McMahan v. Berryhill

Filing 15

MEMORANDUM OPINION. Signed by Magistrate Judge Pamela Meade Sargent on 08/08/2018. (Bordwine, Robin)

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

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Civil Action No. 2:17cv00001
MEMORANDUM OPINION

By: PAMELA MEADE SARGENT
United States Magistrate Judge

I. Background and Standard of Review
Plaintiff, Stephen G. McMahan, (“McMahan”), filed this action challenging
the final decision of the Commissioner of Social Security, (“Commissioner”),
denying his claims for disability insurance benefits, (“DIB”), and supplemental
security income, (“SSI”), under the Social Security Act, as amended, (“Act”), 42
U.S.C.A. §§ 423 and 1381 et seq. (West 2011 & West 2012). Jurisdiction of this
court is pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). This case is before the
undersigned magistrate judge upon transfer by consent of the parties pursuant to 28
U.S.C. § 636(c)(1). Neither party has requested oral argument; therefore, this case
is ripe for decision.
The court’s review in this case is limited to determining if the factual
findings of the Commissioner are supported by substantial evidence and were
reached through application of the correct legal standards. See Coffman v. Bowen,
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
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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 McMahan protectively filed his applications for DIB

and SSI on May 9, 2012, alleging disability as of December 1, 2011, due to diabetes,
stroke, left ankle problems, right shoulder problems and hearing problems. (Record,
(“R.”), at 14, 203-08, 225.) The claims were denied initially and on reconsideration.
(R. at 14, 94-121, 124-26, 132-36, 138-43, 145-47.) McMahan requested a hearing
before an administrative law judge, (“ALJ”), which was held by videoconference, and
at which McMahan was represented by counsel, on June 2, 2015. (R. at 35-64, 14849.)

By decision dated July 31, 2015, the ALJ denied McMahan’s claims. (R. at
14-29.) The ALJ found that McMahan met the nondisability insured status
requirements of the Act for DIB purposes through December 31, 2016. (R. at 16.)
The ALJ found that McMahan had not engaged in substantial gainful activity since
December 1, 2011, the alleged onset date. (R. at 16.) The ALJ found that the
medical evidence established that McMahan had severe impairments, namely
diabetes mellitus; history of left ankle fracture with nonunion; status-post
cerebrovascular accident; status-post myocardial infarction; borderline intellectual
functioning; and depressive disorder, but she found that McMahan 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 16-20.)
The ALJ found that McMahan had the residual functional capacity to perform
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repetitive, unskilled sedentary work 1 not requiring more than simple instructions,
and he could occasionally lift and carry items weighing up to 20 pounds and up to
10 pounds frequently; could stand/walk for up to two hours and sit for up to six
hours in an eight-hour workday; occasionally could push/pull, climb ramps and
stairs, balance, kneel, stoop and crouch, but could never use foot controls, climb
ladders, ropes or scaffolds, work on vibrating surfaces, crawl or drive; and he must
avoid all exposure to hazardous machinery and unprotected heights. (R. at 20-27.)
The ALJ found that McMahan was unable to perform his past relevant work. (R. at
27.) Based on McMahan’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 McMahan could
perform, including jobs as a weight tester, a cuff folder and an assembler. (R. at
27-28.) Thus, the ALJ concluded that McMahan was not under a disability as
defined by the Act, and was not eligible for DIB or SSI benefits. (R. at 29.) See 20
C.F.R. §§ 404.1520(g) 416.920(g) (2017).
After the ALJ issued her decision, McMahan pursued his administrative
appeals, (R. at 7-10), but the Appeals Council denied his request for review. (R. at
1-4.) McMahan then filed this action seeking review of the ALJ’s unfavorable
decision, which now stands as the Commissioner’s final decision. See 20 C.F.R. §§
404.981, 416.1481 (2017). This case is before this court on McMahan’s motion for

1

Sedentary work involves lifting items weighing up to 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers and small tools. Although a
sedentary job is defined as one which involves sitting, a certain amount of walking or standing is
often necessary in carrying out job duties. Jobs are sedentary if walking or standing are required
occasionally and other sedentary criteria are met. See 20 C.F.R. §§ 404.1567(a), 416.967(a)
(2017).
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summary judgment filed August 14, 2017, and the Commissioner’s motion for
summary judgment filed September 13, 2017.
II. Facts
McMahan was born in 1972, (R. at 38), which classifies him as a “younger
person” under 20 C.F.R. §§ 404.1563(c), 416.963(c). McMahan has a 10th-grade
education. (R. at 39). He has past relevant work as roof bolter and a scoop operator
in an underground coal mine. (R. at 40.) McMahan testified at his administrative
hearing that he left his job as a miner after suffering a stroke. (R. at 40.) McMahan
testified that he also had suffered a heart attack and had seizures “all the time.” (R.
at 40.) McMahan said that he also had problems with his left ankle swelling and
with immobility. (R. at 41.) He said that his left ankle was twice the size of his
right ankle. (R. at 42.)
McMahan testified that he used a cane to walk long distances, which he
defined as being more than “a couple of hundred yards.” (R. at 42-43.) McMahan
said that he could stand for only 10 minutes before needing to change positions.
(R. at 43.) He said the amount of time he could sit would depend on the level of his
blood sugar. (R. at 43-44.) He estimated that he could sit for only 15 minutes
without changing positions and that he could lift item weighing up to 15 pounds.
(R. at 44.) McMahan said that he has suffered from seizures ever since he was
diagnosed as being diabetic. (R. at 44.) He said he has been treated for his seizure
disorder with several different medications, but he could not name them. (R. at 4445.)

