United States District Court, W.D. Virginia, Abingdon Division
TOMMY E. HORNE, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
PAMELA MEADE SARGENT, Magistrate Judge.
I. Background and Standard of Review
Plaintiff, Tommy E. Horne, ("Horne"), 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 transfer based on consent of the parties pursuant to 28 U.S.C. § 636(c)(1). Oral argument has not been requested; therefore, the matter is ripe for decision.
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 Horne protectively filed his applications for SSI and DIB on July 7, 2010, alleging disability as of June 11, 2010, due to severe back pain radiating down into the right hip and leg, right leg giving way, severe left knee pain, bilateral hand numbness, lack of grip in the hands, severe pain in both arms and elbows, left shoulder pain, neck pain, high blood pressure, depression, poor concentration, insomnia and a "spot" on his brain. (Record ("R."), at 21, 155, 205, 209, 224-25.) The claims were denied initially and upon reconsideration. (R. at 96-98, 105, 107-09, 111-13.) Horne then requested a hearing before an administrative law judge, ("ALJ"). (R. at 114.) This hearing was held on February 1, 2012, at which Horne was represented by counsel. (R. at 30-57.)
By decision dated February 13, 2012, the ALJ denied Horne's claims. (R. at 21-29.) The ALJ found that Horne met the disability insured status requirements of the Act for DIB purposes through March 31, 2014. (R. at 23.) The ALJ found that Horne had not engaged in substantial gainful activity since June 11, 2010, the alleged onset date. (R. at 23.) The ALJ found that the medical evidence established that Horne had severe impairments, namely degenerative joint disease of the knees; spondylosis of the lumbar spine; atherosclerotic stenosis of both carotid arteries; and carpal tunnel syndrome, status-post right carpal tunnel release, but the ALJ found that Horne 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 23-24.) The ALJ found that Horne had the residual functional capacity to perform a range of sedentary work. (R. at 24.) Specifically, the ALJ found that Horne could lift and carry items weighing up to 20 pounds occasionally and up to 10 pounds frequently, stand and/or walk up to two hours in an eight-hour workday, sit up to six hours in an eight-hour workday and push/pull consistent with the above lifting/carrying limitations. (R. at 24.) The ALJ also found that Horne must be allowed to alternate between sitting and standing at approximately 30-minute intervals throughout the workday and that he could never climb ladders, ropes or scaffolds, occasionally climb ramps and/or stairs, twist, stoop, kneel and crawl, never crouch or squat and frequently, but not constantly, handle and finger objects. (R. at 24-25.) The ALJ also found that Horne must avoid even moderate exposure to moving machinery and unprotected heights and could perform only work that did not require multiplication or division. (R. at 25.) The ALJ found that Horne was unable to perform any of his past relevant work. (R. at 28.) The ALJ found that Horne had a limited education. (R. at 28.) Based on Horne'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 Horne could perform, including jobs as production worker, a laborer and a hand bander. (R. at 28-29.) Thus, the ALJ concluded that Horne was not under a disability as defined by the Act and was not eligible for DIB or SSI benefits. (R. at 29.) See 20 C.F.R. §§ 404.1520(g), 416.920(g) (2013).
After the ALJ issued his decision, Horne pursued his administrative appeals, but the Appeals Council denied his request for review. (R. at 1-5, 16-17.) Horne 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 Horne's motion for summary judgment filed January 20, 2014, and the Commissioner's motion for summary judgment filed February 24, 2014.
Horne was born in 1967, (R. at 28), 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). Horne has a seventh-grade education and has received no vocational training. (R. at 35.) He testified that he could read and write "[a] little bit, " and he stated that he had difficulty with math, noting that he could perform only addition. (R. at 35, 47.) Horne has past relevant work as a brick mason. (R. at 210.) He testified that he returned to work for his brick mason employer after his alleged onset date of June 11, 2010, until August 2011, but worked "on [his] own pace" and sometimes could not finish a 40-hour week due to back and knee pain. (R. at 35-36, 40, 48.) He testified that he had undergone surgery on his left knee and was receiving injections from Dr. Mullins and had undergone physical therapy for his back. (R. at 43-45.) Horne also stated that he took prescription pain medication for his back. (R. at 43.) Horne also testified that he experienced numbness and tingling in his hands, and he could not bend down or climb due to his knees. (R. at 41). He stated that he also had undergone carpal tunnel surgery on his right hand, which improved the numbness, but not his grip. (R. at 44.) Horne also testified that he had problems with his left shoulder, noting that he could not lift it over his head without pain. (R. at 49.) He stated that he also had experienced "a few" mini strokes in the past. (R. at 44.) Horne estimated that he could lift approximately 20 pounds, sit for up to 20 minutes, stand for up to 20 minutes and walk for up to 40 feet. (R. at 42-43.) Horne testified that he could bend only "a little bit" due to problems with his back. (R. at 43.)
