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Bippus v. Colvin

United States District Court, W.D. Virginia, Big Stone Gap Division

May 13, 2014

TIMOTHY LEE BIPPUS, Plaintiff
v.
CAROLYN W. COLVIN, [1] Acting Commissioner of Social Security, Defendant

REPORT AND RECOMMENDATION

PAMELA MEADE SARGENT, Magistrate Judge.

I. Background and Standard of Review

Plaintiff, Timothy Lee Bippus, filed this action challenging the final decision of the Commissioner of Social Security, ("Commissioner"), determining that he was not eligible for disability insurance benefits, ("DIB"), under the Social Security Act, as amended, ("Act"), 42 U.S.C.A. § 423 (West 2011). Jurisdiction of this court is pursuant to 42 U.S.C. § 405(g). 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 Asubstantial evidence.'"" Hays v. Sullivan , 907 F.2d 1453, 1456 (4th Cir. 1990) (quoting Laws , 368 F.2d at 642).

The record shows that Bippus protectively filed an application for DIB on June 2, 2009, alleging disability as of April 18, 2006, due to back problems. (Record, ("R."), at 13, 146-47, 174, 195.)[2] The claim was denied initially and on reconsideration. (R. at 81-83, 87, 89-91.) Bippus then requested a hearing before an administrative law judge, ("ALJ"), (R. at 13.) The hearing was held on May 24, 2011, at which Bippus was represented by counsel. (R. at 31-56.)

By decision dated May 27, 2011, the ALJ denied Bippus's claim. (R. at 13-25.) The ALJ found that Bippus met the nondisability insured status requirements of the Act for DIB purposes through March 31, 2013. (R. at 15.) The ALJ also found that Bippus had not engaged in substantial gainful activity since April 18, 2006, the alleged onset date.[3] (R. at 15.) The ALJ found that the medical evidence established that Bippus suffered from severe impairments, namely degenerative disc disease of the lumbar spine, status-post L5-S1 hemilaminectomy, and right disc herniation of the lumbar spine, but she found that Bippus did not have an impairment or combination of impairments listed at or medically equal to one listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 15-17.) The ALJ also found that Bippus had the residual functional capacity to perform a range of light work[4] that did not require more than occasional climbing of ramps and stairs, occasional balancing, stooping or crouching, no kneeling, crawling or repetitive bending, no more than frequent handling with the left dominant hand and that did not require more than concentrated exposure to hazardous machinery, unprotected heights, working on vibrating surfaces or climbing ladders, ropes or scaffolds. (R. at 17.) The ALJ also found that Bippus was limited in his ability to push and/or pull with the lower extremities to a maximum of 20 pounds occasionally and 10 pounds frequently. (R. at 17.) The ALJ found that Bippus was unable to perform his past relevant work. (R. at 23.) Based on Bippus's age, education, work history and residual functional capacity and the testimony of a vocational expert, the ALJ found that jobs existed in significant numbers in the national economy that he could perform, including jobs as a marker, an office helper and an information clerk. (R. at 23-24.) Thus, the ALJ found that Bippus was not under a disability as defined under the Act and was not eligible for benefits. (R. at 24-25.) See 20 C.F.R. § 404.1520(g) (2013).

After the ALJ issued his decision, Bippus pursued his administrative appeals, (R. at 7), but the Appeals Council denied his request for review. (R. at 1-4.) Bippus 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 (2013). The case is before this court on Bippus's motion for summary judgment filed September 18, 2013, and the Commissioner's motion for summary judgment filed October 21, 2013.

II. Facts [5]

Bippus was born in 1964, (R. at 195), which, at the time of the ALJ's decision, classified him as a "younger person" under 20 C.F.R. § 404.1563(c). Bippus has an eleventh-grade education and past relevant work experience as a security guard, a shuttle car operator, a scoop operator and a roof bolter in the coal mines. (R. at 175, 180.)

Vocational expert, James Williams, also was present and testified at Bippus's hearing. (R. at 48-55.) Williams classified Bippus's work as a "miner one" as very heavy[6] and skilled, as a roof bolter and as a shuttle car operator as medium[7] and semi-skilled, as a scoop operator as medium and skilled, and as a security guard, as normally performed, as light and semi-skilled. (R. at 51.) Williams was asked to consider a hypothetical individual of Bippus's age, education and work history, who could lift and carry items weighing up to 20 pounds occasionally, 10 pounds frequently, stand and walk up to six hours in an eight-hour workday, sit for up to six hours in an eight-hour workday, who was limited in the ability to push and pull with the lower extremities, who could never kneel and crawl, but who could occasionally climb ramps and stairs, balance, stoop and crouch, who could frequently handle items with the left hand, who could perform work that required no more than concentrated exposure to hazardous machinery, climbing ladders, ropes or scaffolds or working on vibrating surfaces and who could not perform repetitive bending. (R. at 51-52.) William testified that such an individual could not perform any of Bippus's past relevant work as he actually performed it or as it is customarily performed in the national economy. (R. at 52.) However, Williams testified that such an individual could perform the jobs of a marker, an office helper and an information clerk, all of which existed in significant numbers in the national economy. (R. at 53.) Next, Williams was asked to consider a hypothetical individual who was limited as set forth in a Medical Source Statement completed by Dr. Jim C. Brasfield, M.D. (R. at 53, 406-08.) Williams testified that such an individual could not perform Bippus's past work either as performed or as it is customarily performed in the national economy. (R. at 54.) Williams further testified that such an individual could not perform other jobs in the national economy. (R. at 55.)

