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Livesay v. Colvin

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

September 10, 2014

SUSAN J. LIVESAY, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM OPINION

PAMELA MEADE SARGENT, Magistrate Judge.

I. Background and Standard of Review

Plaintiff, Susan J. Livesay, ("Livesay"), filed this action challenging the final decision of the Commissioner of Social Security, ("Commissioner"), determining that she 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 upon transfer pursuant to the consent of the parties under 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 Asubstantial evidence.'"" Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (quoting Laws, 368 F.2d at 642).

The record shows that Livesay protectively filed her application for DIB on September 19, 2009, alleging disability as of March 15, 2008, due to an anxiety disorder, panic attacks, social anxiety, nerves, depression and stomach problems due to "the nerve problem." (Record, ("R."), at 19, 35, 180-81, 213, 217.) The claim was denied initially and on reconsideration. (R. at 105-09, 112, 114-16, 118-20.) Livesay then requested a hearing before an administrative law judge, ("ALJ"), (R. at 121-22.) The hearing was held by video conferencing on April 2, 2012, at which Livesay was represented by counsel. (R. at 33-73.)

By decision dated April 16, 2012, the ALJ denied Livesay's claim. (R. at 19-28.) The ALJ found that Livesay met the nondisability insured status requirements of the Act for DIB purposes through June 30, 2013. (R. at 21.) The ALJ also found that Livesay had not engaged in substantial gainful activity since March 15, 2008, the alleged onset date. (R. at 21.) The ALJ found that the medical evidence established that Livesay suffered from severe impairments, namely affective disorder, anxiety disorder, personality disorder, anal fissure, chronic spastic colitis and gastritis, but he found that Livesay 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 21-23.) The ALJ found that Livesay had the residual functional capacity to perform a range of light work[1] that did not require the climbing of ladders, ropes or scaffolds, no more than occasional climbing of ramps or stairs, stooping, kneeling, crouching or crawling, that required no more than low-stress work, which he defined as requiring only occasional decision making and occasional changes in the work setting, that required less than occasional interaction with the public and frequent interaction with co-workers and supervisors. (R. at 23.) The ALJ found that Livesay was unable to perform her past relevant work as a fast food worker. (R. at 27.) Based on Livesay'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 Livesay could perform, including jobs as an assembler, a photocopy machine operator and a housekeeper. (R. at 27-28.) Thus, the ALJ found that Livesay was not under a disability as defined under the Act from March 15, 2008, through the date of the decision, and was not eligible for benefits. (R. at 28.) See 20 C.F.R. § 404.1520(g) (2013).

After the ALJ issued his decision, Livesay pursued her administrative appeals, (R. at 14), but the Appeals Council denied her request for review. (R. at 1-5.) Livesay 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 Livesay's motion for summary judgment filed January 15, 2014, and the Commissioner's motion for summary judgment filed February 14, 2014.

II. Facts

Livesay was born in 1979, (R. at 180, 213), which classifies her as a "younger person" under 20 C.F.R. § 404.1563(c). She has a high school education and is a licensed cosmetologist in Virginia. (R. at 41, 223.) She has past relevant work experience as a cook and a cashier. (R. at 199, 218.) Livesay testified that she lived with her husband and three-year-old daughter. (R. at 40.) She stated that she did not drive because it made her "panicky." (R. at 40.) Livesay testified that she worked as a cook and a cashier at a take-out restaurant, which required her to lift 50-pound bags of potatoes and 25-pound oil jugs. (R. at 43-45.) She stated that she began experiencing panic attacks while working this job. (R. at 45.)

Livesay testified that she experienced diarrhea on a daily basis, which came on suddenly and required her to use the restroom five to 10 times daily. (R. at 46.) She testified that this diarrhea was partly due to her anxiety. (R. at 55.) She further stated that she had suffered from an anal fissure for approximately one year, which would tear open and bleed upon lifting too much. (R. at 51-52, 56.) She stated that her doctor thought it would heal itself if the diarrhea could be controlled. (R. at 56.) Livesay testified that she used an ointment and soaked in a tub to treat the fissure. (R. at 56.) She estimated that she could safely lift less than 25 pounds. (R. at 51-52.)

Livesay testified that she suffered from panic, anxiety and "nerves, " resulting in her staying home. (R. at 46.) She stated that she usually had three to four panic attacks daily, lasting from 10 to 15 minutes each, then returning in approximately an hour. (R. at 46-47, 53.) Livesay testified that she began having panic attacks in August 2004, which she described as her head feeling "weird, " sort of "black[ing] out, " her heart racing and breaking out in a sweat. (R. at 47.) She stated that she had been tested for a seizure disorder due to the feeling of blacking out, but that had been ruled out. (R. at 56.) Livesay testified that she was taking medication for her panic problems, prescribed by Dr. Ford. (R. at 47.) Livesay stated that, although she was not seeing a psychologist or psychiatrist at that time because she could not afford it, she had seen a counselor at Lee County Behavioral Health Services, as well as Crystal Burke at Stone Mountain Health Services. (R. at 47.) However, she stated that she was waiting to pay her bills down before returning for additional mental health treatment. (R. at 47.) Livesay further testified that she suffered from depression on and off since 2004, for which Dr. Ford prescribed medication. (R. at 47-48.)

Livesay testified that she had experienced a change in her weight over the previous couple of years due to anxiety induced vomiting, which occurred daily. (R. at 50.) She stated that her sleep was variable, and her depression drained her energy. (R. at 50-51.) She further stated that she had difficulty concentrating. (R. at 51.) Livesay described a typical day as using Facebook, talking on the phone with her mother and sometimes cooking for her daughter. (R. at 52.) She stated that she spent about an hour a day, off and on, using the computer. (R. at 52.) Livesay testified that her husband did the grocery shopping because she did not "do crowds." (R. at 52.) However, she stated that there were not any household chores that she could not do. (R. at 52.) Livesay testified that she might go out once a week to her mother's house, which was approximately seven miles from her home. (R. at 53.)

