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Blevins v. Colvin

United States District Court, Western District of Virginia, Abingdon Division

June 26, 2014

DALE EDWARD BLEVINS, 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, Dale Edward Blevins, filed this action challenging the final decision of the Commissioner of Social Security, (“Commissioner”), determining that he was not eligible for supplemental security income, (“SSI”), under the Social Security Act, as amended, (“Act”), 42 U.S.C.A. § 1381 et seq. (West 2012). Jurisdiction of this court is pursuant to 42 U.S.C. § 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 Blevins protectively filed his application for SSI on February 16, 2010, alleging disability as of February 16, 2010, due to depression, diminished mental capacity, arthritis, heart disease, dizzy spells, shortness of breath, post concussion syndrome and trouble interacting with people. (Record, (“R.”), at 173-79, 184, 188.) The claims were denied initially and on reconsideration. (R. at 90-92, 97, 100-02, 104-06.) Blevins then requested a hearing before an administrative law judge, (“ALJ”). (R. at 107-08.) The hearing was held on December 5, 2011, at which Blevins was represented by counsel. (R. at 37-67.)

By decision dated February 7, 2012, the ALJ denied Blevins’s claim. (R. at 22-32.) The ALJ found that Blevins had not engaged in substantial gainful activity since March 2, 2010, the date of his application. (R. at 24.) The ALJ determined that the medical evidence established that Blevins suffered from severe impairments, including ischemic heart disease, chronic heart failure, osteoarthritis and allied disorders, cerebral trauma, intracranial injury, an affective disorder, borderline intellectual functioning, alcohol dependence, sustained, in full remission and post-traumatic stress disorder, (“PTSD”), but he found that Blevins 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 24-25.) The ALJ found that Blevins had the residual functional capacity to perform light work[2] that did not require climbing ladders, ropes or scaffolds and that did not require working around unprotected heights or dangerous equipment or products. (R. at 26.) The ALJ further found that Blevins could occasionally crouch, crawl and climb ramps and stairs and that he had moderate limitations in his ability to work with supervisors, to accept instructions and criticism, to work with co-workers without distractions or exhibiting behavioral extremes, to work with the public, to maintain attention and concentration for extended periods, to work at a production rate pace, to maintain attendance, to be punctual and take usual breaks, to respond appropriately to work pressures and to understand, remember and carry out detailed and complex instructions. (R. at 26.) Thus, the ALJ found that Blevins was unable to perform his past relevant work. (R. at 31.) Based on Blevins’s age, education, work history and residual functional capacity and the testimony of a vocational expert, the ALJ found that Blevins could perform other jobs existing in significant numbers in the national economy, including jobs as an assembler, a packer, an inspector, a sorter and a grader. (R. at 31-32.) Therefore, the ALJ found that Blevins was not under a disability as defined under the Act and was not eligible for benefits. (R. at 32.) See 20 C.F.R. § 416.920(g) (2013).

After the ALJ issued his decision, Blevins pursued his administrative appeals, (R. at 17), but the Appeals Council denied his request for review. (R. at 4-7.) Blevins 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. § 416.1481 (2013). The case is before this court on the Commissioner’s motion for summary judgment[3] filed November 20, 2013.

II. Facts

Blevins was born in 1961, (R. at 173), which classifies him as a “person closely approaching advanced age” under 20 C.F.R. § 416.963(d).[4] Blevins obtained his general equivalency development, ("GED"), diploma and has vocational training as a diesel mechanic. (R. at 45, 189.) Blevins last worked fulltime in 1996 as an auto body repairman. (R. at 45.) Blevins testified at his hearing that he had the most difficulty with arthritis in his hands and back problems. (R. at 49.) He stated that he had constant back pain, which was tolerable and that he could function with for the most part. (R. at 49.) He stated that he had stiffness in his hands, which prevented him from using his hands to turn bolts and wrenches. (R. at 50.)

When asked how well he got along with authority figures, Blevins stated, “[t]hey are people hate them all.” (R. at 208.) He stated that he had been fired or laid off from a job because he would “go off loose [sic] control.” (R. at 208.) He stated that he feared the government, people, himself, the police, the Internal Revenue Service and God. (R. at 208.) Blevins stated that he feared being around people, trying to live, getting too old to fight and defend himself, paperwork and receiving mail. (R. at 208.) He stated that he hated most of his family and most people in general. (R. at 209.)

