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Runion v. Colvin

United States District Court, Fourth Circuit

September 17, 2013

JERRY L. RUNION, Plaintiff,
v.
CAROLYN W. COLVIN, [1] Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

B. Waugh Crigler U.S. Magistrate Judge

This challenge to a final decision of the Commissioner which denied plaintiff’s June 30, 2010 protectively-filed applications for a period of disability and disability insurance benefits under the Social Security Act (“Act”), as amended, 42 U.S.C. §§ 416, 423, and 1381, et seq., is before this court under authority of 28 U.S.C. § 636(b)(1)(B) to render to the presiding District Judge a report setting forth appropriate findings, conclusions, and recommendations for the disposition of the case. The questions presented are whether the Commissioner’s final decision is supported by substantial evidence, or whether there is good cause to remand the case for further proceedings. 42 U.S.C. § 405(g). For the reasons that follow, the undersigned will RECOMMEND that an Order enter DENYING the Commissioner’s motion for summary judgment, GRANTING, in part, the plaintiff’s motion for summary judgment, and REMANDING this case to the Commissioner for further proceedings.

In a decision dated October 26, 2011, an Administrative Law Judge (“Law Judge”) found that plaintiff had not engaged in substantial gainful activity since January 1, 2004, his alleged date of disability onset.[2] (R. 16.) The Law Judge found that plaintiff met the insured status requirements for a period of disability and disability insurance benefits through September 30, 2007. (20 C.F.R. § 404.131, R. 16.) The Law Judge determined that plaintiff’s history of alcohol abuse, history of pancreatitis, diabetes mellitus, dysthymia, hypothyroidism, hypertension, and back disorder were medically determinable impairments, but were not severe impairments. (R. 16.) The Law Judge thus found plaintiff not disabled under the Act.

The Law Judge also made an alternative finding that, even if plaintiff did have severe impairments, plaintiff’s condition did not meet a listing. (R. 23.) The Law Judge further found that plaintiff could perform the full range of medium work and thus retained the capacity to perform his past relevant work as a maintenance mechanic, exterminator, or truck servicer. (R. 24.) The Law Judge reiterated that, even with his alternative findings, plaintiff was not disabled under the Act.

Plaintiff appealed the Law Judge’s October 26, 2011 decision to the Appeals Council. (R. 6-13.) In its March 26, 2012 decision, the Appeals Council denied review and adopted the Law Judge’s decision as the final decision of the Commissioner. (R. 6.) Due to the death of plaintiff’s former counsel, plaintiff’s current counsel requested and received an extension of time within which to file an appeal to this court. (R. 1-5.) This action ensued, cross motions for summary judgment were filed together with supporting briefs, and oral argument was held by telephone before the underDated: July 11, 2013.

The Commissioner is charged with evaluating the medical evidence and assessing symptoms, signs, and medical findings to determine the functional capacity of the claimant. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Shively v. Heckler, 739 F.2d 987 (4th Cir. 1984). The regulations grant some latitude to the Commissioner in resolving conflicts or inconsistencies in the evidence, which the court is to review for clear error or lack of substantial evidentiary support. Craig v. Chater, 76 F.3d 585, 589-590 (4th Cir. 1996). In all, if the Commissioner’s resolution of the conflicts in the evidence is supported by substantial evidence, the court is to affirm the Commissioner’s final decision. Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). Substantial evidence is defined as 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 preponderance.” Id. at 642.

Plaintiff seeks reversal or remand on two grounds. First, he challenges the Law Judge’s finding that he did not suffer any severe impairment. Second, he argues that the Law Judge did not adequately consider the effects of his alcohol-induced dementia. Plaintiff asserts that the Law Judge’s decision as adopted by the Commissioner is not supported by substantial evidence.

Plaintiff must show that he was disabled between January 1, 2004, his alleged disability onset date, and September 30, 2007, his date last insured. Plaintiff’s earliest medical record is from January 15, 2004, when he was seen by Martin Albert, MD, at the Harrisonburg VA clinic (“VA clinic”). Plaintiff reported at that time that he previously had been taking Effexor for depression, but had to stop due to a lack of insurance. (R. 814.) Dr. Martin diagnosed plaintiff with chronic alcoholism, malnutrition secondary to the above, likely alcoholic hepatitis, history of right cataract, nicotine habituation, depression, and situational stress. (R. 814-815.) Dr. Martin noted plaintiff would likely require cataract surgery and recommended that plaintiff undergo detoxification at the Martinsburg VA Hospital (“VA Hospital”). (R. 815.)

Plaintiff reported to the VA Hospital on January 21, 2004, requesting detoxification and a consult for his eye cataract. (R. 813.) Plaintiff was diagnosed with acute alcohol intoxication, alcohol withdrawal, and alcohol dependence, and was admitted for detoxification. (R. 810.) Plaintiff continued to have tremors the following evening and Ativan was prescribed. (R. 797.) By January 23, plaintiff was more tremulous and his roommates reported that he had been talking to the floor, although plaintiff denied hallucinations. (R. 793.) Plaintiff was diagnosed with protracted withdrawal with early hallucinosis. (Id.) Plaintiff reported that he “had to walk like a duck” to keep his balance and had lumbar pain. (R. 788, 790.) Plaintiff’s progress notes reported assessing plaintiff as having ineffective individual coping and that he has refused rehabilitation, insisting that he could stop drinking on his own. (R. 767-810.) Plaintiff was discharged from the VA Hospital on January 29, 2004, with instructions to attend his scheduled appointments. (R. 767-768.)

