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Perry v. Colvin

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

March 26, 2015

PENNY R. PERRY, Plaintiff
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant



I. Background and Standard of Review

Plaintiff, Penny R. Perry, ("Perry"), 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 Asubstantial evidence.'"" Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (quoting Laws, 368 F.2d at 642).

The record shows that Perry protectively filed an application for DIB on January 25, 2010, alleging disability as of January 18, 2010, due to a back injury, hip problems, leg pain, depression, anxiety, bladder problems, left shoulder and arm problems and sleep disorder. (Record, ("R."), at 19, 191, 234.) The claim was denied initially and on reconsideration. (R. at 64-78, 89-93, 94-95, 96-98.) Perry then requested a hearing before an administrative law judge, ("ALJ"), (R. at 103-04), and a video hearing was held on June 14, 2012, at which Perry was represented by counsel. (R. at 36-59.)

By decision dated July 24, 2012, the ALJ found that Perry was disabled beginning on December 8, 2011, but not before. (R. at 19-30.) The ALJ found that Perry met the nondisability insured status requirements of the Act for DIB purposes through December 31, 2011. (R. at 21.) The ALJ also found that Perry had not engaged in substantial gainful activity since her alleged onset date. (R. at 21.) The ALJ found that the medical evidence established that, since the alleged onset date, Perry suffered from severe impairments, namely lumbar degenerative disc disease; depression; anxiety; a recent diagnosis of fibromyalgia and arthritis; and borderline intellectual functioning, but she found that Perry 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 21-22.) The ALJ found that Perry had the residual functional capacity to perform a range of sedentary work, [1] 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 sit for more than six hours in an eight-hour workday with the option to alternate positions in place every 30 minutes. (R. at 24-28.) The ALJ also found that Perry could not work around hazards or loud background noise. (R. at 24-28.) The ALJ found that Perry was limited to simple, repetitive unskilled work that did not require interaction with the public, more than occasional postural activities or more than occasional operation of foot controls. (R. at 24-28.) The ALJ found that Perry was unable to perform any of her past relevant work. (R. at 28.) Based on Perry's age, education, work history and residual functional capacity and the Medical-Vocational Guidelines, ("Grids"), found at Part 404, Subpart P, Appendix No. 2, the ALJ found that, beginning December 8, 2011, Perry was disabled. (R. at 29.) Based on Perry'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 Perry could perform, including jobs as a work addresser, a dowel inspector and a table worker, prior to this date. (R. at 28-29.) Thus, the ALJ found that Perry was disabled as of December 8, 2011, and eligible for benefits starting this date, but not before this date. See 20 C.F.R. § 404.1520(g) (2014).

After the ALJ issued her decision, Perry pursued her administrative appeals, (R. at 14), but the Appeals Council denied her request for review. (R. at 1-5.) Perry then filed this action seeking review of the ALJ's partially 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 Perry's motion for summary judgment filed May 7, 2014, and the Commissioner's motion for summary judgment filed June 9, -.

II. Facts

Perry was born in 1962, (R. at 39), which classified her as a "younger person" under 20 C.F.R. § 404.1563(c), until April 2012. After April 2012, Perry was classified as a person "closely approaching advanced age" under 20 C.F.R. § 404.1563(d). She has a high school education and past relevant work experience working in an auto repair shop and as a dental assistant. (R. at 40-42.) Perry testified at her hearing that she could walk and/or stand one or two hours in an eight-hour workday and sit for about 15 to 20 minutes before changing positions. (R. at 44.) Perry stated that she felt tired all of the time and did not feel like "doing anything or going anywhere." (R. at 45.) She said that she would "get real nervous and real anxious." (R. at 45.)

Barry Williams, a vocational expert, also was present and testified at Perry's hearing. (R. at 51-57.) Williams classified Perry's past work as a supervisor in an auto body shop as light[2] and skilled work and as a dental assistant as light and skilled. (R. at 52.) Williams testified that a hypothetical individual of Perry's age, education and work history, who could frequently lift items weighing up to 10 pounds and occasionally lift items weighing up to 20 pounds, could stand and walk no more than two hours and sit for no more than six hours in an eight-hour workday with postural changes every 30 minutes without leaving the work place, occasionally work foot controls, climb ramps or stairs, balance, kneel, crawl, stoop and crouch, should avoid concentrated exposure to extreme cold temperatures, cannot work around hazardous machinery and unprotected heights, cannot climb ladders, ropes scaffolds or work on vibrating surfaces and can perform only simple, routine, repetitive, unskilled work with limited contact with co-workers and supervisors in a low-stress environment with no strict production demands, no excessively loud background noise and no interaction with the general public, could perform work as a addresser, a dowel inspector and a table worker. (R. at 53-55.) Williams also testified that if an employee missed two or more days of work a month, there would be no jobs she could perform. (R. at 58.)

