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Ascue v. Colvin

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

March 16, 2015

DONNIE W. ASCUE, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



I. Background and Standard of Review

Plaintiff, Donnie W. Ascue, ("Ascue"), filed this action challenging the final decision of the Commissioner of Social Security, ("Commissioner"), determining that he 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 Ascue protectively filed an application for DIB on January 23, 2010, alleging disability as of March 20, 2008, due to a broken leg, a replaced anterior cruciate ligament, ("ACL"), nerve damage in the back, severe back pain, difficulty focusing, problems with the right foot and right hip, bulging discs, anxiety and panic disorder. (R. at 13, 143-44, 202, 255.) The claim was denied initially and on reconsideration. (R. at 77-80, 86, 87-89, 91-93.) Ascue then requested a hearing before an administrative law judge, ("ALJ"), (R. at 94-95), which was held on June 21, 2012, and at which Ascue was represented by counsel. (R. at 25-56.)

By decision dated July 11, 2012, the ALJ denied Ascue's claim. (R. at 13-24.) The ALJ found that Ascue met the nondisability insured status requirements of the Act for DIB purposes through June 30, 2012. (R. at 15.) The ALJ also found that Ascue had not engaged in substantial gainful activity since March 20, 2008, the alleged onset date. (R. at 15.) The ALJ found that the medical evidence established that Ascue suffered from severe impairments, namely chronic back pain; chronic right leg pain, status-post fractures in three places after a forklift accident; chronic right foot pain; chronic right knee pain, status-post ACL replacement; major depressive disorder; panic disorder without agoraphobia; somatization disorder; and post-traumatic stress disorder, ("PTSD"), but he found that Ascue 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 15-17.) The ALJ found that Ascue had the residual functional capacity to perform a range of sedentary work, [1] which did not require more than occasional stooping, kneeling, crouching or crawling, and which did not require concentrated exposure to hazards, the performance of no more than simple job instructions and no more than occasional interaction with the general public. (R. at 17-22.) The ALJ found that Ascue was unable to perform any of his past relevant work. (R. at 22-23.) Based on Ascue's age, education, work history and residual functional capacity and the testimony of a vocational expert, the ALJ found that jobs existed in significant numbers in the national economy that Ascue could perform, including jobs as an addresser, an ampoule sealer[2] and a folder. (R. at 23-24.) Thus, the ALJ found that Ascue was not under a disability as defined under the Act and was not eligible for benefits. (R. at 24.) See 20 C.F.R. § 404.1520(g) (2014).

After the ALJ issued his decision, Ascue pursued his administrative appeals, (R. at 6-9), but the Appeals Council denied his request for review. (R. at 1-4.) Ascue 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 Ascue's motion for summary judgment filed May 19, 2014, and the Commissioner's motion for summary judgment filed July 21, 2014.

II. Facts [3]

Ascue was born in 1975, (R. at 143), which classifies him as a "younger person" under 20 C.F.R. § 404.1563(c). He has a high school education and some college course work. (R. at 29.) Ascue has past relevant work experience as a construction worker and a machine operator. (R. at 29-33.)

Ascue testified that he suffered a work accident in March 2008 while working as a machine operator, after which he quit working. (R. at 29-30.) A forklift overturned, crushing his leg, which required surgical repair. (R. at 31.) A rod was placed in his leg, which was held in place by screws in his ankle, but these screws were later removed because they caused constant, shooting pain. (R. at 31, 40, 41.) Ascue testified that, in addition to the leg injury, the accident had resulted in a back injury and neck pain. (R. at 34.) He stated that his neck pain was aggravated by sitting and relieved by lying down and medication. (R. at 34.) Ascue testified that he would lie down four to eight times daily. (R. at 34.) He described his back pain as intermittent, both dull and sharp, located in his low back, radiating into his right hip and aggravated by sitting. (R. at 34, 42.) According to Ascue, lying down and medication helped to relieve his back pain, as well. (R. at 35.) He stated that an MRI had revealed a ruptured disc. (R. at 42.) Ascue stated that he had difficulty bending, kneeling and stooping, and negotiating steps and inclines worsened his pain. (R. at 42-43.)