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McMahan said that his diabetes caused him to need to urinate every 20
minutes, day and night. (R. at 51.) He also said that he dropped objects often
because he could not feel as well with his hands and that his feet tingle. (R. at 52.)
McMahan said that various doctors have told him to elevate his left foot as much
as possible. (R. at 52-53.) McMahan stated that he felt tired often and required a
nap every day. (R. at 55.) McMahan also said that his health problems made him
feel depressed. (R at 57.)
Ashley Wells, a vocational expert, was present and testified at McMahan’s
hearing. (R. at 58-63.) Wells was asked to consider a hypothetical individual of
McMahan’s age, education and work history, who was capable of lifting and
carrying no more than 20 pounds occasionally, 10 pounds frequently, standing and
walking no more than two hours and sitting for no more than six hours in an eighthour workday, pushing and pulling occasionally, never using foot controls, no
exposure to hazardous machinery, no working at unprotected heights, no climbing
ladders, ropes or scaffolds or working on vibrating surfaces, no crawling, no
required driving and occasional climbing of ramps and stairs, balancing, kneeling,
stooping and crouching. (R. at 59-60.) Wells said that such an individual could not
perform McMahan’s past work, but could perform work as a weight tester, a cuff
folder and an assembler. (R. at 60-61.) Wells stated that there were approximately
51,000 weight tester jobs in the national economy and 1,000 regionally, 23,000
cuff folder jobs in the national economy and 600 regionally and 39,000 assembler
jobs in the national economy and 900 regionally. (R. at 61.) Wells stated that, if the
same individual was able to understand, remember and carry out only simple
instructions and perform repetitive, unskilled work, he could perform the previous
listed jobs. (R. at 62.) Wells also stated that, if such an individual would be off-task

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11 to 20 percent of the time, there would be no jobs available that he could
perform. (R. at 62.)
In rendering her decision, the ALJ reviewed records from Dr. D. Kevin
Blackwell, D.O.; Robert S. Spangler, Ph.D.; Tauna Gulley, F.N.P., and other
providers with The Health Wagon; Wellmont Health System; Dr. Michael Ford,
M.D., with Appalachia Medical Clinic, P.C.; Dr. Bennett E. Norton, M.D.; Dr.
Fred A. Merkel, D.O.; Cynthia K. Dean, F.N.P.; Joseph Leizer, Ph.D., a state
agency psychologist; Dr. Robert McGuffin, M.D., a state agency physician;
Howard S. Leizer, Ph.D., a state agency psychologist; and Dr. Robert Keeley,
M.D., a state agency physician. McMahan’s attorney also submitted medical
reports from Doctor’s Assisted Wellness & Recovery; Lonesome Pine Hospital;
and Mountain View Regional Medical Center to the Appeals Council.2
The medical records show that McMahan has been treated for years for
diabetes, depression and various other ailments and injuries. (R. at 335-45, 35569.) McMahan has treated with narcotic pain medication since as early as 2001. (R.
at 320.)
McMahan saw Dr. Michael Ford, M.D., with Appalachia Medical Clinic,
P.C., on December 29, 2009, to establish care. 3 (R. at 498.) McMahan complained
of diabetes and left ankle pain. (R. at 498.) Dr. Ford noted that McMahan’s
diabetes was severe and that his blood glucose level was 261. (R. at 498.) On
2

Since the Appeals Council considered and incorporated this additional evidence into the
record in reaching its decision, (R. at 1-4), this court also must take these new findings into
account when determining whether substantial evidence supports the ALJ's findings. See Wilkins
v. Sec'y of Dep't of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991).
3

Much of this medical report is not legible.
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February 1, 2010, McMahan complained of severe left ankle pain. (R. at 496.) Dr.
Ford noted that he counseled McMahan to “[t]ake pain meds on time not before
due or when they are not needed.” (R. at 496.) He advised McMahan to rest,
elevate his foot and to limit strenuous exercise. (R at 496.) On March 3, 2010, Dr.
Ford wrote that McMahan had not followed through with lab tests or x-rays. (R. at
494.) He stated that no further prescriptions would be written until these were
completed. (R. at 494.)
McMahan returned to see Dr. Ford on May 24, 2010, complaining of pain
and decreased mobility in his left ankle. (R. at 493.) McMahan complained that he
could not keep pain patches on his body due to sweat. (R. at 493.) Dr. Ford
prescribed Zoloft for anxiety/depression symptoms. (R. at 493.) Dr. Ford ordered
blood tests and an MRI of McMahan’s left ankle. (R. at 493.)
On August 4, 2010, McMahan sought treatment at the emergency
department of Lonesome Pine Hospital for swollen wounds on his lower legs and
left ankle. (R. at 370-71.) McMahan was admitted for three days for inpatient
treatment by Dr. Ford. (R. at 372-75.) McMahan stated that he lost his job in the
mines on the day of his hospital admission because he showed his boss the open
wounds on his legs. (R. at 372.) McMahan stated that he wore mud boots in the
mine, which caused his legs to sweat and prevented the wounds from healing. (R.
at 372.) An x-ray of McMahan’s left ankle suggested osteomyelitis, which Dr.
Ford stated required hospital admission to treat. (R. at 372.) The x-ray also
revealed and old nonunion fracture. (R. at 372-73.) McMahan admitted to a
previous history of drug and alcohol abuse. (R. at 373.) Dr. Ford diagnosed open
cellulitis with open wounds on both legs. (R. at 373.)

