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

ABINGDON DIVISION MICHAEL ANTHONY BAILEY, ) Plaintiff ) v. ) Civil Action No. 1:16cv00023 ) REPORT AND RECOMMENDATION NANCY A. BERRYHILL,1 ) Acting Commissioner of ) By: PAMELA MEADE SARGENT Social Security, ) United States Magistrate Judge Defendant )

I. Background and Standard of Review Plaintiff, Michael Anthony Bailey, (“Bailey”), 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 by referral pursuant to 28 U.S.C. § 636(b)(1)(B). As

directed by the order of referral, the undersigned now submits the following report

and recommended disposition. 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

1 Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23,

2017. Berryhill is substituted for Carolyn W. Colvin, the previous Acting Commissioner of Social Security.

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“evidence which a reasoning mind would accept as sufficient to support a

particular conclusion. It consists of more than a mere scintilla of evidence but may

be somewhat less than a preponderance.” Laws v. Celebrezze, 368 F.2d 640, 642

(4th Cir. 1966). “‘If there is evidence to justify a refusal to direct a verdict were the

case before a jury, then there is “substantial evidence.”’” Hays v. Sullivan, 907

F.2d 1453, 1456 (4th Cir. 1990) (quoting Laws, 368 F.2d at 642).

The record shows that Bailey previously filed applications for DIB and SSI

on June 25, 2008, alleging disability as of October 1, 2007. (Record, (“R.”), at 130.)

By decision dated November 8, 2010, an ALJ awarded Bailey benefits as part of a

requested closed period from October 1, 2007, through September 1, 2009.2 (R. at

130-38.)3

The record shows that Bailey protectively filed his current applications for

DIB and SSI on July 23, 2012, alleging disability as of September 2, 2009, due to

back and leg problems. (R. at 228-32, 237-38, 253, 257.) The claims were denied

initially and upon reconsideration. (R. at 142-44, 149-51, 155, 157-59, 161-66,

168-70.) Bailey then requested a hearing before an ALJ. (R. at 171.) The ALJ held

a video hearing on September 2, 2014, at which Bailey was represented by

counsel. (R. at 43-71.)

By decision dated October 10, 2014, the ALJ denied Bailey’s claims. (R. at

20-37.) The ALJ found that Bailey met the nondisability insured status

2 Bailey requested a closed period because he started attending a community college on a full-time basis. (R. at 47, 130.)

3 I find that this prior decision is res judicata. In the 2014 decision, the ALJ gave the prior decision some weight. (R. at 34.) The ALJ found that Bailey’s conditions had progressed since the prior decision was issued. (R. at 34.) The ALJ found that a more restricted residual functional capacity was warranted based on objective findings regarding leg weakness and an altered gait. (R. at 34.)

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requirements of the Act for DIB purposes through December 31, 2014.4 (R. at 22.)

The ALJ found that Bailey had not engaged in substantial gainful activity since

September 2, 2009, the alleged onset date. (R. at 22.) The ALJ found that the

medical evidence established that Bailey had severe impairments, namely

degenerative disc disease of the lumbar spine; degenerative joint disease of the

knees; hypertension; fracture of the right wrist; and chronic obstructive pulmonary

disease, (“COPD”), but he found that Bailey 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 23, 25.) The ALJ

found that Bailey had the residual functional capacity to perform sedentary work5

that allowed him to stand every hour; that did not require more than occasional

pushing and pulling, climbing ramps and stairs, stooping, kneeling, crouching,

crawling or reaching overhead; and that did not require use of foot controls or

climbing ladders, ropes or scaffolds, concentrated exposure to excessive vibrations,

operation control of moving machinery, unprotected heights and hazardous

machinery. (R. at 26.) The ALJ found that Bailey was unable to perform his past

relevant work. (R. at 35.) Based on Bailey’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

Bailey could perform, including jobs as an assembler, a polisher and a machine

operator. (R. at 35-36.) Thus, the ALJ concluded that Bailey was not under a

4 Therefore, Bailey had to show that he was disabled between September 2, 2009, the

alleged onset date, and December 31, 2014, the date last insured, in order to be eligible for DIB benefits.

5 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 and standing are required occasionally and other sedentary criteria are met. See 20 C.F.R. §§ 404.1567(a), 416.967(a) (2016).

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disability as defined by the Act, and was not eligible for DIB or SSI benefits. (R. at

37.) See 20 C.F.R. §§ 404.1520(g), 416.920(g) (2016).

After the ALJ issued his decision, Bailey pursued his administrative appeals,

(R. at 14), but the Appeals Council denied his request for review. (R. at 1-5.)

Bailey then filed this action seeking review of the ALJ’s unfavorable decision,

which now stands as the Commissioner’s final decision. See 20 C.F.R. §§ 404.981,

416.1481 (2016). This case is before this court on Bailey’s motion for summary

judgment filed December 7, 2016, and the Commissioner’s motion for summary

judgment filed January 11, 2017.

