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

Danville Division

DANNY SPURLOCK, ) Plaintiff, ) ) Civil Action No. 4:16-cv-53

v. ) ) REPORT AND RECOMMENDATION

COMMISSIONER OF ) SOCIAL SECURITY, ) By: Joel C. Hoppe Defendant. ) United States Magistrate Judge

Plaintiff Danny Spurlock asks this Court to review the Commissioner of Social Security’s

(“Commissioner”) final decision denying his application for supplemental security income

(“SSI”) under Title XVI of the Social Security Act (the “Act”), 42 U.S.C. §§ 1381–1383f. The

case is before me by referral under 28 U.S.C. § 636(b)(1)(B). ECF No. 12. Having considered

the administrative record, the parties’ briefs, and the applicable law, I find that the

Commissioner’s decision is supported by substantial evidence. Therefore, I recommend that the

Court deny Spurlock’s Motion for Summary Judgment, ECF No. 13, grant the Commissioner’s

Motion for Summary Judgment, ECF No. 15, and affirm the Commissioner’s final decision.

I. Standard of Review

The Social Security Act authorizes this Court to review the Commissioner’s final

decision that a person is not entitled to disability benefits. See 42 U.S.C. § 405(g); Hines v.

Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). The Court’s role, however, is limited—it may not

“reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment” for

that of agency officials. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Instead, a court

reviewing the merits of the Commissioner’s final decision asks only whether the Administrative

Law Judge (“ALJ”) applied the correct legal standards and whether substantial evidence supports

the ALJ’s factual findings. Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011); see also Riley v.

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Apfel, 88 F. Supp. 2d 572, 576 (W.D. Va. 2000) (citing Melkonyan v. Sullivan, 501 U.S. 89, 98–

100 (1991)).

“Substantial evidence” means “such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). It is

“more than a mere scintilla” of evidence, id., but not necessarily “a large or considerable amount

of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence review takes

into account the entire record, and not just the evidence cited by the ALJ. See Universal Camera

Corp. v. NLRB, 340 U.S. 474, 487–89 (1951); Gordon v. Schweiker, 725 F.2d 231, 236 (4th Cir.

1984). Ultimately, this Court must affirm the ALJ’s factual findings if “conflicting evidence

allows reasonable minds to differ as to whether a claimant is disabled.” Johnson v. Barnhart, 434

F.3d 650, 653 (4th Cir. 2005) (per curiam) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir.

1996)). However, “[a] factual finding by the ALJ is not binding if it was reached by means of an

improper standard or misapplication of the law.” Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir.

1987).

A person is “disabled” if he or she is unable to engage in “any substantial gainful activity

by reason of any medically determinable physical or mental impairment which can be expected

to result in death or which has lasted or can be expected to last for a continuous period of not less

than twelve months.” 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). Social Security ALJs

follow a five-step process to determine whether an applicant is disabled. The ALJ asks, in

sequence, whether the applicant (1) is working; (2) has a severe impairment; (3) has an

impairment that meets or equals an impairment listed in the Act’s regulations; (4) can return to

his or her past relevant work based on his or her residual functional capacity; and, if not (5)

whether he or she can perform other work. See Heckler v. Campbell, 461 U.S. 458, 460–62

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(1983); 20 C.F.R. § 416.920(a)(4). The applicant bears the burden of proof at steps one through

four. Hancock, 667 F.3d at 472. At step five, the burden shifts to the agency to prove that the

applicant is not disabled. See id.

II. Procedural History

Spurlock protectively filed his SSI application on October 30, 2012, alleging disability

caused by back and leg problems, left leg surgery resulting in removal of nerve and muscle,

obesity, breathing problems, and lower right lung difficulties. Administrative Record (“R.”) 62,

ECF No. 9. Disability Determination Services (“DDS”), the state agency, denied his claim at the

initial, R. 62–72, and reconsideration stages, R. 74–84. Spurlock then requested a hearing before

an ALJ. R. 103–05. Prior to the hearing, Spurlock moved to amend his onset date to October 30,

2012, the date of his filing, at which time he was forty-two years old. R. 133; see also R. 62.

Spurlock appeared with counsel and testified at an administrative hearing before ALJ R. Neely

Owen on March 10, 2015. R. 33–61. A vocational expert (“VE”) also appeared and testified as to

the nature of Spurlock’s past work and ability to perform other jobs in the local and national

economies. R. 51–60.

ALJ Owen denied Spurlock’s SSI claim in a written decision dated May 27, 2015. R. 17–

27. The ALJ first found that Spurlock had not engaged in substantial gainful activity after the

alleged onset date. R. 19. He determined that Spurlock had severe impairments of

“discogenic/degenerative back disorder, chronic airway obstruction (not otherwise specified),

and obesity.” Id. All other impairments, including hypertension, gastroesophageal reflux

diseases, bone island of the proximal tibial metaphysis, hyperlipidemia, and diabetes mellitus,

were deemed non-severe. Id. ALJ Owen then concluded that none of these impairments, alone or

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in combination, met or medically equaled the severity of a listed impairment. R. 20. He

specifically considered Listings 1.00Q, 1.04, and 3.02A. Id.

The ALJ next addressed Spurlock’s residual functional capacity (“RFC”).1 R. 21–25.