Ascue testified that his leg pain was worse on the right side, radiated into his toes and was aggravated by standing. (R. at 35.) He estimated that he could stand or walk for up to 20 minutes without shooting pain. (R. at 41.) He stated that he also had dull knee pain from a replaced ACL, which was aggravated by standing. (R. at 35.) Ascue also stated that his knee would sometimes give way. (R. at 43.) He testified that medication, sitting and elevation helped both his leg and knee pain. (R. at 35.) Ascue estimated that he elevated his leg four to six times daily and that he had to recline every hour for 15 or 20 minutes. (R. at 35, 44.) He stated that he got up every two to three hours at night due to pain, resulting in no energy during the day. (R. at 44.) Ascue testified that he was taking Lortab for pain, which made him drowsy for two to three hours after taking it. (R. at 45.) He stated that he would lie down and try to "sleep it off." (R. at 45-46.) Ascue testified that he had joint pain and difficulty gripping, and he estimated that he could lift and carry items weighing up to 15 pounds. (R. at 46.)

Ascue also testified that he suffered from tremendous anxiety following his work injury, he was depressed, and he secluded himself. (R. at 36.) He testified that his treating physician prescribed Klonopin, but he experienced "pretty severe" side effects, noting that he "stayed knocked out." (R. at 36, 39.) He denied undergoing regular therapy or counseling. (R. at 36.) He stated that he avoided situations that made him anxious, such as going to Walmart. (R. at 40.) He stated that he sometimes had dreams about the accident. (R. at 43.) Ascue testified that his girlfriend performed most of the household chores. (R. at 37.) Ascue stated that he mostly stayed home, watched television, surfed the internet, spent time outside in the yard and occasionally read. (R. at 37, 44.) He stated that he saw his mother once every two to three weeks and that a friend or two stopped by his house. (R. at 38.)

Jim Williams, a vocational expert, also was present and testified at Ascue's hearing. (R. at 47-55.) Williams classified his past work as a machine operator as medium[4] and skilled and as a construction worker as heavy[5] and semi-skilled. (R. at 50.) Williams testified that a hypothetical individual of Ascue's age, education and work history, who could perform sedentary work that required no more than occasional stooping, kneeling, crouching and crawling, which did not require concentrated exposure to hazards, which required the performance of no more than simple job instructions, and which required no more than occasional interaction with the general public, could not perform Ascue's past relevant work. (R. at 51.) Williams testified, however, that such an individual could perform other jobs existing in significant numbers in the national economy, including those of an addresser, an ampoule sealer and a folder in the textile industry. (R. at 51-52.) Williams next testified that the same individual, but who also would be seriously limited, resulting in unsatisfactory work performance, in his ability to deal with the public, to use judgment with the public, to deal with work stresses, to behave in an emotionally stable manner, to relate predictably in social situations and to demonstrate reliability, could not sustain employment. (R. at 52-53.) Next, Williams testified that the first hypothetical individual, but who also had no useful ability to follow work rules, to relate to co-workers, to deal with the public, to use judgment with the public, to interact with supervisors, to deal with work stresses, to function independently, to maintain attention and concentration, to understand, remember and carry out complex job instructions, to understand, remember and carry out detailed job instructions, to understand, remember and carry out simple job instructions, to behave in an emotionally stable manner, to relate predictably in social situations and to demonstrate reliability, also could not sustain employment. (R. at 53.) Lastly, Williams testified that a hypothetical individual who would be absent more than two days monthly and who would never be able to climb, kneel, crouch and crawl could not perform any jobs. (R. at 53.)