AnnMarie Cash, a vocational expert, also was present and testified at Horne's hearing. (R. at 49-56.) The ALJ asked Cash at the outset whether she understood that if she gave an opinion that conflicted with the information in the Dictionary of Occupational Titles, ("DOT"), that she must advise the court of the conflict and the basis for her opinion. (R. at 50.) Cash affirmed her understanding. (R. at 50). Cash classified Horne's past work as a concrete worker, as performed, as heavy and semi-skilled and as a dump truck driver as medium and unskilled. (R. at 50-51). She was asked to assume a hypothetical individual of Horne's age, education and work experience who could perform the lifting restrictions of medium work, but who could stand and/or walk for four hours in an eight-hour workday, who could push/pull consistent with the lifting restrictions, who could occasionally twist, climb ramps or stairs, stoop, crouch and squat, but never climb ladders, ropes or scaffolds, who should avoid moderate exposure to moving machinery and unprotected heights and who would need the option to alternate positions at about one-hour intervals. (R. at 51). Cash testified that such an individual could not perform any of Horne's past work, but could perform other jobs existing in significant numbers, including jobs as a production worker, a laborer and a hand bander, all at the sedentary level of exertion. (R. at 51-52).
Cash next testified that the same hypothetical individual, but who was limited to lifting up to 20 pounds occasionally and up to 10 pounds frequently, who could stand and/or walk for about two hours in an eight-hour workday and sit for up to six hours in an eight-hour workday, who would need the option to alternate positions at about one-hour intervals, who could push/pull consistent with the lifting restrictions, who could occasionally twist, climb ramps or stairs, stoop, kneel and crawl, never climb ladders, ropes or scaffolds, crouch or squat, frequently, but not constantly, handle and finger objects, who should avoid even moderate exposure to moving machinery and unprotected heights and who would need a job that did not require multiplication or division, could perform the jobs previously identified. (R. at 52-53.) However, Cash testified that, if the individual were absent from work on an unexcused basis more than two days per month, he could perform no work. (R. at 53.) Cash also testified that, if the last hypothetical were changed to indicate that the individual needed to alternate positions every 30 minutes, he still could perform the sedentary jobs previously mentioned. (R. at 53.) However, Cash testified that an individual who had to sit and stand every 10 minutes throughout the entire day, would be considered off-task, and there would be no jobs he could perform. (R. at 53-54.) Cash testified that a hypothetical individual of Horne's age, education and work experience with the restrictions set forth in Dr. Mullins's November 27, 2011, physical assessment, could not perform any jobs, nor could the same hypothetical individual, but with the restrictions set forth in Dr. Litton's December 29, 2011, physical assessment. (R. at 55.)
At the conclusion of the vocational expert's testimony, the ALJ asked Cash whether her testimony was consistent with the DOT, with the exception of the sit/stand option, which is not addressed in the DOT. (R. at 56.) Cash stated "Yes, sir." (R. at 56.) The ALJ then inquired, "And how did you arrive at your opinions with regard to the sit-stand option?" to which she replied, "Because I'm a vocational expert, and I am familiar with those jobs, and I do job placement, so I know that's available." (R. at 56.)
In rendering his decision, the ALJ reviewed records from Horizon Family Medicine; Russell County Medical Center; Abingdon Radiology Services; Stone Mountain Health Services; Johnston Memorial Hospital; Indian Path Medical Center; Mountain States Health Alliance; Holston Medical Group; Associated Neurologists of Kingsport; Solstas Lab Partners; Dr. Darlene Litton, M.D.; Dr. Danny A. Mullins, M.D.; Dr. Anthony Holt, D.O.; Bristol Regional Medical Center; Medical Associates at Exit 7; Sapling Grove Surgery Center; Appalachian Orthopaedic Associates; Dr. Robert H. McQueen, M.D.; Norton Community Hospital; Dr. Brian Strain, M.D., a state agency physician; Joseph Leizer, Ph.D., a state agency psychologist; and Dr. Michael Hartman, M.D., a state agency physician. Horne's counsel submitted additional medical records from Dr. Mullins to the Appeals Council.