ALJ Owen determined that Spurlock could perform light work2 as defined in the regulations,

except that he could stand and/or walk (with normal breaks) for a total of four hours. R. 21. The

ALJ also found that Spurlock had postural limitations in that he could frequently balance and

occasionally stoop, kneel, crouch, crawl, and climb ramps and stairs, but he could never climb

ladders, ropes, or scaffolds. Id. Because of this RFC, Spurlock could not perform any of his past

relevant work. R. 25. Spurlock could, however, perform other light jobs that existed in

significant numbers in the Virginia and national economies, including cashier with a sit/stand

option, parking lot attendant, and gate guard. R. 26–27. The VE testified that based on his

experience in the field these jobs, despite conflicting with the information contained in the

Dictionary of Occupational Titles (“DOT”), would be available for an individual with the same

age, education, work experience, and residual functional capacity as Spurlock. Id.; see also R.

54–57. The ALJ thus concluded that Spurlock was not disabled. R. 27. The Appeals Council

denied Spurlock’s request for review, R. 1–3, and this appeal followed.

III. Facts

A. Relevant Medical Evidence

Before the alleged onset date, on April 16, 2012, Spurlock presented to Earle Moore,

M.D., for a refill of his pain medications. R. 235. Dr. Moore assessed chronic back pain with

1 A claimant’s RFC is the most he can do on a regular and continuing basis despite his impairments. 20 C.F.R. § 416.945(a); SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996). 2 “Light” work involves lifting no more than twenty pounds at a time, but frequently lifting objects weighing ten pounds. 20 C.F.R. § 416.967(b). A person who can meet these lifting requirements can perform light work only if he also can “do a good deal of walking or standing, or do some pushing and pulling of arm or leg controls while sitting.” Hays v. Sullivan, 907 F.2d 1453, 1455 n.1 (4th Cir. 1990).

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radiation, controlled. R. 236. On October 16, Spurlock returned to Dr. Moore complaining of a

cough at night with purulent sputum and associated shortness of breath for the past two months.

R. 238. On examination, Dr. Moore observed abnormal respiratory effort, abnormal breath

sounds, and wheezing, but no rales or rhonchi. Id. He assessed bronchitis (acute, moderate) and

ordered a chest X-ray. R. 239. The chest X-ray was performed on October 18 at Halifax

Regional Hospital (“Halifax Regional”). R. 230. It revealed bronchial wall thickening, normal

cardiac silhouette upper limits, no edema, and no confluent consolidation effusion or

pneumothorax. Id.

After the alleged onset date, Spurlock presented for a consultative examination with

Salman Gohar, M.D., on March 27, 2013. R. 245–49. Dr. Gohar noted that Spurlock alleged

disability because of back and leg problems, obesity, breathing problems, right lower leg

thickness, difficulty walking, and high blood pressure. R. 245. Spurlock reported that his chronic

back pain was in the mid-lower part of his back and had been present for five years. Id. He

described the pain as constant, shooting, and stabbing, and he noted that it radiated down his

right lower extremity into his foot. Id. Standing and sitting for prolonged periods aggravated his

back pain, and rest, lying down, and pain medications, including hydrocodone, Soma, and

aspirin, alleviated it. Id. His chronic left leg pain and symptoms stemmed from a brown-recluse

spider bite in 2007, which caused skin necrosis and required surgery. R. 245–46. Spurlock

continued to feel weakness in his left leg, but denied any falls or instability. R. 246. Spurlock

also reported chronic shortness of breath and dyspnea on exertion when walking about twenty to

fifty feet. Id. His symptoms had progressively worsened over the previous six months. Id. He

also experienced shortness of breath at night, including paroxysmal nocturnal dyspnea. Id.

Spurlock could not sleep on his back and usually slept for one-and-a-half to two hours. Id.

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Spurlock smoked at least one pack of cigarettes a day for the past twenty-five years, and he had

not undergone pulmonary function testing at that time. Id. Spurlock was also morbidly obese and

reported that he had gained 150 pounds after the spider bite. Id. Further, Spurlock informed Dr.

Gohar that he lived alone in an apartment and could feed, bathe, and dress himself, but he did not

do any dishes, vacuuming, mopping, or yard work. Id. He stated that he spent most of his days

sitting around watching television. Id.

On physical examination, Dr. Gohar observed Spurlock walk with mild discomfort,

although he walked without difficulty or the need of an assistive device and in a straight line

without losing his balance. R. 247–48. Spurlock had mild difficulty getting on and off the exam

table and with removing his clothing because of his obesity. R. 247. He developed marked

shortness of breath, facial erythema, and flushing while lying flat on the bed. R. 248. He

measured at 5 feet 10 inches and weighed 389 pounds. R. 247. His lungs were clear to

auscultation, but had occasional rhonchi scattered in both lung fields. Id. His abdomen was

morbidly obese, nontender, and nondistended with positive bowel sounds. Id. There was no

edema, cyanosis, or clubbing in the extremities. Id. Dr. Gohar also performed range of motion

testing. Flexion, extension, rotation, and lateral flexion were within normal limits for Spurlock’s

cervical spine. R. 248. In the thoracolumbar spine, flexion was forty degrees because of his

obesity, extension was about twenty degrees, and lateral flexion and rotation were about fifteen

degrees bilaterally. Id. Range of motion of the shoulders, elbows, wrists, hands, thumbs, and

fingers were within normal limits. Id. For the hips, abduction was thirty degrees bilaterally,

adduction was about ten degrees bilaterally, flexion was fifty degrees on the right and sixty

degrees on the left, extension was thirty degrees on the right and ten degrees on the left, internal

rotation was thirty-five degrees bilaterally, and external rotation was thirty degrees bilaterally.

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Id. Knee flexion and extension were mildly decreased bilaterally. Id. Spurlock displayed 5/5

strength in the upper and lower extremities, including hand grip. Id. Brachial, brachioradialis,

and patella reflexes were 1/4 bilaterally. Id. Sensation was intact in all four extremities in all

dermatomal distributions grossly. Id.

