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Hayes v. Colvin

United States District Court, W.D. Virginia

August 26, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



I. Background and Standard of Review

Plaintiff, Ricky Lee Hayes, ("Hayes"), 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 consent of the parties pursuant to 28 U.S.C. § 636(c)(1).

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 Hayes protectively filed his applications for SSI and DIB on August 22, 2008, alleging disability as of July 26, 2008, due to arthritis in the lower back and hips, pain in the back and hips, breathing problems, hemorrhoids and degenerative bone disease in the back and hips. (Record ("R."), at 226-29, 232-33, 256, 267.) The claims were denied initially and upon reconsideration. (R. at 63-94, 95-122, 127-32, 134, 137-38, 140-41.) Hayes then requested a hearing before an administrative law judge, ("ALJ"). (R. at 143-44.) Two hearings were held on Hayes's claims. One was held on February 16, 2011; the other was held on November 15, 2011. (R. at 27-48.) Hayes was represented by counsel at both hearings. (R. at 27, 32.)

By decision dated December 30, 2011, the ALJ denied Hayes's claims. (R. at 14-26.) The ALJ found that Hayes met the disability insured status requirements of the Act for DIB purposes through December 31, 2011.[1] (R. at 17.) The ALJ found that Hayes had not engaged in substantial gainful activity since July 26, 2008. (R. at 17.) The ALJ found that the medical evidence established that Hayes had severe impairments, namely degenerative disc disease, degenerative joint disease, chronic obstructive pulmonary disease, ("COPD"), major depressive disorder, borderline intellectual functioning and anxiety disorder, but the ALJ found that Hayes 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 17-19.) The ALJ found that Hayes had the residual functional capacity to perform simple, unskilled light work[2] that required no concentrated exposure to fumes, odors, gases, dust and poor ventilation, no exposure to hazards, only superficial contact with others and low-stress work, which was defined as no high production quotas or strict time demands for production. (R. at 19-25.) The ALJ found that Hayes was unable to perform any of his past relevant work. (R. at 25.) Based on Hayes's age, education, work experience, 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 Hayes could perform, including jobs as a cleaner, a mail clerk, a packer and a counter clerk. (R. at 25-26.) Thus, the ALJ concluded that Hayes 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, Hayes pursued his administrative appeals, but the Appeals Council denied his request for review. (R. at 1-3.) Hayes 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 Hayes's motion for summary judgment filed December 23, 2013, and the Commissioner's motion for summary judgment filed January 27, 2014.

II. Facts

Hayes was born in 1962, (R. at 63, 226, 256), which, at the time of the ALJ's decision, classified him as a "younger person" under 20 C.F.R. §§ 404.1563(c), 416.963(c). Hayes attended school into the eleventh grade, but his school records showed that he failed numerous high school courses. (R. at 327.) According to Hayes, he has obtained his General Equivalency Development, ("GED"), diploma. (R. at 330, 346.) Hayes has past work experience as an underground coal miner. (R. at 330, 346.) Hayes testified at his 2011 hearing that his pain, depression and anxiety had worsened since he was denied benefits on a prior application in 2008. (R. at 36, 39.) Hayes stated that he experienced pain throughout his back, in his hips and in his knees. (R. at 36.) Hayes admitted that he took Lortab for pain and that it helped some. (R. at 37.) Hayes also stated that he had trouble breathing. (R. at 36.)

Hayes testified that he could walk for five to 10 minutes before he would be forced to stop. (R. at 37.) Hayes also stated that he could sit for only 10 to 15 minutes before the pain would force him to stand up and move around. (R. at 38.) Hayes also testified that he had difficulty gripping and lifting items with his hands. (R. at 38.)

Robert Jackson, a vocational expert, also was present and testified at Hayes's November 15, 2011 hearing. (R. at 42-46.) He classified Hayes's past work as a coal miner/laborer as medium[3] to heavy[4]. (R. at 43-44.) The ALJ asked Jackson to consider a hypothetical individual of Hayes's age, education and work experience, who could occasionally lift, carry and/or upwardly pull items weighing up to 20 pounds and frequently lift, carry and/or upwardly pull items weighing up to 10 pounds, stand and/or walk with normal breaks for a total of about six hours in an eight-hour workday, sit with normal breaks for a total of about six hours in an eight-hour workday, occasionally climb ramps, stairs, ladders, ropes and scaffolds, occasionally balance, stoop, kneel, crouch and crawl and who must avoid concentrated exposure to fumes, odors, dust, gases and poor ventilation, as well as hazards such as dangerous moving machinery and unprotected heights. (R. at 44.) The ALJ also asked Jackson to assume that this individual was limited to simple, easy-to-learn unskilled work with only superficial contact with the public, co-workers and supervisors and who should be in a low-stress job, which was defined as a job with no high production quotas or strict time demands for production such as assembly line type of work. (R. at 45.)