John Newman, a vocational expert, also was present and testified at Blevins’s hearing. (R. at 63-66.) He classified Blevins’s past work as an auto body repairer[5] as heavy[6] and skilled. (R. at 63.) Newman was asked to consider an individual of Blevins’s age, education and work experience, who had the residual functional capacity to perform light work that did not require him to climb ladders, ropes and scaffolds, that allowed for only occasional postural limitations, that did not expose him to unprotected heights or dangerous equipment and products, that allowed for moderate limitations in his ability to work with supervisors, to accept instructions and criticism, to work with co-workers without distractions or behavioral extremes, to work with the public, to maintain attention and concentration for extended periods, to understand, remember and carry out detailed and complex instructions, to work at a fixed production rate, to maintain attendance, punctuality and the usual breaks and to respond appropriately to work pressure. (R. at 64.) Newman stated that there were a significant number of jobs that existed that such an individual could perform, including jobs as an assembler, a packer, an inspector, a tester and a sorter. (R. at 64.) Newman was asked to consider the same individual, but who had mild limitations in his abilities to work with supervisors, to accept instructions and criticism, to work with co-workers without distractions or behavioral extremes, to work with the public, to maintain attention and concentration for extended periods, to understand, remember and carry out detailed and complex instructions, to work at a fixed production rate, to maintain attendance, punctuality and usual breaks and to respond appropriately to work pressure, and who also would have mild limitations in exposure to hazards and would have to recline about two-thirds of the workday. (R. at 65.) Newman stated that all jobs would be eliminated. (R. at 65.) He also stated that, if the individual’s ability to stay on task was such that he would be off task for more than 25 percent of a normal workday, there would be no jobs available. (R. at 65.) Newman also testified that all competitive employment would be precluded if the individual regularly missed more than two days of work per month. (R. at 65-66.) He further stated that if the individual could only occasionally use his hands and upper extremities, the jobs previously mentioned would be eliminated. (R. at 66.)

In rendering his decision, the ALJ reviewed records from Howard S. Leizer, Ph.D., a state agency psychologist; Dr. Richard Surrusco, M.D., a state agency physician; Richard J. Milan, Jr., Ph.D., a state agency psychologist; Dr. Bert Spetzler, M.D., a state agency physician; Mountain Home Veterans Affairs Medical Center; Keith Kessler, L.C.S.W., a licensed clinical social worker; and Wade Smith, M.S., a licensed senior psychological examiner.

Blevins was treated at Mountain Home Veterans Affairs Medical Center, (“VA Center”), for various ailments, including chronic ischemic heart disease, depressive disorder, not otherwise specified, tobacco use disorder, hypertension, obesity, hyperlipidemia and unspecified chest pain. (R. at 252-452.) On August 27, 2009, Blevins was diagnosed with a single episode of major depressive disorder. (R. at 261.) On September 2, 2009, Blevins was admitted for complaints of chest, shoulder and neck pain. (R. at 266-68.) It was noted that Blevins was not compliant with medication stating that "they don't work." (R. at 267.) Blevins's pain subsided, and his blood pressure was controlled after his blood pressure medications were reinstated. (R. at 268.) A chest x-ray and electrocardiogram were normal. (R. at 268, 370.) On September 10, 2009, Blevins was diagnosed with a delusional disorder and PTSD. (R. at 260.) On September 11, 2009, Blevins was diagnosed with recurrent, severe major depressive disorder, without mention of psychotic behavior. (R. at 260.) Blevins's then-current Global Assessment of Functioning score, [7]("GAF"), was assessed at 25.[8](R. at 263.) On September 21, 2009, Blevins's then-current GAF score was assessed at 45.[9] (R. at 263.) On November 9, 2009, a myocardial perfusion study showed a small to moderate-sized area of ischemia in the distal anteroseptal and apex area of the heart. (R. at 345-46.) On October 28, 2009, Blevins was diagnosed with osteoarthritis. (R. at 257.) On November 3, 2009, Blevins's then-current GAF score was assessed at 55.[10] (R. at 263.) On December 10, 2009, Blevins underwent a left heart catheterization, with placement of a stent in the left anterior descending artery. (R. at 255, 265-66, 330.) The study showed a single vessel coronary artery disease with critical lesion in the proximal part of the mid left anterior descending coronary artery segment, normal left ventricle systolic function and mildly elevated left ventricle end diastolic pressure. (R. at 331-32.) Blevins reported that he lived in a two-story home with 14 steps to the second level. (R. at 301, 416.) He stated that his bedroom was on the second level, but he had no problems with the steps. (R. at 301, 416.) He reported that he was independent with activities of daily living and driving. (R. at 301, 416.) He was discharged in stable condition. (R. at 266.)

