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Payne v. Colvin

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

January 9, 2015

BONITA PAYNE, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



I. Background and Standard of Review

Plaintiff, Bonita Payne, ("Payne"), filed this action challenging the final decision of the Commissioner of Social Security, ("Commissioner"), determining that she 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 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 Payne protectively filed an application[1] for DIB on November 20, 2008, alleging disability as of August 15, 2006, due to arthritis in the back, hips and hands, depression and anxiety.[2] (R. at 351-54, 376, 381, 400, 448.) The claim was denied initially and on reconsideration. (R. at 297-99, 303, 304-06.) Payne then requested a hearing before an administrative law judge, ("ALJ"), (R. at 308-09.) The hearing was held on February 3, 2011, at which Payne was represented by counsel. (R. at 207-32.)

By decision dated March 9, 2011, the ALJ denied Payne's claim. (R. at 188-200.) The ALJ found that Payne met the nondisability insured status requirements of the Act for DIB purposes through September 30, 2010. (R. at 190.) The ALJ also found that Payne had not engaged in substantial gainful activity during the period from her alleged onset date of August 15, 2006, through her date last insured of September 30, 2010. (R. at 190.) The ALJ found that the medical evidence established that, through the date last insured, Payne suffered from severe impairments, namely mild degenerative disc disease of the lumbar spine with lordosis and SI joint dysfunction; right arm tenosynovitis; history of asthma; dysthymic disorder; and post-traumatic stress disorder, ("PTSD"), but he found that Payne 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 190-92.) The ALJ found that Payne had the residual functional capacity to perform a range of sedentary work, [3] which did not require her to stand and/or walk for a total of more than two hours in an eight-hour workday and which did not require her to stand and/or walk for more than 20 minutes at a time. (R. at 192.) The ALJ also found that Payne could frequently, but not constantly, use her right, dominant hand for handling or fingering objects, but he found that she could rarely climb, kneel or operate foot controls and never crouch or crawl. (R. at 192-93.) The ALJ found that Payne must avoid concentrated exposure to pulmonary irritants (dusts, odors and fumes), humidity, wetness and extreme temperatures. (R. at 192.) Finally, the ALJ found that Payne could maintain attention and concentration long enough to perform routine and repetitive tasks involving short and simple instructions and could occasionally interact with others in the work environment, but would need to avoid large crowds. (R. at 193.) The ALJ found that Payne was unable to perform any of her past relevant work. (R. at 198.) Based on Payne'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 Payne could perform, including jobs as a general production worker, a material handler and a telephone order clerk. (R. at 199.) Thus, the ALJ found that Payne was not under a disability as defined under the Act from August 15, 2006, the alleged onset date, through September 30, 2010, the date last insured, and was not eligible for benefits. (R. at 200.) See 20 C.F.R. § 404.1520(g) (2014).

After the ALJ issued his decision, Payne pursued her administrative appeals, (R. at 184), but the Appeals Council denied her request for review. (R. at 1-6.) Payne 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 (2014). The case is before this court on Payne's motion for summary judgment filed February 26, 2014, and the Commissioner's motion for summary judgment filed March 31, 2014.

II. Facts [4]

Payne was born in 1971, (R. at 351), which classifies her as a "younger person" under 20 C.F.R. § 404.1563(c). She has a high school education and past relevant work experience as a motel housekeeper, a cashier and a sales associate in retail sales and a fast food worker. (R. at 212, 392-93, 401.)

Payne testified that dealing with the public and with large numbers of people made her nervous and very uncomfortable. (R. at 213.) She testified that she was receiving counseling from Kaye Weitzman, which she felt was beneficial. (R. at 217-18.) However, Payne stated that she had not taken any medications for her mental health issues for at least a year because she did not like the side effect of fatigue. (R. at 218.) She stated that she lived with her five-year-old son and her boyfriend. (R. at 218.) Payne testified that she was responsible for getting her son up and making sure he got dressed for school and had breakfast, but that her boyfriend drove him to school. (R. at 218-19.) She stated that she played board games with her son. (R. at 219.) Payne testified that she "very rarely" left her house for any reason other than to go to counseling or medical appointments because of her dislike of crowds, as well as allergies and asthma. (R. at 219.) She stated that her boyfriend paid the household bills. (R. at 220.) Payne testified that she tried to do light duty housework, such as laundry and dusting, and that she liked to read. (R. at 220-21.) She also stated that she liked to garden and play ball with her son during warmer weather when she felt like it. (R. at 220.)

