United States District Court, W.D. Virginia, Big Stone Gap Division
KENNETH R. WRIGHT, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
PAMELA MEADE SARGENT, Magistrate Judge.
I. Background and Standard of Review
Plaintiff, Kenneth R. Wright, ("Wright"), 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 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 Asubstantial evidence.'"" Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (quoting Laws, 368 F.2d at 642).
The record shows that Wright protectively filed an application for DIB on May 14, 2009, alleging disability as of November 1, 2007,  due to back and neck pain, silicosis of the lungs, right arm and hand pain and numbness, depression, hypertension, stomach problems, bilateral hearing loss, feet and leg pain, insomnia and colon problems. (Record, ("R."), at 15, 207-09, 231, 285, 299.) The claim was denied initially and on reconsideration. (R. at 118-20, 124-26, 129-32, 134-36.) Wright then requested a hearing before an administrative law judge, ("ALJ"). (R. at 137.) The hearing was held on December 14, 2011, by video conferencing, at which Wright was represented by Jennifer Morgan, a paralegal. (R. at 31-81.)
By decision dated December 30, 2011, the ALJ denied Wright's claim. (R. at 15-25.) The ALJ found that Wright met the nondisability insured status requirements of the Act for DIB purposes through March 31, 2011. (R. at 17.) The ALJ also found that Wright had not engaged in substantial gainful activity since November 1, 2007, the alleged onset date. (R. at 17.) The ALJ found that the medical evidence established that, through the date last insured, Wright suffered from severe impairments, namely mild cervical degenerative changes, silicosis, borderline intellectual functioning, panic attacks and depression/dysthymia, but she found that Wright 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 17-21.) The ALJ also found that, through the date last insured, Wright had the residual functional capacity to perform simple, routine, light work that allowed him to frequently climb ramps and stairs, to balance, to kneel, to crawl, to stoop and to crouch, that did not require more than moderate exposure to temperature extremes, that did not require working around hazardous machinery, unprotected heights, vibration or climbing ropes or scaffolds, that did not require more than superficial interaction with co-workers and that did not require verbal interaction with co-workers or contact with the public. (R. at 21.) The ALJ found that, through his date last insured, Wright was unable to perform his past relevant work. (R. at 23.) Based on Wright'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 Wright could perform, including the job as a laundry worker, a hand packager, an auto detailer and a housekeeper/cleaner. (R. at 23-24.) Thus, the ALJ found that Wright was not under a disability as defined under the Act and was not eligible for benefits at any time from November 1, 2007, the alleged onset date, through March 31, 2011, the date last insured. (R. at 25.) See 20 C.F.R. § 404.1520(g) (2013).
After the ALJ issued her decision, Wright pursued his administrative appeals, (R. at 10), but the Appeals Council denied his request for review. (R. at 1-4.) Wright 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 Wright's motion for summary judgment filed January 14, 2014, and the Commissioner's motion for summary judgment filed February 18, 2014.
Wright was born in 1956, (R. at 35, 207), which classifies him as a "person of advanced age" under 20 C.F.R. § 404.1563(e). Wright has a limited education and past relevant work experience as a strip miner, a heavy equipment operator and an assisted living aide. (R. at 36, 38, 73, 226-29, 232, 238.)
Medical expert, Marshall D. Tessnear, Ph.D., a licensed psychologist, testified at Wright's hearing. (R. at 52-56, 485.) Tessnear stated that a review of the medical evidence indicated that Wright suffered from a dysthymic disorder, some panic attacks and that he was functioning in the borderline range of intellectual functioning. (R. at 55.) He stated that these impairments did not meet or equal a listing, but that they would present some functional limitations, such as precluding him from working with the general public and performing complex or highly detailed work and would limit him to only superficial minimal transactions with co-workers that did not require verbal interaction. (R. at 55.) Tessnear explained that Wright's IQ scores suggested that he was functioning in the borderline range of intelligence, not the mental retardation range, despite his full-scale IQ score of 64, because Wright was having vision difficulties that pulled his overall score down. (R. at 54.)
Medical expert, Dr. Gore David Stevens, M.D., a board certified neurosurgeon, also testified at Wright's hearing. (R. at 57-71.) Dr. Stevens reviewed the medical evidence and testified that there was no actual definitive diagnosis of any type of serious physical problem documented in the record. (R. at 58.) Dr. Stevens explained that Wright did not have a ventral hernia. (R. at 58.) He pointed out that, although Wright was referred for treatment for irritable bowel syndrome, there was no documentation of such treatment. (R. at 58-59.) Although Wright was diagnosed with prostatism,  Dr. Stevens stated that it was a common problem with older men that was not disabling. (R. at 59.) Instead, Dr. Stevens testified that prostatism is treatable and would not prevent Wright from working. (R. at 70.)