Jackson testified that a significant number of jobs existed that such an individual could perform, including jobs as a cleaner, a mail clerk, a packer, and a counter clerk, all at the light unskilled level. (R. at 45-46.) Jackson also testified that there would be no jobs available for a hypothetical individual who had no ability to follow work rules, who would be absent from work more than two days a month or who would have poor or no ability to demonstrate reliability. (R. at 46.)

In rendering his decision, the ALJ reviewed records from Wise County Public Schools; Norton Community Hospital; Mountain View Regional Medical Center; Stone Mountain Health Services; William J. Hamil, M.Ed., LSPE; Wise County Behavioral Health Services operated by Frontier Health; Howard S. Leizer, Ph.D., a state agency psychologist; Joseph Leizer, Ph.D., a state agency psychologist; Dr. Richad Surrusco, M.D., a state agency physician; Dr. William Humphries, M.D.; B. Wayne Lanthorn, Ph.D., a licensed clinical psychologist; and Edward E. Latham, Ph.D., a clinical psychologist.

The medical records show that Hayes was diagnosed with COPD as early as 2001. (R. at 358.) It also shows that Hayes has complained of chronic low back pain for years. (R. at 371, 374, 376, 403, 405-14.) A bone scan performed on Hayes's cervical, thoracic and lumbar spine, anterior chest, shoulders and hands revealed mild increased uptake in the right acromiocalvicular, ("AC"), joint and left first metacarpal phalangeal joint, most likely due to arthritic changes in these joints. (R. at 364.) An MRI of Hayes's cervical spine performed on September 27, 2001, revealed normal results except for a mild disc bulge in the midline at the C5-C6 level resulting in slight effacement of the thecal sac anterior to the spinal cord with slight narrowing of the neural foramen on the left side at this level. (R. at 362.) An MRI of Hayes's left shoulder taken the same day revealed mild to moderate arthritic changes in the AC joint and peritendinitis around the rotator cuff tendon. (R. at 362.) X-rays of Hayes's lumbar spine taken on May 31, 2006, showed no acute abnormality in his spine. (R. at 371.) X-rays of Hayes's lumbar spine and hips taken on December 4, 2007, showed minimal degenerative changes of the lumbar spine with disc spaces within normal limits and no significant abnormalities of his hips. (R. at 437.) In 2007, Hayes also was diagnosed with depression. (R. at 407.)

Frontier Health Case manager Michael Sean Halcomb, B.A., completed an Outpatient Admission - Intake of Hayes on August 3, 2007. (R. at 472-93.) Hayes told Halcomb that he was seeking mental health treatment because his "nerves [were] shot." (R. at 472.) Hayes stated that he could not work due to an injury and that he was seeking disability benefits. (R. at 472.) Hayes said that his wife supported the family, and he felt bad about not being able to work and contribute financially. (R. at 472.) Halcomb noted that Hayes walked slowly. (R. at 472.) Hayes reported that he took two 7.5 mg Lortabs daily for back pain. (R. at 472.) Hayes reported that the financial strain was causing marital difficulties. (R. at 472.) Hayes also reported drinking about 12 beers per week for years. (R. at 472.)

The assessment noted that Hayes reported no involvement in any leisure or recreational activities and stated that he would be encouraged to develop appropriate diversion/leisure activities. (R. at 476.) The assessment stated that Hayes was depressed about his then-current situation and was anxious about fears of losing his home and his health. (R. at 477.) Hayes complained of moderate decrease in energy or fatigue, moderate social withdrawal, moderate anxiety, moderate jitteriness, mild panic attacks, severe worrying, moderate memory impairment, mild racing thoughts, mild hallucinations, mild decreased appetite, mild anger, moderate blunted or flat affect, severe depressed mood, severe feelings of worthlessness, moderate feelings of helplessness and hopelessness, moderate irritability, moderate loss of interest or pleasure, severe low self-esteem, mild insomnia and moderate tearfulness. (R. at 481-83.) Halcomb diagnosed major depressive disorder, single episode, severe, with psychotic features, and he placed Hayes's then-current Global Assessment of Functioning, ("GAF"), [5] score at 40.[6] (R. at 485.)