Dr. Gohar assessed chronic back pain without radicular pain symptoms, morbid obesity,

suspected sleep apnea, hypertension, and tobacco abuse. Id. As for Spurlock’s functional

limitations, Dr. Gohar opined that Spurlock could stand for about six hours in an eight-hour

workday, walk less than six hours with frequent breaks in an eight-hour workday, and sit for six

hours in an eight-hour workday. R. 248–49. Dr. Gohar based this aspect of his opinion on his

examination of Spurlock and Spurlock’s report of symptoms and daily activities. R. 249. Further,

Spurlock could lift and carry twenty pounds occasionally and ten pounds frequently. Id. He had

“moderate postural limitations secondary to his morbid obesity.” Id. Dr. Gohar noted that

Spurlock had “difficulty lying flat on [the] bed and especially bending down due to his morbid

abdomen,” but he did not identify any other postural limitations or specifically restrict

Spurlock’s ability to bend forward during the course of a normal workday. Id. Dr. Gohar

expressly found no manipulative, visual, or communicative limitations, and he did not address

whether there were any environmental limitations. Id.

On March 29, Spurlock underwent an X-ray of his lumbar spine at Halifax Regional. R.

250. This X-ray revealed disc space narrowing at L4-5 and some interval narrowing at L3-4. Id.

Osteophyte formation was more pronounced at L3-4 than it had been on a diagnostic image

taken in September 2008. Id. The reviewing radiologist noted an impression of osteoarthritis and

degenerative disc disease. Id. Spurlock returned to Dr. Moore on July 1, 2013, for a refill of his

pain medication. R. 253. On physical examination, Dr. Moore observed normal respiratory

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effort, normal breath sounds, and no rales, rhonchi, or wheezing. R. 254. He assessed back pain

with radiation (acute, severe). Id.

On June 19, 2014, Spurlock treated with Joseph Davis, F.N.P., to reestablish himself as a

patient at Charlotte Primary Care. R. 286. Spurlock identified his chronic low back pain, chronic

obstructive pulmonary disease (“COPD”), morbid obesity, and chronic left knee pain from a

spider bite as his primary problems. Id. He explained to Davis that Dr. Moore treated his chronic

pain with hydrocodone. Id. Spurlock also reported that Dr. Moore diagnosed COPD or

pulmonary fibrosis, but Davis remarked that he did not have records or X-rays to confirm this.

Id. Spurlock noted that he did not use inhalers and that he continued to smoke. Id. He also said

that he would like an appointment with a pulmonology group because he had significant dyspnea

on exertion and shortness of breath. Id. Davis did not make any changes to Spurlock’s

medications, and he noted that a referral to the pulmonology group was pending. R. 287.

On August 6, Spurlock presented to Remberto Bitar, M.D., for an evaluation for COPD.

R. 256–59. Spurlock reported a gradual onset of symptoms which lasted for many months and

included cough, sputum production, wheezing, and dyspnea. R. 256. Objectively, Dr. Bitar

observed symmetrical chest movement, normal respiratory effort, no visible respiratory effort, no

accessory muscles used, no rib retractions, normal percussion of chest, normal diaphragmatic

excursion, no chest wall tenderness, normal vocal fremitus, normal breath sounds, no pleural

friction rub, no rales, no rhonchi, and no wheezing. R. 258. Dr. Bitar also conducted spirometry

testing. Spurlock’s FEV1 level3 was 1.24 liters (30% predicted) initially and 1.59 liters (38%

predicted) after inhalation treatment with albuterol 2.5mg/3ml. R. 258. Dr. Bitar assessed chronic

3 “FEV1” stands for “forced expiratory volume in one second,” and represents the amount of air a person can forcibly blow out in one second after breathing in fully. 20 C.F.R. pt. 404 subpt. P, app. 1 § 3.00(E) (2015); see also John B. West, Pulmonary Pathophysiology: The Essentials 4 (2011).

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airway obstruction, not elsewhere classified, and opined that Spurlock did not meet the disability

criteria for COPD at that time.4 Id. Dr. Bitar also explained that Spurlock would benefit from

inhalation therapy for COPD and smoking cessation strategies, including transitioning to

electronic cigarettes, and he placed Spurlock on Symbicort 160/4.5 two puffs twelve times a day.

Id. Spurlock was also referred to the Halifax MedAssist program. Id.

Spurlock followed up with Nurse Practitioner Davis twice more in 2014. R. 269–73, 281–

83. During both visits, his subjective complaints did not change from his initial treatment in

June. See id.; see also R. 286–87. Davis continued Spurlock on his medications and encouraged

him to follow up with Dr. Bitar.5 R. 272, 283. On December 18, Spurlock returned to Dr. Bitar.

R. 260–63. His subjective symptoms and Dr. Bitar’s objective findings on physical examination

remained unchanged from the previous encounter in August. R. 258, 262. Dr. Bitar also

conducted another spirometry test. On this occasion, Spurlock’s best recorded FEV1 level was

1.47 liters (36% predicted). R. 262. Dr. Bitar also recorded Spurlock’s height as 71 inches. R.

261. Dr. Bitar’s assessments remained unchanged, he again recommended smoking cessation,

and he provided Spurlock with more samples of Symbicort. R. 262–63. He further remarked that

Spurlock needed to decrease his weight. R. 263.