In rendering his decision, the ALJ reviewed medical records from Norton Community Hospital; Dr. Kevin Blackwell, D.O.; The Regional Rehab Center; Highlands Neurosurgery, P.C.; Wellmont Lonesome Pine Hospital; Dr. Michael Ford, M.D.; Elizabeth A. Jones, M.A; state agency psychologist Maurice Prout, Ph.D.; state agency physician Dr. Joyce Goldsmith, M.D.; Dr. Nicanor B. Concepcion, M.D.; psychologist B. Wayne Lanthorn, Ph.D.; Dr. Thomas F. Scott, M.D.; Gary Bennett, Ph.D.; Appalachia Medical Clinic; and Dr. Rodolfo Cartegena, M.D..

Perry saw Dr. Kevin Blackwell, D.O., at OccuMed Health Center on November 17, 2009, complaining of back pain after tripping over a water hose and falling the previous day. (R. at 303, 305-08.) Perry said her pain was mostly in the lower buttocks region. (R. at 303.) Dr. Blackwell noted that Perry did not appear in any acute distress, but he noted that she was tender in the lumbar musculature with no spasm noted. (R. at 303.) Dr. Blackwell also stated that Perry's gait was symmetrical and balanced, her spine revealed no obvious deformities or abnormal curvatures, her upper and lower joint examinations were unremarkable, and upper and lower extremities were normal for size, shape, symmetry and strength. (R. at 303.) No atrophy was noted, and straight leg raise examination was negative for below the knee pain. (R. at 303.) Dr. Blackwell ordered x-rays and physical therapy and gave Perry prescriptions for Ultracet and Soma. (R. at 303.) Dr. Blackwell's note stated that Perry was taking Prozac. (R. at 308.) Dr. Blackwell stated that Perry could return to work with no lifting of items weighing more than 15 pounds, no pushing or pulling and alternating sitting, standing and walking as needed. (R. at 308.)

X-rays of Perry's lumbar spine taken on November 17, 2009, showed lumbar degenerative changes with no evidence of compression fracture or spondylolisthesis. (R. at 289.) X-rays of Perry's sacrum taken the same day revealed an irregularity in the upper one-third of the sacrum. (R. at 290.)

Dr. Blackwell saw Perry again on November 24, 2009. (R. at 301, 309.) On this date, Perry complained of lower back and right leg pain. (R. at 309.) Perry rated her pain level at a 7-8 on a 10-point scale. (R. at 301.) Dr. Blackwell's examination found no loss of strength and no spasms. (R. at 301.) Dr. Blackwell noted that Perry did not appear to be in an "acute distress." (R. at 301.) He noted that Perry was tender in the lumbar musculature; otherwise his exam was unremarkable with no abnormal findings. (R. at 301.) Dr. Blackwell ordered an MRI of her lumbosacral spine. (R. at 301, 309.) Dr. Blackwell also stated that Perry could return to work. (R. at 309.)

An MRI of Perry's lumbar spine performed on January 4, 2010, revealed degenerative changes with spur formation, disc space narrowing and facet arthropathy. (R. at 291.) The MRI revealed disc bulging at multiple levels, with the most prominent at the L4-5 and L5-S1 levels. (R. at 291.) The radiologist's report noted neural foraminal narrowing at these levels with contact of the exiting nerve root at the L4-5 level. (R. at 291.)

Dr. Blackwell saw Perry again on January 11, 2010, for follow up for low back pain and right leg pain. (R. at 298, 306.) Perry's examination, again, revealed benign findings other than some tenderness in her lumbar musculature. (R. at 298.) Dr. Blackwell recommended a neurosurgical second opinion. (R. at 298.) He prescribed Lortab and Soma. (R. at 298.) Dr. Blackwell stated that Perry was able to return to work, but he stated she was restricted to "limited activities." (R. at 298, 306.)