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Dr. Ford noted that McMahan was completely noncompliant with a diabetic
diet while in the hospital, with visitors bringing him outside food such as soft
drinks, candy bars and ice cream bars. (R. at 374.) On discharge, Dr. Ford stated
that McMahan had severe degenerative arthritis of the left talotibial joint with old
nonunion fracture of the distal tibial epiphysis. (R. at 374.)
On August 23, 2010, McMahan stated that he was feeling much better, but
was applying for disability benefits. (R. at 492.) Dr. Ford noted that McMahan’s
musculoskeletal examination showed no atrophy with intact joints and normal gait.
(R. at 492.) He also noted normal mood. (R. at 492.) Despite a fairly benign
examination, Dr. Ford wrote, patient is “disabled.” (R. at 492.) McMahan saw Dr.
Ford again on August 31, 2010, to fill out “papers.” (R. at 491.)
On October 4, 2010, Dr. Ford prescribed Oxycontin and Lortab for
McMahan. (R. at 473, 490.) There is no record showing that Dr. Ford saw
McMahan on this occasion. Dr. Ford continued prescribing these medications
through at least January 31, 2012. (R. at 471-73.)
Dr. Ford did see McMahan again on October 27, 2010. (R. at 489.) On this
occasion, McMahan complained of two open ulcers on the back of his head
causing him severe pain. (R. at 489.) Dr. Ford noted that McMahan’s
musculoskeletal examination showed no atrophy or weakness, intact joints and a
normal gait. (R. at 489.) Dr. Ford also noted that McMahan had been fired from his
job and was pursuing unemployment benefits. (R. at 489.) McMahan sought
treatment on December 15, 2010, for a large abscess on his face. (R. at 488.) On
December 27, 2010, Dr. Ford noted that the abscess had healed. (R. at 487.)

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On January 27, 2011, McMahan returned to Dr. Ford complaining of
increased pain and swelling in his left ankle. (R. at 486.) Based on his
examinations, Dr. Ford noted no deformity or swelling in McMahan’s extremities
and no atrophy or weakness with intact joints and a normal gait. (R. at 486.)
McMahan stated that his pain medication was “not helping,” and he wanted to
switch to Oxycontin. (R. at 486.) Dr. Ford warned McMahan of the potential for
drug abuse. (R. at 486.)
On March 1, 2011, Dr. Ford noted that McMahan’s fasting blood sugar level
was 61, making him drowsy; Dr. Ford gave McMahan something to eat and a soft
drink. (R. at 485.) Dr. Ford also noted that McMahan had returned to work and was
working while taking his pain medication. (R. at 485.) McMahan returned on April
1, 2011, complaining of pain in his left ankle. (R. at 484.) Dr. Ford noted that
McMahan was scheduled to see an orthopedic doctor at the University of Virginia
later in the month. (R. at 484.) McMahan said that his pain was controlled “fairly
well” with medication. (R. at 484.) Dr. Ford noted that McMahan walked with a
limp and that his left ankle was swollen. (R. at 484.) Otherwise, he noted no
atrophy, intact joints, no deformity in McMahan’s extremities, normal mood and
symmetrical reflexes. (R. at 484.) Dr. Ford advised McMahan to elevate his left
foot as often as possible to reduce the swelling and pain and to take his pain
medication as ordered. (R. at 484.) On May 3, 2011, Dr. Ford noted no swelling
in McMahan’s extremities and a normal gait. (R. at 483.) He stated that he saw
McMahan for chronic pain management. (R. at 483.) Dr. Ford noted that
McMahan was “back to working against my recommendation but he can’t afford
not to work….” (R. at 483.)