B. DDS Opinions

On April 1, 2013, Luc Vinh, M.D., conducted an initial review of Spurlock’s SSI

application. R. 63–70. He found that Spurlock could lift and carry twenty pounds occasionally

4 Dr. Bitar did not identify what criteria he based this statement on, but it appears that he believed Spurlock had to have an FEV1 level of one liter or less to attain disability. R. 258 (“Patient would definitely benefit from smoking cessation and inhalation therapy for COPD than from arriving to a FEV1 of 1L or less to benefit from disability help.”). Such a standard is more restrictive than the levels enumerated in Listing 3.02A. 5 It appears that Spurlock saw Nurse Practitioner Davis once more on January 29, 2015, but the record does not contain the entire treatment note from that encounter. See R. 268.

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and ten pounds frequently; could stand and/or walk for four hours and sit for about six hours in

an eight-hour workday; could occasionally balance, stoop, kneel, crouch, crawl, and climb ramps

and stairs; and could never climb ladders, ropes, or scaffolds because of his severe obesity. R.

69–70. Dr. Vinh found no other limitations. On reconsideration review in an opinion dated

September 30, 2013, R. 75–82, Paula Nuckols, M.D., reaffirmed Dr. Vinh’s findings, except that

she concluded Spurlock could frequently balance, R. 81. Moreover, both DDS reviewers noted

that, based on their physical RFC assessments, Spurlock “demonstrate[d] the maximum

sustained capability” for “sedentary” work.6 R. 71, 83; see 20 C.F.R. § 416.967(a).

C. Spurlock’s Statements and Testimony

Spurlock completed a pain questionnaire on January 27, 2013, as part of his application

for benefits. R. 178–79. He described constant, stabbing, and burning pain in his lower back,

which radiated down into his right leg, and in his left leg. R. 178. Sitting or standing for more

than fifteen minutes increased his pain, but pain pills and laying down a certain way made it

better. R. 178–79. He could not bend, squat, stoop, or stand at all. R. 179.

Spurlock also completed two function reports as part of his application. R. 180–87, 195–

202. He stated that he lived alone in an apartment. R. 180, 195. On a normal day, he would eat,

watch television, talk with his family, eat again, try to take a short nap, watch television, eat

dinner, watch more television, and then go to sleep on the couch. Id. His pain and breathing

affected his sleep, he often woke up gagging, and he could sleep for only a couple of hours at a

time. R. 181, 196. His struggles with personal care included difficulty getting dressed, bathing,

and using the toilet. Id. He could feed himself and usually prepared frozen dinners, canned foods,

6 “Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying [objects] like docket files, ledgers, and small tools. . . . [A] certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. § 416.967(a).

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and sandwiches, which took five to ten minutes. R. 181–82, 196–97. He initially claimed to wash

some clothes and dishes for fifteen minutes every other day, R. 182, but in the later report

explained that he did not do chores until he needed clean clothes or dishes, R. 197. He went

outside alone no more than once per day and rode in, but did not drive, a car. R. 183, 198. He

shopped for food and other bare essentials once a month for thirty minutes. Id. His only hobby

was watching television, which he did all the time. R. 184, 199. He did not socialize with others

or go anywhere regularly. Id. Spurlock indicated having problems with lifting, squatting,

bending, standing, reaching, walking, sitting, kneeling, climbing stairs, and completing tasks. R.

185, 200. His back problems and obesity prevented him from lifting, squatting, and bending, as

well as sitting, walking, or standing for any length of time. Id. He could walk only fifteen to

twenty-five feet before needing to rest for two to four minutes. Id. He did not use an assistive

device to ambulate. R. 186, 201.

Spurlock also testified at the administrative hearing. R. 37–50. He said he was 5 feet 10

inches tall and weighed 406 pounds. R. 43. He stated that Nurse Practitioner Davis prescribed

him a cane, which he used to help walk. R. 44. He said that he could not work because he could

not breathe, walk more than twenty-five feet, or bend over because of his obesity. R. 44–45. For

example, he kept his shoes tied and slid them on or off. R. 45. It also took him about two hours

to take a shower. Id. He saw doctors for his breathing and treated primarily with samples of

Symbicort inhalers because he could not afford other medications, although he did get nebulizer

treatment when he visited his providers. R. 45–46. He had difficulty sleeping and could only do

so for an hour at a time because of his back pain and his breathing problems. R. 46. He also slept

sitting up because he could not lay down. Id. Minimal activities such as taking a shower caused

him to get out of breath, and a neighbor straightened his house and helped with dishes. R. 46–47.

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He had not been hospitalized for his breathing, however, and still smoked less than a pack a day

despite being counseled to quit. R. 47–48. Spurlock had left-leg surgery in 2007 during which

the doctors removed muscles and tendons from a portion of his leg. R. 48–49. As a result, he fell

quite a bit. R. 49. He struggled to lose weight and could not do any exercise. R. 49–50. His right

foot also was numb, and he could not feel it about half the time. R. 49.

IV. Discussion

Spurlock argues that ALJ Owen erred at step three, in evaluating the opinion evidence,

and in articulating the RFC. Pl.’s Br. 6–13, ECF No. 14. Specifically, Spurlock asserts that the

ALJ’s failure to resolve a factual discrepancy regarding his height warrants remand to determine

whether he met Listing 3.02A. Id. at 6–9. Spurlock also contends that the ALJ did not adequately

explain his evaluation of Dr. Gohar’s and Dr. Nuckols’s opinions. Id. at 9–11. Last, Spurlock

claims that the ALJ did not consider all the relevant evidence pertaining to his back impairment

and thus reached an erroneous RFC finding. Id. at 11–13. The Commissioner opposes each of

these arguments, Def.’s Br. 9–21, ECF No. 16, and ultimately has the better position.

