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Herron v. Colvin

United States District Court, Western District of Virginia, Big Stone Gap Division

March 20, 2014

JOHNNY R. HERRON, Plaintiff
v.
CAROLYN W. COLVIN, [1] Acting Commissioner of Social Security, Defendant

REPORT AND RECOMMENDATION

Pamela Meade Sargent United States Magistrate Judge

I. Background and Standard of Review

Plaintiff, Johnny R. Herron, (“Herron”), filed this action challenging the final decision of the Commissioner of Social Security, (“Commissioner”), denying plaintiff’s 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.

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 “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 Herron filed his applications for SSI and DIB[2] on March 31, 2009, alleging disability as of April 30, 2008, due to problems with his lungs, back, vision, knees and shoulders. (Record, (“R.”), at 203-04, 207-09, 221.) The claims were denied initially and upon reconsideration. (R. at 106-08, 112-14, 118-20, 122-31.) Herron then requested a hearing before an administrative law judge, (“ALJ”). (R. at 132.) A hearing was held on February 17, 2012, at which Herron was represented by counsel. (R. at 28-56.)

By decision dated February 23, 2012, the ALJ denied Herron’s claims. (R. at 15-26.) The ALJ found that Herron met the disability insured status requirements of the Act for DIB purposes through March 31, 2010. (R. at 17.) The ALJ found that Herron had not engaged in substantial gainful activity since April 30, 2008, the alleged onset date. (R. at 17.) The ALJ found that the medical evidence established that Herron had severe impairments, namely chronic obstructive pulmonary disease, (“COPD”), degenerative changes of the lumbar spine, right shoulder separation, cerebral and cerebellar atrophy, personality disorder, depression, borderline intellectual functioning and alcohol dependence, but the ALJ found that Herron 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 17-18.) The ALJ found that Herron had the residual functional capacity to perform simple, routine, repetitive, low stress light work, [3] with the ability to lift and carry items weighing up to 40 pounds occasionally and 20 pounds frequently, that required no more than occasional bending or reaching above the head and that did not require him to crawl or work around unprotected heights. (R. at 20.) The ALJ found that Herron was unable to perform any of his past relevant work. (R. at 24.) Based on Herron’s age, education, work experience and residual functional capacity and the testimony of a vocational expert, the ALJ found that a significant number of jobs existed in the national economy that Herron could perform, including jobs as an arcade attendant, a parking lot attendant and a plastics assembler. (R. at 25.) Thus, the ALJ concluded that Herron was not under a disability as defined by the Act and was not eligible for DIB or SSI benefits. (R. at 26.) See 20 C.F.R. §§ 404.1520(g), 416.920(g) (2013).

After the ALJ issued his decision, Herron pursued his administrative appeals, (R. at 10), but the Appeals Council denied his request for review. (R. at 1-4.) Herron 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 (2013). This case is before this court on Herron’s motion for summary judgment filed July 23, 2013, and the Commissioner’s motion for summary judgment filed August 26, 2013.

II. Facts

Herron was born in 1960, (R. at 203, 207, 216), which, at the time of the ALJ’s decision, classified him as a “person closely approaching advanced age” under 20 C.F.R. §§ 404.1563(d), 416.963(d). Herron has a ninth-grade education and past work experience as a dishwasher. (R. at 35, 38, 225, 265.) Herron testified that he consumed “[a] beer every once in a while” to help with his shoulder pain. (R. at 43.) He stated that he consumed about a quart of beer twice a week. (R. at 43.) Herron stated that he walked three miles a day because he had “nothing else to do.” (R. at 43-44.) He stated that it helped him to walk. (R. at 44.) Herron stated that he did not have a driver’s license. (R. at 34.)

Vocational expert, Michael Wiseman, testified at Herron’s hearing. (R. at 46-52.) Wiseman stated that Herron’s past work as a dishwasher was classified as unskilled, medium work.[4] (R. at 48.) The ALJ asked Wiseman to consider a hypothetical individual of Herron’s age, education and work history, who could occasionally lift and carry items weighing 40 pounds and frequently lift and carry items weighing 20 pounds, stand, walk or sit for six hours in an eight-hour workday with normal breaks, who was limited to simple, routine and repetitive tasks and who would be required only to make occasional decisions and occasional changes in the work setting. (R. at 48.) Wiseman testified that such an individual could perform Herron’s past work as a dishwasher. (R. at 48.) Wiseman also identified jobs that existed in significant numbers at the unskilled medium level that such an individual could perform, including jobs as a janitor, a hand packer and a dining room attendant.[5] (R. at 49.)

Wiseman was asked to assume the same individual, but who would be reduced to standing or walking two hours in an eight-hour workday. (R. at 50.) Wiseman stated that such an individual would not be able to perform the jobs previously identified. (R. at 50.) He stated that such an individual could perform the jobs of an arcade attendant, a parking lot attendant and a plastics products assembler. (R. at 50.) Wiseman was asked to consider the same individual, but who could bilaterally reach above his head to 90 degrees for only one-third of the day, who could bend at the waist or kneel one-third of the day, who should avoid exposure to unprotected heights and who should not crouch or crawl. (R. at 51.) Wiseman stated that such an individual could perform the jobs previously identified. (R. at 51-52.) When asked if the individual had no useful ability to deal with work stresses, to maintain attention and concentration or to demonstrate reliability, Wiseman stated that there would be no jobs available that such an individual could perform. (R. at 52.)

In rendering his decision, the ALJ reviewed records from Wise County Public Schools; H. Morgan Griffith, Congressman;[6] Joseph Leizer, Ph.D., a state agency psychologist; Mountain View Regional Medical Center; Kathy Jo Miller, M.Ed., a licensed psychological examiner; Robert S. Spangler, Ed.D., a licensed psychologist; Norton Community Hospital; Dr. Kevin Blackwell, D.O.; B. Wayne Lanthorn, Ph.D., a licensed clinical psychologist; Dr. Brett Compton, O.D.; and Bon Secours St. Mary’s Hospital.

Herron’s school records show that he obtained a full-scale IQ score of 100 when he was in the second grade. (R. at 274.) His full-scale IQ score dropped to 79 while he was in the third grade. (R. at 274.) Herron repeated the third grade and obtained a full-scale IQ score of 97. (R. at 274.) Herron also repeated the fifth grade. (R. at 273.) After repeating the fifth grade, Herron’s math and reading equivalency was at the 4.2 grade level. (R. at 273.) After completing the sixth grade, Herron’s math equivalency was at the seventh-grade level. (R. at 273.)

On June 27, 2004, Herron presented to the emergency room at Bon Secours St. Mary’s Hospital for a laceration to the left hand and amputation to the third and fourth digits due to a lawnmower accident. (R. at 411-22.) Closure of the amputation was performed, and Herron tolerated the procedure well. (R. at 412-13.)

On September 13, 2007, Herron was admitted to Mountain View Regional Medical Center, (“Mountain View”), for complaints of fever, chills, vomiting, diarrhea and muscle and joint pains. (R. at 288-94.) Herron reported that he smoked two packs of cigarettes a day. (R. at 288.) It was noted that Herron was “vague on how much he drinks.” (R. at 288.) Herron reported that when he had the money he would consume a six- or 12-pack of beer a day. (R. at 288.) Chest x-rays showed pneumonia and COPD, elevated central venous pressures and mild congestive heart failure or fluid overload. (R. at 395-96, 403.) A CT scan of Herron’s head/brain showed no acute intracranial abnormality and mild fissure consistent with atrophy. (R. at 401.) Herron was discharged on October 2, 2007, with a diagnosis of left lower lobe pneumonia with ...


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