Payne testified that she had crying spells and panic attacks between three to five times monthly and had difficulty remembering and concentrating. (R. at 223.) She stated that she and her mental health care provider had not discussed any future plans regarding her mental health, such as trying other mental health medications. (R. at 223-24.) Payne testified that she had noticed an increase in her problems since being off of her medications. (R. at 224.)

Robert Jackson, a vocational expert, also was present and testified at Payne's hearing. (R. at 225-30.) Jackson classified Payne's past work as a fast food worker, a cashier and a motel housekeeper as light[5] and unskilled and as a retail sales clerk as light and semi-skilled. (R. at 226.) Jackson testified that if an individual needed to miss two days of work monthly, that would not be consistent with the competitive workplace. (R. at 227.) The ALJ stipulated that, if he were to find that the mental assessment completed by Weitzman on July 15, 2010, was supported by the other evidence of record, such an individual would not be able to perform competitive work. (R. at 227.) Jackson testified that a hypothetical individual of Payne's age, education and work history, who could perform routine, repetitive sedentary work that required no more than frequent use of the right dominant hand for handling or fingering, who could rarely operate foot controls, who could rarely climb, who could rarely kneel, who could never crouch or crawl, who would need to avoid concentrated exposure to pulmonary irritants such as dust, odors and fumes, as well as concentrated exposure to humidity and wetness and temperature extremes, and who could interact appropriately with others in the work environment on at least an occasional basis, but would need to avoid large crowds, could not perform any of Payne's past work, but could perform other jobs existing in significant numbers in the national economy, such as a general production worker, a material handler and a telephone order clerk. (R. at 227-29.) Jackson next testified that the same hypothetical individual, but who could stand and/or walk for no more than 20 minutes at a time, could perform the jobs previously enumerated. (R. at 230.) However, Jackson testified that the same hypothetical individual, but who was limited to no more than occasional handling and fingering with the right dominant hand, could perform no sedentary employment. (R. at 230.)

In rendering his decision, the ALJ reviewed medical records from Norton Community Hospital; Bon Secours St. Mary's Hospital; Appalachia Family Health Center; Park Avenue Physical Therapy & Sports Clinic; Michael R. Williams, L.C.S.W.; Abingdon Psychological Services; Ralph Ramsden, Ph.D., a licensed clinical psychologist; Wise Medical Group; Medical Associates of Southwest Virginia; Solutions Counseling; Southwest Virginia Specialty Clinic; Appalachian Psychological Consultants; Edward Trent, M.P.T.; Dr. Christopher Basham, M.D.; Dr. Mark Russ, M.D.; D. Kaye Weitzman, L.C.S.W.; Mountain View Regional Medical Center; East Kentucky Physical Therapy; Dr. James W. Campbell, D.O.; and Dr. Esther Adade, M.D. Payne's attorney submitted additional medical records from Lab Corp; East Kentucky Physical Therapy; The Regional Eye Center; Wise Cavalier Clinic; Lonesome Pine Hospital; Arthritis Associates; Abingdon Ear, Nose & Throat; D. Kaye Weitzman; Medical Associates; Medical Associates of Norton; Mountain View Regional Medical Center; and Arthritis Associates of Kingsport to the Appeals Council.[6]

On December 31, 2008, Payne saw Robert Spangler, Ph.D., a licensed clinical psychologist, for a consultative psychological evaluation at the request of her attorney. (R. at 636-41.) Spangler noted that she was appropriately dressed, cooperative and medicated. (R. at 636.) Her general activity level was slow, but she seemed socially confident, although anxious and depressed. (R. at 636.) Payne had a sad appearance. (R. at 636.) She generally understood the directions for each task, but demonstrated erratic concentration secondary to discomfort and anxiety. (R. at 636.) Payne was appropriately persistent on tasks, but her pace was impacted by erratic concentration. (R. at 636.) She reported that her mental problems began at the age of approximately 23. (R. at 637.) Payne reported being in an abusive marriage while still in high school, which resulted in continued nightmares and "flashbacks." (R. at 637.) She reported frequent anxiety and panic attacks, usually accompanying the nightmares and flashbacks. (R. at 637.) Payne stated that she began counseling in 2007 for PTSD and abuse, but stopped in 2008 due to the closing of her counselor's practice. (R. at 637.) She stated that she was awaiting a referral to another counselor. ...

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