A. Listing 3.02A

Spurlock first argues that ALJ Owen erred at step three by determining that he did not

meeting Listing 3.02A. Pl.’s Br. 6–9. A claimant’s severe impairment meets a listing if it

“satisfies all of the criteria of that listing, including any relevant criteria in the introduction, and

meets the [one-year] duration requirement.” 20 C.F.R. § 416.925(c)(3); accord Sullivan v.

Zebley, 493 U.S. 521, 530 (1990). “An impairment that manifests only some of those criteria, no

matter how severely, does not qualify.” Zebley, 493 U.S. at 530. A claimant who meets the

medical criteria for a listing is presumed disabled regardless of his or her vocational profile; thus,

satisfying the criteria for a listing requires a claimant to demonstrate more significant impairment

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than the baseline statutory standard of being unable to perform “substantial gainful activity.”

Zebley, 493 U.S. at 532.

Listing 3.02 addresses chronic pulmonary insufficiency. 20 C.F.R. pt. 404 subpt. P, app.

1 § 3.02 (2015).7 Paragraph A mandates a finding of disability when a claimant has “[COPD],

due to any cause, with the FEV1 equal or less than the values specified in Table I corresponding

to the person’s height without shoes.” Id. § 3.02A. Table I provides that someone with a height

of 68–69 inches would meet the Listing if his FEV1 value were less than or equal to 1.45 liters,

and someone with a height of 70–71 inches would meet the Listing if his FEV1 value were less

than or equal to 1.55 liters. Id.

In his step-three analysis, the ALJ acknowledged that Spurlock underwent pulmonary

function testing in August and December 2014, which resulted in FEV1 values of 1.59 liters and

1.47 liters respectively. R. 20 (citing R. 256–63). The ALJ further noted, however, that

Spurlock’s recorded heights ranged from 69 inches tall, R. 272, to 71 inches tall, R. 257, 261.

With the latter height, Spurlock would meet the values in the table, whereas with the former

height, he would not. R. 20. ALJ Owen further added that the FEV1 values were recorded when

Spurlock was not taking his Symbicort regularly and continued to smoke. Id. He thus concluded

that Spurlock did not meet Listing 3.02A because of “the discrepancy in the claimant’s height,

his normal respiratory findings on examination by his pulmonologist, the pulmonologist’s

statement that the claimant did not meet the criteria for disability, and the pulmonologist’s

7 The agency revised Listing 3.02 effective October 7, 2016, and stated that “[w]e expect that Federal courts will review our final decisions using the rules that were in effect at the time we issued the decisions.” Revised Medical Criteria for Evaluating Respiratory System Disorders, 81 Fed. Reg. 37,138, 37,139 n.3 (June 9, 2016) (codified at 20 C.F.R. §§ 404, 416). Therefore, I review Spurlock’s claim using the Listing in effect on May 27, 2015.

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statement that the claimant ‘would definitely benefit from smoking cessation and inhalation

therapy for COPD.’” Id.

Spurlock contends that ALJ Owen should have resolved “a dispositive issue of fact,

namely, Spurlock’s height.” Pl.’s Br. 6. Spurlock believes that his height (71 inches) and FEV1

value (1.47 liters) recorded on December 18, 2014, should have resulted in him meeting Listing

3.02A. Id. at 7. As such, he asserts that the other explanations provided by the ALJ are irrelevant,

because meeting the Listing results in a conclusive presumption of disability, and that his case

should be remanded to allow the ALJ as the factfinder to determine his actual height based on

the available evidence. Id. at 8–9. Spurlock’s position, however, is based on an incomplete

reading of the Listing and is not persuasive.

As the Commissioner points out, see Def.’s Br. 11–13, the listings mandate that a

claimant satisfy both the values in Table I and the requirements detailed in the introductory

section, see 20 C.F.R. pt. 404 subpt. P, app. 1 § 3.00A (“Respiratory disorders along with any

associated impairment(s) must be established by medical evidence. Evidence must be provided

in sufficient detail to permit an independent reviewer to evaluate the severity of the

impairment.”); id. (“Pulmonary function testing is required to assess the severity of the

respiratory impairment once a disease process is established by appropriate clinical and

laboratory findings.”). Subsection E of the introductory section sets out the baseline criteria for

documenting pulmonary function testing. Id. § 3.00E. For example, the FEV1 value should

represent the largest of at least three satisfactory forced expiratory maneuvers. Id. The testing

should be repeated after administering an aerosolized bronchodilator if the pre-bronchodilator

FEV1 value is less than seventy percent of the predicted normal value. Id. The dose and name of

the bronchodilator administered should be specified, and if one is not administered, the reasoning

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should be clearly stated in the report. Id. The report must also contain “appropriately labeled

spirometric tracing[] showing the claimant’s name, date of testing, distance per second on the

abscissa and distance per liter (L) on the ordinate.” Id. Details of the device used to measure and

record the spirogram, including the manufacturer and model number, should also be included. Id.

Additionally, the pulmonary function test report should contain a statement of the claimant’s

“ability to understand directions as well as his or her effort and cooperation in performing the

pulmonary function tests.” Id.

Dr. Bitar’s treatment notes merely indicate that Spurlock’s best FEV1 value was 1.47

liters (36% predicted). R. 262. These notes do not contain any of the baseline criteria detailed in

subsection 3.00E. For example, it is not clear whether this FEV1 value represents the results of

one forced expiratory maneuver, or whether it constitutes Spurlock’s “best” FEV1 value achieved

after at least three satisfactory forced expiratory maneuvers. Id.; see also Barnwell v. Colvin, No.