II. Facts

Bailey was born in 1974, (R. at 49, 228, 237), which classifies him as a

“younger person” under 20 C.F.R. §§ 404.1563(c), 416.963(c). Bailey obtained his

general education development, (“GED”), diploma and has some college

education. (R. at 49-50, 258.) He has past relevant work as a welder. (R. at 52.)

Bailey testified that he was unable to work due to pain in his back, legs and arms.

(R. at 54.)

Victor Baranauskas, Jr., a vocational expert, was present and testified at

Bailey’s September 2014 hearing. (R. at 64-70.) Baranauskas classified Bailey’s

past relevant work as a welder as medium6 to heavy7 skilled work. (R. at 65.)

6 Medium work involves lifting items weighing up to 50 pounds at a time with frequent lifting or carrying of items weighing up to 25 pounds. If an individual can do medium work, he also can do sedentary and light work. See 20 C.F.R. §§ 404.1567(c), 416.967(c) (2016). 7 Heavy work is defined as work that involves lifting no more than 100 pounds at a time with frequent lifting or carrying of objects weighing up to 50 pounds. If an individual can do

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Baranauskas was asked to consider a hypothetical individual of Bailey’s age,

education and work history, who would be limited to light8 work that allowed him

to stand and readjust every 60 minutes; that did not require him to use foot

controls; that did not require more than occasional pushing or pulling, climbing of

ramps or stairs, balancing, stooping, kneeling, crouching, crawling and overhead

reaching; that did not require him to climb ladders, scaffolds or ropes; and that did

not require him to work around concentrated exposure to hazardous machinery,

unprotected heights and vibrations. (R. at 65-66.) Baranauskas stated that the

individual could not perform Bailey’s prior work, but that other jobs were available

existing in significant numbers in the national economy, including those of a light

duty cashier, a housecleaner and an assembler (R. at 66-67.)

Baranauskas was asked to consider the same individual who would be

limited to lifting 10 pounds occasionally; who could stand or walk for two hours in

an eight-hour workday; and sit for up to six hours in an eight-hour workday with

normal breaks. (R. at 67.) Baranauskas stated that these limitations eliminated light

work, but from a sedentary standpoint, there would be jobs existing in significant

numbers that the individual could perform, including jobs as an assembler, a

polisher job and a cashier. (R. at 67-68.) Baranauskas was asked to consider the

same individual who could perform sedentary work that required no more than

occasional decision making or changes in the work setting and that did not require

more than occasional interaction with people, the public or co-workers. (R. at 68-

69.) He stated that there would be no jobs available that such an individual could

perform. (R. at 69.) Baranauskas stated that, should the individual be absent from

heavy work, he also can do sedentary, light and medium work. See 20 C.F.R. §§ 404.1567(d), 416.967(d) (2016). 8 Light work involves lifting items weighing up to 20 pounds at a time with frequent lifting or carrying of items weighing up to 10 pounds. If someone can perform light work, he also can perform sedentary work. See 20 C.F.R. §§ 404.1567(b), 416.967(b) (2016).

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work at least two days a month, competitive employment would be precluded. (R.

at 69.) Baranauskas was asked to consider the same individual, but who would be

limited to occasional or less use of the right hand. (R. at 70.) He stated that the

previously identified jobs would be eliminated. (R. at 70.)

In rendering his decision, the ALJ reviewed records from Dr. Andrew

Bockner, M.D., a state agency physician; Dr. Michael Hartman, M.D., a state

agency physician; Dr. Tony Constant, M.D., a state agency physician; Howard S.

Leizer, Ph.D., a state agency psychologist; Dr. Dia Owens, M.D.; Angella

McClanahan, M.S.W., a counselor; Dr. William Humphries, M.D.; University of

Virginia Health System; Robert C. Miller, Ed.D., a clinical psychologist; Clinch

Valley Medical Center; and Buchanan Therapy Services.

On August 17, 2010, Bailey presented to the emergency room at Clinch

Valley Medical Center following a motor vehicle accident. (R. at 523-29.) X-rays

of Bailey’s lumbar spine showed anterior wedge compression fractures at the L1

and L4 levels and mild retrolisthesis at the L4-L5 levels. (R. at 523, 525.) Bailey

was diagnosed with low back strain and contusion of the left leg. (R. at 527.)

