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Rose v. Colvin

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

February 25, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



I. Background and Standard of Review

Plaintiff, Ethel Luvene Rose, ("Rose"), 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 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 "substantial evidence.'"" Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (quoting Laws, 368 F.2d at 642).

The record shows that Rose protectively filed her application[1] for SSI on May 12, 2010, alleging disability as of May 15, 2009, due to anxiety, depression, crying spells, hypertension, back problems, hip problems and high cholesterol. (Record, ("R."), at 14, 134-37, 146, 150, 167, 183.) The claim was denied initially and on reconsideration. (R. at 84-86, 89, 94-96, 98-100.) Rose then requested a hearing before an administrative law judge, ("ALJ"). (R. at 101-02.) The hearing was held on May 15, 2012, at which Rose was represented by counsel. (R. at 27-58.)

By decision dated June 27, 2012, the ALJ denied Rose's claim. (R. at 14-22.) The ALJ found that Rose had not engaged in substantial gainful activity since May 19, 2010, the date of her application. (R. at 16.) The ALJ determined that the medical evidence established that Rose suffered from severe impairments, including major depressive disorder; generalized anxiety disorder; social phobia; borderline intellectual functioning; and a personality disorder, but he found that Rose 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 16-18.) The ALJ found that Rose had the residual functional capacity to perform a full range of work at all exertional levels with certain nonexertional limitations. (R. at 18-21.) In particular, he found that Rose could perform simple, routine and repetitive tasks in a work environment where changes occur no more than occasionally and where there is no greater than occasional interaction with co-workers and the general public. (R. at 18.) The ALJ found that Rose had no past relevant work. (R. at 21.) Based on Rose's age, education, work history and residual functional capacity and the testimony of a vocational expert, the ALJ found that Rose could perform jobs existing in significant numbers in the national economy, including jobs as a dishwasher, a housekeeper and a small products assembler. (R. at 21-22.) Therefore, the ALJ found that Rose was not under a disability as defined under the Act and was not eligible for benefits. (R. at 22.) See 20 C.F.R. § 416.920(g) (2014).

After the ALJ issued his decision, Rose pursued her administrative appeals, but the Appeals Council denied her request for review. (R. at 1-5.) Rose 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 (2014). The case is before this court on Rose's motion for summary judgment filed May 7, 2014, and the Commissioner's motion for summary judgment filed June 9, 2014.

II. Facts [2]

Rose was born in 1960, (R. at 21), which, at the date of her application, classified her as a "younger person" under 20 C.F.R. § 416.963(c). By the time of the ALJ's decision, Rose had turned 52 years old, which classified her as a "person closely approaching advanced age" under 20 C.F.R. § 416.963(d). She has a high school education and no past work experience. (R. at 150-51.) Rose testified that both of her sons, the youngest of whom lived with her, had Asperger Syndrome.[3] (R. at 33.) Rose testified that she had not worked since her alleged date of disability and that she was uninsured. (R. at 35-36.) She testified that she suffered from depression, but was not taking any medication because her doctor stopped it due to a possible allergic reaction. (R. at 38.) Rose acknowledged that the medication helped her. (R. at 38.) She stated that she no longer was receiving counseling or seeing a psychiatrist due to a lack of insurance. (R. at 45.) She estimated that she received such services for about a year. (R. at 45.) Rose testified that she had crying spells and panic attacks and that, on occasion, she had difficulty being around people. (R. at 39-40.) However, she stated that she had one "real good friend" with whom she would go to the movies and out to eat approximately weekly. (R. at 40.) Rose further testified that she sometimes had problems with her memory and concentration. (R. at 40.)

Rose testified that on a good day, she could dust, mop and vacuum and complete her housework in her two-story home. (R. at 41, 47.) She stated that she cooked daily and washed dishes. (R. at 47.) Rose testified that her oldest son took her grocery shopping and helped at times. (R. at 43.) Rose testified that she watched television, read, attended church on occasion with a friend and talked a lot with her sister on the phone. (R. at 44, 47-48.) She further testified that she cared for her four cats. (R. at 49.) She stated that, on a bad day, which she estimated she had two or three weekly, she would simply lie down to rest her eyes, due to headaches and sluggishness from poor sleep or bad dreams, which led to depression. (R. at 42.) Rose stated that she enjoyed painting pictures in the past, but could no longer do so due to intermittent hand tremors. (R. at 43.)

Bonnie Ward, a vocational expert, also was present and testified at Rose's hearing. (R. at 52-57.) Ward was asked to consider a hypothetical individual of Rose's age, education and work experience who could perform simple, routine and repetitive tasks in a work environment where changes occurred no more than occasionally and where there was no more than occasional interaction with the general public or with co-workers. (R. at 54.) Ward testified that such an individual could perform the jobs of a dishwasher, a hand packer and a laundry worker, all at the medium[4] level of exertion, as well as the jobs of a housekeeper, a small product assembler and an electrical assembler, all at the light[5] level of exertion and all existing in significant numbers in the national economy. (R. at 54-55.) Ward further testified that the same hypothetical individual, but who would be off task as much as 15 percent of any given day in addition to regularly scheduled breaks, likely would be unable to perform the jobs enumerated, as they are production-quota driven. (R. at 56.) Ward also testified that the first hypothetical individual, but who would be absent or would be late to work an average of three days per month, would not be able to maintain employment. (R. at 56.)

