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Lovern v. Colvin

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

September 29, 2014

ROLAND G. LOVERN, JR., 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, Roland G. Lovern, ("Lovern"), 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 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 Lovern protectively filed a previous DIB claim on July 3, 2008, alleging disability as of April 30, 2008, which was denied by decision dated October 28, 2009.[1] (Record, ("R."), at 64-74.) Lovern protectively filed his current application for DIB on October 28, 2009, alleging disability as of October 29, 2009, [2] due to a back/spinal injury, anxiety, depression, severe high blood pressure, nerve damage in his left leg and leg pain. (R. at 18, 210-13, 243, 274.) The claim was denied initially and on reconsideration. (R. at 108-12, 114-18, 119, 120-22, 124-26.) Lovern then requested a hearing before an administrative law judge, ("ALJ"), (R. at 127.) The hearing was held on October 28, 2011, by video conferencing, at which Lovern was represented by counsel. (R. at 35-60.)

By decision dated February 2, 2012, the ALJ denied Lovern's claim. (R. at 18-34.) The ALJ found that Lovern met the nondisability insured status requirements of the Act for DIB purposes through December 31, 2013. (R. at 20.) The ALJ also found that Lovern had not engaged in substantial gainful activity since October 24, 2009.[3] (R. at 20.) The ALJ found that the medical evidence established that Lovern suffered from a severe impairment, namely status-post lamincetomy, but he found that Lovern 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 20-23.) The ALJ found that Lovern had the residual functional capacity to perform sedentary work[4] which did not require more than occasional stooping, kneeling, crawling and crouching, and which allowed for positional changes every 45 minutes. (R. at 23-26.) The ALJ found that Lovern could perform his past relevant work as a product support advisor/customer service worker. (R. at 26.) Based on Lovern's age, education, work history and residual functional capacity and the testimony of a vocational expert, the ALJ also found that jobs existed in significant numbers in the national economy that Lovern could perform, including jobs as a ticket checker, a telephone clerk and a general office clerk. (R. at 28.) Thus, the ALJ found that Lovern was not under a disability as defined under the Act from October 24, 2009, [5] through the date of the decision, and was not eligible for benefits. (R. at 28.) See 20 C.F.R. §§ 404.1520(f), (g) (2013).

After the ALJ issued his decision, Lovern pursued his administrative appeals, (R. at 13), but the Appeals Council denied his request for review. (R. at 1-4.) Lovern 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 Lovern's motion for summary judgment filed November 26, 2013, and the Commissioner's motion for summary judgment filed December 23, 2013.

II. Facts

Lovern was born in 1978, (R. at 42, 210, 214, 239), which classifies him as a "younger person" under 20 C.F.R. § 404.1563(c). He has a high school education and some college course work. (R. at 43.) He has past relevant work experience as a field supervisor for a communications company, a butcher and a product support advisor in a call center for a consumer electronics business. (R. at 44-46, 244, 254.) Lovern testified that he read magazines regularly and a novel on occasion. (R. at 43.) He testified that he last worked in March or April 2008 as a technical support advisor in a call center for electronic equipment. (R. at 44.) Lovern testified that he underwent back surgery in August 2000, which helped for a year or two, but that the pain slowly returned. (R. at 47-48.) He stated that he experienced low back pain that radiated into both legs to the calves, the left worse than the right, with bilateral leg weakness, loss of left leg mass and some numbness in the left leg. (R. at 49, 51-52.) Lovern testified that he had been considering undergoing another surgery since 2009. (R. at 48-49.) He stated that he spent a significant part of the day in bed and that he used a crutch and a cane at times. (R. at 51.) Lovern testified that his back pain had worsened over the previous couple of years. (R. at 52.) He stated that he used heating pads, hot baths and Icy Hot patches to help alleviate his back pain. (R. at 52-53.) He stated that he had constant leg pain. (R. at 49.) Lovern testified that his current back pain was worse than the pain he experienced prior to his 2000 surgery. (R. at 53.)

