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Nichols v. Colvin

United States District Court, E.D. Virginia, Norfolk Division

March 13, 2015

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

Page 488

For Robert Anthony Nichols, Plaintiff: Joel C. Cunningham, Jr., LEAD ATTORNEY, Joel C. Cunningham, Jr. PC, Halifax, VA.

For Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant: Virginia Lynn Van Valkenburg, LEAD ATTORNEY, United States Attorney Office, Norfolk, VA.

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Robert G. Doumar, Senior United States District Judge.

In the instant suit, Plaintiff challenges the decision of the Commissioner of the Social Security Administration to deny his application for Disability Insurance Benefits. Plaintiff claims complete disability under the Social Security Act starting on March, 23 2010. This matter comes before the Court on Robert Nichols' (" Plaintiff" ) Objections to Magistrate Judge Douglas E. Miller's Report and Recommendation (n-1 R& R" ). For the reasons herein, the Court: (1) ACCEPTS the R& R. ECF No. 13; (2) AFFIRMS the decision of the Commissioner of the Social Security Administration

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(" Commissioner" or " Defendant" ); (3) DENIES Plaintiff's Motion for Summary Judgment. ECF No. 8: (4) DENIES Plaintiff's Motion for Remand. ECF No. 9: and (5) GRANTS Defendant's Motion for Summary Judgment, ECF No. 11.


A. Plaintiff's Background

Plaintiff was forty-nine years old on March 23, 2010, his alleged onset date, and fifty-two when the ALJ rendered his decision. (R. 43, 144). He is approximately 5' 7" and 210 pounds. (R. 54). Plaintiff has a high school diploma. He was formerly in the Navy, but he was discharged because of a manslaughter conviction for driving drunk. Plaintiff has a long and volatile history of alcoholism, at times drinking " a case of beer a day followed by a half gallon of wine later that evening." (R. 255). Although Plaintiff has made attempts at abstaining from alcohol, he has frequently relapsed. It appears from the record that Plaintiff indicates he stopped drinking from February 2011 to June 2011, but there is no indication of his sobriety after that date. (R. 332-337).

Plaintiff lives with his wife, her daughter from a previous marriage, and the daughter's two children, who were approximately seven and eight years old at the time of his application. (R. 189, 329). His wife is a licensed practical nurse who works for a physician. (R. 329). Plaintiff stays home and watches the children while his wife and daughter are at work. (R. 189). During the day, he also watches TV, dusts, does the laundry once a week, and " walk[s] around the block." (R. 188, 191). Plaintiff makes sandwiches and noon every day and cleans the house every three days. (R. 190, 206). Historically, Plaintiff has worked on boats in various capacities. (R. 55). He worked at Norfolk Marine Company for approximately ten years, but was laid off in March 2010 because " [he] just -- [he] couldn't do the job anymore." (R. 51). His work in that job consisted of rigging boats and warehouse work, but his duties were primarily in fiberglass and gelcoat work. Id. His job involved applying grinders to boats' hulls, which at times required Plaintiff to work on his back underneath boats. (R. 52). Plaintiff claims that he was unable to work as of March 23, 2010. (R. 144-51). However, it appears from Plaintiff's own reports that he applied for and received unemployment compensation until at least two weeks after August 5, 2011. (R. 211).

B. Medical History

The medical evidence of record begins on March 7, 2009 when Plaintiff was admitted to Norfolk General Hospital from police custody for alcohol detoxification and to address suicidal ideation. (R. 255). His blood alcohol content was 0.25%. Id. Plaintiff's primary doctor, Robert Camp, M.D., noted Plaintiff's diagnoses of hepatitis C and chronic alcohol abuse. Id. Plaintiff reported that he had been smoking approximately a pack of cigarettes per day and consuming " huge quantities" of alcohol, such as a case of beer in the day followed by a half gallon of wine at night. Id. His ongoing diagnoses included: chronic alcoholism superimposed on known hepatitis C, with patient dissociating and having suicidal ideation; hemorrhoids and some sigmoid diverticula; bilateral rotator cuff injuries; and an element of underlying chronic obstructive pulmonary disease. (R. 257). Plaintiff was admitted on an alcohol withdrawal protocol. (R. 257). While at the hospital, Plaintiff was also treated by Dr. Alex Williams, a gastroenterologist, who performed a flexible sigmoidoscopy due to concerns of alleged rectal bleeding. (R. 264).

