Hess v. Colvin

Filing 20

MEMORANDUM OPINION. Signed by District Judge Glen E. Conrad on 5/24/17. (sas)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION

CLERK'S OFFICE U.S. DIST. COURT
AT ROANOKE, VA

FILED

MAY 2 4 2017

FRANCES M. HESS
Plaintiff,

v.
NANCY A. BERRYHILL, Acting
Cominissioner of Social Security,
Defendant.
Plaintiff has filed this action challenging certain provisions of the final decision of the
Commissioner of Social Security establishing plaintiffs entitlement to a closed period of
disability for purposes of plaintiffs claims for disability insurance benefits and supplemental
security income benefits under the Social Security Act, as amended, 42 U.S.C. §§ 416(i) and 423,
and 42 U.S.C. § 1381 et seq., respectively. Jurisdiction ofthis court is pursuant to 42 U.S.C. §
405(g) and 42 U.S.C. § 1383(c)(3). This court's review is limited to a determination as to
whether there is substantial evidence to support the Commissioner's conclusion that plaintiff was
under a disability from August 25, 2012 through July 28, 2014, but not thereafter. If such
substantial evide~ce exists, the final decision ofthe Commissioner must be affirmed. Laws v.
Celebrezze, 368 F.2d 640 (4th Cir: 1966). Stated briefly, substantial evidence has been defined
as such relevant evidence, considering the record as a whole, as might be found adequate to
support a conclusion by a reasonable mind. Richardson v. Perales, 402 U.S. 389,401 (1971).
The plaintiff, Frances M. Hess, was born on January 14, 1960, and eventually completed
her high school education. Mrs. Hess also received additional training as a cosmetologist. (TR

41-42). According to the Administrative Law Judge, who in turn relied on testimony from a
vocational expert, plaintiff has worked as a power press tender, steel cutter, traffic control
manager and officer, account coordinator/auction clerk, inventory clerk, desk clerk, dairy
manager, and cosmetologist. (TR 28-29). Mrs. Hess last worked on a regular and sustained
basis in August of2012. On November 16, 2012, plaintiff filed applications for disability
insurance benefits and supplemental security income benefits. She alleged that she became
disabled for all forms of substantial gainful employment on August 25, 2012 due to deteriorating
disc disease; multiple back problems; .chronic pain; inability to s?t; stand, or walk for long
periods of time; inability to bend over or lift more than 10 pounds; need to take frequent rests;
depression; stress; prediabetes; high cholesterol; insomnia; and asthma/allergy problems. (TR
· 251 ). Plaintiff now maintains that she has remained disabled to the present time. As to her
application for disability insurance benefits, the record reveals that Mrs. Hess met the insured
status requirements of the Act through the fourth quarter of 2014, but not thereafter.. See gen.,
42 U.S.C. §§ 416(i) and 423(a).
Plaintiffs claims were denied upon initial consideration and reconsideration. She then
requested and received a de novo hearing and review before an Administrative Law Judge. In an
opinion dated September 11, 2015, the Law Judge ruled that Mrs. Hess was disabled for all
forms of substantial gainful employment for a closed period beginning on August 25, 2012, and
extending through July 28, 2014. The Law Judge determined that beginning July 29, 2014,
plaintiff regained the capacity for a limited range of light exertion, and that she was capable of
performing her past relevant work as a desk clerk, as well as other light work roles existing in

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significant number in the national economy. In his opinion, the Law Judge apparently found that,
at all relevant times, Mrs. Hess suffered severe impairments, including lumbar degenerative disc
disease and obesity. (TR 19, 26). While the Law Judge noted that plaintiff experiences
a number of other impairments, including prediabetes; obstructive sleep apnea/insomnia; restless
leg syndrome; gastroesophageal reflux disease; status post cervical surgery in 2009; headaches
and dizziness; incontinence; generalized anxiety disorder; and major depressive disorder, the
Law Judge ruled that these other impairments were not so severe as to affect plaintiffs capacity
for such work as she was otherwise physically and mentally capable. (TR 19). Considering
plaintiffs impairments, the Law Judge assessed plaintiffs residual functional capacity for the
period between August 25, 2012 and July 28, 2014 as follows:
After careful consideration of the entire record, the undersigned finds that, from
August 25, 2012 through July 28, 2014, the claimant had theresidual functional
capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a) except, she can occasionally perform postural activities but cannot
climb ladders, ropes and scaffolds. She should avoid exposure to pulmonary
irritants and industrial hazards such as heights and dangerous machinery. The
claimant required three to four breaks a day for up to one hour.
(TR 22). Given such a residual functional capacity, and after considering plaintiffs age,
education, and work experience, as well as testimony from a vocational expert, the Law Judge
found that Mrs. Hess was disabled for all forms of substantial gainful activity during the period
from August 25, 2012, through July 28, 2014. 1 (TR 25-26). However, the Law Judge

1 In finding disability during this closed period, the Law Judge apparently relied on the fmding that plaintiff's
need to take three or four breaks during a work day rendered her disabled for all forms of substantial gainful activity.
In submissions generated after oral argument in this case, both sides agree that the Law Judge's opinion is properly
interpreted to this effect.

