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Hilbert v. Colvin

United States District Court, W.D. Virginia, Harrisonburg Division

July 27, 2015

ROBERT WAYNE HILBERT II, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.

MEMORANDUM OPINION

JOEL C. HOPPE, Magistrate Judge.

Plaintiff Robert Wayne Hilbert II asks this Court to review the Commissioner of Social Security's ("Commissioner") final decision denying his applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-422, 1381-1383f. The case is before me by the parties' consent under 28 U.S.C. § 636(c)(1). ECF Nos. 9-10. Having considered the administrative record, the parties' briefs and oral arguments, and the applicable law, I find that the Commissioner's final decision is not supported by substantial evidence in the record. The decision will be reversed and the case remanded under the fourth sentence of 42 U.S.C. § 405(g).

I. Standard of Review

The Social Security Act authorizes this Court to review the Commissioner's final decision that a person is not entitled to disability benefits. See 42 U.S.C. § 405(g); Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). The Court's role, however, is limited-it may not "reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment" for that of agency officials. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Instead, the Court asks only whether the Administrative Law Judge ("ALJ") applied the correct legal standards and whether substantial evidence supports the ALJ's factual findings. Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011).

"Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). It is "more than a mere scintilla" of evidence, id., but not necessarily "a large or considerable amount of evidence, " Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence review takes into account the entire record, and not just the evidence cited by the ALJ. See Gordon v. Schweiker, 725 F.2d 231, 236 (4th Cir. 1984); Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-89 (1951). Ultimately, this Court must affirm the ALJ's factual findings if "conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled." Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)). However, "[a] factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law." Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).

A person is "disabled" if he or she is unable to engage in "any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). Social Security ALJs follow a five-step process to determine whether a claimant is disabled. The ALJ asks, in sequence, whether the claimant: (1) is working; (2) has a severe impairment; (3) has an impairment that meets or equals an impairment listed in the Act's regulations; (4) can return to his or her past relevant work based on his or her residual functional capacity; and, if not (5) whether he or she can perform other work. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Heckler v. Campbell, 461 U.S. 458, 460-62 (1983). The claimant bears the burden of proof at steps one through four. Hancock, 667 F.3d at 472. At step five, the burden shifts to the agency to prove that the claimant is not disabled. See id.

II. Procedural History

Hilbert filed for DIB and SSI on February 10, 2011. See Administrative Record ("R.") 176. He was 38 years old, id., and had worked as an artificial inseminator at a poultry plant, a line worker, and a groundsman. R. 243-44. Hilbert alleged disability beginning November 19, 2010, because of a 50% disability in his left foot after three or more surgeries;[1] surgical hardware in his right foot; injuries to the left knee, forearm, and hip; and degenerative disc disease. See R. 397. After the state agency twice denied his applications, R. 259-60, Hilbert appeared with counsel at a hearing before an ALJ on December 6, 2012, R. 193. He testified about his chronic musculoskeletal pain and the limitations it caused in his daily activities. See R. 194-202. A vocational expert ("VE") also testified as to Hilbert's ability to return to his past work or to perform other work existing in the economy. See R. 202-12.

The ALJ denied Hilbert's applications in a written decision dated December 21, 2012. See R. 176-85. He found that Hilbert suffered from severe impairments of osteoarthritis, left foot disorder status-post open reduction internal fixation and calcaneal joint fusion, status-post open reduction internal fixation of the right lateral malleolus, lateral epicondylitis of the left elbow, and degenerative disc disease, [2] but that these impairments did not meet or equal a listing. R. 178-79. The ALJ next determined that Hilbert had the residual functional capacity ("RFC") to perform a range of sedentary work. R. 179. Specifically, he found that Hilbert could occasionally lift or carry 20 pounds; frequently lift or carry 10 pounds; stand or walk for four hours and sit for six hours in an eight-hour workday; frequently kneel, stoop, or crouch; occasionally push, pull, reach overhead, balance, and crawl and climb ramps and stairs; and never climb ladders, ropes, or scaffolds. Id. He also must avoid concentrated exposure to vibration and workplace hazards. Id.

The ALJ noted that this RFC ruled out Hilbert's return to all of his past relevant work. R. 183. Finally, relying on the VE's testimony, the ALJ concluded that Hilbert was not disabled after November 19, 2010, because he could still perform certain jobs available nationally and in Virginia, such as assembler, telephone representative, or appointment clerk. R. 184. The Appeals Council declined to review that decision, R. 1, and this appeal followed.

III. Relevant Evidence

Hilbert's medical records document a history of injuries to-and subsequent degenerative changes in-his left foot, hip, and elbow, right hand, and both ankles. In April 2001, a forklift crushed Hilbert's left foot. R. 528. Hilbert underwent three separate reconstructive surgeries between May 2001 and January 2004. R. 528, 532-33, 635-37, 638-40. On November 4, 2004, Herbert Joseph, M.D., determined that Hilbert's left foot had reached "maximum medical improvement" in that "[n]o further treatment [was] indicated." R. 533. Even so, Dr. Joseph opined that Hilbert had a permanent "total impairment of 50% of the left lower extremity" secondary to atrophy, sensory loss, ankle weakness, loss of motion, "deformity of the hindfoot, " chronic pain, and the need for continued analgesics. R. 532-33. On exam, Dr. Joseph documented "no subtalar motion" in Hilbert's left ankle, "weakness of the big toe extension on the left... normal ankle dorsiflexion, but [a lack of] 20 degrees of plantar flexion compared to the opposite side." R. 532.