Bailey was treated by Dr. Dia Owens, M.D., a physician with Thompson

Family Health Center, from August 27, 2012, through June 18, 2014, for

complaints of elevated blood pressure; back and lower extremity pain; epigastric

pain; chest pain; shortness of breath; gastrointestinal issues; and dysthymic

disorder. (R. at 324-32, 469-85, 490-93, 532-61, 564-90.) During this time,

Bailey’s breathing was effortless and normal; he had clear and normal breath

sounds bilaterally; he had appropriate judgment; good insight; euthymic mood; and

appropriate affect. (R. at 328, 331, 470, 472, 478, 482, 533, 537, 544, 548, 552,

556, 565, 573, 577.) He was diagnosed with tobacco dependence; lumbago;

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elevated blood pressure; chest pain; shortness of breath; hyperlipidemia; dysthymic

disorder; anxiety; unspecified alcohol dependent episode pattern of use; and

hepatitis C. (R. at 324, 326, 328, 331, 470, 472, 478, 482, 485, 533, 538, 541, 544-

45, 549, 552-53, 557, 566, 574, 577-78.) On October 22, 2012, a chest x-ray

showed COPD. (R. at 325.) That same day, Bailey had a normal EKG. (R. at 328.)

On January 23, 2013, Dr. Owens reported that Bailey’s gait had a slight

limp, and inspection of the spine revealed normal lumbar lodosis, tenderness and

limited range of motion in all directions. (R. at 478.) Straight leg raising tests were

positive. (R. at 478.) Bailey had intact recent and remote memory. (R. at 478.) On

March 7, 2013, Bailey reported that he fell the previous week and injured his left

hand. (R. at 481.) He stated that he was taking hydrocodone instead of Ultram, and

it provided better pain relief. (R. at 481.) On June 5, 2013, Bailey reported that he

had recently been evaluated by a psychologist who diagnosed him with depression,

anxiety, panic attacks and post-traumatic stress disorder, (“PTSD”).9 (R. at 484.)

He stated that he did not want to try medications due to potential side effects, and

he declined referral for counseling. (R. at 484.) Bailey had appropriate judgment,

good insight, and depressed mood with a flat affect. (R. at 485.) On September 4,

2013, Bailey declined antidepressant medication, but agreed to see a counselor for

his depression and anxiety. (R. at 532.) He had appropriate judgment; good insight;

proper orientation; depressed mood; and flat affect. (R. at 533.) Bailey’s left upper

extremity had normal range of motion; no joint instability; mild tenderness; a

freely mobile cyst on the left palm; and no bruising, swelling or discoloration. (R.

at 533.) He was diagnosed with tobacco dependence; lumbago; benign essential 9 On May 23, 2013, Bailey was evaluated by Robert C. Miller, Ed.D., a licensed psychologist. (R. at 461-63.) Miller reported that Bailey’s symptoms of depression were significant and indicated major depressive disorder. (R. at 463.) Miller also noted that Bailey would benefit from psychiatric treatment for PTSD related to a 2007 fall from a two and one-half story building while putting a roof on the building. (R. at 461.) It appears that the record does not contain Miller’s complete report. In particular, it does not contain Miller’s diagnosis of Bailey.

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hypertension; unspecified hyperlipidemia; and dysthymic disorder. (R. at 533.) On

December 27, 2013, it was noted that Bailey did not schedule an appointment for

counseling. (R. at 536.) Dr. Owens reported that Bailey’s gait was normal. (R. at

537.) Examination of Bailey’s thoracic and lumbar spine was normal. (R. at 537.)

Bailey’s mood was depressed with a flat affect. (R. at 537.)

On January 30, 2014, Angella McClanahan, M.S.W., a counselor with

Thompson Family Health Center, saw Bailey for complaints of anxiety and

depression due to pain issues. (R. at 559.) Bailey reported a court ordered

psychiatric hospitalization during his teen years. (R. at 559.) McClanahan reported

that Bailey’s mood was anxious, irritable and depressed with a flat affect. (R. at

559.) He made poor eye contact, and his hygiene and attire also were reported as

poor. (R. at 559.) Bailey admitted having aggressive thoughts toward others. (R. at

559.) No psychosis was present. (R. at 559.) Bailey admitted to past charges for

DUI and possession of mushrooms and marijuana. (R. at 559.) McClanahan

diagnosed unspecified alcohol dependence with episodic pattern of use;

generalized anxiety disorder; and depressive disorder, not elsewhere classified. (R.

at 560.) That same day, Bailey reported to Dr. Owens that counseling was helpful.

(R. at 540.) He refused antidepressant medication. (R. at 540.)

On March 27, 2014, Bailey complained of lower back pain and left leg pain.

(R. at 543.) He stated that his left leg would occasionally “give out on him.” (R. at

543.) Bailey reported that Ultram did not help, but that “Norco has been a ‘God

send.’” (R. at 543.) Dr. Owens reported that Bailey had appropriate judgment,

good insight, euthymic mood and flat affect. (R. at 544.) On April 23, 2014, Bailey

reported that he felt better overall. (R. at 547.) He stated that his pain level was

tolerable. (R. at 547.) Bailey stated that hydrocodone helped, and he reported no

side effects. (R. at 547.) He had a normal gait; appropriate judgment; good insight;

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euthymic mood; and appropriate affect. (R. at 548.) Dr. Owens noted that Bailey’s

mood was much improved. (R. at 548.) On May 21, 2014, Bailey reported that,

overall, his pain was stable. (R. at 551.) He reported that his medications helped

with no side effects. (R. at 551.) Bailey was diagnosed with hepatitis C. (R. at

553.) Bailey had a normal gait; appropriate judgment; good insight; euthymic

mood; and appropriate affect. (R. at 552.) On June 18, 2014, Bailey complained of

back pain and right knee pain. (R. at 555.) He reported that medication helped with

his back pain with no reported side effects. (R. at 555.) Bailey had appropriate

judgment, good insight, euthymic mood and appropriate affect. (R. at 556.) He had

a normal gait, and his right lower extremity had normal range of motion with no

joint instability or swelling and only mild tenderness. (R. at 556.)