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determined that Mrs. Hess experienced medical improvement as of July 29, 2014, resulting in an
improvement in plaintiffs residual functional capacity. (TR 27). The Law Judge attributed this
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improvement to the implantation of a spinal cord stimulator, which resulted in substantial
remediation of plaintiffs complaints of lower back pain and left leg paresthesia. 2 (TR 27). The
Law Judge determined that, based on this medical improvement, Mrs. Hess regained the capacity
to perform light work activity as of July 29, 2014. (TR 27). Given such a residual functional
capacity, and after considering plaintiffs age, education, and prior work experience, as well as
testimony from a vocational expert, the Law Judge found that beginning ~n July 29,2014,
plaintiff was capable of performing past relevant work as a desk clerk, as well as other lightwork
roles existing in significant number in the national economy. (TR 28-31 ). Accordingly, the Law
Judge ultimately concluded that plaintiffs disability ended on July 29, 2014. See gen., 20 C.F.R.
§§ 404.1594(±)(8) and 416.994(b)(5)(vii). (TR 31). Thus, the Law Judge ruled that Mrs. Hess
was entitled to a closed period ·of disability from the date of alleged disability onset through July .
28, 2014, and that her disability ended July 29, 2014. The Law Judge's opinion was adopted as
the final decision of the Commissioner by the Social Security Administration's Appeals Council.
Having now exhausted all available administrative remedies, Mrs. Hess has appealed to this
court.
2 The Law Judge commented as follows:
.
As noted above, the claimant underwent a spinal cord stimulator implantation on July 15, 2014, She
endorsed ninety-percent relief and actually cut back on her prescribed narcotic medication when seen
on July 28, 2014. The claimant reported some left leg paresthesia when the stimulator was off, but still
reported that she was able to reduce her medications (Exhibit 17F). By Augustl, 2014, the claimant
rated her pain as a two out often, which was noted as a huge improvement (Exhibit 20F). She also
reported that she was trying to stay active and walking daily. The claimant continued to report
significant improvement with the stimulator. She continually reported that she was requiring less
medication. At a follow up on September 22, 20 14, the claimant reported that her stimulator was
working well. When seen on October 31, 2014, the claimant exhibited a full range of motion in her
lumbar spine. Only slight pain was noted with extension and flexion. Good sensation and full motor
strength was observed. While continuing to complain of some left leg issues when her stimulator was
off, the claimant reported improvement when the device was turned on (Exhibits 19F, 21F, 28F, and
29F). (TR 27).

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While plaintiff may be disabled for certain forms of employment, the crucial factual
determination is whether plaintiff is disabled for all forms of substantial gainful employment.
See 42 U.S.C. §§ 423(d)(2) and 1382c(a). There are four elements of proof which must be
considered in making such an analysis. These elements are summarized as follows: (1)
objective medical facts and clinical findings; (2) the opinions and conclusions oftreating
physicians; (3) subjective evidence of physical manifestations of impairments, as described
through a claimant's testimony; and (4) the claimant's education, vocational history, residual
skills, and age. Vitek v. Finch, 438 F.2d 1157, 1159-60 (4th Cir. 1971); Underwood v. Ribicoff,
298 F.2d 850, 851 (4th Cir. 1962).
After a review of the record in this case, the court is constrained to conclude that the
Commissioner's final decision must be affirmed, though based on somewhat different reasoning
than that set forth by the Administrative Law Judge. Without question, the medical record
confirms that Mrs. Hess has a long history of musculoskeletal dysfunction, and associated
symptomatology. Given additional complications caused by plaintiffs significant obesity, she
has also experienced instability while standing and walking, as well as significant pain in her
lower back with radiation into her lower extremities. While her medical providers employed a
variety of treatment modalities in an attempt to relieve her symptoms, the medical record
confirms that Mrs. Hess experienced recurring symptoms both before and after she ceased
working on August 25, 2012. However, as recognized by the Administrative Law Judge,
plaintiff reported substantial improvement following implantation of a spinal cord stimulator in
July of2014. In the weeks following this implantation, Mrs. Hess reported that her pain was less