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Four days later, Plaintiff was transferred to the psychiatric unit for evaluation. (R. 257--58). There, Robert T. Light, M.D., noted that Plaintiff had a long history of alcohol dependence and was also in a " horrific accident in which he was found guilty of manslaughter charges." (R. 250). Diagnoses included: major depressive disorder, recurrent; post-traumatic stress disorder (" PTSD" ); alcohol dependence; and a GAF[1] of 60. (R. 251). Dr. Light discharged Plaintiff on March 12, 2009 because he was no longer suicidal. Discharge diagnoses included: PTSD, alcohol dependence, and a GAF of 65. (R. 252). Dr. Camp drafted a " to whom it may concern" note on March 11, 2009, and stated that Plaintiff had been hospitalized but " should be able to return to full/unrestricted work by 3/16/09." (R. 313).

On December 19, 2009, EMS personnel brought Plaintiff to the emergency room due to alcohol intoxication. (R. 291). Upon physical examination, his back was non-tender; his upper extremities were normal to inspection; his lower extremities showed no edema or calf tenderness; distal pulses were intact; his reflexes were 2/4 and symmetric; his strength was 5/5 and symmetric; and sensation was intact. (R. 292). Plaintiff reported to doctors that he had a job, but " cannot stop drinking." (R. 292).

On March 18, 2010, Plaintiff was seen for an initial evaluation at Tidewater Psychotherapy Services. (R. 329-30). According to Tidewater's initial evaluation, Plaintiff was seeking treatment for his alcohol dependence following a recent three-day hospital stay at Riverside Hospital. (R. 329). He reported having attempted suicide by drug overdose after drinking wine. Id. He took a patient health questionnaire, and the results were " suggestive of a moderately severe depression." Id. The evaluator reported that he talked spontaneously, at a normal pace, with no apparent speech abnormalities; his attitude was cooperative; his mood appeared depressed with sad affect, but was appropriate to content; he was oriented in all spheres; his thinking appeared goal-directed and relevant, without any signs of thought disorder or unusual or bizarre thought content; his attention, short-term memory, and thought organization appeared intact, although his long-term memory appeared vague; his judgment and insight appeared adequate; and his intelligence appeared somewhat below average. (R. 330). Plaintiff was provisionally diagnosed with possible bipolar disorder. Id

On March 21, 2010, Plaintiff again was admitted to the hospital as a result of a suicide attempt via " left wrist/forearm slashing" and " acetaminophen overdose." (R. 302, 305). After Plaintiff was treated, Dr. Camp performed a physical examination of Plaintiff and found that his right upper extremity was " essentially normal," except for " some limitation of abduction in the right shoulder region." (R. 308). Dr. Camp's examination also revealed " significant

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crepitus in both knees with small bilateral effusions" and a " bilateral Baker cyst." (R. 308). A CT scan of Plaintiff's head and cervical spine " showed no acute injury." (R. 303). Upon discharge three days later, he was stable and non-suicidal. Doctors planned to follow up with him in one week and the surgery department would see him about any injury to the tendons in his left wrist from the cutting. (R. 302). A CT scan of Plaintiff's cervical spine and head showed no acute injury. (R. 303).

On March 25, 2010, Plaintiff was admitted to the Partial Hospitalization Program at Virginia Beach Psychiatric Center. (R. 314). In the record there, Mark T. Schreiber, M.D., the attending physician, recounted Plaintiff's history of detoxing at Norfolk General Hospital and alcohol dependence. A physical examination revealed that Plaintiff was " well developed, well nourished . . . and in no acute distress." (R. 321). His ability to shrug his shoulders and move his head to each side was classified as normal. (R. 322). Plaintiff denied any ongoing physical problems and stated that he felt well. (R. 320). A mental status examination revealed that Plaintiff's speech and psychomotor activity were reduced; his mood and affect were somewhat anxious and depressed; he had no hallucinations, delusions, or ideas of reference or control; there was ...

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