Lovern estimated that he could walk for about 20 minutes before having to stop and rest and that he could sit for up to 30 minutes at a time in a supportive chair. (R. at 53.) He stated that he had to switch positions among his bed, a chair, a couch and a computer chair throughout the day to get comfortable. (R. at 53-54.) He stated that his wife performed 90 percent of household chores. (R. at 54.)

Lovern also stated that he had been taking anxiety medication for several years and that he had seen D. Kaye Weitzman, a counselor, since 2009. (R. at 49-50.) He stated that he had suffered from hypertension since age seven, which was controlled with medications. (R. at 49.) Lovern said that he also suffered from intermittent bouts of gout, usually in the left leg and usually lasting a few days four to five times annually. (R. at 49.) He stated that the gout also was controlled with medication. (R. at 50.)

Ann Marie Cash, a vocational expert, also was present and testified at Lovern's hearing. (R. at 54-58.) She classified his past work as a butcher and as a telephone and equipment installer, as performed by Lovern, as heavy[6] and skilled and as a customer service worker as sedentary and skilled. (R. at 55.) Cash testified that a hypothetical individual of Lovern's age, education and work history, who could occasionally lift and carry items weighing up to 35 pounds, frequently lift and carry items weighing up to 20 pounds, sit for six hours in an eight-hour workday, stand or walk for two hours in an eight-hour workday, and who must change positions every 45 minutes, could perform Lovern's past work as a customer service worker. (R. at 55.) Cash further tesitified that such an individual could perform other jobs existing in significant numbers in the national economy, including jobs as a general office clerk, a telephone clerk and a charge clerk, all at the sedentary level of exertion. (R. at 56.) Cash next testified that the same hypothetical individual, but who could lift and carry items weighing up to 15 pounds occasionally and up to eight pounds frequently, could perform the same previously named jobs at the sedentary level of exertion. (R. at 56.) When asked whether that same individual, but who also could not stoop, kneel, crouch, crawl or be exposed to moving machinery or heights, could perform those jobs, Cash testified that he or she could not. (R. at 56-57.) Next, Cash testified that the same individual, but who also would be limited to simple, routine, repetitive tasks in a work environment free of fast paced quota requirements and involving simple work-related decisions with only occasional interaction with the public, could still perform the jobs of a general office clerk, as well as jobs as a tube operator and a ticket checker. (R. at 57.) Cash testified that the same hypothetical individual, but who also would miss more than three days of work monthly due to his or her physical condition, could not perform any work. (R. at 57.) Lastly, Cash was asked to consider a hypothetical individual with the limitations set forth in the physical assessment completed by Dr. Patricia Vanover, M.D., on August 25, 2010. (R. at 58.) She testified that such an individual could not perform any jobs. (R. at 58.)

In rendering his decision, the ALJ reviewed medical records from Dr. Patricia Vanover, M.D.; Norton Community Hospital; B. Wayne Lanthorn, Ph.D., a licensed clinical psychologist; D. Kaye Weitzman, L.C.S.W., a licensed clinical social worker; Holston Valley Medical Center; Solutions Counseling, LLC; Stone Mountain Health Services; Dr. Kevin Blackwell, D.O.; Mountain View Regional Medical Center; and Johnston Memorial Hospital.

The record shows that on August 9, 2000, when Lovern was only 22 years old, he underwent complete bilateral L4 and L5 and partial S1 laminectomies and medial facetectomies with additional resection of the left L5-S1 herniated nucleus pulposus by Dr. Ken W. Smith, M.D., a neurosurgeon. (R. at 373-76.) When Lovern was discharged in satisfactory condition on August 11, 2000, it was noted that he had significant improvement of leg pain. (R. at 377-78.)

