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Phillips v. Colvin

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

January 6, 2015

BRETT BENJAMIN PHILLIPS, 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, Brett Benjamin Phillips, ("Phillips"), filed this action challenging the final decision of the Commissioner of Social Security, ("Commissioner"), denying his 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 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 Phillips protectively filed his applications for SSI and DIB[1] on November 10, 2008, alleging disability as of November 15, 2002, due to severe active ulcerative colitis, back, hip, leg and ankle pain, "nerves, " anxiety, depression, bipolar disorder and weight loss. (Record, ("R."), at 226-34, 261, 266.) The claims were denied initially and upon reconsideration. (R. at 127-31, 134-38, 143-44, 146-50.) Phillips then requested a hearing before an administrative law judge, ("ALJ"). (R. at 151-52.) A video hearing[2] was held on December 21, 2011, at which Phillips was represented by counsel. (R. at 29-56.)

By decision dated January 9, 2012, the ALJ denied Phillips's claims. (R. at 12-23.) The ALJ found that Phillips met the disability insured status requirements of the Act for DIB purposes through December 31, 2006. (R. at 15.) The ALJ found that Phillips had not engaged in substantial gainful activity since November 15, 2002, the alleged onset date. (R. at 15.) The ALJ found that the medical evidence established that Phillips had severe impairments, namely ulcerative colitis, degenerative disc disease, degenerative joint disease, major depressive disorder, panic disorder, bipolar disorder, pain disorder and borderline intellectual functioning, but the ALJ found that Phillips 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 15.) The ALJ found that Phillips had the residual functional capacity to perform simple, unskilled light work, [3] that required no more than causal interaction with others. (R. at 19.) The ALJ found that Phillips was unable to perform his past relevant work. (R. at 22.) Based on Phillips's age, education, work history and 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 Phillips could perform, including jobs as a cleaner, a mail clerk and a packer. (R. at 22-23.) Thus, the ALJ concluded that Phillips was not under a disability as defined by the Act and was not eligible for DIB or SSI benefits. (R. at 23.) See 20 C.F.R. §§ 404.1520(g), 416.920(g) (2014).

After the ALJ issued his decision, Phillips pursued his administrative appeals, (R. at 7, 341-42), but the Appeals Council denied his request for review. (R. at 1-5.) Phillips 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 (2014). This case is before this court on Phillips's motion for summary judgment filed February 26, 2014, and the Commissioner's motion for summary judgment filed March 31, 2014.

II. Facts

Phillips was born in 1974, (R. at 226, 231), which classifies him as a "younger person" under 20 C.F.R. §§ 404.1563(c), 416.963(c). Phillips has a high school education, he attended special education classes, and he has vocational training in sheet metal. (R. at 45, 273.) He has past work experience as a tree trimming foreman and tree trimmer in the tree service industry. (R. at 50, 267.)

Vocational expert, Robert W. Jackson, testified at Phillips's hearing. (R. at 49-55.) The ALJ asked Jackson to consider a hypothetical individual who could perform simple, routine, unskilled light work with only occasional interaction with others, such as the public, co-workers and supervisors. (R. at 51.) Jackson testified that such an individual could not perform any of Phillips's past work. (R. at 52.) Jackson identified jobs that existed in significant numbers in the national or regional economy that such an individual could perform, including jobs as a cleaner, a mail clerk and a packer. (R. at 52.) Jackson stated that there would be sedentary[4] jobs available that the individual could perform should the individual be limited as indicated in the August 27, 2011, assessment of Dr. Kevin Blackwell, D.O. (R. at 52-54, 601-05.) Jackson stated that such jobs included a material handler, a general production worker and a telephone order clerk. (R. at 53-54.) Jackson also stated that there would be no jobs available that the individual could perform should he be required to lie down up to 30 minutes once a day or be required to take unscheduled bathroom breaks of 30 minutes each throughout the workday. (R. at 54-55.)

In rendering his decision, the ALJ reviewed records from Richard J. Milan, Jr., Ph.D., a state agency psychologist; Dr. Robert McGuffin, M.D., a state agency physician; Louis Perrott, Ph.D., a state agency psychologist; Dr. Richard Surrusco, M.D., a state agency physician; Wellmont Holston Valley Medical Center; Lonesome Pine Hospital; Gastroenterology Associates; Dr. Galileo Molina, M.D.; Dr. Uzma Ehtesham, M.D.; American Radiological Services; Dr. Michael B. Ford, M.D.; Anne B. Jacobe, L.C.S.W., a licensed clinical social worker; Dr. Kevin Blackwell, D.O.; and Wellmont-Mountainview Regional Medical Center.

On February 20, 2003, Phillips presented to the emergency room at Lonesome Pine Hospital for complaints of severe low back pain. (R. at 359-61.) An MRI of Phillips's lumbar spine showed no abnormalities. (R. at 361.) X-rays of the lumbosacral spine, dated February 4, 2003, were normal, as were x-rays of the left hip. (R. at 362.) Phillips was diagnosed with acute exacerbation of chronic low back pain, probable sciatica. (R. at 359.) On December 2, 2006, Phillips presented to the emergency room for complaints of back and shoulder pain. (R. at 379-80.) On December 5, 2006, an MRI of Phillips's lumbar spine showed no significant focal abnormalities. (R. at 365-66.)

On September 30, 2004, x-rays of Phillips's neck and back were read by American Radiological Services. (R. at 571.) X-rays showed adequate cervical spine disc spacing, a mild L5-S1 disc space decrease and no cervical or lumbar spine fractures. (R. at 571.)

On December 20, 2005, Phillips was seen at Wellmont Holston Valley Medical Center, ("Holston Valley"), for colitis. (R. at 347-49.) Phillips reported having four to 10 bowel movements a day. (R. at 347.) Phillips voiced frustration of his continued symptoms, which limited him from leaving his home. (R. at 347.) He reported depression because of his symptoms. (R. at 347.) Examination of Phillips's abdomen showed normal active bowel sounds; no enlargement of the liver and spleen; no ascites or abdominal bruits; and some nonspecific tenderness. (R. at 348.) Dr. R. Douglas Strickland, M.D., diagnosed ulcerative colitis, chronic back pain and situational depression. (R. at 348.) On January 18, 2006, a colonoscopy with biopsy showed distal ulcerative colitis and rectal polyp. (R. at 350-53.) On November 2, 2006, Phillips reported having approximately four bowel movements a day. (R. at 395.) Examination of his abdomen was normal. (R. at 395.) He was diagnosed with ulcerative colitis involving the left colon, back pain and depression, secondary to chronic pain. (R. at 395.) ...


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