two or three back
surgeries; therefore, undermining the basis of Weitzman’s findings.20 (R. at 666.)

20

Lovern had back surgery in August 2000, after which he returned to work until April
2008. (R. at 688-90.) In 2014, Lovern underwent an anterior cervical diskectomy and fusion of
the C5-C6 disc space. (R. at 1066-69, 1073-80.) Following surgery, Lovern reported that he was
doing well and rated his health as excellent. (R. at 1043, 1155, 1159.) Examination showed that
Lovern had difficulty performing tandem gait; he had no limitation of motion in his upper
extremities; and he had normal muscle strength and tone in his upper and lower extremities. (R.
at 1044, 1048, 1156-57, 1160.)
-24-

The ALJ noted that the medical evidence from 2010 did not support
Weitzman’s assessment that Lovern’s pain would substantially interfere with his
ability to function in a work environment. (R. at 666.) Dr. Vanover’s treatment
notes throughout 2010 and 2011 show that Lovern’s orientation, memory,
judgment and insight were normal. (R. at 537, 544, 599, 602, 605, 608, 611, 666.)
During 2010, Lovern repeatedly reported to Dr. Vanover that his medications
helped his symptoms of depression and anxiety. (R. at 543, 607, 610.) Moreover,
Weitzman’s own treatment notes from May 2010 showed that Lovern endorsed
only mild depression, anxiety, irritability and crying spells. (R. at 540, 666.) In
March 2010, September 2010 and May 2011, Lovern reported to Weitzman that he
had an improved mood and felt “much better,” was without panic and was doing
well with his medications. (R. at 542, 559, 563.) “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).
The ALJ explained that he assigned reduced weight to Weitzman’s July
2011 and October 2011 opinions because they were apparently premised on
Weitzman’s belief that Lovern’s physical limitations prevented him from working
“at any competitive level” and because Weitzman provided no medical/clinical
findings to support her assessments. (R. at 566-68, 625-27, 667.) The ALJ noted
that Weitzman opined that Lovern had essentially no useful ability to function in
any work-related domain, with the exception of being able to maintain his personal
appearance. (R. at 566-67, 625-26, 667.) As the ALJ noted, apart from Lovern’s
own statement that he mostly stayed at home, this conclusion was not supported by
the evidence. (R. at 667.) Rather, in July 2011 and October 2011, Lovern told Dr.
Vanover that his medications were working fairly well. (R. at 598, 937.) Dr.
Vanover reported that, although Lovern had some tenderness and reduced range of
motion in his back secondary to pain, his gait and station were normal, as were his
-25-

orientation, memory, mood, affect, judgment and insight. (R. at 599.) Lovern
reported in an Adult Function Report that he left his house one to two times per
day and was able to drive a car and visit with family bi-weekly. (R. at 284-85.) In
January 2013, Lovern reported that he had recently returned from a trip to Florida.
(R. at 852.) These facts adequately supported the reduced weight that the ALJ
assigned to Weitzman’s July 2011 and October 2011 opinions.
The ALJ explained that he gave “little weight” to Weitzman’s March 2013
opinion that Lovern had no useful ability to perform all mental work-related
activities, except for maintaining his personal appearance, because she failed to
indicate any clinical findings to support it. (R. at 667, 862-63.) Furthermore,
Weitzman premised her opinion on the fact that Lovern had supposedly been
“injured 2-3 times during high school sports” and that Lovern could not perform
“normal work.” (R. at 667, 864.) However, Weitzman did not identify what high
school sports injuries she was referring to, what impact they had on the mental
functional categories she was assessing or what she meant by “normal” work. (R.
at 667, 864.)
Lovern argues that the ALJ should have credited Weitzman’s opinions
because they were consistent with Dr. Vanover’s December 2009, August 2010,
and September 2011 opinions. (R. at 519-21, 555-57, 617-19.) The ALJ explained
that he did not credit these portions of Dr. Vanover’s assessments because Dr.
Vanover is not a psychiatrist, and her treatment notes did not reflect such extreme
mental limitations. (R. at 665.) Dr. Vanover consistently reported that Lovern’s
orientation, memory, mood, affect, judgment, and insight were normal. (R. at 599,
602, 605, 608, 611.) In addition, Lovern repeatedly reported that his medications
helped his pain and depression. (R. at 543, 598, 607, 610, 872, 877, 913, 937.)
-26-