X-rays of Lovern's lumbar spine dated July 24, 2009, showed postsurgical changes at the L4-L5 level, some mild narrowing at the L4-L5 disc, as well as minimal change at L3-L4. (R. at 347.) Mild scattered degenerative spurring also was present with no spondylolysis. (R. at 347.) Mild degenerative changes also were present in the lower facets. (R. at 347.) It was concluded that there was no acute abnormality. (R. at 347.)

On September 21, 2009, B. Wayne Lanthorn, Ph.D., a licensed clinical psychologist, completed a psychological evaluation at the request of Lovern's attorney. (R. at 355-65.) Lovern was fully oriented. (R. at 357.) He reported his daily activities to include watching television, reading and playing computer games, but basically staying at home. (R. at 359-60.) Lanthorn noted that Lovern had never received any formal psychiatric or psychotherapeutic intervention. (R. at 359.) Lovern's speech was clear and intelligible, and his grooming and hygiene were adequate. (R. at 359-60.) His affect was described as mixed. (R. at 360.) Lanthorn noted that it was evident at times that Lovern was in pain, had a flatness and bluntness to his affect, and his mood could best be described as somewhat depressed. (R. at 360.) Lovern reported that antidepressant medication had been helpful and that he was only occasionally irritable. (R. at 360.) He denied suicidal or homicidal ideation, plans or intent, and he stated his energy level was fairly good. (R. at 360.) Lovern indicated no significant problems with memory or concentration. (R. at 360.) He admitted becoming nervous, shaky, jittery, slightly dizzy and having butterflies in his stomach at times. (R. at 360.) Lanthorn noted no signs of ongoing psychotic processes or any evidence of delusional thinking. (R. at 360.)

Lanthorn administered the Wechsler Adult Intelligence Sale - Fourth Edition, ("WAIS-IV"), the results of which he deemed valid. (R. at 361-62.) Lovern achieved a full-scale IQ score of 108, placing him in the average range of intellectual functioning. (R. at 361.) His Verbal Comprehension Index score, abstract and logical thinking score and ability to analyze abstract visual stimuli score all were in the high average range. (R. at 361.) Lovern scored in the superior range on the Vocabulary subtest, and he earned a Processing Speed Index score of 120, placing him in the superior range in his ability to quickly and correctly span, sequence or discriminate simple visual information. (R. at 361.) Lanthorn also administered the Minnesota Multiphasic Personality Inventory - 2, ("MMPI-2"), the results of which were deemed valid. (R. at 362-63.) These results showed that Lovern may worsen ongoing physical symptoms in response to stress or may even develop new somatic areas of difficulty. (R. at 362.) They also indicated the presence of some depression, which contributed to social withdrawal and some erratic to poor concentration at times. (R. at 363.) The test results also indicated the presence of some anxiety, tension, worry and emotional discomfort. (R. at 363.) Lanthorn noted that Lovern seemed to worry to excess, which also contributed to problems with concentration. (R. at 363.) The test results also indicated that Lovern was experiencing moderate levels of emotional distress, but that his concentration skills and memory were adequate. (R. at 363.) However, interpersonally, he was somewhat introverted, but did not mind meeting strangers, and he got along well with family members. (R. at 363.)

Lanthorn diagnosed Lovern with a pain disorder associated with both psychological factors and general medical conditions, chronic; and a mood disorder with major depressive-like episode, moderate, due to chronic physical problems, pain and limitations; and he assessed Lovern's then-current Global Assessment of Functioning, ("GAF"), [7] score at 55. (R. at 364.) Lanthorn recommended that Lovern consider receiving both psychiatric and psychotherapeutic intervention. (R. at 364.) Lanthorn found that Lovern had a pain disorder with complications and difficulties, as well as apparent depression secondary to his physical difficulties. (R. at 364.) He noted that, despite antidepressant medications, Lovern continued to show signs and symptoms associated with depression. (R. at 364.) Lovern also had some indications of ongoing anxiety, tension, restlessness and over reactivity to stress. (R. at 364-65.) Lanthorn felt that Lovern had no limitations regarding learning simple or moderately complicated tasks in the work setting and only mild limitations with regard to sustaining concentration and persisting at tasks. (R. at 365.) He opined that Lovern had mild to moderate difficulties dealing with the changes and requirements in a work setting. (R. at 365.)