In rendering his decision, the ALJ reviewed medical records from Wellmont Holston Valley Medical Center; Clinch Valley Medical Center; Appalachian Orthopaedic Associates; Wellmont Rehabilitation; Dr. Gurcharan Singh, M.D., a state agency physician; Louis Perrott, Ph.D., a state agency psychologist; Dr. Michael Hartman, M.D., a state agency physician; Mountain View Regional Medical Center; Norton Community Hospital; Dr. William H. Humphries, M.D.; Appalachian Family Health Center; B. Wayne Lanthorn, Ph.D., a licensed clinical psychologist; Appalachia Medical Clinic; Dr. Michael B. Ford, M.D.; Frontier Health Associates & Forensic Services; Dr. Kevin Blackwell, D.O.; Holston Valley Ambulatory Surgery Center; Medical Associates of Southwest Virginia; Lonesome Pine Hospital; Alexander Prosthetics & Orthotics, Inc.; and Park Avenue Physical Therapy. Ascue's attorney submitted additional medical records from Clinch Valley Medical Center and Norton Community Hospital to the Appeals Council.[6]

On March 20, 2008, Ascue was admitted to Wellmont Holston Valley Medical Center after suffering a low-speed rollover forklift accident at work. (R. at 302-15.) X-rays revealed that Ascue had a closed segmental tibial shaft fracture, for which he underwent a closed reduction with intramedullary nailing by Dr. Bruce Miller, M.D., an orthopaedic surgeon. (R. at 302, 304-05, 307.) When Ascue saw Dr. Miller on April 1, 2008, for a surgical follow-up, he had no complaints, his incision sites were healing nicely, there were no signs of cellulitis or infection, his legs were in excellent alignment, and he was neurologically intact. (R. at 358.) Dr. Miller initiated outpatient physical therapy for Ascue's foot/ankle range of motion and gait training. (R. at 358.) He advised him to weight bear as tolerated, and he renewed his pain medication. (R. at 358.)

Ascue presented to Clinch Valley Medical Center on April 15, 2008, with complaints of right leg pain and swelling. (R. at 322-25.) A Doppler venous ultrasound of the right leg showed no evidence of deep venous thrombosis, and Ascue was diagnosed with cellulitis. (R. at 325, 499.) He was prescribed Percocet. (R. at 325.) On April 17, 2008, and again on April 21, 2008, Ascue underwent aquatic therapy for the cellulitis. (R. at 326-27.) On April 21, 2008, he reported that he was doing some better and felt like the pool helped some on the prior visit. (R. at 327.) Ascue stated that his knee bothered him more than his ankle. (R. at 327.) He was instructed to elevate his right leg and continue with ice to reduce edema. (R. at 327.)

On April 23, 2008, when Ascue returned to Dr. Miller for routine follow-up, he again had no complaints. (R. at 357.) Dr. Miller noted that Ascue continued to take a "significant amount of narcotics." (R. at 357.) Objectively, Ascue's right lower extremity was normal, except his foot was lacking significant motion. (R. at 357.) Dr. Miller expressed concern regarding Ascue's narcotic use, his continued reliance on crutches, and his sparse physical therapy attendance. (R. at 357.)

Ascue attended aquatic therapy from April 24, 2008, through May 12, 2008. (R. at 328-33.) Over this time, he reported knee pain worse than ankle pain, as well as increased leg pain and instances of his knee giving way. (R. at 328-33.) On May 6, 2008, Ascue had some swelling and redness of the right leg, as well as an antalgic gait. (R. at 331.) He continued to exhibit an antalgic gait on May 12, 2008, at which time he was discharged from therapy. (R. at 333.)