On December 18, 2012, Dr. Williams Humphries, M.D., examined Bailey at

the request of Disability Determination Services. (R. at 334-37.) Bailey reported

that he experienced back pain 80 percent of the time and that it was worse with use

of the back, bending, lifting and prolonged sitting and walking. (R. at 335.) He

stated that he could walk up to a quarter of a mile on level ground without

interruption. (R. at 335.) Bailey reported that he smoked a half-pack of cigarettes a

day and consumed a six-pack of beer per week. (R. at 336.) Bailey was cooperative

and related adequately. (R. at 336.) Dr. Humphries reported that Bailey was

oriented; had normal speech; normal thought content, memory and intelligence;

and appropriate affect and grooming. (R. at 336.) Examination of Bailey’s back

revealed tenderness to palpation. (R. at 336.) No significant kyphosis, scoliosis or

spasm was noted. (R. at 336.) Examination of Bailey’s upper extremity joints

revealed no significant tenderness or deformity, except the right distal radius was

slightly tender to palpation. (R. at 336.) The lower extremity joints revealed no

significant tenderness or deformity, except the anterior proximal left tibial region

was tender to palpation. (R. at 336.) He had nearly full grip strength on the right

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and full grip strength on the left. (R. at 336.) Bailey had decreased range of motion

in the cervical and lumbar spine, as well as the right hip and right wrist. (R. at

334.) His lungs were clear with equal breath sounds. (R. at 337.) Bailey had a

mildly antalgic gait, but did not require an assistive device. (R. at 336.) No tremors

or involuntary movements were observed, except for a mild tremor with

outstretched hands. (R. at 336.) Bailey could perform fine manipulation

adequately. (R. at 336.) He had a mild sensory loss to light touch in the left thigh,

but no other motor or sensory deficits were observed. (R. at 337.) Dr. Humphries

diagnosed hypertension; post-traumatic degenerative joint disease of the left knee;

post-traumatic degenerative joint disease of the lumbar spine status-post remote

compression fracture; post-traumatic degenerative joint disease of the right wrist;

and moderate degenerative joint disease of both feet. (R. at 337.)

Dr. Humphries opined that Bailey could sit up to six hours in an eight-hour

workday; stand and walk six hours in an eight-hour workday; occasionally lift

items weighing up to 20 pounds and up to 10 pounds frequently; occasionally

climb, stoop, kneel and crouch; never crawl or work around heights and hazards;

he could not perform frequent left foot controls or frequent right hand controls; and

a no-fumes restriction was noted. (R. at 337.)

On December 27, 2012, Bailey was seen at the Spine Center at University of

Virginia Health System, (“Spine Center”), for evaluation of his low back and leg

pain. (R. at 342-43.) He also reported lower extremity weakness, stating that his

right leg would give out on him. (R. at 342.) Bailey reported that he had suffered

with low back pain since 2001, which was exacerbated by a fall in 2007, at which

point he sustained multiple fractures in his back, wrist and left tibia. (R. at 342.)

Bailey reported that he smoked a half-pack of cigarettes a day and consumed a six-

pack of beer per week. (R. at 342.) Upon examination, Bailey ambulated without

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aids; he was able to toe and heel walk without difficulty; he had very decreased

range of motion of his back with both flexion and extension secondary to pain; he

had normal strength and intact sensation in his lower extremities; and negative

seated straight leg raising tests. (R. at 342.) X-rays of Bailey’s lumbar spine

showed age-indeterminate compression deformities at the L4 and L1 vertebral

bodies and approximately 50 percent loss of vertebral body height at L4. (R. at

342.) It was noted that Bailey was in stable condition with no concerning “red flag

signs or symptoms.” (R. at 343.)

On January 10, 2013, Bailey was seen for follow up at the Spine Center with

continued complaints of back and leg pain. (R. at 389.) He walked with a normal

gait and demonstrated good strength in his lower extremities. (R. at 389.) An MRI

of Bailey’s lumbar spine showed a chronic compression fracture involving the L4

level with a 40 percent disc height loss and minimal osseous retropulsion in

conjuction with degenerative change and superimposed mild retrolisthesis at the

L4-L5 levels with mild spinal canal stenosis and moderate bilateral neural

foraminal stenosis. (R. at 389, 457.) On February 5, 2013, Bailey was in no

apparent distress, he ambulated without aids and walked with a normal gait. (R. at

388.) An MRI of Bailey’s lumbar spine showed mild spinal stenosis at the L4-L5

level and moderate neural foraminal stenosis. (R. at 388.) It was noted that

Bailey’s pain was likely related to degenerative disc disease. (R. at 388.)