Dr. Stevens also reviewed the medical source statement from Wright's treating physician, Dr. Thomas E. Roatsey, D.O., but stated that the severe limitations identified were not substantiated by the evidence of record. (R. at 59-60.) Similarly, Dr. Stevens considered the limitations identified by the consultative examiner, Dr. Kevin Blackwell, D.O., and also stated that Dr. Blackwell's physical examination findings, including the range of motion chart, were all within normal limits. (R. at 60-61, 368, 371.) Dr. Stevens explained that there was no reason that Wright had physical or mechanical problems with regard to standing or sitting, and there was no reason why Wright could not stand for six hours in a workday. (R. at 63.) Dr. Stevens stated that, based upon the record as a whole, Wright was capable of performing medium work. (R. at 62.) He stated that pulmonary function studies contained in the record did not indicate that Wright's silicosis was a significant abnormality. (R. at 64.) Dr. Stevens explained that even though a lumbar spine film showed severe calcification of the abdominal aorta, this finding was not something to be concerned about because the abdominal aorta is one of the biggest vessels, so blood flow may not be obstructed, and it would not cause pain. (R. at 68-69.)
Vocational expert, Mark Alan Hallman, also was present and testified at Wright's hearing. (R. at 71-80.) Hallman was asked to consider a hypothetical individual of Wright's age, education and work history, who had the residual functional capacity to perform simple, routine, repetitive, unskilled light work that did not require more than frequent climbing of ramps and stairs, balancing, kneeling, crawling, stooping and crouching, that did not require more than moderate exposure to hazardous machinery, unprotected heights, climbing ladders, ropes and scaffolds, working on vibrating surfaces and no more than moderate exposure to extreme temperatures, that did not require interactions with the general public and that allowed for only superficial interaction with co-workers and supervisors, but no verbal contact or interaction with them. (R. at 73-74.) Hallman stated that there would be a significant number of jobs available that such an individual could perform, including jobs as a housekeeper/cleaner, a merchandise marker and a cannery machine tender. (R. at 76-77.) Hallman was asked to assume the same individual, but who had the residual functional capacity to perform medium work. (R. at 74-75.) Hallman stated that such an individual could perform the jobs of a laundry worker, a housekeeper/cleaner, a hand packager and an automobile in-taker, all of which existed in significant numbers. (R. at 75-76.) Hallman stated that there would be no jobs available should the individual be off task 30 to 40 percent of the workday. (R. at 77.) When asked to consider the same individual, but who would require bathroom breaks up to 30 times a day, there would be no jobs available that such an individual could perform. (R. at 78.)
In rendering her decision, the ALJ reviewed medical records from Dr. Thomas E. Roatsey, D.O.; Dr. Joseph Duckwall, M.D., a state agency physician; Joseph Leizer, Ph.D., a state agency psychologist; Dr. Richard Surrusco, M.D., a state agency physician; Julie Jennings, Ph.D., a state agency psychologist; Dr. Michael Hartman, M.D., a state agency physician; Dr. G. S. Kanwal, M.D.; Dr. Christopher Starnes, M.D.; Norton Community Hospital; Dr. Kevin Blackwell, D.O.; Mary Elizabeth Ballard, M.A., a psychological examiner; Diane L. Whitehead, Ph.D., a licensed clinical psychologist; Indian Path Medical Center; Norton Surgical Center; Wise Medical Group; Mountain View Regional Medical Center; and University of Virginia Health System.
On February 6, 2007, Wright saw Dr. Christopher Starnes, M.D., to establish a new primary care physician. (R. at 351.) On May 7, 2007, Wright reported that he was "doing okay." (R. at 326.) Examination was normal. (R. at 326.) He was diagnosed with chronic pain and anxiety. (R. at 326.) On July 6, 2007, Wright complained of shortness of breath upon standing. (R. at 338.) He was diagnosed with shortness of breath and questionable chronic obstructive pulmonary disease, ("COPD"). (R. at 338.) A chest x-ray taken on July 9, 2007, showed no acute cardiopulmonary disease. (R. at 341.) On August 6, 2007, Wright reported that he was "doing well." (R. at 350.) On September 4, 2007, Wright again reported that he was "doing well, " and that his pain was stable. (R. at 337.) On November 2, 2007, Wright reported that he had "good pain control." (R. at 335.) Wright's physical examination showed no abnormalities. (R. at 335.) Dr. Starnes diagnosed chronic low back pain and hypertension. (R. at 335.) On December 27, 2007, Wright reported that he was "doing well." (R. at 349.) Dr. Starnes's examination was positive for symptoms of acute sinusitis, but was otherwise normal. (R. at 349.)
On January 25, 2008, Wright reported that he was doing well and that his pain was "well controlled" on Lortab. (R. at 334.) Examination showed no abnormalities. (R. at 334.) On February 25, 2008, Wright reported that he was doing well. (R. at 348.) He reported that his back pain was well-controlled with Lortab. (R. at 348.) He also reported that his blood pressure was controlled. (R. at 348.) Physical examination was normal, except for back pain. (R. at 348.) On March 24, 2008, Wright reported that he was "doing okay, " but that he had poor pain control. (R. at 333.) His examination was normal. (R. at 333.) On May 23, 2008, Wright complained of anxiety resulting from his financial situation. (R. at 332.) Myalgias, arthralgias and muscle spasms were noted in Wright's lower back. (R. at 332.) On June 23, 2008, Wright's physical examination was normal. (R. at 331.) On August 15, 2008, it was noted that Wright's blood pressure was controlled. (R. at 346.) On October 13, 2008, Wright complained of low back pain and leg pain. (R. at 345.) His ...