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severe, and that she was able to reduce her medications. (TR 1063). In August of2014, her
range of motion was said to be normal, with only mild increase in pain with lumbar flexion and
extension. (TR 1127). On October 31, 2014, she again indicated that her back pain had
improved since placement of the stimulator. (TR 1150). On that occasion, Mrs. Hess reported
that she tries to stay active and walkevery day. (TR 1150).
Without question, the court believes that the record supports the Commissioner's critical
determination that the implantation of the spinal cord stimulator substantially relieved many of
plaintiffs subjective complaints, including those which resulted in her need to take breaks during
a regular work day. The court concludes that at least by July 29, 2014, Mrs. Hess possessed
residual functional capacity for sedentary work activity. The court is unable to conclude,
however, that the record supports the notion that Mrs. Hess has ever regained the capacity for
light work activity, as found by the Administrative Law Judge. The medical record establishes
that, despite the implantation of the stimulator, plaintiff continues to experience lower back pain,
instability, and difficulty in ambulation. For example, on May 29, 2015, Mrs. Hess noted "more
weakness and numbness" in her left lower extremity, as well as episodes of falling and tripping.
(TR 1283 ). She continued to complain of pain and numbness through the summer and fall of
2015, and she underwent aCT lumbar and cervical myelogram on September 2, 2015. She was
found to be suffering from some disc bulging and mild degenerative stenosis. (TR 1470). Her
doctors recommended that plaintiff continue to engage in physical exercise. On October 12,
2015, Mrs. Hess reported moderate pain with significant limitation in her ability to walk, sit,
stand, and speak. (TR 1539). In short, despite what all of her treatment providers believe to be
substantial improvement as a result of implantation of the spinal cord stimulator, the record

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simply does not support a finding that plaintiff can now engage in frequent lifting or carrying of
even light objects, or the "good deal of walking or standing" that is contemplated under the
definition oflight work. See 20 C.P.R.§§ 404.1567(b) and 416.967(b). The court concludes
that the Commissioner's determination to the contrary is not supported by substantial evidence.
As set forth above, the court nevertheless concludes that the medical record supports a
finding of residual functional capacity for sedentary work activity, at least as early as July 29,
2014. At the administrative hearing, the vocational expert testified that Mrs. Hess possesses
skills that are transferrable to sedentary work roles, such as data entry clerk and receptionist. (TR
79-81 ). Moreover, given the medical record developed after the implantation of the stimulator,
the court finds no basis upon which to conclude that plaintiffs capacity to perform such
sedentary work roles would be compromised by inordinate need to take breaks during the work
day. The court finds substantial evidence to support the determination that plaintiff regained the
capacity for substantial gainful activity at least as early as July 29, 2014. 3 It follows/ that the final
decision denying entitlement to a period of disability extending beyond July 28, 2014 is
supported by substantial evidence. Thus, the court concludes that the final decision of the
Commissioner in this case must be affirmed.
On appeal to this court, plaintiff, through counsel, makes several cogent arguments in
support of her motion for summary judgment. Mrs. Hess argues that the Law Judge erred in
finding medical improvement. However, as outlined above, the court believes that, without
question, the implantation of the spinal cord stimulator resulted in improvement in plaintiffs

3 While the court has relied on the testimony of the vocational expert in determining that Mrs. Hess retains the
capacity to perform several specific sedentary work roles, the court notes that the same result obtains under the Medical
Vocational Guidelines. See Part 404, Subpart P, Appendix 2, Rules 201.07 (advanced age), and Rule 201.15 (closely
approaching advanced age).
··

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symptomatology, especially in terms of pain, numbness, and impaired ambulation. While it is
true that the medical record also confirms that plaintiffs symptoms were not eliminated, in the
court's view, the medical record overwhelmingly supports the notion that Mrs. Hess suffers less
difficulty than before the implantation. The court concludes that the Commissioner's finding of
medical improvement is supported by substantial evidence.
Mrs. Hess also maintains that the Law Judge failed to properly consider her obesity under
Social Security Ruling 02-lP (September 12, 2002). However, as set forth above, the Law Judge
clearly recognizedplaintiffs obesity as a severe impairment. Moreover, while the court agrees
that plaintiffs obesity, in tandem with her degenerative disc disease, limits her abilitY to stand
and walk, the medical record simply does not support a finding that plaintiffs obesity, which has
persisted for many years, is so severe as to prevent performance of sedentary forms of work
activity for which she is otherwise physically capable. The court concludes that the
Commissioner's final decision correctly contemplates that plaintiffs obesity exacerbates the
effect of her degenerative disc disease. The court finds no basis for remand or reversal of the
Commissioner's final decision based on the Commissioner's treatment of this element of
plaintiffs overall case.
The court fmds some merit in plaintiffs assertion that the Law Judge failed to account for
her syniptoms and subjective complaints, as set forth in her testimony at the administrative
hearing. Mrs. Hess noted that she has difficulty in maintaining her stability while standing, and
that she has problems in ambulation because of numbness and discomfort, especially in the left
lower extremity. She also described continuing pain in her lower back and legs. In the court's
view, plaintiffs testimony in this regard is consistent with the clinical record, and the court