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On June 2, 2011, McMahan reported that he had gone to the emergency
department at Lonesome Pine Hospital on May 9, 2011, and was diagnosed with
shingles. (R. at 482.) Dr. Ford stated that what he observed did not clearly appear
to be shingles. (R. at 482.) On July 5, 2011, Dr. Ford noted no atrophy or weakness
with intact joints and an altered gait with no deformity or swelling in McMahan’s
extremities and a normal mood. (R. at 481.) Nonetheless, Dr. Ford assessed
chronic pain in back and legs and depression. (R. at 481.) He prescribed Oxycontin
and Lortab and warned McMahan to be careful operating machines at work or
driving when taking pain medications due to drowsiness/dizziness. (R. at 481.) Dr.
Ford suggested that McMahan might try to use some alternative methods of pain
relief such as warm moist heat and cool cloths. (R. at 481.) On August 10, 2011,
McMahan complained of swelling and pain in his left ankle, but Dr. Ford noted no
deformity or edema in his extremities. (R. at 480.) He also noted no atrophy or
weakness, intact joints and a normal gait. (R. at 480.)
McMahan sought treatment at Lonesome Pine Hospital on September 20,
2011, complaining of feeling tired and sleepy for two to three days. (R. at 432-37.)
McMahan’s wife reported that he had a prolonged hypoglycemic seizure three days
earlier, which lasted about a half hour. (R. at 432.) Since then, she said, McMahan
had been sleeping excessively. (R. at 432.) A CT scan of McMahan’s head was
interpreted as normal, but a urine drug screen was positive for the use of
benzodiazepines and cocaine. (R. at 433, 440-41.) Despite his prescribed pain
medications from Dr. Ford, his urine screen was negative for the use of opiates. (R.
at 442.)
McMahan sought treatment at the emergency department of Holston Valley
Medical Center on September 22, 2011, complaining of weakness in his left side.
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(R. at 458-59.) McMahan complained of a seizure, which left him feeling weak in
his left leg and arm and with slurred speech. (R. at 458.) Oddly, the treating
physician noted weakness on McMahan’s right side. (R. at 459.) A CT scan of
McMahan’s head was ordered, which showed evidence consistent with a stroke.
(R. at 459, 469.)
When McMahan returned to see Dr. Ford on September 26, 2011, he
complained of weakness in his left side and hand, slurred speech and a slow,
unsteady gait due to a stroke. (R. at 479.) McMahan said that he had a “seizure,”
and when he went to work, he could not do much, so he went to the hospital where
he was diagnosed as suffering from a stroke. (R. at 479.) Dr. Ford noted that
McMahan told him that he wanted to return to work as soon as possible. (R. at
479.) On September 29, 2011, McMahan stated that he was doing much better,
with improved speech and gait and no numbness. (R. at 478.) Dr. Ford noted that
McMahan’s stroke symptoms had resolved and approved him returning to work,
although he noted some continuing weakness in his left arm. (R. at 478.)
McMahan reported to feeling much better on October 28, 2011, with much
less evidence of effects of a stroke. (R. at 477.) He did report some numbness on
the left side of his body, especially in his left leg. (R. at 477.) He also reported
being unsteady due to poor balance with frequent falls. (R. at 477.) Dr. Ford noted
no atrophy or weakness, intact joints, normal gait, no deformity or swelling in
McMahan’s extremities, normal mood and symmetrical reflexes. (R. at 477.) Dr.
Ford cautioned McMahan to rise from lying/sitting positions slowly and wait until
he felt more steady before continuing and to make turns or changes in directions
slowly to prevent falls. (R. at 477.) Dr. Ford prescribed Oxycontin, Lortab, Zoloft
and Klonopin. (R. at 477.)
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On November 29, 2011, McMahan returned, complaining of wounds on both
of his feet. (R. at 476.) On December 28, 2011, McMahan complained of swelling
in his ankle. (R. at 475.) Dr. Ford noted no deformity or swelling in his extremities,
no atrophy or weakness and a normal gait. (R. at 475.) Dr. Ford also diagnosed
anxiety, although he noted that McMahan’s mood was normal. (R. at 475.) He
prescribed Oxycontin, Lortab and Klonopin. (R. at 475.) On January 31, 2012,
McMahan complained of left ankle swelling and left side weakness. (R. at 474)
Nonetheless, Dr. Ford noted no swelling or deformity in his extremities and no
atrophy or weakness with intact joints and a normal gait. (R. at 474.)
On November 11, 2012, Dr. D. Kevin Blackwell, D.O, examined McMahan
at the request of Disability Determination Services. (R. at 503-06.) Dr. Blackwell
noted that McMahan had suffered a stroke in September 2011. (R. at 503.)
