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Swiney v. Colvin

United States District Court, W.D. Virginia

July 13, 2015

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



I. Background and Standard of Review

Plaintiff, Stephanie A. Swiney, ("Swiney"), 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 Swiney protectively filed an application for DIB on September 20, 2010, alleging disability as of September 2, 2010, due to lower lumbar spine fusion with rods and screws, degenerative disc disease, anxiety, panic disorder, agoraphobia, depression, insomnia and panic attacks. (Record, ("R."), at 187, 190-91, 201, 205.) The claim was denied initially and on reconsideration. (R. at 107-09, 113-15, 118, 119-21, 123-25.) Swiney then requested a hearing before an administrative law judge, ("ALJ"), (R. at 126-27), and a hearing was held on October 31, 2012, at which Swiney was represented by counsel. (R. at 36-66.)

By decision dated December 21, 2012, the ALJ denied Swiney's claim. (R. at 13-28.) The ALJ found that Swiney met the nondisability insured status requirements of the Act for DIB purposes through December 31, 2014. (R. at 15.) The ALJ also found that Swiney had not engaged in substantial gainful activity since September 2, 2010, her alleged onset date. (R. at 15.) The ALJ found that the medical evidence established that Swiney suffered from severe impairments, namely status-post L5 laminectomy and L5/S1 interbody fusion surgery, anxiety disorder, panic disorder and depression, but he found that Swiney 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 Swiney had the residual functional capacity to perform sedentary work, [1] which did not require more than occasional kneeling, crouching and stooping and that allowed an option to alternate between periods of sitting and standing throughout the day. (R. at 17.) The ALJ further found that Swiney was limited to performing short, simple instructions. (R. at 17.) The ALJ found that Swiney was unable to perform any of her past relevant work. (R. at 27.) Based on Swiney'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 Swiney could perform, including jobs as an assembler, a packer/stuffer and an inspector/tester. (R. at 27-28.) Thus, the ALJ found that Swiney was not under a disability as defined by the Act and was not eligible for DIB benefits. (R. at 28.) See 20 C.F.R. § 404.1520(g) (2014).

After the ALJ issued his decision, Swiney pursued her administrative appeals, (R. at 8), but the Appeals Council denied her request for review. (R. at 1-6.) Swiney 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 Swiney's motion for summary judgment filed October 6, 2014, and the Commissioner's motion for summary judgment filed December 10, 2014.

II. Facts

Swiney was born in 1975, (R. at 38), which classifies her as a "younger person" under 20 C.F.R. § 404.1563(c). She has a high school education and past relevant work experience as a bailiff and a bank teller. (R. at 38, 206.) Swiney stated that Prozac and Xanax were somewhat helpful, but she continued to have panic attacks. (R. at 51.)

John Newman, a vocational expert, also was present and testified at Swiney's hearing. (R. at 61-65.) Newman classified Swiney's past work as a bailiff as light[2] and semi-skilled and her job as a bank teller as light and skilled. (R. at 62.) Newman was asked to consider a hypothetical individual of Swiney's age, education and work history, who had the residual functional capacity to perform sedentary work that did not require more than occasional kneeling, crouching, climbing and stooping, that allowed a sit/stand option, which allowed her to be able to move in place while in a seated position or briefly rise from a seated position to a standing position throughout the day and that did not require her to perform tasks involving more than short and simple instructions. (R. at 62-63.) Newman stated that a significant number of jobs existed that such an individual could perform, including jobs as an assembler, a packer and an inspector/tester/sorter. (R. at 63.) Newman stated that if the individual was seriously limited in her ability to maintain attention and concentration, to deal with work stress, to complete simple job instructions, to relate in social situations and to demonstrate reliability, that these limitations would be below what is required for unskilled work. (R. at 64-65.)

In rendering his decision, the ALJ reviewed medical records from Dickenson County Public Schools; Dr. Craig S. Graul, D.O.; Jo McClain, P.C., a state agency psychologist; Dr. Alison Whitman, M.D.; Lonesome Pine Hospital; Johnston Memorial Hospital; Patrick N. Farley, Ed.D., a licensed professional counselor; John Powell, P.A.-C., a certified physician's assistant; Dr. Michael Hartman, M.D., a state agency physician; B. Wayne Lanthorn, Ph.D., a licensed clinical psychologist; Dr. Thomas Henretta, M.C., a state agency physician; Joseph Leizer, Ph.D., a state agency psychologist; Dr. Jim C. Brasfield, M.D.; Dr. Thomas G. Sutton, M.D., of the University of Virginia Pain Management Center; and Dr. Sachdev Somiah, M.D., a psychiatrist. Swiney's attorney submitted additional medical records from Farley, Dr. Somiah, Dr. V. Kumar, M.D., and Dr. Whitman to the Appeals Council.[3]

In October 2007, Swiney underwent an L5 posterior interbody infusion for lumbar degenerative disc disease. (R. at 333, 356.) Follow-up treatment notes reflected that her condition was improving. (R. at 331.)

The record shows that Swiney was treated by Dr. Craig S. Graul, D.O., from 2007 through 2010 for complaints of depression, anxiety and low back pain. (R. at 491-595.) In January 2009, Swiney reported that she was feeling fine. (R. at 545.) In June 2009, and again in June 2010, Swiney reported that her anxiety was improving with medication. (R. at 551, 588, 590.)

On March 12, 2010, Swiney saw Dr. Alison Whitman, M.D., for complaints of depression and anxiety. (R. at 565.) Swiney reported that she was recently injured and working a desk job, and she feared that her boss would not be rehired, resulting in the loss of her job. (R. at 565.) In April 2010, Swiney told Dr. Whitman that she still had not heard if she was able to keep her job or not and that she could not tell that she even cared about the job anymore. (R. at 569.) On May 15, 2010, Swiney presented to the emergency room at Lonesome Pine Hospital, ("Lonesome Pine"), for complaints of anxiety attacks. (R. at 390-99.) Swiney's affect was anxious. (R. at 391.) She was diagnosed with acute anxiety and panic attack. (R. at 391.) On May 21, 2010, Swiney presented to the emergency room at Johnston Memorial Hospital for complaints of anxiety and noncardiac chest pain. (R. at 416-36.) Swiney reported that Xanax eliminated her symptoms. (R. at 417.) Her behavior, mood and affect were within normal limits. (R. at 418.) A chest x-ray was normal. (R. at 421.) Swiney's symptoms had "markedly improved" after treatment. (R. at 419.)

In July 2010, Swiney stated that she was very anxious and nervous. (R. at 608.) Dr. Whitman recommended counseling, noting that Swiney had a very difficult marriage and that she fought with her mother-in-law. (R. at 608.) In August 2010, Swiney continued to experience anxiety attacks. (R. at 612, 615.) In September 2010, Swiney had a normal affect and demeanor. (R. at 633.) On October 5, 2010, Swiney presented to the emergency room at Lonesome Pine with complaints of a racing heart. (R. at 455-66.) A chest x-ray was normal. (R. at 465.) Swiney was diagnosed with an anxiety attack. (R. at 456.) On October 7, 2010, Swiney called Dr. Whitman's office complaining that she was still having panic attacks. (R. at 629.) ...

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