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agrees that the Law Judge did not properly account for such circumstances in finding residual
functional capacity for light exertional activity. However, the court concludes that plaintiff's
testimony in this regard, to the extent supported by the clinical record, is not inconsistent with a
finding of residual functional capacity for sedentary work activity, in which she is able to change
position as necessary. In the court's view, there is no medical evidence developed after July 28,
2014, which supports the notion that plaintiff is unable to engage in sedentary forms of work.
Finally, Mrs. Hess contends that the Law Judge failed to give proper consideration to an
opinion from her treating physician, Dr. Trevar Chapmon. ln a letter dated April27, 2015, the
treating physician, Dr. Chapmon, noted that even after surgery, some back patients are unable to
return to work at the sedentary or light levels because of ongoing complaints. (TR 1226). He
went on to observe that, "so far Frances Hess has not been able to return' to work." (TR 1226).
The Administrative Law Judge determined to give "no weight" to Dr. Chapmon's letter. (TR
28). The court agrees that this is an unfortunate assessment of a treating physician's opinion.
See 20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2). However, the comfbelieves that the
Commissioner might reasonably determine to give· greater weight to the many clinical notes,
including some from Dr. Chapmon, which document plaintiffs improvement following the
implantation of the spinal cord device. It is certainly true that Dr'. Chapmon has not identified
any objective findings which support the determination that Mrs. Hess is disabled for all forms of
work activity. It is well settled that in order for pain to be held disabling, there must be objective
medical evidence establishing some condition that could reasonably be expected to produce the
pain alleged. Craig v. Chater, 76 F.3d 585, 592-93 (4th Cir. 1996); Foster v. Heckler, 780 F.2d
1125, 1129 (4th Cir. 1986). While the court agrees that the objective medical record arguably

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supports a finding that plaintiff cannot be expected to stand or walk for prolonged periods, the
court concludes that the medical evidence, considered as a whole, does not support a finding that
plaintiff suffers from physical problems which are so severe as to produce subjective
manifestations which would prevent performance of sedentary work activity. Even when given
the weight properly accorded input from a treating physician, the court does not believe that Dr.
Chapman's letter bridges this gap in the medical evidence in plaintiffs case.
In affirming the Commissioner's final decision, the court does not suggest that Mrs. Hess
is free of all pain, discomfort, weakness, and physical instability. As reflected above, the medical
record confirms that plaintiff suffers from definite problems which can be expected to result in
subjective limitations. Indeed, the court believes that plaintiffs continuing back problems, even
while not as serious as before the implantation of the spinal cord stimulator, when considered in
combination with her obesity, are so severe as to prevent performance of anything more than
sedentary levels of work. However, it must be recognized that no medical specialist has
suggested that plaintiff is currently unable to perform sedentary forms of work. Indeed, her
doctors have suggested that she increase her physical activity as a means of treating some ofher
subjective problems. It must be recognized that the inability to do work without any subjective
discomfort does not of itself render a claimant totally disabled. Craig v. Chater, supra, at 594-95.
The court concludes that the Commissioner's determination that plaintiff possessed the capacity
to perform some forms of substantial gainful activity as of July 29, 2014 is supported by
substantial evidence.
As a general rule, resolution of conflicts in the evidence is a matter within the province of
the Commissioner even if the court might resolve the conflicts differently. Richardson v. Perales,
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supra; Oppenheim v. Finch, 495 F:2d 396 (4th Cir. 1974). For the reasons stated, the court finds the
Commissioner's resolution of the pertinent conflicts in the record in this case to be supported by
substantial evidence. Accordingly, the final decision of the Commissioner must be affirmed. Laws
v. Celebrezze, supra. An appropriate judgment and order will be entered this day.
The clerk is directed to send certified copies of this opinion to all counsel of record.
DATED: This

:ALf'W

day ofMay, 2017.

~·

ChiefUitedStateSDiSige

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