On March 1, 2005, Shepard Hurwitz, M.D., diagnosed a "painful injury with deformity of the left foot" and "post-traumatic arthritis" in Hilbert's left foot, resulting in "about 25% loss" of function in the left lower extremity. R. 597-98. Dr. Hurwitz opined that Hilbert should "restrict" his time standing and walking; only work indoors during inclement weather; and never climb ladders, kneel, squat, or perform overhead work. Id .

In October 2005, Hilbert underwent surgery to repair a broken right ankle. Gregory Hardigree, M.D., placed a metal "plate and screw fixation device" to fuse a "minimally displaced spiral fracture of the distal fibula." R. 850, 852-53. At the time, Dr. Hardigree noted that Hilbert was on "chronic Hydrocodone at one tablet a day" because of his left ankle injury. R. 846.

Hilbert was in a car accident in May 2007. See R. 840. Harold Jenkins, M.D., noted that a CT scan showed degenerative disc disease at C3-4 and "some degenerative changes" around Hilbert's left hip. R. 840-41. There was "no evidence of fracture or dislocation." R. 841.

On January 13, 2010, Hilbert received an injury to his right hand and arm from a turkey at work. R. 891. He appeared in the ER with swelling on January 17, and was released the next day after receiving antibiotics. R. 711, 715. Osteoarthritis of the thumb joint was noted on an X-ray. R. 896. Upon release, Reena Rizvi, M.D., determined that Hilbert could "return to work on 01/21/2010 without restriction." Id.

Hilbert also reported occupational-related pain in his arm in March 2010. R. 887. He attended physical therapy for tennis elbow seven times between August 30 and October 20, 2010. See R. 676-77. He received a cortisone shot in his left elbow on September 10, 2010. R. 876. On October 20, 2010, Kenneth Haskell discharged Hilbert from physical therapy. R. 865 Haskell noted that Hilbert made "excellent progress" and described his prognosis as "good... in conjunction with a home exercise program." Id . In particular, Haskell observed that Hilbert now had "good" strength and "no pain" or swelling in his wrist-a considerable improvement from the "pain and marked weakness" that Hilbert suffered when he started therapy. Id.

On December 29, 2010, Hilbert was seen in the emergency department for a persistent cough. A neurological exam revealed that Hilbert moved all four extremities and walked without difficulty. R. 861.

Hilbert filled out a Pain Questionnaire and Adult Functioning Report in spring 2011. R. 404-06, 432-42. He reported experiencing constant "aching, stabbing, burning, throbbing, cramping, crushing" pain in his shoulders, feet, left hip, and left knee. R. 405. He said that it hurt too much for him to bend, squat, or stoop and that sitting or standing for even 30 minutes "causes pain." R. 406. He said that he could walk 50 yards before needing to stop and rest for 30 minutes. R. 438. Hilbert explained, "all of my physical problems are due to having my foot run over by a forklift, being in a car wreck, and being severely beaten." Id.

Hilbert denied having any trouble using his hands for tasks such as shaving and feeding himself, R. 433-42, though he did report difficulty with buttons, R. 434. He said that any extended effort to perform household chores was "very painful." R. 435. Other than sitting on his porch daily, he rarely left the house. R. 436. During the rare times he went shopping, he had to move more slowly than he had previously. Id . Hilbert said he now used a cane. R. 437, 439.

On May 16, 2011, state-agency medical consultant R.S. Kadian, M.D., reviewed Hilbert's records available through March 30, 2011. R. 217. He noted that Hilbert had undergone "surgery for his impairment, " but opined that the "record reflect[ed] that the surgery was generally successful in relieving the symptoms." R. 220. Dr. Kadian also noted that Hilbert could "stand, walk, and move about within normal limits, " and "use [his] hands for... grasping or handling objects." R. 223. Specifically, Dr. Kadian opined that Hilbert could occasionally lift or carry 20 pounds and frequently lift or carry 10 pounds; sit and stand or walk for about six hours each in an eight-hour workday; and "occasionally" push or pull with his left arm. R. 220-21. Dr. Kadian did not identify any manipulative or postural limitations. R. 221.

On July 1, 2011, Hilbert visited Dayton Family Medicine complaining of pain in both ankles, the left hip, and the left knee. R. 967. Hilbert described his ankle pain and left hip pain, along with some knee pain, as "his most disabling problems." Id. Hilbert reported no upper extremity pain or limitations. Id. He also mentioned that he could not stand very long and could not lift, bend, or twist easily on account of his lower extremity pain. Id . On exam, Ronald Schubert, M.D., and Tifane Chapman, L.N.P., observed "decreased movement"-and "no lateral movement"-in Hilbert's left ankle. R. 967-68. Hilbert reported no pain on stressing his left hip and denied generalized weakness. R. 968. Dr. Schubert and radiologist R. Pence, M.D., observed that X-rays taken the same day revealed Hilbert's "left hip [was] quite arthritic from old injuries, " while his left foot showed "significant midfoot osteoarthritis" with fixation screws and his left ankle joint showed "some posttraumatic osteoarthritis." R. 969, 971. Hilbert's left knee appeared normal. R. 969. Dr. Schubert and/or Nurse Chapman opined that "Hilbert clearly would not be ...


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