John L. R. v. Kijakazi
| Decision Date | 29 March 2023 |
| Docket Number | 2:22cv47 |
| Parties | JOHN L. R.,[1] Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration Defendant. |
| Court | U.S. District Court — Eastern District of Virginia |
UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
John R (“plaintiff”) filed this action for review of a decision by the Commissioner (“Commissioner”) of the Social Security Administration (“SSA”) denying his claim for a period of disability and disability insurance benefits (“DIB”) and Supplemental Security Income (“SSI”) benefits under Titles II and XVI of the Social Security Act. See 42 U.S.C §§ 405(g), 1383(c)(3).
An order of reference assigned this matter to the undersigned. ECF No. 11. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rules of the Court, it is recommended that plaintiff's motion for summary judgment (ECF No. 15) be DENIED, and the Commissioner's motion for summary judgment (ECF No. 18) be GRANTED.
Plaintiff protectively filed applications for benefits on February 11, 2019 and June 26, 2020, alleging he became disabled on December 28,2018. R. 264-66,276-84[2] Plaintiff alleges disability for seizures, gastrointestinal bleeding, back injury, right-hand injury, partial paralysis in the right hand, right shoulder problems, and diverticulitis. R. 326. Following the state agency's initial and reconsideration denials of his claims, R. 141—54, 157—73, 180-84, 197-206, plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). R. 140,195-96. ALJ William Pflugrath held a telephonic hearing on July 14, 2021, and issued a decision denying benefits on September 8, 2021. R. 12-82. The Appeals Council denied plaintiffs request for review of the ALJ's decision. R. 1-6. Therefore, ALJ Pflugrath's decision stands as the final decision of the Commissioner for purposes of judicial review. See 42 U.S.C. §§ 405(h), 1383(c)(3); 20 C.F .R. §§ 404.981,416.1481.
Having exhausted administrative remedies, plaintiff filed a complaint on January 31,2022. ECF No. 1. The Commissioner answered on April 4,2022. ECF No. 9. In response to the Court's order, plaintiff and the Commissioner filed motions for summary judgment, with supporting memoranda, on June 8 and July 8, 2022, respectively. ECF Nos. 15-19. Plaintiff replied to the Commissioner's motion on July 29, 2022. ECF No. 20. As no special circumstances exist that require oral argument, the case is deemed submitted for a decision.
Plaintiff argues that the AL J failed to properly evaluate opinion evidence submitted by his treating psychiatrist, Dr. William McDaniel, M.D., and failed to properly develop the record. The Court's review of the facts below is tailored to these arguments.
At a hearing before the ALJ on July 14,2021, plaintiff provided the following information. At the time, the 53-year old lived alone in a two-story townhome for the last two years. R. 47-48. Plaintiff graduated high school and attended one year of college, but did not earn a degree. R. 49. Plaintiff served in the United States National Guard from 1986 to 1989 and the United States Army from 1989 to 1993. Id. While serving in the military, plaintiff injured his hand and was stabbed. R. 50, 54-55. Plaintiff received a 70% disability rating for “brain syndrome” by the Department of Veterans Affairs.[3] R. 46-47. Plaintiff then worked as a plumber for the last 15 years. R. 47, 50-51. As a plumber, plaintiff read schematics, maps, reviewed rules and regulations, worked with customers, and was a working supervisor. R. 50-51. Plaintiff also would lift 25 pounds, climb ladders, and crawl under houses. R. 52-53.
Plaintiff lost his job on December 27,2018, when he had a seizure and fell and reinjured his arm. R. 56-57. Plaintiff then applied for plumbing jobs, but he was never hired. R. 68. Plaintiff stated that his seizures were controlled with medication and his last seizure was December 2020. R. 57-58. Because six months had passed without a seizure, plaintiff began driving to appointments and to the doctor's office. Id.
For his hand injury that occurred while in the Army, plaintiff received physical therapy for his “little finger” and “ring finger on [his] right hand.” R. 58. Plaintiff cannot “fully grip stuff or carry if it's a certain weight with [his] right hand,” but he can pinch with his thumb and index finger. R. 59. Plaintiff also had a shoulder surgery in 1991. R. 60. Although plaintiff could do some heavy work when he was a plumber, over time he could not perform the heavy lifting required by the job. See R. 59-60. Plaintiff also stated that he has “terrible anxiety” from his days in the military and takes “anxiety pills.” R. 63.