4:13cv19, 2014 WL 3890442, at *12 (W.D. Va. Aug. 7, 2014) (concluding that the claimant did

not meet Listing 3.02A when the FEV1 results did not clearly satisfy this requirement). There is

no indication that this result occurred after being administered an aerosolized bronchodilator, nor

is there a statement explaining why one was not administered.8 Moreover, the FEV1 value is

presented in a basic chart and does not conform to the requirements for documenting pulmonary

functioning testing. See R. 262. Any one of these omissions is fatal to Spurlock’s step-three

challenge as meeting a listing requires strict compliance. Thus, the factual discrepancy over

Spurlock’s height is not dispositive, and his step-three argument must fail.

B. Opinion Evidence

8 Conversely, Dr. Bitar’s treatment notes show that albuterol 2.5mg/3 ml was administered during testing completed in August 2014. R. 258. After receiving the inhalation treatment, Spurlock’s recorded FEV1 value was 1.59 liters, which would not meet the values in Table I regardless of whether he was 69 inches or 71 inches.

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Spurlock next takes issue with ALJ Owen’s treatment of the opinions of DDS expert Dr.

Nuckols and consultative examiner Dr. Gohar. Pl.’s Br. 9–11. The regulations classify medical

opinions by their source: those from treating sources and those from non-treating sources, such

as examining physicians and state-agency medical consultants. See 20 C.F.R. § 416.927(c). ALJs

will always consider and evaluate each medical opinion in the record together with the relevant

evidence. Id. § 416.927(b)–(c). In determining what weight to afford a medical opinion, the ALJ

must consider all relevant factors, including the examining relationship, the degree to which the

opinion is supported or contradicted by other evidence in the record, the consistency of the

opinion with the record as a whole, whether the physician’s opinion pertains to his or her area of

specialty, and any other factors that tend to support or contradict the medical opinion. Id. §

416.927(c).

1. Dr. Nuckols’s Opinion

In determining Spurlock’s RFC, ALJ Owen relied on Dr. Nuckols’s findings that

Spurlock could lift no more than twenty pounds at a time, but frequently lift objects weighing ten

pounds, and he could stand or walk for only four hours with normal breaks in an eight-hour

workday–functional limitations that Dr. Nuckols characterized as “sedentary.” R. 25, 80–81. The

ALJ incorporated these limitations into his RFC determination, finding that Spurlock could

perform “light” work. See R. 21. The ALJ explained that as a DDS reviewer, Dr. Nuckols was an

expert in the disability evaluation process and well-qualified to render an opinion regarding

Spurlock’s functioning. R. 25. He found her opinion “to be generally consistent with the medical

evidence of record, including treatment notes and radiographic results.” Id. He therefore afforded

her opinion great weight. Id. Spurlock nevertheless argues that ALJ Owen failed to consider Dr.

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Nuckols’s conclusion that these limitations confined him to “sedentary” work. Pl.’s Br. 9–10. He

asserts that her opinion thus contradicts the ALJ’s RFC and merits remand. Id.

Spurlock’s argument is not persuasive because it focuses on how Dr. Nuckols

characterized her conclusion, rather than on the specific work-related functional limitations she

identified. The only difference between Dr. Nuckols’s opinion and the ALJ’s RFC finding is the

label attached to each. R. 21, 83. The components, i.e., the functional limitations, espoused by

both are identical. Dr. Nuckols found that these limitations restricted Spurlock to “sedentary”

work, whereas ALJ Owen found that he could perform “light work” with the same limitations. R.

21, 83; 20 C.F.R. § 416.967(a), (b). Therefore, the ALJ’s RFC determination is consistent with

Dr. Nuckols’s opinion, regardless of the label attached to the physical RFC.

2. Dr. Gohar’s Opinion

ALJ Owen also analyzed Dr. Gohar’s consultative examination opinion. R. 24–25. He

accurately summarized the contents of this report, except he inaccurately found that Dr. Gohar

determined Spurlock could walk “about” six hours in an eight-hour workday, whereas Dr. Gohar

actually found that he could walk “less than” six hours and then only with “frequent breaks.” R.

25, 249. The ALJ then assigned Dr. Gohar’s opinion partial weight. R. 25. He explained that he

found Spurlock more limited than did Dr. Gohar to afford Spurlock the maximum benefit of the

doubt. Id.

Spurlock’s challenge concerns the ALJ’s omission of Dr. Gohar’s finding that he would

need frequent breaks from walking. Pl.’s Br. 10–11. Because the ALJ did not explicitly mention

this aspect of Dr. Gohar’s opinion—which Spurlock asserts was an integral part of any

conclusion deeming him capable of light work—he contends that the ALJ could not “be said to

have reasonably rejected Dr. Gohar’s opinion on this point.” Id.

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ALJ Owen posed a hypothetical to the VE that accurately reflected his RFC

determination. See R. 53. In response, the VE testified that a hypothetical person with these same

limitations could perform both light and sedentary jobs, and the VE identified three light jobs

within these parameters—cashier, parking lot attendant, and gate guard. R. 53–57. The VE

further testified that these jobs could be performed with a sit/stand option. R. 56 (“Parking lot

attendants are described in the DOT as light, but as I tried to describe that these can be

performed sitting and standing.”); R. 56–57 (VE’s testimony describing gate guard job as one

where employee sits in a booth or a car and stands on occasion to interact with customers). At

step five, the ALJ found that Spurlock could perform these jobs, and he expressly noted that the

cashier position included a sit/stand option. R. 26. Such a limitation would accommodate

frequent breaks in both walking and standing. See Marshall v. Astrue, No. 5:10-CV-00255-D,

2012 WL 707067, at *6 (E.D.N.C. Jan. 31, 2012) (“[T]he Court notes that it agrees with the

Commissioner’s observation that ‘nothing in Dr. Fernandez’s opinion suggests, as Mr.