Conservative treatment was recommended in lieu of surgery. (R. at 388-89.) On

February 18, 2013, Bailey underwent left tibia hardware removal for injuries

sustained in a 2007 fall. (R. at 429, 434-36.) On March 8, 2013, Bailey reported

that his back pain was stable, and his leg pain had improved. (R. at 372, 374.) He

also reported that he had recently fallen and fractured his left ring finger. (R. at

372, 481.) Bailey stated that his pain medications had been changed and were more

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effective. (R. at 481.) On March 25, 2013, Bailey underwent surgery to his left ring

finger to repair the fracture. (R. at 359-61.)

In April 2013, Bailey was doing well following surgery to his left ring

finger. (R. at 350.) He reported that the medication controlled his pain. (R. at 350.)

Examination showed moderate edema of the left ring finger and decreased

sensation to light touch at the fingertip. (R. at 350.) X-rays showed excellent

alignment of the fracture and intact hardware. (R. at 350.) Bailey was referred to

hand therapy for a splint and instruction on gentle range of motion. (R. at 350.) In

May 2013, Bailey reported that he was doing well and using his hand for different

activities, including playing his guitar. (R. at 396.) In August 2013, Bailey reported

pain radiating into his legs after mowing his yard. (R. at 500.) He ambulated with a

normal gait. (R. at 501.) Examination of Bailey’s lumbar spine showed no

tenderness, mass or bony abnormalities; full extension; painless range of motion of

his hips; intact sensation; full lower extremity strength; and negative straight leg

raising tests. (R. at 501-02.) He again was advised that surgical intervention was

not a good option, and Bailey agreed to a referral for therapy. (R. at 502.) In

October 2013, Bailey reported back pain and bilateral leg pain. (R. at 593.)

Bailey’s breathing was effortless and normal with no respiratory distress noted. (R.

at 596.) He had a normal mood and affect. (R. at 596.) His lumbar spine range of

motion was decreased with moderate tenderness. (R. at 596.) Facet joint injections

were planned for Bailey’s low back pain, and he had the first injection on October

31, 2013. (R. at 601-02.)

On January 7, 2013, Dr. Andrew Bockner, M.D., a state agency physician,

reported that the record did not indicate that Bailey suffered from a mental

impairment. (R. at 76-77.) Dr. Bockner noted that, while Bailey’s activities of

daily living showed that he had some difficulties dealing with others, there was no

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formal mental health treatment, recommendation or indications that mental status

examinations were outside of normal limits. (R. at 77.)

On January 7, 2013, Dr. Michael Hartman, M.D., a state agency physician,

completed a medical assessment, indicating that Bailey had the residual functional

capacity to perform light work. (R. at 78-80.) Dr. Hartman found that Bailey would

be limited in his ability to push and pull with his left lower extremity. (R. at 78.)

He opined that Bailey could occasionally climb ramps and stairs, balance and stoop

and never climb ladders, ropes or scaffolds, kneel, crouch or crawl. (R. at 79.) No

manipulative, visual or communicative limitations were noted. (R. at 79.) Dr.

Hartman opined that Bailey should avoid concentrated exposure to extreme cold,

wetness and hazards, such as machinery and heights. (R. at 79-80.)

On May 23, 2013, Robert C. Miller, Ed.D., a clinical psychologist, evaluated

Bailey at the request of Bailey’s attorney. (R. at 461-63.) Bailey reported that he

attempted to return to school in 2009, but it was difficult for him to sit for long

periods of time due to pain. (R. at 462.) He stated that financial aid was not

available if he attended school part-time, and he could no longer afford to attend.

(R. at 462.) No observable physical abnormalities were noted. (R. at 462.) Miller

reported that Bailey’s basic grooming and hygiene were good; his gait and motor

coordination were slow; his overall personal pace was slow; his posture was rigid;

his speech was within normal limits and understandable; he appeared groggy and

tired; his mood was anxious and depressed; he had good eye contact; his speech

was logical and coherent; his recent and remote memory were normal; his

judgment was fair; he had disturbing thoughts due to stress, but was able to control

them; and his attention and concentration was characterized by distractibility as

evidenced by his difficulties sustaining concentration when completing the

Minnesota Multphasic Personality Inventory, (“MMPI-2”). (R. at 462-63.) The

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Wechsler Adult Intelligence Scale - Fourth Edition, (“WAIS-IV”), was

administered, and Bailey obtained a full-scale IQ score of 101. (R. at 463.) Miller

reported that Bailey’s symptoms of depression were significant and indicated

major depressive disorder. (R. at 463.) He also reported that Bailey endorsed

symptoms of anxiety, including racing heartbeat. (R. at 463.) Miller noted that

Bailey would benefit from psychiatric treatment for PTSD.10 (R. at 461.) As

previously indicated, the record does not contain Miller’s complete report. In

particular, it does not contain Miller’s diagnosis.