McMahan also gave a history of insulin-dependent diabetes and seizure disorder.
(R. at 503.) Dr. Blackwell noted that McMahan was alert, cooperative and oriented
with good mental status, and he did not appear to be in any acute distress. (R. at
504.) Dr. Blackwell’s examination was normal, with the exception that he noted
that McMahan walked with a limp and that his left ankle was swollen with
decreased range of motion. (R. at 504-05.) He found that the ranges of motion in
all of McMahan’s joints were within normal limits, except for the ranges of motion
in McMahan’s left ankle. (R. at 507.) Dr. Blackwell also noted weakness in
McMahan’s left shoulder and grip strength and decreased sensation in his lower
extremities bilaterally. (R. at 505.)
Dr. Blackwell opined that McMahan was able to stand for two hours and sit
for six hours in an eight-hour workday; to reach above head with his right arm onethird of the day, but should avoid such reaching with the left arm; to use foot pedal
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controls with his right foot one-third of the day, but should avoid operating foot
pedal controls with his left foot; to squat and kneel one-third of the day; to
occasionally lift items weighing up to 40 pounds and frequently lift items weighing
up to 15 pounds; and should avoid crouching, crawling, repetitive and continuous
stair climbing and work around unprotected heights. (R. at 505.)
Dr. Robert Keeley, M.D., a state agency physician, completed a Physical
Residual Functional Capacity Assessment of McMahan on December 5, 2012. (R.
at 87-89.) Dr. Keeley stated that, based on his review of the medical evidence,
McMahan could occasionally lift and carry items weighing up to 20 pounds,
frequently lift and carry items weighing up to 10 pounds, stand and/or walk with
normal breaks for a total of about six hours in an eight-hour workday and sit with
normal breaks for a total of about six hours in an eight-hour workday. (R. at 88.)
Dr. Keeley stated that McMahan’s ability to push and/or pull, including the
operation of hand and/or foot controls, was limited to occasionally in his left lower
extremity. (R. at 88.) Dr. Keeley also stated that McMahan could never climb
ladders, ropes or scaffolds, should avoid concentrated exposure to hazards, such as
machinery and heights, and to vibration and could occasionally climb ramps and
stairs, balance, stoop, kneel, crouch and crawl. (R. at 88-89.)
Howard S. Leizer, Ph.D., a state agency psychologist, completed a
Psychiatric Review Technique on McMahan on December 6, 2012. (R. at 85-86.)
Leizer stated that McMahan suffered from a nonsevere anxiety disorder. (R. at 86.)
He stated that McMahan’s mental impairments resulted in no restrictions of
activities of daily living, no difficulties in maintaining social functioning, no
repeated episodes of extended duration decompensation and only mild difficulties
in maintaining concentration, persistence or pace. (R. at 86.) Leizer stated that
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McMahan’s mental impairment did not meet the criteria for the listing for anxietyrelated disorder. (R. at 86.)
Pharmacy records show that McMahan was treating with Suboxone in 2013.
(R. at 753, 784-86.) He apparently received the prescription from Dr. Michael D.
Tino, M.D., with Doctor’s Assisted Wellness & Recovery. (R. at 711-60.)4
Dr. Robert McGuffin, M.D., a state agency physician, completed a Physical
Residual Functional Capacity Assessment of McMahan on December 11, 2013. (R.
at 103-05.) Dr. McGuffin stated that, based on his review of the medical evidence,
McMahan could occasionally lift and carry items weighing up to 20 pounds,
frequently lift and carry items weighing up to 10 pounds, stand and/or walk with
normal breaks for a total of about six hours in an eight-hour workday and sit with
normal breaks for a total of about six hours in an eight-hour workday. (R. at 10304.) Dr. McGuffin stated that McMahan’s ability to push and/or pull, including the
operation of hand and/or foot controls, was limited to occasionally in his left lower
extremity. (R. at 104.) Dr. McGuffin also stated that McMahan could never climb
ladders, ropes or scaffolds, should avoid even moderate exposure to hazards, such
as machinery and heights, avoid concentrated exposure to vibration and could
occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl. (R. at
104-05.)
Joseph Leizer, Ph.D., a state agency psychologist, completed a Psychiatric
Review Technique on McMahan on December 11, 2013. (R. at 101-02.) Leizer
stated that McMahan suffered from a nonsevere anxiety disorder and a nonsevere
affective disorder. (R. at 101.) He stated that McMahan’s mental impairments
4

