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Ford v. Colvin

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

March 30, 2015

JESSICA S. FORD, Plaintiff
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant



I. Background and Standard of Review

Plaintiff, Jessica S. Ford, ("Ford"), 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 transfer by consent of the parties pursuant to 28 U.S.C. § 636(c)(1).

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 Ford protectively filed her application for SSI on January 28, 2010, alleging disability as of January 2, 2010, due to seizures, low blood pressure, anxiety attacks, Stevens-Johnson Syndrome, [1] migraines and photosensitivity. (Record, ("R."), at 155-58, 180, 191, 194.) The claim was denied initially and on reconsideration. (R. at 85-87, 90-91, 93-95.) Ford then requested a hearing before an administrative law judge, ("ALJ"), (R. at 98-99), which was held on May 8, 2012, and at which Ford was represented by counsel. (R. at 60-81.)

By decision dated August 2, 2012, the ALJ denied Ford's claim. (R. at 32-54.) The ALJ found that Ford was in the "adolescents" age group on the date of the application, and attained 18 years of age on January 6, 2010.[2] (R. at 36.) The ALJ found that Ford had not engaged in substantial gainful activity since the date of the application. (R. at 36.) The ALJ determined that the medical evidence established that, before attaining age 18, Ford suffered from severe impairments, including a seizure disorder; interstitial cystitis; an anxiety disorder, not otherwise specified, with mixed anxiety and depressed mood; and post-traumatic stress disorder, ("PTSD"); but that she 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 37.) The ALJ also found that, before attaining age 18, Ford did not have an impairment or combination of impairments that functionally equaled the listings. (R. at 37-45.) Therefore, because Ford did not have an impairment or combination of impairments that met, medically equaled any listing or functionally equaled the listings, the ALJ found that she was not disabled prior to attaining age 18. (R. at 45.) The ALJ found that Ford had not developed any new impairment or impairments or had an impairment or combination of impairments that met or medically equaled a listed impairment since attaining age 18. (R. at 45-46.) The ALJ found that, since attaining age 18, Ford had the residual functional capacity to perform simple, routine, repetitive, low-stress[3] light work[4] that required no climbing of ladders, ropes or scaffolds, no operation of moving machinery and no work around unprotected heights, no more than occasional climbing of ramps or stairs, no more than frequent stooping, kneeling, crouching, crawling or balancing and no more than occasional interaction with the public or co-workers. (R. at 47.) The ALJ found that Ford had no past relevant work. (R. at 53.) The ALJ found that, since attaining age 18, considering Ford's education, work history and residual functional capacity and the testimony of a vocational expert, Ford could perform other jobs existing in significant numbers in the national economy, including jobs as a cleaner, an electronics assembler and a small products assembler II. (R. at 53-54.) Therefore, the ALJ found that Ford was not under a disability as defined under the Act since she attained age 18 and was not eligible for benefits. (R. at 54.) See 20 C.F.R. § 416.920(g) (2014).

After the ALJ issued his decision, Ford pursued her administrative appeals, (R. at 8-11), but the Appeals Council denied her request for review. (R. at 1-6.) Ford 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 Ford's motion for summary judgment filed July 1, 2014, and the Commissioner's motion for summary judgment filed August 4, 2014.

II. Facts [5]

Ford was born in 1992, (R. at 155, 176), which classifies her as a "younger person" under 20 C.F.R. § 416.963(c). She has a high school education with special education courses. (R. at 65, 181.) Ford testified that she was working five days a week for five hours daily as a cashier at Walmart at the time of the hearing, as her primary care physician had limited her working hours approximately seven or eight months previously due to seizures and worsened panic attacks. (R. at 66-67, 73.) She testified that despite taking Lamictal for her seizures, she continued to have one a week prior to the hearing. (R. at 67.) Ford testified that she experienced both grand mal[6] and petit mal[7] seizures, noting that she had a grand mal seizure at least every two months. (R. at 67.) Ford testified that it took her approximately 45 minutes to recover from a seizure, and she had been forced to leave work on approximately 20 occasions after suffering one since her hours were reduced. (R. at 71, 73.) She stated that her medication reduced the frequency and severity of her seizures most of the time. (R. at 72-73.) Ford testified that she did not handle stress very well and that she had been diagnosed with anxiety attacks, for which she took Xanax. (R. at 68-69.) She stated that she had an anxiety attack approximately once weekly or every couple of weeks, lasting for about 30 minutes. (R. at 68.) Ford stated that she had left her job six or seven times due to anxiety attacks. (R. at 74.) Ford testified that her doctor had given her leaves of absences, as well. (R. at 75.) She stated her belief that working full-time would result in seizures and more anxiety. (R. at 70.) She stated that she had been treated at Woodridge, a psychiatric hospital, and had received counseling thereafter, but was not then-currently receiving counseling due to a lack of insurance. (R. at 65, 70.)