On June 5, 2013, Miller completed a mental assessment, indicating that

Bailey had moderate11 limitations in his ability to understand, remember and carry

out short, simple instructions and to make judgments on simple work-related

decisions. (R. at 465-66.) He opined that Bailey had marked12 limitations in his

ability to understand, remember and carry out detailed instructions; to interact

appropriately with the public, supervisors and co-workers; to respond appropriately

to work pressures in a usual work setting; and to respond appropriately to changes

in a routine work setting. (R. at 465-66.)

On September 24, 2013, Howard S. Leizer, Ph.D., a state agency

psychologist, completed a Psychiatric Review Technique form, (“PRTF”), finding

that Bailey had mild limitations in his activities of daily living; experienced mild

difficulties in maintaining social functioning; experienced no difficulties in

maintaining concentration, persistence or pace; and had experienced no repeated

episodes of decompensation of extended duration. (R. at 103-04.) Leizer noted 10 Miller based this recommendation on Bailey’s report of a 2007 fall from a two and one-half story building while putting a roof on the building. (R. at 461.)

11 Moderate limitation is defined as a satisfactory ability to function. (R. at 465.) 12 Marked limitation is defined as severely limited, but not precluded. (R. at 465.)

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that, while Bailey had some depression and anxiety, he was not receiving mental

health treatment, and there was no record of psychiatric hospitalization or mental

status disturbances documented. (R. at 104.) He opined that Bailey was capable of

performing work at all levels. (R. at 104.)

On September 24, 2013, Dr. Tony Constant, M.D., a state agency physician,

completed a medical assessment, indicating that Bailey had the residual functional

capacity to perform light work. (R. at 105-07.) Dr. Constant found that Bailey

would be limited in his ability to push and pull with his left lower extremity. (R. at

105.) He opined that Bailey could frequently climb ramps and stairs and balance

and occasionally climb ladders, ropes or scaffolds, stoop, kneel, crouch and crawl.

(R. at 105-06.) No manipulative, visual or communicative limitations were noted.

(R. at 106.) Dr. Constant opined that Bailey should avoid concentrated exposure to

vibration and hazards, such as machinery and heights. (R. at 106.)

On August 25, 2014, Christie S. Plymal, M.P.T., a physical therapist with

Buchanan Therapy Services, saw Bailey for left knee and right wrist pain. (R. at

631-34.) Plymal reported that Bailey ambulated with a mild to moderate limp, and

he frequently changed positions while sitting. (R. at 632.) Bailey had normal range

of motion of both knees, but his left knee strength was mildly reduced. (R. at 632.)

Bailey had limited range of motion of the lumbar spine, normal range of motion of

the right wrist and mildly reduced right wrist strength. (R. at 632.) Plymal noted

that Bailey had several progressive diseases that affected his breathing, mental

status and overall health, which would worsen with time. (R. at 633.)

Plymal completed a medical assessment, indicating that Bailey could

occasionally lift and carry items weighing up to 25 pounds and frequently lift and

carry items weighing up to 10 pounds. (R. at 635-38.) She opined that Bailey could

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stand and/or walk at least two hours in an eight-hour workday. (R. at 635.) Plymal

noted that Bailey must periodically alternate sitting and standing to relieve pain or

discomfort. (R. at 636.) She found that Bailey was limited in his ability to push and

pull with his upper and lower extremities due to weakness in the right upper

extremity and left lower extremity. (R. at 636.) Plymal found that Bailey could

occasionally balance, kneel, crouch and stoop and never climb or crawl. (R. at

636.) She found that Bailey could occasionally reach and handle and that he had

limited ability to work around temperature extremes; noise; dust; vibration;

humidity/wetness; hazards; and fumes, odors, chemicals and gases. (R. at 637-38.)

III. Analysis

The Commissioner uses a five-step process in evaluating DIB and SSI

claims. See 20 C.F.R. §§ 404.1520, 416.920 (2016). See also Heckler v. Campbell,

461 U.S. 458, 460-62 (1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981).

This process requires the Commissioner to consider, in order, whether a claimant

1) is working; 2) has a severe impairment; 3) has an impairment that meets or

equals the requirements of a listed impairment; 4) can return to his past relevant

work; and 5) if not, whether he can perform other work. See 20 C.F.R. §§

404.1520, 416.920. If the Commissioner finds conclusively that a claimant is or is

not disabled at any point in this process, review does not proceed to the next step.

See 20 C.F.R. §§ 404.1520(a), 416.920(a) (2016).