On January 4, 2010, Blevins reported mild anxiety and depression. (R. at 291, 405.) He reported continued reccuring nightmares of fighting. (R. at 291, 405.) Blevins was alert and oriented with a dysthymic mood. (R. at 292, 406.) It was noted that his gait was steady with a normal rate of movement. (R. at 292, 406.) His thought process was logical and goal directed, and he denied auditory or visual hallucinations or delusional thinking. (R. at 292, 406.) Blevins’s recent memory was impaired, his cognitive function and judgment were intact, and his insight was good. (R. at 292, 406.) Blevins’s then-current GAF score was assessed at 55. (R. at 263, 292, 407.)

On January 14, 2010, Blevins was seen for follow-up concerning his complaints of chest pain. (R. at 288, 402.) He reported that he was doing well, he denied any chest pain, shortness of breath or palpitations and stated that he was back to performing his regular activities. (R. at 288, 402.) On January 21, 2010, Blevins denied any chest pain. (R. at 285, 399.) Blevins reported that he experienced dreams about helplessness and fighting someone, which were similar to the situation when he was beat up on an Army base. (R. at 285, 399.) He was diagnosed with depression and questionable PTSD. (R. at 286, 400.)

On February 11, 2010, Blevins was seen at the emergency room for complaints of dizziness and intermittent confusion. (R. at 276-77, 389-96.) He reported that he had been beat on the head by the butt of a rifle brandished by his niece on January 27, 2010. (R. at 276, 390.) Blevins stated that he did not sustain loss of consciousness, but required suturing of the scalp. (R. at 276, 390.) Blevins had difficulty processing information and with short-term memory and concentration. (R. at 277, 391.) His speech was slow, but clear. (R. at 277, 391.) He had normal gait and good heel and toe walk. (R. at 277, 391.) A CT scan of Blevins’s brain showed no acute intracranial abnormality. (R. at 277, 343-44, 391.) Chest x-rays were normal. (R. at 344-45.) He was diagnosed with post concussion syndrome. (R. at 277.) Blevins was instructed to “work on short things” that would stimulate his mind, to engage in light physical exercise and not to drive. (R. at 277-78.) On March 9, 2010, Blevins requested that he be released to drive. (R. at 269-70, 383-85.) He reported no further episodes of dizziness. (R. at 269, 383.) Blevins was diagnosed with depression/possible adverse reaction to a vaccination received while in the Army, post concussion syndrome, resolved, coronary artery disease, stable, hyperlipidemia and tobacco use. (R. at 270, 384.) On April 20, 2010, Blevins reported that he had stopped taking the medication sertraline because he believed it caused anger problems. (R. at 380.) Blevins stated that some days he just “goes off” and becomes really violent. (R. at 381.) It was noted that Blevins was very interested in obtaining help with anger management without the use of medication. (R. at 381.)

On June 3, 2010, Blevins had no complaints. (R. at 370.) He reported that he self-discontinued sertraline, stating that it did not help. (R. at 372.) Blevins was alert and oriented. (R. at 373.) His mood was dysthymic and affect blunted. (R. at 373.) He had a steady gait and slow rate of movement. (R. at 373.) Blevins’s thought process and content were logical. (R. at 373.) Blevins’s recent memory was impaired. (R. at 374.) His cognitive function and judgment were intact, and his insight was fair. (R. at 374.) It was reported that Blevins had a low IQ. (R. at 374.) It was noted that Blevins’s coronary artery disease was stable, and Blevins reported that he had started ...


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