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Duncan v. Colvin

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

October 1, 2014

KARLY A. DUNCAN, 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, Karly A. Duncan, ("Duncan"), filed this action challenging the final decision of the Commissioner of Social Security, ("Commissioner"), determining that she 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 upon transfer 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 Duncan protectively filed her application[1] for SSI[2] on January 6, 2010, alleging disability as of January 11, 2010, [3] due to bipolar disorder, problems with her back, right shoulder and right knee, depression and anxiety. (Record, ("R."), at 35, 292-97, 309, 314, 344.) The claims were denied initially and on reconsideration. (R. at 213-15, 219-21, 224-25, 227-29, 231-33.) Duncan then requested a hearing before an administrative law judge, ("ALT"). (R. at 234-35.) The hearing was held on January 18, 2012, at which Duncan was represented by counsel. (R. at 27-98.)

By decision dated January 27, 2012, the All denied Duncan's claim. (R. at 15-26.) The ALJ found that Duncan had not engaged in substantial gainful activity since January 6, 2010, the date of her application. (R. at 17.) The ALJ determined that the medical evidence established that Duncan suffered from severe impairments, including bipolar disorder, depression, anxiety disorder, degenerative disc disease, degenerative joint disease of the right shoulder and substance abuse, but he found that Duncan 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 17-18.) The ALJ found that Duncan had the residual functional capacity to perform simple, routine, repetitive sedentary work[4] that did not require more than occasional climbing, balancing, stooping, kneeling, crouching, crawling and reaching overhead with her right upper extremity, that required only frequent handling with her right upper extremity, that did not require concentrated use of moving machinery and exposure to unprotected heights and that allowed only occasional interaction with the public and co-workers. (R. at 19.) The ALJ found that Duncan was unable to perform her past relevant work. (R. at 24.) Based on Duncan's age, education, work history and residual functional capacity and the testimony of a vocational expert, the ALJ found that Duncan could perform other jobs existing in significant numbers in the national economy, including jobs as an addresser, a general office clerk and a ticket checker. (R. at 24-25.) Therefore, the ALJ found that Duncan was not under a disability as defined under the Act and was not eligible for benefits. (R. at 25.) See 20 C.F.R. § 416.920(g) (2013).

After the ALJ issued his decision, Duncan pursued her administrative appeals, but the Appeals Council denied her request for review. (R. at 1-5.) Duncan 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 Duncan's motion for summary judgment filed January 6, 2014, and the Commissioner's motion for summary judgment filed February 10, 2014.

II. Facts [5]

Duncan was born in 1979, (R. at 292, 294, 309), which classifies her as a "younger person" under 20 C.F.R. § 416.963(c). Duncan has a high school education. (R. at 315.) Duncan has past work as a cashier, a waitress, a convenience store clerk and an assembly worker. (R. at 83-84, 316.) Duncan testified at her hearing that she was incarcerated in April 2008 for prescription fraud. (R. at 64-65.) She stated that she abused prescription medication until she went to jail.[6] (R. at 65.) Duncan stated that she had never been able to keep a job for more than two or three months at a time because she did not like being in public around people and she did not want to talk to people. (R. at 73.)

AnnMarie Cash, a vocational expert, also was present and testified at Duncan's hearing. (R. at 81-97.) Cash was asked to consider an individual of Duncan's age, education and work experience, who had the residual functional capacity to perform simple, routine, repetitive medium work[7] that was free of fast-paced production requirements and that required only occasional interaction with the public and co-workers. (R. at 84.) Cash stated that there was a significant number of jobs that existed that such an individual could perform, including jobs as a dishwasher, a food prep worker and a stock clerk. (R. at 85-86.) Cash was asked to consider the same individual, but who had the residual functional capacity to perform simple, routine, repetitive light[8] work that required no more than occasional climbing, balancing, stooping, kneeling, crouching and crawling, and that did not require concentrated use of moving machinery and exposure to protected heights or more than occasional interaction with the public. (R. at 87.) Cash stated that such an individual could perform Duncan's past work as an assembler. (R. at 87.) She also stated that other jobs existed in significant numbers that such an individual could perform, including work as a silverware wrapper and a stock clerk. (R. at 88.) Cash was asked to consider the same individual who could perform simple, routine, repetitive sedentary work that allowed only occasional climbing, balancing, stooping, kneeling, crouching and crawling, frequently reaching in any direction, including overhead, with the right upper extremity, who should avoid concentrated use of moving machinery and exposure to unprotected heights and who could have only occasional interaction with the public and co-workers. (R. at 89-90.) She stated that such an individual could perform other jobs that existed in significant numbers, including jobs as an addresser, a general office clerk and a ticket checker. (R. at 91.) Cash stated that these jobs also would be available for an individual who required a sit/stand option and who could perform only occasional handling. (R. at 93.) She stated that there would be no jobs available that such an individual could perform should they miss more than two days of work per month, who would be off task 20 percent of the time and who would have no useful ability to deal with work stress or to demonstrate reliability. (R. at 94-95.)

In rendering his decision, the ALJ reviewed records from Louis Perrott, Ph.D., a state agency psychologist; Eugenie Hamilton, Ph.D., a state agency psychologist; Dr. Gale Jackson, M.D.; Dr. Uzma Ehtesham, M.D., a psychiatrist; Dr. Kevin Blackwell, D.O.; B. Wayne Lanthorn, Ph.D., a licensed clinical psychologist; Norton Community Hospital; Bristol Regional Medical Center; Wise County Behavioral Health Services; and Dr. Jody Bentley, M.D.

The reports contained in the record show that Duncan has suffered from substance abuse and psychological problems for years. In 2003, Duncan was treated at Norton Community Hospital for a drug overdose resulting in respiratory failure. (R. at 397-99.) A urine drug screen was positive for the use of benzodiazepines, tricyclics, antidepressants, opiates and marijuana. (R. at 399.) The admission note states that Duncan suffered from depression. (R. at 398.) The note also states that Duncan was found unresponsive at home with an empty Xanax prescription bottle that had been filled the same day. (R. at 398.) Duncan later denied any suicide attempt. (R. at 397.)

Duncan was involuntarily committed for inpatient psychiatric treatment in March 2006. (R. at 1028-30.) A toxicology screen performed on Duncan earlier that same month was positive for the use of amphetamines, barbiturates, benzodiazepines, cocaine, opiates and tricyclics. (R. at 494.) A screen performed in January 2006 was positive for the use of marijuana in addition to morphine and benzodiazepines. (R. at 625.) Upon admission for inpatient treatment, Duncan admitted that she had been abusing her prescribed Lortab and Xanax. (R. at 1028.) Duncan stated, "I have a drug problem." (R. at 1035.) She also admitted to smoking marijuana and drinking alcohol on occasion. (R. at 1035, 1040.) Upon intake, one of Duncan's goals for the hospitalization was "complete detox." (R. at 1044.) Duncan was discharged five days later. (R. at 1026-27.)

It appears the effort to wean Duncan off her dependence on Lortab failed, however, because she returned to using opiates without a valid prescription within a few months. (R. at 739, 741.) She also admitted to continued use of marijuana. (R. at 741, 748.) Duncan, again, entered inpatient detoxification at The Laurels in February 2008. (R. at 725, 727.) At the time of her admission, Duncan tested positive for the use of opiates, ...


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