Melissa Brassfield, a vocational expert, also was present and testified at Ford's hearing. (R. at 76-80.) Brassfield classified Ford's work at Walmart as a cashier/checker, although not substantial gainful activity, as semi-skilled and light. (R. at 77.) She testified that a hypothetical individual who could perform simple, routine, repetitive, low-stress (defined as requiring only occasional decision making and only occasional changes in the work setting) light work, but who could never climb ladders, ropes or scaffolds, who could occasionally climb ramps or stairs, who could frequently stoop, kneel, crouch, crawl and balance, who should avoid the operation of moving machinery and working around unprotected heights and who could have no more than occasional interaction with the public and with co-workers, could not perform Ford's past work as a cashier/checker. (R. at 77-78.) Brassfield testified that such an individual could perform jobs existing in significant numbers in the national economy, including those of a housekeeping cleaner, an electrical accessory assembler and a small products assembler I. (R. at 78.) Brassfield next testified that the same hypothetical individual, but who also would miss more than two days of work monthly on an unexcused or unscheduled basis could perform no competitive work. (R. at 78.) Lastly, Brassfield testified that a hypothetical individual who was limited to working a maximum of five hours per day and five days per week could not perform any full-time jobs, as those are classified as 40 hours per week. (R. at 79.)

In rendering her decision, the ALJ reviewed records from Dr. Anna Kosentka, M.D., a pediatric neurologist; Woodridge Hospital; Wise County Behavioral Health Services; Lonesome Pine Pediatrics; Wise County Public Schools; Associated Neurologists of Kingsport; Dr. Felix E. Shepherd, Jr., M.D.; Wellmont Lonesome Pine Hospital; Medical Associates of Southwest Virginia; Frontier Health Assessment & Forensic Services; J. McClain, Psy.D., a doctor of psychology; Dr. Joseph Duckwall, M.D., a state agency physician; Norton Community Hospital; Spectrum Lab Network; Medical Associates of Big Stone Gap; Dr. R. Scott Macdonald, M.D., a neurologist; Nighthawk Radiology; Dr. Sam Vorkpor, M.D.; and Eric Johnson, Ph.D., a licensed psychologist. Ford's attorney submitted additional medical records from Dr. Macdonald; Dr. David K. Garriott, M.D.; Medical Associates of Big Stone Gap; and Mountain Empire Neurological Associates to the Appeals Council.[8]

The medical records show that Ford suffered her first seizure in December 2005, at the age of approximately 14 and was treated with Lamictal. (R. at 236, 507-20, 640-41.) In December 2006, Ford was evaluated by Dr. Anna Kosentka, M.D., a pediatric neurologist, who diagnosed partial complex seizures with secondary generalization; and a history of migraine headaches. (R. at 236-38.) Ford continued to see Dr. Kosentka from April 6, 2007, through November 1, 2007. (R. at 239-41.) Over this time, Ford independently reduced her Lamictal dosage by half, and thereafter, independently discontinued it altogether. (R. at 241, 524.) On October 11, 2007, Ford advised her primary care physician that she had suffered two seizures the previous two weeks, and Lamictal was restarted. (R. at 524.) On November 1, 2007, Dr. Kosentka ordered an EEG, which was "moderately abnormal... secondary to epileptiform activity...." (R. at 239.)

Ford did not seek any further neurological treatment until April 10, 2009, when she saw Dr. R. Scott Macdonald, M.D., who diagnosed a history of seizure disorder, possibly primary generalized seizures. (R. at 385-86.) A physical examination was unremarkable, and Dr. Macdonald ordered blood work and refilled Ford's lamotrigine.[9] (R. at 386.)

