United States District Court, Western District of Virginia, Abingdon Division
REPORT AND RECOMMENDATION
Pamela Meade Sargent United States Magistrate Judge
I. Background and Standard of Review
Plaintiff, Teresa Leigh Carter, (“Carter”), filed this action pro se 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 Carter filed her applications for SSI and DIB on September 8, 2009, alleging disability as of August 5, 2009, due to traumatic brain injury, diabetes, asthma and lung cancer. (Record, (“R.”), at 31, 65, 177-85, 234, 237.) The claims were denied initially and upon reconsideration. (R. at 31, 65-96, 99-113, 114, 115-30.) Carter then requested a hearing before an administrative law judge, (“ALJ”). (R. at 131-32.) A hearing was held on January 10, 2012, at which Carter was represented by counsel. (R. at 29-55.)
By decision dated February 6, 2012, the ALJ denied Carter’s claims. (R. at 13-22.) The ALJ found that Carter met the disability insured status requirements of the Act for DIB purposes through September 30, 2011. (R. at 15.) The ALJ found that Carter had not engaged in substantial gainful activity since August 5, 2009, the alleged onset date. (R. at 15.) The ALJ found that the medical evidence established that Carter had a severe combination of impairments, namely hypertension, chronic obstructive pulmonary disease, (“COPD”), right adrenal nodule, renal cyst, benign right lung mass, status post fracture of the left upper extremity, compression deformity of the thoracic and lumbar spine and degenerative changes of the cervical spine, but the ALJ found that Carter 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 15-18.) The ALJ found that Carter had the residual functional capacity to perform light work,  with only occasional pushing, pulling and reaching with the left upper extremity and that did not require her to climb ladders, ropes or scaffolds or work around concentrated exposure to irritants such as fumes, odors, dust, gases and poorly ventilated areas or even moderate exposure to operational control of hazardous machinery or unprotected heights. (R. at 18.) The ALJ found that Carter was unable to perform any of her past relevant work. (R. at 21.) Based on Carter’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 Carter could perform, including jobs as a packer, a counter rental clerk and an usher-lobby attendant. (R. at 21-22.) Thus, the ALJ concluded that Carter was not under a disability as defined by the Act and was not eligible for DIB or SSI benefits. (R. at 22.) See 20 C.F.R. §§ 404.1520(g), 416.920(g) (2013).
After the ALJ issued his decision, Carter pursued her administrative appeals, (R. at 8), but the Appeals Council denied her request for review. (R. at 1-6.) Carter 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 the Commissioner’s motion for summary judgment filed January 17, 2014.
Carter was born in 1958, (R. at 65), which, at the time of the ALJ’s decision, classified her as a “person closely approaching advanced age” under 20 C.F.R. §§ 404.1563(d), 416.963(d). Carter has a college education and past work experience as a dental assistant and a waitress. (R. at 77-79, 254.) Carter testified that she last worked in 2007 and could no longer work as a dental assistant because her left arm was too uncoordinated to handle the instruments. (R. at 36.) Carter testified that, as a waitress, she would have to carry pans of food weighing from 15 to 50 pounds. (R. at 38.)
Carter testified that she has had problems with her left arm and back since being hit by a car in 2008. (R. at 39.) She said that she could lift items weighing up to 10 pounds with her right arm and items weighing up to three with her left arm. (R. at 44.) Carter stated that she could sit for only 15 to 20 minutes before he leg goes numb. (R. at 44.) Carter stated that she could stand for 20 minutes and walk supported for maybe 50 feet. (R. at 44-45.) Carter testified that she would take 12 to 16 extra strength Tylenol and three Tramadol tablets a day for pain. (R. at 39-40.) Carter testified that she also suffered a traumatic brain injury when she was hit by the car. (R. at 41-42.) Carter testified that her memory was real bad and she could not concentrate. (R. at 43.) Carter has a history of multiple cancers in the past, but she admitted that no one has told her that she currently suffers from cancer. (R. at 42-43.)
Carter testified that on a typical day she would be up a couple of hours and then have to lie down for a couple of hours. (R. at 45.) Carter said she could not vacuum, change light bulbs, cook, mop or sweep. (R. at 46.) Carter said she did her own grocery shopping, could dust the furniture, wash the dishes and do her laundry. (R. at 46.) Carter testified that she suffered from chest pain whenever she took a deep breath. (R. at 47.) She also stated that, since being hit by the car, she suffered from dizziness and blurred vision. (R. at 47.) Carter stated that she also suffered from bad headaches, which would require her to lie down for 30 to 45 minutes at a time. (R. at 48.) She testified that the Tramadol made her feel drowsy. (R. at 48.) Carter said that she often had nightmares about a car hitting her. (R. at 48.) Carter testified that she normally slept for only four hours a night and would often have to take a couple of naps during the day. (R. at 49.)