Under this analysis, a claimant has the initial burden of showing that he is

unable to return to his past relevant work because of his impairments. Once the

claimant establishes a prima facie case of disability, the burden shifts to the

Commissioner. To satisfy this burden, the Commissioner must then establish that

the claimant has the residual functional capacity, considering the claimant’s age,

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education, work experience and impairments, to perform alternative jobs that exist

in the national economy. See 42 U.S.C.A. §§ 423(d)(2)(A), 1382c(a)(3)(A)-(B)

(West 2011 & West 2012); McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir.

1983); Hall, 658 F.2d at 264-65; Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir.

1980).

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 his findings and his rationale in crediting evidence. See

Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).

Thus, it is the ALJ’s responsibility to weigh the evidence, including the

medical evidence, in order to resolve any conflicts which might appear therein.

See Hays, 907 F.2d at 1456; Taylor v. Weinberger, 528 F.2d 1153, 1156 (4th Cir.

1975). Furthermore, while an ALJ may not reject medical evidence for no reason

or for the wrong reason, see King v. Califano, 615 F.2d 1018, 1020 (4th Cir. 1980),

an ALJ may, under the regulations, assign no or little weight to a medical opinion,

even one from a treating source, based on the factors set forth at 20 C.F.R. §§

404.1527(c), 416.927(c), if he sufficiently explains his rationale and if the record

supports his findings.

Bailey argues that the ALJ erred by failing to find that he suffered from a

severe mental impairment. (Brief In Support Of Plaintiff’s Motion For Summary

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Judgment, (“Plaintiff’s Brief”), at 4-5.) Bailey also argues that the ALJ erred by

failing to properly assess his pain and credibility. (Plaintiff’s Brief at 5-6.)

Bailey argues that the ALJ erred by failing to find that he suffered from a

severe mental impairment. (Plaintiff’s Brief at 4-5.) The Social Security

regulations define a “nonsevere” impairment as an impairment or combination of

impairments that does not significantly limit a claimant’s ability to do basic work

activities. See 20 C.F.R. §§ 404.1521(a), 416.921(a) (2016). Basic work-related

mental activities include understanding, remembering and carrying out job

instructions, use of judgment, responding appropriately to supervision, co-workers

and usual work situations and dealing with changes in a routine work setting. See

20 C.F.R. § 404.1521(b), 416.921(b). The Fourth Circuit held in Evans v. Heckler,

that “‘“[a]n impairment can be considered as ‘not severe’ only if it is a slight

abnormality which has such a minimal effect on the individual that it would not be

expected to interfere with the individual’s ability to work, irrespective of age,

education, or work experience.”’” 734 F.2d 1012, 1014 (4th Cir. 1984) (quoting

Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984) (citations omitted). Although

the Social Security regulations do not define the term “significant,” this court

previously has held that it must give the word its commonly accepted meanings,

among which are, “having a meaning” and “deserving to be considered.”

Townsend v. Heckler, 581 F. Supp. 157, 159 (W.D. Va. 1983). In Townsend, the

court also noted that the antonym of “significant” is “meaningless.” See 581 F.

Supp. at 159.

The ALJ found that Bailey had no more than mild limitation in his activities

of daily living and that Bailey’s reports of limitations were generally secondary to

his pain complaints. (R. at 23, 34.) Bailey reported that he could care for his

personal needs, perform some chores, cook simple meals, shop and mow the lawn

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at times (R. at 23, 55-57, 277-78.) The ALJ also found that Bailey had mild

limitation in social functioning. (R. at 23.) As the ALJ explained, although Bailey

reported some issues getting along with family members, friends and neighbors

due to irritability secondary to pain, he did not display any aberrant behavior

throughout the record. (R. at 24, 280.) Bailey received little mental health

treatment and showed improvement in his reported symptoms after a single

counseling session. (R. at 23, 540, 543-61). Additionally, as the ALJ pointed out,

Bailey refused medications, and due to the lack of reported symptoms throughout

the record, the ALJ found that Bailey had no more than a mild limitation in this

area of mental functioning. (R. at 24, 484, 532). With respect to concentration,

persistence or pace, the ALJ acknowledged Bailey’s complaint of not finishing

what he started, but Bailey also reported that he could pay attention for a couple of

hours at a time and follow instructions. (R. at 24, 279-80.) The ALJ also noted that

Bailey received a full-scale IQ score of 101 and displayed no problems with

memory. (R. at 24, 462-63).

The ALJ noted that he was giving Miller’s opinion little weight because it

was not supported by the medical record. (R. at 34.) The ALJ noted that Bailey did

not complain of mental health symptoms to his primary care physician until after

he was seen by Miller. (R. at 34, 461-63, 484.) The ALJ noted that, although

Bailey exhibited a depressed mood and a flat affect, he refused medication and

counseling. (R. at 34, 484-85, 532-33, 536-37.) In fact, Bailey did not see a

counselor until seven months after his evaluation with Miller. (R. at 461-63, 540.)