Lanthorn also completed a Medical Assessment Of Ability To Do Work-Related Activities (Mental) on Lovern, finding that he had an unlimited or very good[8] ability to understand, remember and carry out simple job instructions, a good[9] ability to follow work rules, to relate to co-workers, to maintain attention and concentration and to understand, remember and carry out detailed, but not complex, job instructions and a fair[10] ability to deal with the public, to use judgment, to interact with supervisors, to deal with work stresses, to function independently, to understand, remember and carry out complex job instructions, to maintain personal appearance, to behave in an emotionally stable manner, to relate predictably in social situations and to demonstrate reliability. (R. at 366-68.) Lanthorn opined that Lovern would be absent more than two days monthly from work due to his impairments or treatment. (R. at 368.) He noted the diagnoses he rendered on September 21, 2009, as well as the accompanying psychological evaluation as support for this assessment. (R. at 368.)

On September 23, 2009, Lovern saw D. Kaye Weitzman, L.C.S.W., a licensed clinical social worker, for intake at Dr. Vanover's referral. (R. at 369.) Lovern noted that he had suffered from bouts of depression for the previous four to five years, which had worsened over the previous year. (R. at 369.) Weitzman described Lovern's mood as depressed with a subdued affect, his orientation and thought processes were intact, and his judgment and insight were deemed fair. (R. at 369.) Weitzman diagnosed major depressive disorder, recurrent episode, moderate; a mood disorder; and generalized anxiety disorder. (R. at 369.) She placed Lovern's then-current GAF score at 40[11] and recommended individual therapy every two weeks. (R. at 369.) Weitzman also completed a Medical Source Statement Of Ability To Do Work-Related Activities (Mental) of Lovern, finding that he was mildly limited[12] in his abilities to carry out simple instructions and to make judgments on simple work-related decisions, moderately limited[13] in his abilities to understand and remember simple instructions, to understand, remember and carry out complex instructions, to make judgments on complex work-related decisions and to interact appropriately with the public, supervisors and co-workers and moderately to markedly limited[14] in his ability to respond appropriately to usual work situations and to changes in a routine work setting. (R. at 499-501.) Weitzman opined that Lovern would be absent from work more than two days monthly due to his impairments or treatment. (R. at 501.) Weitzman noted that this assessment was supported by Lovern's chronic pain following back surgery. (R. at 500.)

Lovern returned for counseling with Weitzman on October 2, 2009. (R. at 504.) He reported being short-tempered and grumpy, but getting better sleep than usual. (R. at 504.) Lovern endorsed moderate depression and panic attacks, but mild anxiety, irritability and crying spells. (R. at 504.) Lovern's energy, appetite and sleep were "ok, " but his attention/concentration was mildly decreased. (R. at 504.) Weitzman deemed Lovern's mood as depressed, his orientation and thought processes as intact and his judgment and insight as fair. (R. at 504.) Weitzman noted that Lovern was experiencing less stress. (R. at 504.)

On October 12, 2009, Lovern saw Dr. Patricia Vanover, M.D., with complaints of increasingly severe low back pain. (R. at 505-06.) He noted that his insurance refused to pay for an MRI. (R. at 505.) Lovern reported spending most of the day lying on the couch or reclining in a chair. (R. at 505.) He stated that he could care for his own needs and that he took pain medication sparingly due to fear of addiction. (R. at 505.) Lovern's blood pressure was 112/80, and he did not appear to be in distress. (R. at 505.) He had marked tenderness of the lumbosacral paraspinal muscles, and range of motion was restricted. (R. at 505.) Station was normal, but gait was slow and ambling. (R. at 505.) Dr. ...


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