Vocational expert, Robert Jackson, testified at Carter’s hearing. (R. at 49-53.) Jackson stated that Carter’s past work as a dental assistant was light, skilled work and that her job as a waitress was light, semi-skilled work, with the exception of the job as buffet attendant, which was light and unskilled. (R. at 51.) The ALJ asked Jackson to consider a hypothetical individual of Carter’s age, education and work history, who could occasionally lift and carry items weighing 20 pounds and frequently lift and carry items weighing 10 pounds, stand, walk or sit for six hours in an eight-hour workday with normal breaks, who was limited to only occasionally pushing, pulling or reaching overhead or at waist level with the left upper extremity, who had no postural limitations and who should avoid concentrated exposure to irritants, such as fumes, odors, dusts, gases and poorly ventilated areas and even moderate exposure to operational control of moving machinery and unprotected heights. (R. at 51.) Jackson testified that such an individual could not perform Carter’s past work. (R. at 52.) Jackson also identified jobs that existed in significant numbers at the light, unskilled level that such an individual could perform, including jobs as a packer, a counter rental clerk and a usher, lobby attendant. (R. at 52.)
Jackson also was asked to assume the same individual, but who would be off task 20 to 25 percent of the workday due to chronic fatigue and pain. (R. at 52.) Jackson stated that there would be no jobs that such an individual could perform. (R. at 52.) Jackson testified that, if an employee would routinely miss two days a month, it would preclude gainful employment. (R. at 53.)
In rendering his decision, the ALJ reviewed records from Beverly Patterson, a family nurse practitioner with Dr. Scott Saffold, M.D.; Dr. William J. O’Connor, M.D.; Dr. James O. Merritt, IV, M.D; Grand Strand Regional Medical Center; Palmetto Health Baptist Hospital; Smyth County Community Hospital; University of Virginia Health Services; Dr. Juan Morales, M.D.; Dr. William D. Powers, M.D.; Angela Berry, Psy.D., a licensed clinical psychologist; Dr. Jacinto Alvarado, M.D.; Dr. Bert Spetzler, M.D., a state agency physician; and Joseph Leizer, Ph.D., a state agency psychologist.
On October 5, 2006, Carter saw Beverly Patterson, a family nurse practitioner, complaining of bloody drainage from her ears. (R. at 309-10.) Patterson’s examination of Carter’s ears revealed no abnormalities. (R. at 309.) Patterson ordered audiometric testing. (R. at 310.) Carter saw Patterson again on October 16, 2006, for the same complaints. (R. at 311.) Other than the left ear canal skin being mildly inflamed, Patterson found no other abnormalities. (R. at 311.)
Carter was treated inpatient at Grand Strand Regional Medical Center from June 15-17, 2007, after being hit in the head and losing consciousness. (R. at 351-56.) It was noted that Carter had a contusion and abrasion in the left parietal scalp. (R. at 354.) At CT scan revealed no fracture and no intracranial pathology. (R. at 354.) Carter was diagnosed with a mild closed head injury. (R. at 354.)
Carter saw Dr. William J. O’Connor, M.D., on June 28, 2007. (R. at 330-32.) Carter complained of some dysuria, urgency and frequency for the past three days. (R. at 330.) She also complained of having memory loss, confusion and dizziness. (R. at 330.) Carter said that she would be walking when her legs would stop working and were “out of her control” and she would just have to stand and wait several seconds for her legs to start working again. (R. at 330.) Carter claimed that she had suffered a head injury in a “mugging” on June 14, 2007, when she was hit on the head and had to be treated in the hospital for four days. (R. at 330-31.) Carter also complained of dizzy spells during which she would break out in a sweat, feel nauseous and experience her heart racing. (R. at 330.) Dr. O’Connor diagnosed a urinary tract infection and recommended an MRI of her brain. (R. at 331.)