Hayes saw Halcomb for individual therapy on September 4, 2007. (R. at 494.) Hayes reported increased feelings of depression and chronic worry over financial problems. (R. at 494.) Halcomb stated that Hayes's mood was depressed, and his affect was flat. (R. at 494.) Halcomb encouraged Hayes to focus on possible solutions to his problems rather than worrying. (R. at 494.)

William J. Hamil, M.Ed., LSPE, performed a psychological evaluation of Hayes on March 15, 2008. (R. at 418-23.) Hayes complained of depression since he had been forced to quit work due to health problems two years previously. (R. at 419.) Hayes told Hamil that he felt "down in the dumps all the time." (R. at 419.) Hayes stated that he avoided people and stayed to himself. (R. at 419.) He stated that he could not handle stress anymore. (R. at 419.) Hayes stated that he suffered from insomnia and could not sleep without medicine. (R. at 422.) He said he felt worthless. (R. at 422.)

Hayes told Hamil that he withdrew from school in the eleventh grade to go to work. (R. at 419.) Hayes denied ever being in special education classes and reported earning his GED at age 20. (R. at 419.) Hayes stated that he had worked 27 years as an underground coal miner. (R. at 419.) Hayes said that he spent most of his days watching television. (R. at 422.)

Hayes reported that he suffered from osteoarthritis, rheumatoid arthritis, hypertension, bone spurs in his back and hips, degenerative disc disease, hemorrhoids and high cholesterol. (R. at 419.) Hayes stated that he had received outpatient mental health treatment at Wise County Behavioral Health Center for the previous year. (R. at 420.) Hamil found Hayes's affect to be appropriate. (R. at 420.) Hayes denied suicidal or homicidal ideations. (R. at 420.) No hallucinations or delusions were elicited. (R. at 420.) Hamil stated that Hayes was alert and oriented with intact attention, concentration and short-term memory and adequate insight and judgment. (R. at 420.)

Hamil administered the Weschler Adult Intelligence Scale III, ("WAIS-III"), on which he obtained a verbal IQ score of 89, a performance IQ score of 80 and a full-scale IQ score of 84, placing him in the low average range of intellectual functioning. (R. at 420-21.) Hamil also administered the Minnesota Multiphasic Personality Inventory 2, ("MMPI-2"), which showed that Hayes was likely to present with chronic pain and complain of being physically ill. (R. at 421.) He also was likely to tend to worry a great deal, be irritable, anxious, moody, guilt prone, brooding, unhappy and have episodes of depression. (R. at 421.)

Hamil diagnosed Hayes with suffering from a major depressive disorder, single episode, moderate; arthritis; hypertension; degenerative disc disease; hemmorrhoids; and high cholesterol. (R. at 423.) Hamil estimated Hayes's then-current GAF score at 50.[7] (R. at 423.) Hamil stated that Hayes should be able to comprehend and follow simple and somewhat detailed job instructions and perform simple and repetitive tasks. (R. at 423.) Hamil stated that Hayes's concentration and persistence appeared to be adequate to meet the demands of simple or even detailed work-related decisions. (R. at 423.) Hamil said that Hayes showed a markedly unsatisfactory ability to interact with others, especially to accept instructions from supervisors and interact with co-workers and the public in an appropriate manner, as evidenced by a desire to be alone. (R. at 423.) Hamil also said that Hayes was markedly limited in his ability to deal with the usual stress encountered in competitive work, adapt to changes in the workplace, to be aware of normal hazards or to take appropriate precautions because of stress sensitivity. (R. at 423.) Hamil stated that Hayes's mood and physical problems might markedly detract from his ability to maintain regular attendance, perform work activities on a consistent basis, perform work activities without special/additional supervision and meet an employment schedule such as completing a normal workday/workweek without interruption. (R. at 423.) Hamil recommended continued mental health counseling and medication management by a psychiatrist. (R. at 423.)

Hamil also completed an Assessment Of Ability To Do Work-Related Activities (Mental) on Hayes. (R. at 424-26.) Hamil stated that Hayes had a poor ability to make all occupational, performance and personal-social adjustments except for a good ability to follow work rules, to maintain attention and concentration and to understand, remember and carry out detailed, but not complex, and simple job instructions. (R. at 424-25.) Hamil stated that Hayes would, on average, be absent more than two days a month due his mental impairments or treatment. (R. at 426.)

Hayes has been treated at Stone Mountain Health Services for complaints of chronic back pain since as early as 2007. (R. at 403-14.) Hayes was seen at Stone Mountain Health Services in Appalachia on March 24, 2008, for a routine checkup. (R. at 427-30.) Hayes stated that amitriptyline had improved his sleep and helped him better cope during the daytime. (R. at 427.) Hayes was diagnosed ...

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