Many of these records are not legible.
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resulted in no restrictions of activities of daily living, no difficulties in maintaining
social functioning, no repeated episodes of extended duration decompensation and
only mild difficulties in maintaining concentration, persistence or pace. (R. at 102.)
Leizer stated that McMahan’s mental impairments did not meet the criteria for the
listings for affective disorder or anxiety-related disorder. (R. at 101-02.)
Robert Spangler, Ph.D., a psychologist, performed a psychological
evaluation of McMahan on February 22, 2014. (R. at 509-12.) McMahan told
Spangler he suffered from poorly controlled diabetes and one or two seizures a
month. (R. at 509-10.) Spangler noted that McMahan was clean, appropriately
dressed and cooperative. (R. at 509.) McMahan reported vision problems and said
that his vision was bad when his blood sugar was high. (R. at 509.) Spangler also
noted that McMahan had “obvious” hearing difficulties, forcing him to repeat
questions. (R. at 509.) Spangler noted that McMahan had awkward gross motor
movements with a slow, stiff gait. (R. at 509.) He stated that McMahan’s left ankle
was swollen and very stiff and that his left side was weak secondary to a “recent”
stroke. (R. at 509.) Spangler noted a pronounced limp and awkward and slow fine
motor movements. (R. at 509.) McMahan told Spangler that he would get dizzy if
he closed his eyes. (R. at 509.)
Spangler noted that McMahan appeared socially confident, anxious and
depressed. (R. at 509.) He stated that McMahan needed instructions repeated, but
this was due to hearing problems. (R. at 509.) He noted that McMahan
demonstrated good concentration for about 20 minutes, then his concentration
varied. (R at 509.) He said that McMahan was appropriately persistent on tasks,
but his pace was impacted by varied concentration after 20 minutes. (R. at 509.)