In rendering his decision, the ALJ reviewed medical records from Mountain View Regional Medical Center; Highlands Neurosurgery, P.C.; Park Avenue Physical Therapy; Bristol Neurological Associates; Wellmont Bristol Regional Hospital; Renaissance Surgery Center; Solutions Counseling, LLC; Anne B. Jacobe, LCSW; Appalachian Regional Health Care Whitesburg Hospital; Dr. Jim C. Brasfield, M.D.; Ralph Ramsden, Ph.D.; and Dr. J. Travis Burt, M.D. Bippus's attorney also submitted medical evidence from Dr. Brasfield to the Appeals Council.[8]

The medical evidence shows that Bippus presented to the Emergency Department at Mountain View Regional Medical Center on April 18, 2006, with complaints of low back pain with some radiation to the left leg after injuring himself at work while lifting and turning a moving mine cable while in a bent position. (R. at 269-75.) Physical examination showed only moderate tenderness to palpation over the lower lumbar spine. (R. at 270.) X-rays showed no fracture. (R. at 270.) Dr. Rimon Ibrahim, M.D., diagnosed Bippus with acute low back pain and acute lumbar myofascial strain. (R. at 270.) On April 20, 2006, Bippus saw Dr. Jim C. Brasfield, M.D., a neurosurgeon, for a workers' compensation examination. (R. at 321-23.) Bippus reported low back pain with some discomfort radiating down to the left leg. (R. at 321.) He further reported that muscle relaxants and anti-inflammatories prescribed by Dr. Ibrahim did not provide adequate relief. (R. at 322.) Dr. Brasfield advised Bippus to remain off of work at least until his return appointment on April 25, and he ordered a lumbar MRI. (R. at 322-23.) On April 25, 2006, Bippus complained of continued discomfort, worsened with standing, and he further reported that he was beginning to have right leg pain, as well. (R. at 318-20.) Dr. Brasfield noted the lumbar MRI findings showing that Bippus had a disc protrusion in the right central and subarticular region at L5-S1, which touched the right S1 nerve root and may minimally displace it. (R. at 318, 328-29.) Dr. Brasfield continued to diagnose a symptomatic work-related injury causally related to a right L5 disc herniation. (R. at 318.) Over the next two months, Dr. Brasfield attempted to treat Bippus's herniated disc conservatively with medications and an epidural steroid injection. (R. at 319, 336-37.) However, on May 30, 2006, he recommended surgical removal of the right L5 disc herniation. (R. at 314.) After obtaining a second opinion from Dr. Travis J. Burt, M.D., another neurosurgeon, who agreed with Dr. Brasfield that surgical intervention was reasonable, Bippus elected to proceed with surgery. (R. at 281, 310-11.) On June 19, 2006, Dr. Brasfield performed a right L5-S1 hemilaminectomy with decompression of the right S1 nerve root without obvious complications. (R. at 334-35.)

By August 1, 2006, Bippus reported that his right leg pain was "much improved." (R. at 303-05.) Dr. Brasfield diagnosed him with post-lumbar laminectomy syndrome, causally related to his work injury, and he began Bippus in a progressive work-hardening program for the lumbar spine. (R. at 303.) Bippus began physical therapy on August 2, 2006, at Park Avenue Physical Therapy. (R. at 288-91.) He attended 12 physical therapy sessions between August 2 and August 18, 2006. (R. at 284-91.) However, on August 18, 2006, Mary Knettle, a licensed physical therapist, reported that Bippus felt that he had reinjured his back. (R. at 284.)

Bippus saw Dr. Brasfield on August 14, 2006, complaining of increased back and leg pain, which Bippus attributed to a possible reinjury in physical therapy. (R. at 302.) Straight leg raise testing showed some discomfort in the right buttock and posterior thigh, but there was no evidence of foot drop. (R. at 302.) Dr. Brasfield was concerned about the recurrence of leg pain, which had previously resolved. (R. at 302.) Despite this concern, he continued Bippus in range of motion physical therapy until his return visit in one week. (R. at 302.) He again diagnosed Bippus with post-lumbar laminectomy syndrome, causally related to work injury. (R. at 302.) When Bippus returned to Dr. Brasfield on August 21, 2006, he reported the decreased strenuousness of physical therapy had resulted in some relief to his back and leg discomfort. (R. at 298.) However, Bippus continued to note that it was still bothersome and seemed to be worse over the previous couple of weeks. (R. at 298.) Dr. Brasfield scheduled a lumbar MRI, and he advised Bippus to continue with range of motion lumbar therapy. (R. at 298.) A lumbar MRI, dated August 25, 2006, showed a small residual or recurrent disc herniation at the right L5 disc level with some abutment of the right S1 nerve root. (R. at 326-27.) On August 28, 2006, Bippus noted continued back and leg pain, but he reported the leg pain was not as severe as preoperatively. (R. at 296-97.) Dr. Brasfield continued Bippus in physical therapy and advised him to remain off of work until September 18, 2006. (R. at 296.) On September 18, 2006, Bippus's right leg pain was deemed prohibitive. (R. at 448.) There was no evidence of foot drop, and Dr. Brasfield recommended a lumbar epidural steroid injection. (R. at 448.) He further advised Bippus to discontinue physical therapy. (R. at 448.) Dr. ...


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