Perry reported a fall at work to her primary care physician, Dr. Michael Ford, M.D., on November 23, 2009. (R. at 477.) Perry's musculoskeletal and neurological exams revealed no weakness, intact joints and reflexes and a normal gait. (R. at 477.) The record contains a note from Dr. Ford written on a prescription pad dated April 27, 2010, and stating: "[patient] has MRI and it was [positive] for L4-5 bulged disc and effacement of nerve sac [positive]... bilat. Same at L5-S1 - date 1/4/10 - this cannot resolve on its own that short time frame and no followup MRI has been done. Back to work without MRI or [nerve conduction studies] or ortho opinion is wrong." (R. at 472.) The note also states that Perry was not seen on this date; her last visit was February 18, 2010. (R. at 472.) A musculoskeletal exam performed by Dr. Ford on June 24, 2010, revealed no atrophy or weakness, intact joints and a normal gait. (R. at 471.) Despite these benign medical findings, Dr. Ford completed a Medical Source Statement - Physical form on June 25, 2010, stating that Perry could lift items weighing 20 pounds or less occasionally and less than 10 pounds frequently. (R. at 413-14.) Dr. Ford also stated that Perry could not work an eight-hour workday. (R. at 413.) The form did not include any medical findings to support Dr. Ford's assessment. (R. at 413-14.) The form stated the prognosis of "without surgery... progressive deterioration[, ]" but did not indicate what type of surgery was necessary. (R. at 414.)

Perry was seen at the Lonesome Pine Hospital Emergency Department on January 18, 2010, for back pain. (R. at 394-95.) Perry stated that she had hurt her back at work in November and then bent over to lift and felt a pain in her lower back again. (R. at 394.) The report stated that Perry had Lortab at home and had an appointment to see a neurosurgeon. (R. at 394-95.) The report stated that Perry did not want a shot for pain. (R. at 394.) Perry was given an additional prescription for Lortab. (R. at 400.)

Perry saw Dr. J. Travis Burt, M.D., with Highlands Neurosurgery, P.C., on January 27, 2010. (R. at 387-88.) Perry complained of back pain after tripping and falling at work. (R. at 387.) She told Dr. Burt that she reinjured her back on January 18, 2010, lifting at work. (R. at 387.) Perry also complained of right side hip pain and tingling in her right leg. (R. at 387.) Perry stated that she also suffered from depression and anxiety. (R. at 387.) Dr. Burt noted that palpation of Perry's back produced no specific areas of tenderness, and he found no spasm. (R. at 387.) Patrick's maneuver and straight leg raises were unremarkable. (R. at 387.) Sensory examination by pinprick and strength were intact. (R. at 387.) Dr. Burt stated that review of Perry's previous MRI revealed age-related degenerative changes of the lumbar spine with no evidence of disc herniation. (R. at 387.) Dr. Burt concluded: "Examination is fairly normal. Her complaints appear to be subjective in nature." (R. at 387.) Dr. Burt ordered a bone scan and electromyography, ("EMG"), of Perry's right lower extremity. (R. at 388.) Dr. Burt wrote Perry an excuse from work from January 27, 2010, until February 9, 2010, pending her tests results, but he did not list any specific findings or any specific restrictions on her activities. (R. at 386.)

Perry returned to see Dr. Burt on February 9, 2010. (R. at 380.) Dr. Burt noted that Perry's bone scan and EMG/nerve conduction study results were normal. (R. at 380.) Dr. Burt stated that the physician who performed these tests noted that Perry had extremely poor pain tolerance. (R. at 380.) Dr. Burt ordered a return to physical therapy and prescribed Vicodin and Robaxin. (R. at 380.) Dr. Burt again excused Perry from work until her return to his office on March 2, 2010, "due to therapy, " but he listed no findings or restrictions on her work-related activities. (R. at 381.)

A February 15, 2010, report from The Regional Rehab Center at Norton Community Hospital stated that Perry reported for a second round of therapy complaining of pain in her low back and right hip and leg. (R. at 346-47.) Perry stated that, if she attempted to bend, her back would give out and she would fall to the ground. (R. at 346.) Perry also complained of numbness and tingling down her leg. (R. at 346.) Straight leg raise on the right side was positive for hip pain at 45 degrees of hip flexion. (R. at 347.) Palpation revealed some tenderness in Perry's lumbar spine/sacrum area. (R. at 347.)

When Perry returned to see Dr. Burt on March 2, 2010, she stated that she had not "gained significant benefit from her therapy." (R. at 377.) Dr. Burt noted that Perry's examination showed that she was neurologically intact with no limitation in her range of motion. (R. at 377.) Dr. Burt stated: "I have discussed with [Perry] that presently given that her studies are all normal we can either return her to work or continue to pursue a work conditioning program. She does not wish to work presently and would rather be enrolled in a work ...

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