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Spangler noted that McMahan’s hands were swollen and that he reported tingling
in his hands. (R. at 509.)
McMahan stated that his medical and mental problems began 12 years
earlier when he injured his left ankle working as a roof bolter in and underground
mine. (R. at 510.) McMahan told Spangler that he had been disabled since his
stroke in 2011. (R. at 510.) McMahan said that he would get dizzy, had
hypertension, arthritis in his left ankle and hand, a bowel disorder, urinary
incontinence and intermittent neck and low back pain. (R. at 510.)
Spangler noted that McMahan was alert and oriented, had an adequate recall
of remote events, but an inadequate recall of recent events. (R. at 510.) McMahan
had fair eye contact; his motor activity was tense; his affect was restricted; and his
mood was anxious and depressed. (R. at 510.) Spangler noted that McMahan was
able to repeat 0 words after five minutes; repeated 7 numbers presented serially
forward and 5 numbers backward, but could not do serial 7s or serial 3s. (R. at
510.) He was able to do serial 5s. (R. at 510.) He could not interpret common
proverbs adequately. (R. at 510.) Spangler noted that McMahan exhibited no
illogical or loose associations. (R. at 511.) He stated that McMahan’s judgment and
insight were consistent with low average intelligence. (R. at 511.) He noted that
McMahan’s stream of thought was concrete, associations were logical and thought
content was nonpsychotic. (R at 511.) Spangler noted that McMahan’s social skills
were adequate, and he related well. (R. at 511.)
Spangler administered a Weschler Adult Intelligence Scale – Fourth Edition,
(“WAIS-IV”), on which McMahan obtained a Verbal Comprehension Index score
of 81, a Perceptual Reasoning Index score of 77 and a Full-Scale IQ score of 75.
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(R. at 511-12.) Spangler diagnosed McMahan with generalized anxiety disorder,
moderate; persistent depressive disorder, moderate to severe; borderline
intelligence; marginal math and reading skills; and recent memory impairment,
moderate. (R. at 512.)
Spangler also completed a Medical Assessment of Ability To Do WorkRelated Activities (Mental) on February 22, 2014. (R. at 513-15.) Spangler stated
that McMahan had a fair or seriously limited ability to follow work rules, to relate
to co-workers, to deal with public, to use judgment, interact with supervisors, to
function independently, to maintain attention and concentration after 20 minutes,
to understand, remember and carry out simple job instructions, to maintain
personal appearance, to behave in an emotionally stable manner and to relate
predictably in social situations. (R. at 513-14.) He stated that McMahan had a poor
or no useful ability to deal with work stresses, to understand, remember and carry
out complex or detailed job instructions and to demonstrate reliability. (R. at 51314.) Spangler stated that McMahan would be absent from work due to his mental
impairments and/or treatment more than four days a month. (R. at 515.)
Tauna Gulley, F.N.P. with The Health Wagon, saw McMahan to establish
new patient care on September 27, 2013. (R. at 523-25.) McMahan gave a history
of no job and no insurance and was requesting help with his diabetes medication.
(R. at 523.) McMahan complained of a painful left ankle, which was swollen. (R.
at 523.) McMahan walked with a limp due to his left ankle problem. (R. at 523.)
He denied any anxiety or depressed mood. (R. at 523.) He gave a history of a
stroke two years earlier. (R. at 523.) Gulley stated that McMahan was alert and
oriented and in no acute distress. (R. at 524.) She noted that McMahan’s
nonfasting blood glucose level was 114. (R. at 524.) She diagnosed McMahan with
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hypertension and diabetes mellitus, type II, uncontrolled. (R. at 524.) She gave
McMahan sample medication. (R. at 524.)
McMahan saw Gulley again on October 25, 2013. (R. at 521-22.) Gulley
noted that McMahan’s nonfasting blood glucose level was 280. (R. at 521.) She
also noted that McMahan was in no distress, with clear speech and logical thought
processes. (R. at 521.) McMahan returned to see Gulley on June 30, 2014. (R. at
519-20.) McMahan complained of pain in his left ankle and right shoulder, and he
requested a note from Gulley to receive food stamps. (R. at 519.) Again, Gulley
noted that McMahan was alert and oriented, in no distress and cooperative with
good eye contact. (R. at 519.) She did note swelling in his left ankle. (R. at 519.)
McMahan denied any dizziness, fainting or irritability. (R. at 520.)
Mary Beth Bentley, F.N.P. with The Health Wagon, saw McMahan on
September 8, 2014. (R. at 533-34.) Bentley noted that McMahan was in no acute
distress and was well-developed and well-nourished. (R. at 533.) She noted that
McMahan’s neck was supple with full range of motion. (R. at 533.) She did note
swelling, deformity and limited range of motion in McMahan’s left ankle. (R. at
533.) She noted that McMahan’s motor strength was normal in his upper and lower
extremities. (R. at 533.) McMahan told Bentley that his blood sugar level averaged
around 200. (R. at 534.) McMahan denied any change in appetite, fatigue, fever,
headache, lightheadedness, night sweats or sleep disturbance. (R. at 534.) He also
denied any dizziness, weakness, chest pain, shortness of breath, anxiety, depressed
mood and substance abuse. (R. at 534.)
McMahan returned to see Bentley on September 22, 2014. (R. at 529-31.)
McMahan reported that his medication dosage was recently changed because his
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glucose level was consistently staying between 300 and 400. (R. at 530.) McMahan
denied any vision problems, chest pain, difficulty breathing, irritability, loss of
strength, loss of use of extremities, anxiety, depressed mood, difficulty sleeping
and illicit drug use. (R. at 530-31.) Bentley noted that McMahan’s motor strength
was normal in the upper and lower extremities with sensory exam intact. (R. at
529.) She stated that he was alert, oriented and cooperative, he made good eye
contact, he had good judgment and insight, intact cognitive function, clear speech
and thought content without suicidal ideations or delusions, and thought processes
were logical and goal-directed. (R. at 529.)
McMahan returned to see Gulley on October 31, 2014. (R. at 527-28.)
McMahan gave a history of having to relearn how to walk and talk after suffering a
stroke two years earlier. (R. at 527.) She also noted that he had suffered an injury
to his left ankle while working in the mines. (R. at 527.) McMahan said that he had
lost a lot of function in his ankle and that it hurt him on a daily basis. (R. at 527.)
He also claimed that he suffered from seizures if his blood sugar level was low. (R.
at 527.) Gulley noted that McMahan’s diabetes had been difficult to control and
noted that his nonfasting blood glucose level was 232. (R. at 527.) Gulley noted
that McMahan was alert, cooperative and in no distress, with left foot tenderness
and swelling in his left ankle. (R. at 527.)
Gulley completed an Assessment Of Ability To Do Work-Related Activities
(Physical) for McMahan on October 31, 2014, stating that McMahan could lift
items weighing less than five pounds, but could not carry items. (R. at 516-18.)
Gulley stated that McMahan could stand and walk for “only minutes” at a time
during the work day due to a left ankle fracture. (R. at 516.) She stated that
McMahan’s ability to sit was not affected, but that he could never climb, stoop,
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kneel, balance, crouch or crawl and should avoid working around heights, moving
machinery, temperature extremes, chemicals, dust, noise, fumes, humidity and
vibration. (R. at 516-17.) Gulley stated that McMahan’s abilities to reach, to
handle, to feel, to push/pull, to see, to hear and to speak were not affected. (R. at
517.)
McMahan was admitted to Mountain View Regional Medical Center for
treatment of diabetic ketoacidoses on March 17, 2015. (R. at 873.) McMahan was
brought to the emergency room by ambulance due to altered mental state. (R. at
868.) Emergency personnel stated that they found McMahan on the ground at his
home, poorly responsive, agitated and combative. (R. at 868.) According to
McMahan’s girlfriend, McMahan had a history of juvenile diabetes, narcotic
dependence and was then taking Subutex. (R. at 861.) McMahan’s girlfriend said
that he complained of nausea, began moaning and became “groggy” and confused.
(R. at 861.) She said that they attempted to check his blood sugar level, but it
would not read, so a shot of glucose was given. (R. at 861.) McMahan’s condition
did not improve, so he was transported to hospital by ambulance. (R at 862.) The
Physical Exam notes reflect that McMahan was oriented to person, place and time,
but he appeared in distress and was restrained in the emergency department. (R. at
869.) Lab tests suggested that McMahan had suffered a heart attack caused by his
severe ketoacidosis. (R. at 642, 860.) Upon admission, his blood glucose level was
1267. (R. at 642, 852.)
McMahan was discharged three days later on several medications, with
instructions to follow up with his principal health care provider, a cardiologist and
an endocrinologist. (R. at 851-54, 872.)