Marshall’s counsel seems to believe is obvious, that the “frequent breaks” referred to are not just

breaks from standing and walking, i.e., the need to sit, albeit while working, for a time.’”). As

such, the ALJ’s hypothetical question and his step-five finding implicitly accommodated Dr.

Gohar’s restriction of frequent walking breaks by identifying jobs with a sit/stand option. Thus, I

cannot find that the ALJ failed to account for Dr. Gohar’s determination that Spurlock would

require frequent breaks from walking.

C. RFC Challenge

Lastly, Spurlock generally contests ALJ Owen’s RFC finding, particularly as it pertains

to his consideration of Spurlock’s back impairment and postural limitations. Pl.’s Br. 11–13. A

claimant’s RFC is the most he can do on a regular and continuing basis despite his impairments.

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20 C.F.R. § 416.945(a); SSR 96-8p, 1996 WL 374184, at *1. It is a factual finding “made by the

Commissioner based on all the relevant evidence in the [claimant’s] record,” Felton-Miller v.

Astrue, 459 F. App’x 226, 230–31 (4th Cir. 2011) (per curiam), and it must reflect the combined

limiting effects of impairments that are supported by the medical evidence or the claimant’s

credible complaints, see Mascio v. Colvin, 780 F.3d 632, 638–40 (4th Cir. 2015). The ALJ’s

RFC assessment “must include a narrative discussion describing” how specific medical facts and

nonmedical evidence “support[] each conclusion,” Mascio, 780 F.3d at 636, and why he

discounted any “obviously probative” conflicting evidence, Arnold v. Sec’y of Health, Educ. &

Welfare, 567 F.2d 258, 259 (4th Cir. 1977); see also Reid v. Comm’r of Soc. Sec., 769 F.3d 861,

865 (4th Cir. 2014).

Spurlock claims that the ALJ erred by not fully acknowledging the X-ray of his lower

back showing disc space narrowing and by not specifically addressing Dr. Gohar’s range of

motion findings observed during the consultative examination. Pl.’s Br. 11. Spurlock first posits

that his “significantly reduced” range of motion should have resulted in greater RFC restrictions,

especially as it pertained to his ability to stoop. Id. at 11–12. Spurlock argues that because the

ALJ did not compare Dr. Gohar’s findings with the normal range of motion for these

measurements, the Court cannot find that ALJ Owen’s RFC was based on substantial evidence,

or that alternatively, the ALJ should have at least posed a hypothetical to the VE incorporating

these specific range of motion findings because a greater stooping limitation may have further

eroded his occupational base. Id. at 11–13. Similarly, Spurlock asserts that even if the ALJ did

take his reduced lumbar range of motion into consideration in crafting the RFC, it is not clear

that he could do the occasional stooping as found by the ALJ. Id. at 12. He asserts that, “[a]t best,

we are in a zone of uncertainty as to whether Spurlock can ‘stoop’ in a vocationally meaningful

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sense,” and the ALJ erred by not fully resolving this functional limitation. Id. Spurlock also

contends that ALJ Owen’s discussion of the X-rays of his back was too cursory. Id. at 12–13.

Spurlock claims that “the ALJ’s mere mentioning of [degenerative disc disease]—without

mentioning disc space narrowing in two places—fails to tell the whole story.”9 Id. at 13. Neither

argument holds water.

First, Spurlock is correct that ALJ Owen did not acknowledge Dr. Gohar’s specific range

of motion findings. See R. 24 (“[H]is thoracolumbar range of motion was partially limited due to

obesity.”). Spurlock overlooks, however, the reasonable inference that Dr. Gohar incorporated

these findings into his overall opinion of Spurlock’s functioning. Dr. Gohar noted his

observations and concluded that Spurlock “has moderate postural limitations secondary to his

morbid obesity. He has difficulty lying flat on a bed and especially bending down due to his

morbid abdomen.” R. 249. This opinion finding moderate postural limitations, and the DDS

reviewers who had the benefit of Dr. Gohar’s opinion and found that Spurlock could

occasionally stoop, R. 63, 69, 77, 81, represent the extent of the assessments in the record

9 In summarizing these arguments, Spurlock states that “if the ALJ had considered Spurlock’s loss of [range of motion] and disc space narrowing, he may well have accorded Spurlock greater credibility regarding his back pain.” Pl.’s Br. 13. To the extent Spurlock attempts to challenge the ALJ’s credibility assessment with this one sentence, this argument fails. In assessing a claimant’s credibility about the severity of his symptoms, the ALJ’s articulated reasons for the weight assigned to the claimant’s subjective complaints need only be legally adequate and supported by substantial evidence in the record. See Mascio, 780 F.3d at 639. ALJ Owen articulated many reasons why he did not find Spurlock entirely credible. R. 24. For example, the ALJ noted that Spurlock’s treatment was generally routine and conservative; his physical examinations did not consistently reveal significantly decreased strength, sensation, and range of motion as would be expected with the degree of limitation alleged; and his musculoskeletal condition appeared well-controlled with medication. Id. This reasoning is legally adequate and supported by substantial evidence. See Bishop v. Comm’r of Soc. Sec., 583 F. App’x 65, 68 (4th Cir. 2014) (finding no error when “the ALJ cited specific contradictory testimony and evidence in analyzing Bishop’s credibility”); Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986) (explaining that pain is not disabling if it “can be reasonably controlled” with treatment); Gregory v. Colvin, No. 4:15cv5, 2016 WL 3072202, at *5 (W.D. Va. May 6, 2016) (“It was reasonable for the ALJ to characterize [Plaintiff’s] course of treatment, consisting of pain medication, physical therapy, and steroid injections, as ‘conservative.’”), adopted by 2016 WL 3077935 (W.D. Va. May 31, 2016). See generally supra Pt. III.A. Thus, Spurlock’s vague challenge to the ALJ’s credibility assessment is not persuasive.