The record shows that, even without psychotropic medication, improvement was

continually noted in Bailey’s mood. (R. at 34, 544, 548, 552, 556.) Additionally,

state agency psychologist Leizer determined that Bailey’s anxiety and affective

disorders resulted in mildly restricted activities of daily living and mild difficulties

in social functioning, but no difficulties with concentration, persistence or pace. (R.

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at 103.) The ALJ, therefore, gave greater weight to the state agency consultants.

(R. at 34.) Therefore, I find that substantial evidence exists to support the ALJ’s

weighing of the medical evidence in determining that Bailey did not suffer from a

severe mental impairment.

I do not, however, find that substantial evidence exists to support the ALJ’s

finding with regard to Bailey’s physical residual functional capacity. The ALJ

found that Bailey had the residual functional capacity to perform sedentary work

that allowed him to stand every hour; that did not require more than occasional

pushing and pulling, climbing ramps and stairs, stooping, kneeling, crouching,

crawling or reaching overhead; and that did not require use of foot controls or

climbing ladders, ropes or scaffolds, concentrated exposure to excessive vibrations,

operation control of moving machinery, unprotected heights and hazardous

machinery. (R. at 26.) Based on my review of the record, in December 2012 and

August 2014, it was noted that Bailey could not perform frequent right hand or left

foot controls and that his ability to push and pull was limited in his upper and

lower extremities, limiting him to only occasional reaching and handling. (R. at

337, 636-38.) While the ALJ noted these limitations in his decision, he failed to

address these limitations in his findings. (R. at 29, 33, 35.) Furthermore, the only

limitations posed to the vocational expert pertaining to Bailey’s ability to use his

upper extremities was the limitation of occasional overhead reaching and

occasional pushing and pulling. (R. at 65-70.)

It is well-settled that, in determining whether substantial evidence supports

the ALJ’s decision, the court must consider whether the ALJ analyzed all of the

relevant evidence and whether the ALJ sufficiently explained his findings and his

rationale in crediting evidence. See Sterling Smokeless Coal Co., 131 F.3d at 439-

40. “[T]he [Commissioner] must indicate explicitly that all relevant evidence has

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been weighed and its weight.” Stawls v. Califano, 596 F.2d 1209, 1213 (4th Cir.

1979). “The courts … face a difficult task in applying the substantial evidence test

when the [Commissioner] has not considered all relevant evidence. Unless the

[Commissioner] has analyzed all evidence and has sufficiently explained the

weight he has given to obviously probative exhibits, to say that his decision is

supported by substantial evidence approaches an abdication of the court’s ‘duty to

scrutinize the record as a whole to determine whether the conclusions reached are

rational.’” Arnold v. Sec’y of Health, Educ. & Welfare, 567 F.2d 258, 259 (4th Cir.

1977) (quoting Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974)). In this

case, the ALJ’s opinion stated that he was giving “some” and “greater” weight to

the opinions of the healthcare providers who placed restrictions on Bailey’s ability

to handle. (R. at 34-35.) Nonetheless, the ALJ did not include this restriction in his

physical residual functional capacity finding. Thus, I do not find that substantial

evidence exists to support the ALJ’s finding with regard to Bailey’s residual

functional capacity. Based on this finding, I will not address Bailey’s remaining

argument.

PROPOSED FINDINGS OF FACT

As supplemented by the above summary and analysis, the undersigned now

submits the following formal findings, conclusions and recommendations:

1. Substantial evidence exists in the record to support the

ALJ’s finding that Bailey did not suffer from a severe mental impairment;

2. Substantial evidence does not exist in the record to

support the ALJ’s finding with regard to Bailey’s physical residual functional capacity; and

3. Substantial evidence does not exist in the record to

support the Commissioner’s finding that Bailey was not

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disabled under the Act and was not entitled to DIB and SSI benefits.

RECOMMENDED DISPOSITION

The undersigned recommends that the court deny Bailey’s motion for

summary judgment, deny the Commissioner’s motion for summary judgment,

vacate the Commissioner’s decision denying benefits and remand Bailey’s claim to

the Commissioner for further development.

Notice to Parties

Notice is hereby given to the parties of the provisions of 28 U.S.C.A. §

636(b)(1)(C) (West 2006 & Supp. 2016):

Within fourteen days after being served with a copy [of this Report and Recommendation], any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. Failure to file timely written objections to these proposed findings and

recommendations within 14 days could waive appellate review. At the conclusion

of the 14-day period, the Clerk is directed to transmit the record in this matter to

the Honorable James P. Jones, United States District Judge.

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The Clerk is directed to send certified copies of this Report and

Recommendation to all counsel of record at this time.

DATED: July 19, 2017.

s/ Pamela Meade Sargent UNITED STATES MAGISTRATE JUDGE