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McMahan followed up with Gulley on March 27, 2015, and reported that he
was doing much better. (R. at 539.) Gulley noted that McMahan was alert and in
no distress. (R at 539.) She stated that he ambulated without difficulty with a mild
limp and was alert, oriented and cooperative. (R. at 539.)
The record shows that McMahan was in Subutex treatment for opiate
dependency from February 8, 2013, to at least August 4, 2015. (R. at 680-709,
711-60, 841-48.)
On June 25, 2015, McMahan sought treatment at the Emergency Department
at Lonesome Pine Hospital for foot pain and swelling without injury. (R. at 80206.) McMahan gave no history of injury, but stated he had helped his friend move
furniture two days earlier. (R at 802.) It was noted that McMahan’s ankle and foot
were swollen. (R. at 806.) X-rays of McMahan’s left ankle showed no acute bony
abnormalities, but an old fracture of the tibia and fibula and advanced degenerative
osteoarthritis of the ankle joint. (R. at 805, 808-09.)
III. Analysis
The Commissioner uses a five-step process in evaluating DIB and SSI
claims. See 20 C.F.R. §§ 404.1520, 416.920 (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, 416.920. If the Commissioner finds conclusively that a claimant is or is
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not disabled at any point in this process, review does not proceed to the next step.
See 20 C.F.R. §§ 404.1520(a), 416.920(a) (2017).
Under this analysis, a claimant has the initial burden of showing that he is
unable to return to his past relevant work because of his impairments. Once the
claimant establishes a prima facie case of disability, the burden shifts to the
Commissioner. To satisfy this burden, the Commissioner must then establish that
the claimant has the residual functional capacity, considering the claimant’s age,
education, work experience and impairments, to perform alternative jobs that exist
in the national economy. See 42 U.S.C.A. §§ 423(d)(2)(A), 1382c(a)(3)(A)-(B)
(West 2011, West 2012 & Supp. 2018); McLain v. Schweiker, 715 F.2d 866, 86869 (4th Cir. 1983); Hall, 658 F.2d at 264-65; Wilson v. Califano, 617 F.2d 1050,
1053 (4th Cir. 1980).
As stated above, the court’s function in this case is limited to determining
whether substantial evidence exists in the record to support the ALJ’s findings.
This court must not weigh the evidence, as this court lacks authority to substitute
its judgment for that of the Commissioner, provided her decision is supported by
substantial evidence. See Hays, 907 F.2d at 1456. In determining whether
substantial evidence supports the Commissioner’s decision, the court also must
consider whether the ALJ analyzed all of the relevant evidence and whether the
ALJ sufficiently explained her findings and her rationale in crediting evidence.
See Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
Thus, it is the ALJ’s responsibility to weigh the evidence, including the
medical evidence, in order to resolve any conflicts which might appear therein.
See Hays, 907 F.2d at 1456; Taylor v. Weinberger, 528 F.2d 1153, 1156 (4th Cir.
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1975). Furthermore, while an ALJ may not reject medical evidence for no reason
or for the wrong reason, see King v. Califano, 615 F.2d 1018, 1020 (4th Cir. 1980),
an ALJ may, under the regulations, assign no or little weight to a medical opinion,
even one from a treating source, based on the factors set forth at 20 C.F.R. §§
404.1527(c), 416.927(c), if she sufficiently explains her rationale and if the record
supports her findings.
McMahan argues that the ALJ erred by improperly determining his residual
functional capacity. (Plaintiff’s Memorandum In Support Of His Motion For
Summary Judgment, (“Plaintiff’s Brief”), at 5-8.) McMahan also argues that the
ALJ erred by finding that a significant number of jobs existed that he could
perform. (Plaintiff’s Brief at 8-9.) In this case, the ALJ found that McMahan had
the residual functional capacity to perform repetitive, unskilled sedentary work not
requiring more than simple instructions, and he could occasionally lift and carry
items weighing up to 20 pounds occasionally and up to 10 pounds frequently;
could stand/walk for up to two hours and sit for up to six hours in an eight-hour
workday; occasionally could push/pull, climb ramps and stairs, balance, kneel,
stoop and crouch, but could never use foot controls, climb ladders, ropes or
scaffolds, work on vibrating surfaces, crawl or drive; and he must avoid all
exposure to hazardous machinery and unprotected heights. (R. at 20-27.)
Under 20 C.F.R. §§ 404.1527(e)(2), 416.927(e)(2), 404.1546 and 416.946,
the ALJ is not bound by any findings from a medical source as to a claimant’s
residual functional capacity. Rather, the responsibility for determining a claimant’s
residual functional capacity rests with the ALJ, and the ALJ can determine the
value to give a medical source’s opinions according to the factors listed in 20
C.F.R. §§ 404.1527(c), 416.927(c). In reaching his decision with regard to
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McMahan’s residual functional capacity, the ALJ listed and considered all of the
medical evidence of record, including the opinions of the examining physician, Dr.
Blackwell, and the treating nurse practitioner, Gulley. In doing so, the ALJ
credited Dr. Blackwell’s opinion, except for his preclusion of reaching and
crouching. These limitations were not supported by any other reviewing or treating
physician. Therefore, the ALJ was free to reject these restrictions as being
unsupported by the other substantial evidence of record.
The ALJ also rejected Gulley’s limitations as not being supported by her
own treatment records. Gulley’s treatment records list few objective findings to
support any limitations on McMahan’s residual functional capacity other than
swelling and limited range of motion in his left ankle, as well as his blood sugar
levels. Thus, Gulley’s own records do not support her severe restrictions on
McMahan’s ability to lift and carry. Regarding her severe restrictions on
McMahan’s ability to stand and walk, McMahan reported to Gulley’s co-worker,
Bentley, in September 2014, that he suffered from no loss of strength or loss of use
of his extremities. (R. at 530-31.) Bentley noted no loss of strength in either
McMahan’s upper or lower extremities. (R. at 529.)
Based on the above, I find that substantial evidence supports the ALJ’s
weighing of the medical evidence and her finding as to McMahan’s residual
functional capacity. McMahan also argues that substantial evidence does not
support the ALJ’s finding as to other available work that McMahan could perform.
The vocational expert, Wells, testified that an individual of McMahan’s age,
education, past work experience and residual functional capacity as found by the
ALJ could perform work as a weight tester, a cuff folder and an assembler. (R. at
61-62.) Wells stated that there were approximately 51,000 weight tester jobs in the
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national economy and 1,000 regionally, 23,000 cuff folder jobs in the national
economy and 600 regionally and 39,000 assembler jobs in the national economy
and 900 regionally. The Court of Appeals for the Fourth Circuit stated in Hicks v.
Califano, 600 F.2d 1048, 1051 n.2 (4th Cir. 1979), that 110 jobs in the region would not
constitute an insignificant number. In Craigie v. Bowen, 835 F.2d 56, 58 (3rd Cir. 1987),
the Third Circuit also stated that 200 jobs in the region was a clear indication that there
existed in the national economy other substantial gainful work which a claimant could
perform. Therefore, I find that the vocational expert’s testimony supports the ALJ’s
finding on this issue.

Based on the above-stated reasons, I find that substantial evidence supports
the Commissioner’s decision that McMahan was not disabled. An appropriate
Order and Judgment will be entered.
DATED:

August 8, 2018.
/s/

Pamela Meade Sargent

UNITED STATES MAGISTRATE JUDGE

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