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pertaining to Spurlock’s stooping ability and do not suggest greater limitation. Indeed, Spurlock

does not explain how a moderate limitation in stooping is any different than the limitation to

occasional stooping contained in the RFC. See Moore v. Astrue, No. 3:08cv66, 2008 WL

4753754, at *4 (E.D. Va. Oct. 24, 2008) (concluding that the ALJ’s hypothetical to the VE

explaining that a claimant’s ability to stoop was “moderately impaired[,]four hours a day,” which

meant she could stoop on an “occasional” basis, “adequately represented the claimant’s RFC”

and was supported by substantial evidence in the record); cf. Smith v. Colvin, No. 7:15cv234,

2016 WL 5794228 (W.D. Va. Aug. 11, 2016) (affirming the ALJ’s opinion finding that a

“moderate” limitation in social functioning translated to a restriction of “occasional interaction”

with coworkers or the public), adopted by 2016 WL 5724613 (W.D. Va. Sept. 30, 2016).

Accordingly, I cannot find that the ALJ erred in determining that Spurlock could occasionally

stoop.

Moreover, even assuming that Spurlock is correct and the ALJ should have posed a more

restrictive hypothetical regarding his stooping, this omission would not change the ultimate

finding because none of the three jobs identified by the VE require any stooping. See DOT

211.462-010, 1991 WL 671840 (Cashier II); DOT 372.667-030, 1991 WL 673099 (Gate Guard);

DOT 915.473-010, 1991 WL 687865 (Parking-lot attendant). Consequently, Spurlock’s ability to

stoop has no bearing on his ability to do the other work the ALJ relied on in finding him not

disabled. Any error in assessing Spurlock’s stooping restriction would not have altered the step-

five finding and thus would be harmless. See Kersey v. Astrue, 614 F. Supp. 2d 679, 696 (W.D.

Va. 2009) (“Errors are harmless in social security cases when it is inconceivable that a different

administrative conclusion would have been reached absent the error.”); cf. Ward v. Astrue, No.

2:09cv53, 2010 WL 1752554, at *4 (W.D. Va. May 3, 2010) (ALJ’s failure to mention RFC

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determination’s limitation to “occasional interaction/cooperation with co-workers and the

general public” in hypothetical question to VE was harmless error because the VE identified two

occupations which “did not require more than occasional interaction and cooperation with

others”).

Second, Spurlock provides no support for his assumption that his demonstrated disc

space narrowing undermines the ALJ’s opinion. Indeed, he merely concludes, without any

explanation, that the ALJ’s cursory description of this finding painted an incomplete picture of

his functioning. The only evidence in the record is the X-ray from Halifax Regional on March

29, 2013, R. 250, but there are no assessments or treatment notes linking the results of this X-ray

to any sort of functional limitation. See Felton-Miller, 459 F. App’x at 229–30 (“[M]edical

conditions alone do not entitle a claimant to disability benefits; ‘[t]here must be a showing of

related functional loss.’” (quoting Gross, 785 F.2d at 1166)). The ALJ acknowledged the

impression section of this imaging, see R. 22; see also R. 250 (“Impression: osteoarthritis and

degenerative disc disease.”), but did not recite the specific findings that led to it. The ALJ is

under no obligation to refer specifically to every piece of evidence in the record. Reid, 769 F.3d

at 865. Moreover, an X-ray showing disc space narrowing does not by itself conflict with an

RFC for a limited range of light work with additional postural limitations, especially where, as

here, the record is devoid of any opinions indicating greater functional limitations. See Curler v.

Comm’r of Soc. Sec., 561 F. App’x 464, 473 (6th Cir. 2014) (“The ALJ reasonably

accommodated Curler’s back impairment by restricting her to light work and sharply reduced

postural requirements.”). Because Spurlock offers no persuasive explanation of how this

evidence would translate into relevant functional limitations not already accounted for in the

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RFC, I cannot find that the ALJ’s decision to reference the impression, but not the findings, of

the Halifax Regional X-ray undermines his RFC determination.

V. Conclusion

For the foregoing reasons, I find that substantial evidence supports the Commissioner’s

final decision. Accordingly, I respectfully recommend that the presiding District Judge DENY

Spurlock’s Motion for Summary Judgment, ECF No. 13, GRANT the Commissioner’s Motion

for Summary Judgment, ECF No. 15, AFFIRM the Commissioner’s final decision, and

DISMISS the case from the Court’s active docket.

Notice to Parties

Notice is hereby given to the parties of the provisions of 28 U.S.C. § 636(b)(1)(C):

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 Jackson L. Kiser, Senior United

States District Judge.

The Clerk shall send certified copies of this Report and Recommendation to all counsel

of record.

ENTER: December 18, 2017

24

Joel C. Hoppe United States Magistrate Judge

IN THE UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF VIRGINIADanville Divisionv. )