In rendering his decision, the ALJ reviewed records from Family Preservation Services; Wise Medical Group; Solutions Counseling; Dr. Esther Adade, M.D.; D. Kaye Weitzman, L.C.S.W.; Mountain States Medical Group Behavioral Health; Dr. H. Brinker, M.D., a psychiatrist; Appalachian Healthcare Associates; B. Wayne Lanthorn, Ph.D., a licensed clinical psychologist; Bristol Regional Medical Center; Ridgeview at Bristol Regional Medical Center; Wise County Behavioral Health Services; Lee County Behavioral Health Services; Dr. Robert Keeley, M.D., a state agency physician; Jeanne Buyck, Ph.D., a state agency psychologist; Dr. John Sadler, M.D., a state agency physician; and Joseph Leizer, Ph.D., a state agency psychologist.

On April 22, 2010, Rose was assessed for intake at Family Preservation Services by Vivian Hall and R. McMurray, both licensed clinical social workers. (R. at 204-13.) Rose reported experiencing both depressive and anxiety symptoms for years. (R. at 204.) She indicated then-current stressors to include her two sons' medical diagnoses and caring for her ailing mother. (R. at 204.) Rose reported that her sons' behavior had resulted in court service and social service involvement. (R. at 204.) She reported having no interpersonal relationships and self-isolation. (R. at 204.) Rose admitted to arguing and physically fighting with her youngest son, and she stated that her older son tried to "rule over" her. (R. at 207.) She described their daily functioning as living in "crisis mode." (R. at 207.) Her sons' biological father was deceased, and Rose had unresolved grief issues and guilt. (R. at 207.) On mental status examination, she had poor eye contact, agitated motor activity, inadequate impulse control, a poor self-concept, poor insight, appetite loss, sleeplessness and a depressed, anxious and agitated mood with a flat affect, but she was fully oriented, had logical thought associations, normal perceptions, fair concentration, intact memory and was self-deprecating and had poor but intact judgment and coherent speech. (R. at 208-09.) Rose denied any then-current suicidal intent or plan or any intent or plan to harm others. (R. at 209.) She was diagnosed with major depression, severe, recurrent; social phobia; and generalized anxiety disorder; and her then-current Global Assessment of Functioning, ("GAF"), [6] score was placed at 49.[7] (R. at 209-10.) Counseling was recommended. (R. at 210.) On an Adult Needs And Strengths Assessment form, Dr. Ida Mullins, M.D., noted that Rose had severe problems with social functioning and recreational activities. (R. at 212.) Dr. Mullins further noted that Rose's depression and anxiety were causing severe/dangerous problems. (R. at 212.)

Rose presented to Wise Medical Group on May 12, 2010, to establish care. (R. at 218.) At that time, she noted that she had not seen a doctor in years. (R. at 218.) Rose reported a history of depression and hypertension. (R. at 218.) Her affect was deemed normal. (R. at 218.) The physician noted that she was not taking any medications for depression, and they would discuss her need for such as necessary. (R. at 218.) When she returned on June 11, 2010, she was doing well and voiced no complaints. (R. at 223.) Her affect again was deemed normal, and there was no further mention of Rose's psychological condition. (R. at 223.)

On June 16, 2010, Rose saw D. Kaye Weitzman, a licensed clinical social worker at Solutions Counseling, for an intake assessment. (R. at 234.) She reported experiencing depression her whole life, and she noted again her two sons with Asperger Syndrome. (R. at 234.) Rose reported that she worried a lot about her children and she stayed nervous often. (R. at 234.) She also reported that her husband died in 2004. (R. at 234.) On mental status examination, Rose was depressed and anxious with intact orientation and thought process and fair judgment/insight. (R. at 234.) She was diagnosed with major depressive disorder, recurrent, moderate; generalized anxiety disorder; and bereavement, uncomplicated; and her then-current GAF score was placed at 50. (R. at 234.) She was scheduled to begin cognitive, insight-oriented individual therapy every two weeks for 26 sessions. (R. at 234.) Rose returned to Weitzman on July 1, 2010, noting again that her children were her biggest concern. (R. at 235.) She reported moderate depression and anxiety, irritability/anger, crying spells and panic attacks, but she denied suicidal or homicidal ideations. (R. at 235.) Mental status examination revealed a depressed and irritable mood with an anxious, but appropriate, affect, intact orientation and thought process, transient paranoia/delusions and limited to fair judgment/insight. (R. at 235.) Weitzman noted a fair improvement in insight. (R. at 235.) However, she noted that Rose had not yet seen a physician to get a prescription for Paxil. (R. at 235.) She was diagnosed with adjustment disorder with mixed anxiety and depressed mood; and generalized anxiety disorder. (R. at 235.)

Rose returned to Wise Medical Group on July 13, 2010, for complaints of back pain. (R. at 245.) However, the physician also addressed Rose's depression by prescribing Celexa 10mg. (R. at 245.) The treatment note makes no other mention of Rose's psychological condition. (R. at 245.)

Jeanne Buyck, Ph.D., a state agency psychologist, completed a Psychiatric Review Technique form, ("PRTF"), on August 3, 2010, finding that Rose had no restrictions in performing activities of daily living, moderate difficulties maintaining social functioning and maintaining concentration, persistence or pace and that she had experienced no repeated episodes of decompensation of extended duration. (R. at 62.) Buyck also completed a Mental Residual Functional Capacity Assessment, finding that Rose was moderately limited in her ability to carry out detailed instructions, to maintain attention and concentration for extended periods, to perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances, to work in coordination with or in proximity to others without being distracted by them, to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods, to interact appropriately with the general public, to accept instructions and respond appropriately to ...

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