On May 18, 2010, Horne was seen at Stone Mountain Health Services, ("Stone Mountain"), with complaints of constant, severe, nonradiating neck and lumbar pain for the previous one to two weeks, as well as chronic left knee pain. (R. at 374.) Horne's blood pressure was 200/118, and it was noted that he had not been compliant with blood pressure medications. (R. at 374). Cervical and lumbosacral range of motion was decreased. (R. at 375). Ibuprofen, Flexeril and a Medrol dosepak were added to Horne's medication regimen. (R. at 376). Lumbar and left knee x-rays were ordered. (R. at 376). On May 25, 2010, when Horne returned to Stone Mountain for a follow-up on his blood pressure, he reported taking his blood pressure medication every morning, but forgetting to take in the evenings. (R. at 328-30, 372-73). Horne stated that his pain had improved mildly, noting that he returned to his masonry job, but could work for only 30 minutes. (R. at 328). He exhibited decreased cervical and lumbosacral range of motion. (R. at 329). Horne was diagnosed with uncontrolled hypertension and lumbar, left knee and neck pain. (R. at 330). Horne underwent a series of x-rays on May 25, 2010. (R. at 338). An x-ray of Horne's cervical spine was normal, an x-ray of the left knee showed no bony, joint or soft tissue abnormality, and an x-ray of the lumbar spine showed only mild spondylosis at multiple levels. (R. at 338). On August 10, 2010, Horne reported continued constant neck, lumbar and left knee pain with only mild relief with medications. (R. at 325, 368-70). He also reported intermittent upper extremity and right leg numbness, but no bowel or bladder symptoms and no muscle weakness. (R. at 325, 368). Horne's blood pressure was 180/112. (R. at 325, 368). He exhibited decreased lumbosacral flexion. (R. at 326, 369. Horne's medications were adjusted, and MRIs of the neck, lumbar spine and left knee were ordered. (R. at 327, 370).
In a Physical Residual Functional Capacity Assessment dated August 23, 2010, Dr. Brian Strain, M.D., a state agency physician, found that Horne could lift and carry items weighing up to 20 pounds occasionally and up to 10 pounds frequently. (R. at 61-62). Dr. Strain opined that Horne could stand and/or walk for about six hours in an eight-hour workday and sit for about six hours in an eight-hour workday. (R. at 61). Dr. Strain also opined that Horne could frequently climb ramps and stairs, balance, stoop and crouch, but occasionally climb ladders, ropes or scaffolds, kneel and crawl. (R. at 61-62). He further opined that Horne should avoid concentrated exposure to hazards, such as machinery and heights. (R. at 62).
Horne presented to the emergency department at Johnston Memorial Hospital on October 21, 2010, with complaints of vomiting and dizziness for the previous four days. (R. at 353-64). He was administered Antivert and Phenergan. (R. at 354). His blood pressure was 160/112. (R. at 356, 360. A CT scan of Horne's head showed low density areas in the periventricular white matter, representing probable chronic small vessel ischemic change, advanced for Horne's age. (R. at 349). A demyelinating process such as multiple sclerosis was not excluded, and an MRI was recommended for further evaluation. (R. at 349). Horne was diagnosed with benign positional vertigo and discharged in good condition with prescriptions for Antivert and Phenergan. (R. at 357, 361-62).
When Horne returned to Stone Mountain on November 3, 2010, he reported his recent emergency department visit. (R. at 365-67). Horne was diagnosed with vertigo/abnormal CT, hypertension and chronic pain, among other things, and he was continued on Meclizine. (R. at 367). An MRI of the brain was ordered. (R. at 367). This MRI of Horne's brain, dated November 22, 2010, showed nonspecific T2 hyperintensities in the deep and juxtacortical white matter with tiny bilateral lacunar infarcts,  the distribution of which was not typical of a demyelinating process, but more likely due to chronic microvascular ischemic change. (R. at 351-52. The MRI also showed ...