On September 7, 2007, Carter saw Dr. O’Connor for a follow-up appointment for diabetes management. (R. at 328.) On this occasion, Carter denied experiencing any weakness, sweats, headaches, numbness, gait disturbances or vision changes. (R. at 329.) Dr. O’Connor noted that he thought Carter “may have been overdiagnosed regarding diabetes, ” and he ordered bloodwork, including a fasting glucose tolerance test, to confirm the diagnosis. (R. at 329.)
On October 12, 2007, Carter again was seen at the Grand Strand Regional Medical Center emergency room complaining of being assaulted a week previously. (R. at 357.) Carter claimed she had been punched in the left eye and kicked behind the right lower leg. (R. at 357.) She complained of difficulty walking with a headache and drowsiness. (R. at 357.) Carter was in handcuffs on this occasion and accompanied by a police officer. (R. at 357.) Exam showed periorbital ecchymosis on the left side and tenderness over the lateral right knee area with some ecchymosis noted. (R. at 357.) X-rays showed a nondisplaced fracture of the right proximal fibula, and she was placed in a long-leg posterior splint, given crutches and told to follow up with orthopedics. (R. at 357.) A CT scan of her head showed no acute process. (R. at 357.)
On March 13, 2008, Carter saw Dr. O’Connor for complaints of a urinary tract infection and upper respiratory infection. (R. at 316-20.) Dr. O’Connor noted that Carter’s examination was normal. (R. at 316.) Carter returned to see Dr. O’Connor on July 1, 2008, complaining of coughing up bright red blood for the past 24 hours. (R. at 320.) Dr. O’Connor prescribed prednisone and advised Carter to seek evaluation at an emergency room urgently. (R. at 322.)
On October 17, 2007, Carter saw Dr. James O. Merritt, IV, M.D., for evaluation of her right knee. (R. at 336.) Carter said that she had been kicked in the knee during an altercation. (R. at 336.) Carter was brought to the appointment by a police officer because she was being detained in prison at the time. (R. at 336.) X-rays revealed a proximal fibular fracture that was aligned anatomically. (R. at 336.) Dr. Merritt ordered weightbearing with crutches without a splint. (R. at 336.) When Carter returned to Dr. Merritt on November 14, 2007, x-rays revealed the fracture to be healing in an anatomic position with no evidence of displacement. (R. at 337.) Dr. Merritt stated that Carter should return only on an as-needed basis. (R. at 337.)
Carter was treated at Grand Strand Regional Medical Center on June 21, 2008, for injuries sustained in an assault. (R. at 338-41, 359-60, 385-86.) Carter stated that she was homeless and lived in the woods. (R. at 359, 385.) She stated that she had been assaulted the night before and was unconscious for a period of time after being struck in the head. (R. at 359, 385.) X-rays of Carter’s cervical spine showed no evidence of acute fracture or dislocation, but did show some degenerative changes. (R. at 338.) X-rays of her right ankle showed a probable nondisplaced transverse fracture over the lateral malleolus with superficial soft tissue swelling. (R. at 339.) A CT scan of Carter’s head showed no evidence of intracranial injury. (R. at 340.)
Carter saw Dr. Merritt again on June 27, 2008, regarding the recent injury to her ankle. (R. at 342.) Carter gave a history of injury to her ankle in an assault a few days earlier. (R. at 342.) Dr. Merritt noted tenderness over Carter’s distal fibula with some moderate swelling. (R. at 342.) X-rays revealed the fibular fracture aligned anatomically with no evidence of significant displacement. (R. at 342.) Dr. Merritt ordered that Carter wear a Cam boot for four to six weeks and gradually increase her activities. (R. at 342.) On July 25, 2008, Dr. Merritt stated that Carter was doing well with no major problems. (R. at 343.) He noted normal alignment of her ankle, with a little stiffness and no significant swelling or problems. (R. at 343.) Dr. Merritt stated that Carter’s leg was in a cast, and he stated that the cast could come off and Carter be allowed to continue to increase her activities. (R. at 343.)
Carter was treated inpatient at Grand Strand Regional Medical Center from September 14-18, 2008, for injuries she sustained when, as a pedestrian, she was struck by a car. (R. at 344-48, 361-80, 387-407.) It was noted that Carter was confused at first and unable to relay how she had been injured. (R. at 361.) Upon admission through the emergency room, Carter was diagnosed as suffering from a left frontal subdural hematoma, left humerus fracture, right type 1 tibial plateau fracture and a urinary tract infection. (R. at 346.) Her urine screen was positive for the use of marijuana. (R. at 344.) Carter was discharged as stable on September 18, 2008, with her broken arm ...