Vocational expert, Thomas Heiman, also was present and testified at Livesay's hearing. (R. at 57-68.) Heiman classified Livesay's work as a fast food cook as medium[2] and as an informal waitress and a cashier II as light. (R. at 58.) Heiman was asked to consider a hypothetical individual of Livesay's age, education and work history, who had no exertional limitations, but who was limited to low-stress work, which was defined as involving only occasional decision making and occasional changes in the work setting. (R. at 59.) This individual also could interact with the public less than occasionally, but could interact with co-workers and supervisors frequently. (R. at 59-60.) Heiman testified that such an individual could not perform Livesay's past work, but could perform other jobs existing in significant numbers in the national economy, including jobs as a hospital cleaner, a hand packager and a warehouse worker. (R. at 60.) Heiman next was asked to consider a hypothetical individual of Livesay's age, education and work history, who could lift items weighing up to 20 pounds occasionally and up to 10 pounds frequently, stand or walk for six hours and sit for six hours in an eight-hour workday with normal breaks, never climb ladders, ropes or scaffolds, occasionally climb ramps or stairs, stoop, kneel, crouch or crawl, and who possessed the same mental limitations as in the first hypothetical. (R. at 60-61.) Heiman testified that such an individual could perform the jobs of a small products assembler, a photocopy machine operator and a commercial housekeeping maid, all at the light level of exertion and all existing in significant numbers in the national economy. (R. at 61.) Next, Heiman was asked to assume an individual of Livesay's age, education and work history, but who was limited to lifting items weighing up to 10 pounds occasionally, standing or walking for about two hours and sitting for about two hours in an eight-hour workday, who would need to alternate between sitting or standing at 15-minute intervals, who should never climb ladders, ropes or scaffolds, who could climb ramps or stairs less than occasionally, who could occasionally stoop and kneel, but less than occasionally crouch, and who was limited to simple, routine and repetitive tasks in a low-stress job involving only occasional decision making and changes in the work setting and less than occasional interaction with the public, co-workers and supervisors. (R. at 61-62.) Heiman testified that such an individual would be precluded from performing any work. (R. at 62.) Heiman also testified that employers customarily tolerate one absence every other month. (R. at 63.) Heiman was asked to consider the same individual as in the second hypothetical, but who also would be off-task three to five times per day for approximately 10 minutes each in addition to regularly scheduled breaks. (R. at 63-64.) Heiman testified that such an individual could not perform the jobs previously cited. (R. at 64.) When Heiman was asked to consider the second hypothetical individual, but who was limited to no contact with the public and less than occasional contact with co-workers and supervisors, he testified that such restrictions would erode the previously cited jobs of small parts assembler, copy machine operator and commercial housekeeping maid by 80 percent. (R. at 64-66.) Finally, Heiman testified that an individual who was unable to meet competitive standards in completing a workday, completing a workweek, dealing with stress and accepting instructions and supervision could not perform any jobs. (R. at 66-68.)

In rendering his decision, the ALJ reviewed medical records from Julie Jennings, Ph.D., a state agency psychologist; Howard S. Leizer, Ph.D., a state agency psychologist; Dr. Zafar Ahsan, M.D., a psychiatrist; Karen Schooler, B.A.; Wellmont Lonesome Pine Hospital; Wellmont Holston Valley Medical Center; Medical Associates of Southwest Virginia; Dr. Michael Ford, M.D.; Wellmont Family Medicine; Highlands Pathology Consultants; Appalachia Medical Clinic; Comprehensive Neurology, Inc.; Dr. Edakandiyil Manoharan, M.D.; B. Wayne Lanthorn, Ph.D., a licensed clinical psychologist; Donna Abbott, M.A., a senior psychological examiner; Lee County Behavioral Health Services, ("Frontier Health"); Pennington Family Health Center; Stone Mountain Health Services; Teresa Jarrell, M.A., a licensed psychologist; and Dr. Lance C. Dozier, M.D.

In an October 29, 2009, Function Report, Livesay stated that she cared for her young daughter, prepared food for herself and her husband, watched television and did laundry. (R. at 230-37.) However, she indicated that she needed motivation to do these things due to depression. (R. at 231.) Livesay reported that her husband helped care for their daughter. (R. at 232.) She denied any problems with personal care. (R. at 232.) Livesay stated that she could not go out alone because she felt nervous and shaky and like she was going to pass out or have a panic attack. (R. at 233.) She reported talking on the phone to family and using the computer to communicate to distant family occasionally. (R. at 234.) She stated that she went to her parents' house on the weekends. (R. at 234.) Livesay reported problems getting along with others, noting that she tensed up and got agitated easily. (R. at 235.) She also reported an inability to communicate well with others and feeling different from others due to her panic attacks. (R. at 235.) She stated that her condition affected her ability to talk, to complete tasks, to understand and to get along with others, as well as her memory and concentration. (R. at 235.) Livesay estimated that she could pay attention for five to 10 minutes, but could not finish what she started. (R. at 235.) She rated her ability to follow written and spoken instructions as fair, and she reported not being able to get along well with authority figures due to stress and anxiety when in confrontational situations. (R. at 235-36.) She reported not being able to handle stress at all and not handling changes in routine well. (R. at 236.) She reported unusual behaviors and fears to include social ...


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