When Ascue saw Dr. Miller on May 22, 2008, he was ambulatory without any assistive devices. (R. at 356.) However, he reported he felt like his leg gave out on him. (R. at 356.) Physical examination revealed full range of motion of the right knee, 4/5 quad strength, no pain with single leg balancing and a neurovascularly intact foot. (R. at 356.) Ascue could not single leg balance on the right leg secondary to ankle weakness and giving way. (R. at 356.) Dr. Miller cleared Ascue to return to work in a sedentary type job, and he advised him to continue physical therapy to improve gait and strengthening. (R. at 356.) Dr. Miller noted fairly significant weakness in the ankle and knee. (R. at 356.) X-rays showed a nicely healing fracture with no loosening of the rod or screws. (R. at 356.) Dr. Miller renewed Ascue's Lortab prescription, and he prescribed therapy. (R. at 356.)

On June 11, 2008, Ascue saw Brandi Lawson, a physical therapist at Wellmont Rehabilitation for a Physical Therapy Evaluation of his right leg. (R. at 533-35.) He had only a very mildly antalgic gait and was able to achieve good heel strike. (R. at 533.) He also could negotiate stairs reciprocally using hand rails. (R. at 533.) There was some swelling about the lower leg and ankle, and he exhibited decreased range of motion in the right hip and in both knees and ankles. (R. at 533.) Ascue had decreased motor strength in the right hip, right knee and right ankle. (R. at 534.) Sensation was grossly intact to light touch except for reports of hypoesthesia over the lateral lower leg and dorsal surface of the foot. (R. at 534.) Ascue was diagnosed with increased right leg pain; decreased right leg range of motion; decreased right leg strength; increased right leg swelling and tenderness; and limited walking, sitting down and standing on tip toes to reach into cabinets. (R. at 534.) He was scheduled for therapy three times weekly for four weeks. (R. at 535.) Ascue attended physical therapy from June 13, 2008, through April 23, 2009. (R. at 511-31, 603.) Over this time, he received treatment with moist heat, cold packs and therapeutic flexibility exercises. (R. at 511-31, 603.) He complained of knee pain worse than ankle pain and episodes of his knee giving way causing him to fall. (R. at 513-14, 519-21, 524, 526-27.) On June 23, 2008, it was noted that Ascue's ankle range of motion and strength needed improvement. (R. at 527.) On July 16, 2008, he reported that his ankle had good days and bad days, but his range of motion was improving. (R. at 516.) By July 30, 2008, the physical therapist noted that Ascue's ankle was getting stronger, and by the time he was discharged from therapy on April 23, 2009, his condition was deemed "moderately improved, " with his potential for further improvement, if maximum improvement was not achieved, deemed as "fair." (R. at 511, 603.)

On June 24, 2008, Ascue returned to Dr. Miller with continued complaints of right knee pain, as well as right ankle pain and a feeling of the ankle giving way. (R. at 355.) Physical examination showed mild joint effusion and diffuse soreness of the knee to palpation, but with full range of motion. (R. at 355.) No ligamentous instability was appreciated, but Ascue was very tender to compression of the medial meniscus. (R. at 355.) He was nontender to deep palpation over the fracture site, but exhibited very weak inversion and eversion of the right ankle and foot. (R. at 355.) Sensation was intact, as were flexor and extensor tendons. (R. at 355.) Ascue had normal dorsiflexion and plantarflexion. (R. at 355.) Dr. Miller recommended an MRI of the right knee, and he continued physical therapy. (R. at 355.) He cleared Ascue to perform a sedentary job with no lifting, climbing, driving or prolonged sitting. (R. at 355.)

A June 30, 2008, MRI of the right knee showed a partial tear of the ACL with ganglion cyst, as well as mild edema in the region of the tibial plateau posteriorly, suggesting a mild residual bone bruise. (R. at 370.) On July 9, 2008, Ascue continued to complain of diffuse leg symptomatology including knee pain. (R. at 354.) On examination, Ascue was tender to palpation around the right ankle and tibial shaft. (R. at 354.) Based on the MRI, Dr. Miller diagnosed a right knee ACL rupture, likely occurring at the same time as the tibial shaft fracture. (R. at 354.) He advised that a reconstruction of the ACL was likely, but Ascue was not ready to proceed. (R. at 354.) Dr. Miller placed him in a hinged knee brace and ...

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