Plaintiff wears an arm brace that he has had for two years and previously wore a different brace while he was working. R. 59-60, 65-66. As of the time of the hearing, plaintiff has been unable to lift a gallon of milk with his right hand for about a year due, in part, to arthritis. R. 6667,69. When plaintiff was working as a plumber, he would “put most stuff on a dolly” and would “try to lift 30 or 40 pounds,” but would sometimes be unsuccessful because of his pain. R. 71-72.
As to daily activities, plaintiff testified that he has trouble showering, bathing, cooking, vacuuming, and dusting. See R. 60-61. Starting two months before the hearing, plaintiff has had a home health care worker come to his home. R. 60. Plaintiff testified that he has only recently received this help because “the VA is slow” and “it took them almost three years to get [him]... home health care.” Id.
Plaintiff also has diverticulitis, which was caused by medication. R. 71-72. Plaintiff underwent surgery for diverticulitis and has improved “maybe 20 percent,” but still cannot “eat certain foods or stand for a period of time.” R. 61. Plaintiff said that he has “severe diverticulitis[,]” and it took three years to get surgery because of blood pressure issues. R. 63.
Plaintiff testified that diverticulitis “makes it hard... to perform the way [he wants] to perform in a work environment.” R. 63-64. Plaintiff has bowel movements once every three days and experiences pain in his lower abdomen. R. 64-65. Due to his pain, he has to sit for about “three or four hours a day.” R. 65. Sometimes, his cramps are so bad that he must lay down. Id.
Plaintiffs June 2019 and March 2020 function reports contain similar information. R. 344-51, 365-72. In plaintiffs June 2019 report, he explained that he lives alone and makes breakfast, makes phone calls, goes to appointments, and heats up lunch and dinner. R. 344. He stated that he cannot tie his shoes, cut his hair or beard, and needs help remembering to take his medications. R. 345-46. He indicated that he needs help lifting things up and down the stairs and that his medications make his thinking slow. R. 346-47. Plaintiff reported going to church if he can get someone to drive him and goes to several doctors appointments a month. R. 348. Additionally, plaintiff said that his abilities to lift, remember, complete tasks, concentrate, understand, follow instruction, and use his hands are limited due to his conditions. R. 349. In March 2020, plaintiff stated that he also has difficultly dressing, bathing because of balance issues, feeding himself because he has to use his left hand, and cleaning himself after using the bathroom because he cannot use his right hand. R. 366. Plaintiff adds, in his March 2020 function report, that his ability to reach and kneel are also limited due to his conditions. R. 370. Plaintiff also reported that he gets along with authority figures. R. 371.
Linda Augins, a vocational expert (“VE”), testified at the hearing. R. 73. Based on the ALJ's hypotheticals, VE Augins found that someone with plaintiffs age, education, work history, and residual functional capacity (“RFC”) could not perform plaintiffs past relevant work, but could perform certain light jobs in the national economy, such as a mail sorter, office helper, and routing clerk. R. 73-76. VE Augins further testified that someone who could not lift or carry more than ten pounds with his dominant hand would be relegated to sedentary work. R. 76. When asked if there were any other “existing semi-skilled or skilled jobs in the national economy which the claimant hypothetical might be able to perform in which his actual past work skill[s] would be sufficient to remit new job examples with no more than some adjustment in terms of tools used, work processes, work setting[,] or industry standards,” VE Augins responded no. R. 77. Lastly, VE Augins found that someone who has more than two unscheduled absences per month or who is off-task more than fifteen percent would be precluded from work. Id.
On September 9, 2018, over three months before the alleged disability onset date of December 28, 2018, plaintiff presented at the Sentara Leigh Emergency Department with acute pain in his right shoulder. R. 498. Plaintiff complained of chest pain and shortness of breath, which were unrelated to his shoulder pain. R. 499. Upon examination, plaintiff exhibited tenderness in supraspinatus, decreased range of motion in the right shoulder due to pain, pain during the empty can test on the right shoulder, and “pain on internal rotation with confrontation.” Id. The diagnostic tests revealed no acute findings on the right shoulder and mild acromioclavicular right joint arthropathy. R. 501.
On January 31, 2019, plaintiff presented at the...
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