Lovern also argues that Weitzman’s opinions are supported by Lanthorn’s
September 21, 2009, consultative psychological evaluation, in which he opined
that Lovern would likely be absent from work more than two days per month.
(Plaintiff’s Brief at 8-9; R. at 368.) The ALJ explained that he assigned “little
weight” to Lanthorn’s opinion because it was not supported by Lanthorn’s own
objective evaluation findings. (R. at 661.) The ALJ noted that Lanthorn rated
Lovern’s GAF score at 55, indicating only moderate psychological symptoms. (R.
at 364, 661.) In addition, Lovern reported that he had no significant problems with
memory or concentration, he had no delusional thinking, and his concentration and
memory were adequate during the evaluation. (R. at 360-63, 661.) The ALJ noted
that Lanthorn’s “evaluation report did not document limitations that would
necessitate an absence of more than two days of work per month.” (R. at 661.)
Lovern additionally argues that Weitzman’s opinions are supported by
Burke’s October 2013, January 2015, and May 2015 opinions that Lovern was
seriously limited in his ability to make occupational, performance and personalsocial adjustments and would miss more than two days of work per month.
(Plaintiff’s Brief at 9; R. at 941-43, 1125-27, 1180-82.) However, the ALJ
explained that he gave “little weight” to Burke’s opinions because Burke did not
provide any rationale or explanation for her opinions. (R. at 668.) Furthermore,
Burke’s January 2015 and May 2015 opinions post-dated the expiration of
Lovern’s insured status on December 31, 2013, and did not relate back to the
relevant period. (R. at 668.) In any case, the ALJ noted the evidence from 2015
showed that Lovern was doing well with extended release Xanax and was
benefitting from pain and anti-anxiety medication. (R. at 668, 1137, 1164.) Burke
noted that Lovern’s symptoms of depression improved with medication; his mood
was stable; his hygiene and grooming were fair to good; and his memory was
intact. (R. at 1008-09, 1164, 1167, 1170.) Additionally, in 2014 and 2015, Lovern
-27-

reported his medications helped his pain and that he was doing much better since
having neck surgery and seeing a counselor. (R. at 1043, 1137, 1155, 1159.)
Lovern’s muscle tone and strength were normal in his upper and lower extremities,
he was doing well in physical therapy, and he felt his left arm was getting stronger.
(R. at 668, 1159-60.) Based on this, I find that the ALJ properly weighed the
medical evidence pertaining to Lovern’s mental residual functional capacity.
Lovern next argues that the ALJ improperly determined his residual
functional capacity by mischaracterizing the assessments of Dr. Vanover and Dr.
Blackwell. (Plaintiff’s Brief at 10-14.) Lovern contends that Drs. Vanover and
Blackwell found that he could not complete a full eight-hour workday and that he
did not have the ability to stoop, which would eliminate all employment.
(Plaintiff’s Brief at 10-14.) The ALJ did not state that Dr. Vanover and Dr.
Blackwell limited Lovern to sedentary work. Rather, he stated that he credited their
opinions to the extent that they supported the ability to do sedentary work, but
rejected them to the extent that they were inconsistent with the ALJ’s overall
residual functional capacity finding. (R. at 663-64.)
With respect to Dr. Vanover, the ALJ gave “significant weight” to her
December 2009, August 2010, and September 2011, opinions that Lovern was
limited to sedentary exertional work with the need for a sit/stand option at will. (R.
at 522-24, 552-54, 620-22, 663.) However, the ALJ did not credit Dr. Vanover’s
opinions that Lovern should never stoop, kneel, crouch, or crawl; that he had
limitations with regard to pushing and pulling; and that he would be required to
miss more than two days of work monthly due to his impairments or treatment. (R.
at 664.) The ALJ stated that he did not credit these portions of Dr. Vanover’s
assessments because she offered no explanation for them, and the objective
medical evidence did not support any limitations that would interfere with
-28-