Plaintiff followed up at the VA Clinic on February 29, 2004, complaining of sharp pain in the small of his back. (R. 767.) Plaintiff reported that he had a couple of beers and had not been attending AA meetings, but he did not believe this was a problem. (R. 766.) On March 29, 2004, plaintiff was diagnosed with anemia and hypothyroidism. (R. 759.) On April 6, 2004, plaintiff underwent cataract surgery on his right eye. (R. 754.) On April 12, 2004, plaintiff presented for a urology consult with Prashant Mehta, MD, who advised that plaintiff undergo a cystoscopy which he refused. Dr. Mehta also recommended that plaintiff stop drinking and smoking, but noted he was unlikely to do so. (R. 749.) On April 21, 2004, plaintiff followed up with Barbara Fenton, MD, at the VA Clinic. Dr. Fenton diagnosed plaintiff as suffering anemia, hypothyroidism, recent cataract surgery, borderline elevated A1C with no history of diabetes, and nicotine habituation. (R. 744-745.) Dr. Fenton noted that plaintiff continued to drink four to five beers and smoke a pack each day with no interest in changing his habits. (R. 745.) On August 2, 2004, plaintiff reported that he was drinking up to twelve beers a day, but that he did not want help because he denied he had a problem with alcoholism. (R. 740.) On April 20, 2005, plaintiff informed personnel at the VA clinic that he had been seen at Augusta Medical Center (AMC) for pain in his left leg and knee which had been diagnosed as sciatica pain. (R. 735.) He complained of ongoing numbness from his knee to his foot. (Id.)

On July 28, 2005, plaintiff was admitted to AMC due to complaints of abdominal pain. Plaintiff reported that he last drank alcohol three days earlier. (R. 386.) Plaintiff was diagnosed with acute pancreatitis likely secondary to alcohol, dehydration, leukocytosis, impaired glucose tolerance without known history of diabetes, history of hypothyroidism with unknown recent control, alcohol use, tobacco use, chronic macrocytosis, chronic back pain, chronic hypertension, and hypomagnesaemia/hypokalemia. (R. 388.) Plaintiff was anxious to be discharged so that he did not miss a scheduled appointment at the VA Hospital. (Id.) Plaintiff was treated for alcohol withdrawal with Ativan and then with Librium. (R. 390.) Plaintiff’s pancreatitis was treated with aggressive hydration as well as thiamine, multivitamin, folate, and a proton pump inhibitor, and plaintiff was discharged on August 1, 2005. (Id.) Plaintiff reported to the VA Clinic on August 8, 2005, reporting that he had been placed on insulin while in the hospital but had been discharged without any diabetic medications. (R. 731.) Plaintiff was instructed on checking his blood sugar level and was prescribed Metformin. (Id.)

On August 22, 2005, plaintiff was seen at the VA clinic for a routine appointment. (R. 727.) Plaintiff reported that he was no longer drinking alcohol and requested Zoloft, as he believed his Trazadone was ineffective. (R. 727.) On September 26, 2005, plaintiff continued to report that he was not consuming alcohol, and stated that he believed the Zoloft had helped with his depression. (R. 724.) Plaintiff was diagnosed with pancreatitis, diabetes mellitus type 2, hypothyroidism, recent cataract surgery, hyperlipidemia, nicotine habituation, degenerative joint disease, and B-12 deficiency anemia. (R. 726.)

On January 30, 2006, plaintiff reported to the VA clinic, complaining of stomach pains after having consumed a twelve-pack of beer over the weekend. (R. 716.) Plaintiff also reported difficulty voiding, which the doctor felt may have been caused by spinal stenosis. (R. 719.) Plaintiff was originally sent home, but due to elevated creatinine, he was instructed to go to the ER immediately. (R. 714.) Plaintiff was admitted to the ICU at the VA Hospital for acute renal failure. (R. 702.) Plaintiff remained at the VA Hospital until February 8, 2006, when he was discharged with instructions to follow up with his primary care physician and with nephrology. (R. 648.) On February 13, 2006, plaintiff followed up at the VA Clinic. Plaintiff’s doctor noted at that time that “he has very poor insight into his medical condition.” (R. 644.) On February 27, 2006, plaintiff received instruction from the VA clinic on insulin shots. (R. 642.) On March 6, 2006, plaintiff followed up with nephrology, who noted that plaintiff was back at his baseline and prescribed Losartan, with instructions to follow up in six months. (R. 639.)

On April 26, 2006, plaintiff was admitted to AMC complaining of abdominal pain. Plaintiff reported that he had started consuming alcohol approximately two weeks prior but had stopped about four or five days before admission. (R. 249.) On April 27, Michael Barrett, MD, reported that plaintiff “was markedly agitated, I believe delirious requiring 4-point restraints and large amounts of benzodiazepines.” (R. 255.) Dr. Barrett believed that plaintiff sincerely wanted to quit alcohol and had made good strides. (Id.) Dr. Barrett discharged plaintiff on April ...


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