From May 7, 2009, through September 19, 2009, Ford presented to the emergency department at Lonesome Pine Hospital, ("Lonesome Pine"), on three occasions after suffering possible seizures. (R. at 405-06, 409-10, 417-18, 557-58.) Physical examinations were normal, as were CT scans. (R. at 407, 411, 419.) Follow-up appointments with Dr. Macdonald after these emergency department visits also yielded normal findings on physical examination. (R. at 382-84.) A May 27, 2009, EEG was abnormal, but was inconclusive as to whether there were primary or secondary generalized seizure bursts. (R. at 387.) Dr. Macdonald was not convinced that Ford had suffered seizures, and he considered whether she might be experiencing pre-syncopal symptoms. (R. at 382, 384.) He scheduled a tilt table test, [10] which was positive, with initial tachycardia, them bradycardia and episode of asystole.[11] (R. at 381.) He referred Ford for a cardiology evaluation.[12] (R. at 381.) Dr. Macdonald diagnosed a history of seizure disorder and positive tilt table testing with syncope. (R. at 381.)

Over this time, Ford also advised Dr. Macdonald that she was doing well on her medications. (R. at 379.) However, on September 24, 2009, Dr. Macdonald noted that lab work from July indicated that she was not taking the Lamictal. (R. at 378.) Ford admitted that she had stopped taking the medication, but had been compliant for the previous five days. (R. at 378.) However, she stated that she had a suspected seizure episode earlier that month. (R. at 378.) A CT scan of Ford's brain was, again, negative. (R. at 378.) Dr. Macdonald advised Ford that the seizure medication was effective only if she took it on a regular basis. (R. at 378.)

The record also reveals that Ford was admitted to Woodridge, an inpatient psychiatric facility, on August 12, 2009, for approximately one week after threatening to overdose on medications following an argument with her mother. (R. at 242-44.) Her Global Assessment of Functioning, ("GAF"), [13] score on admission was 30.[14] (R. at 242.) She received an initial diagnosis of PTSD and oppositional defiant disorder. (R. at 242.) Ford reported that she had not taken her prescribed Lamictal or blood pressure medication since March. (R. at 249.) During counseling, Ford revealed a history of sexual abuse by a stepbrother at the age of 13, but she was resistant to psychiatric treatment. (R. at 243.) Upon discharge on August 18, 2009, Ford was diagnosed with PTSD; poor coping skills and family discord; and her then-current GAF score was placed at 52.[15] (R. at 244.) Ford and her family received further counseling services at Wise County Behavioral Health Services. (R. at 258-63, 267-72, 276-81.)

On January 15, 2010, Ford was seen at Lonesome Pine Pediatrics with complaints of an ear ache, burning with urination for the previous two weeks and pain in the lower back. (R. at 314.) An x-ray revealed kidney stones, and Ford was prescribed Cipro. (R. at 314.) The following day, she presented to the emergency department at Lonesome Pine with complaints of painful urination and back pain. (R. at 423-24, 552-54.) A physical examination was unremarkable. (R. at 424, 552.) She was diagnosed with dysuria and was prescribed Cipro and Pyridium. (R. at 424.)

Ford saw Dr. Sam G. Vorkpor, M.D., on February 23, 2010, to establish primary care. (R. at 448.) She complained of a sore throat and weakness, and she reported that her last seizure was five months previously. (R. at 448.) She reported anxiety and previous suicidal ideation with a plan to cut herself, as well as sexual abuse, which caused significant stress. (R. at 448.) A physical examination was normal, with the exception of a positive strep test. (R. at 448.) Dr. Vorkpor diagnosed strep pharyngitis, seizure disorder and anxiety, and he prescribed antibiotics. (R. at 448.) On March 10, 2010, Ford had no complaints, and a physical examination was entirely unremarkable. (R. at 447.) On April 14, 2010, Ford complained to Dr. Vorkpor of right neck spasm, and she exhibited impaired range of motion of the neck and tenderness. (R. at 443.) Dr. Vorkpor diagnosed right neck spasms and questionable torticollis, and he prescribed Valium and Skelaxin. (R. at 443.) By April 16, 2010, Ford reported that her spasms were decreasing, and Dr. Ford advised her to continue taking the medications as prescribed. (R. at 442.)

On April 21, 2010, Ford again presented to the emergency department at Lonesome Pine with complaints of back pain, pain with urination, nausea and vomiting. (R. at 425-26, 549-51.) She reported that her OB/GYN had diagnosed a urinary tract infection the previous day and prescribed Pyridium, but she felt no better. (R. at 425.) Ford's mother advised that Ford was not taking her seizure medication and that she did not take any antibiotic ...

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