Lovern’s ability to be present for work activities on a consistent basis. (R. at 664.)
The ALJ noted that September 2010 emergency room notes showed that Lovern
had equal strength in all four extremities, he could ambulate independently, and he
could “perform all activities of daily living without assistance.” (R. at 582, 664.)
On September 7, 2010, Dr. Vanover reported that Lovern’s gait was only slightly
unsteady. (R. at 611, 664.) A lumbar MRI in August 2011 showed previous L4 and
L5 laminectomies and only small central disc protrusion at these levels, with only
mild foraminal encroachment at L5-S1. (R. at 614, 664.) These findings did not
support Dr. Vanover’s opinion that Lovern had limitations inconsistent with the
ability to perform a limited range of sedentary work on a full-time basis.
The ALJ gave partial weight to the opinion of Dr. Blackwell, the
consultative examiner, noting that he gave too much weight to Lovern’s subjective
complaints in severely limiting his nonexertional functions. (R. at 527-31, 663.)
The ALJ found that Dr. Blackwell’s findings that Lovern could not stoop, crouch,
crawl, climb ladders or climb stairs were not supported by his own evaluation of
Lovern. (R. at 663.) Dr. Blackwell’s physical examination of Lovern revealed a
symmetrical and balanced gait and good and equal shoulder and iliac crest height
bilaterally. (R. at 530.) Lovern exhibited tenderness in the lumbar musculature on
the left and in the thoracic muscles on the right, but upper and lower joints had no
effusions or obvious deformities. (R. at 530.) Upper and lower extremities also
were normal for size, shape, symmetry and strength, and Lovern’s grip strength
was good. (R. at 530.) Fine motor movements and skill activities of the hands were
normal, as were reflexes.

(R. at 530.)

Romberg’s sign was negative, and

proprioception was intact. (R. at 530.) Dr. Blackwell opined that Lovern could lift
items weighing up to 35 pounds occasionally and up to 20 pounds frequently, he
could sit for six hours in an eight-hour workday and stand for two hours in an
eight-hour workday, assuming a positional change every 30 to 45 minutes. (R. at
-29-

530-31.) Thus, Dr. Blackwell’s relatively benign physical examination findings do
not support the restrictive limitations he imposed on Lovern.
Lovern also argues that the ALJ failed to give appropriate credence to his
testimony and to properly assess the effect of pain on his ability to perform
substantial gainful activity. (Plaintiff’s Brief at 14-17.) Based on my review of the
record, I find that the ALJ considered Lovern’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....
76 F.3d at 595.
I find that the ALJ reasonably found that Lovern’s subjective complaints of
-30-

disabling functional limitations were not credible. (R. at 657.) The ALJ found that
Lovern’s medically determinable impairments could reasonably be expected to
cause the symptoms alleged. (R. at 657.) However, the ALJ found Lovern’s
statements concerning the intensity, persistence and limiting effects of his
symptoms “not entirely credible” because they were inconsistent with the
evidence as a whole. (R. at 657.) The medical evidence shows that Lovern’s
muscle tone and extremity strength generally were within normal range. (R. at
530, 581, 589, 660.) Records in 2014 show that Lovern rated his own health as
“excellent.” (R. at 660, 1057.) While Lovern, at times, exhibited an impaired gait,
many of his physical examinations showed that his gait was normal. (R. at 660,
871, 874, 878.) Lovern repeatedly reported benefiting from his medication,
allowing him to care for his personal needs and those of his household without
difficulty, and he denied medication side effects. (R. at 660, 856, 872, 877.) No
significant memory deficits have been documented, and Dr. Vanover’s notes
showed that Lovern generally had a normal mood, affect, judgment and insight.
(R. at 599, 602, 605, 608, 611, 660, 871, 874.) Lovern demonstrated an “ability
and willingness to learn,” he spoke clearly, ambulated independently, had normal
behavior and had equal strength in all four extremities. (R. at 582, 660.)
Based on the above, I find that substantial evidence exists in the record to
support the ALJ’s finding that Lovern was not disabled. An appropriate Order and
Judgment will be entered.
DATED:

December 8, 2017.
s/

Pamela Meade Sargent
UNITED STATES MAGISTRATE JUDGE

-31-