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Absher v. Colvin

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

July 31, 2015

WILL A. ABSHER, Plaintiff
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



I. Background and Standard of Review

Plaintiff, Will A. Absher, ("Absher"), filed this action challenging the final decision of the Commissioner of Social Security, ("Commissioner"), denying his claims for disability insurance benefits, ("DIB"), and supplemental security income, ("SSI"), under the Social Security Act, as amended, ("Act"), 42 U.S.C.A. §§ 423 and 1381 et seq. (West 2011 & West 2012). Jurisdiction of this court is pursuant to 42 U.S.C. §§ 405(g) and 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 Absher protectively filed his applications for SSI and DIB on May 14, 2010, alleging disability as of July 31, 2007, due to Hepatitis C, depression, anxiety, latent tuberculosis, abdominal pain, GERD and chronic back pain. (Record, ("R."), at 208-09, 212-15, 248, 252, 276, ) The claims were denied initially and upon reconsideration. (R. at 112-14, 118-20, 123-25, 129-31, 134, 139-41, 143-45, 146-48, 150-52.) Absher then requested a hearing before an administrative law judge, ("ALJ"). (R. at 153-54.) A hearing was held by video conferencing on September 25, 2012, at which Absher was represented by counsel. (R. at 30-49.)

By decision dated October 15, 2012, the ALJ denied Absher's claims. (R. at 13-23.) The ALJ found that Absher met the disability insured status requirements of the Act for DIB purposes through June 30, 2012. (R. at 15.) The ALJ found that Absher had not engaged in substantial gainful activity since July 31, 2007, the alleged onset date. (R. at 15.) The ALJ found that the medical evidence established that Absher had severe impairments, namely Hepatitis C; latent positive tuberculosis; major depressive disorder; intermittent explosive disorder; personality disorder; and a history of polysubstance abuse in sustained full remission, but he found that Absher did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 16-17.) The ALJ found that Absher had the residual functional capacity to perform simple, routine, repetitive medium work[1] requiring no more than occasional interaction with co-workers or the public in a low-stress environment, which he defined as an environment requiring only occasional decisionmaking or changes in the work setting.[2] (R. at 17-21.) The ALJ found that Absher was unable to perform any of his past relevant work. (R. at 21.) Based on Absher's age, education, work history and residual functional capacity and the testimony of a vocational expert, the ALJ found that a significant number of jobs existed in the national economy that Absher could perform, including jobs as a hand packager, a laundry worker and a garment folder. (R. at 21-22.) Thus, the ALJ concluded that Absher was not under a disability as defined by the Act and was not eligible for DIB or SSI benefits. (R. at 23.) See 20 C.F.R. §§ 404.1520(g), 416.920(g) (2014).

After the ALJ issued his decision, Absher pursued his administrative appeals, (R. at 7-9), but the Appeals Council denied his request for review. (R. at 1-5.) Absher 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, 416.1481 (2014). This case is before this court on Absher's motion for summary judgment filed August 18, 2014, and the Commissioner's motion for summary judgment filed September 22, 2014.

II. Facts [3]

Absher was born in 1977, (R. at 208, 212), which classifies him as a "younger person" under 20 C.F.R. §§ 404.1563(c), 416.963(c). He has a high school education and attended special education classes. (R. at 253.) Absher also attended two years of community college, where he obtained a welding certificate. (R. at 34-35, 253.) He has past work experience as a cook, a welder and a general laborer. (R. at 253.) Absher testified that he had a substance abuse problem in the past, mostly with alcohol and some marijuana use, but he stated he had not used those substances in more than a year. (R. at 36.) Absher testified that he stayed nervous and worried about his Hepatitis C diagnosis. (R. at 36.) He testified that he liked to help out around the house, and he liked to mow with a riding mower, but he had to take breaks. (R. at 37-38.) Absher testified that he was nervous all the time, but being around crowds made it worse. (R. at 38-39.) He stated that he experienced panic attacks nearly daily and that he had difficulty with memory and concentration. (R. at 39.) Absher stated that his parents, who lived with him, did most of the grocery shopping, cooking and cleaning. (R. at 39.) He stated that he had a couple of friends, who he visited every couple of days, and he tried to stay out in the sun, as it made him feel better. (R. at 39-40.) However, he stated that most days, he did not want to be around anyone due to his depression. (R. at 41.) Absher testified that he had difficulty sleeping due to his combination of problems, and he noted that he would not be able to sleep without his medicine. (R. at 40-41.) Nonetheless, he testified that he still woke up tired and sometimes had to lie down during the day or sit in the recliner. (R. at 41.) Absher stated that he stayed inside during the winter, as the cold aggravated his pain and depression. (R. at 41.) He testified that he had bad days two or three times monthly, when he just sat on the couch. (R. at 42.) He stated that despite taking Seroquel, he still heard things, and his mind raced "real bad." (R. at 43.)

Mark Hielman, a vocational expert, also was present and testified at Absher's hearing. (R. at 43-48.) He classified Absher's past work as a company laborer at a coal company as heavy[4] and unskilled and as a welder pitter as medium and skilled. (R. at 44.) Hielman testified that Absher's description of the welder pitter job would be classified as heavy, but its general classification is medium. (R. at 44.) Hielman testified that a hypothetical individual of Absher's age, education and past work history, who could perform simple, routine, repetitive medium work with certain physical restrictions and that required no more than occasional interaction with the public, could not perform any of Absher's past work. (R. at 45.) However, Hielman testified that such an individual could perform other jobs existing in significant numbers in the national economy, including jobs as a hand packager, a laundry worker and a small products assembler or bench assembler. (R. at 45-46.) Hielman next testified that the same hypothetical individual, but who could only occasionally interact with co-workers, as well as with the public, who must work in a low-stress job, which was defined as having only occasional decision-making and occasional changes in the work setting, and who must work in a job requiring no more than occasional judgment, could perform the jobs of the laundry worker and the hand packager previously listed, as well as the job of a garment folder and packager. (R. at 46-47.) Hielman testified that the same hypothetical individual, but who could have no interaction with the public, who would require work that is isolated with only occasional supervision, who would likely have two or more absences from the workplace monthly and who likely would need to take two or more breaks during the workday to deal with the effects of different impairments, each lasting 10 to 15 minutes, could not perform any work. (R. at 47-48.)

In rendering his decision, the ALJ reviewed records from Mountain View Regional Medical Center; Wise County Behavioral Health Services; Community Physicians Clinic; Norton Community Hospital; Appalachia Family Health Center; Stone Mountain Health Services; St. Mary's Health Wagon; University of Virginia Health Systems; Southwestern Virginia Mental Health Institute; Wise County Health Department; Crystal Burke, L.C.S.W.; B. Wayne Lanthorn, Ph.D., a licensed clinical psychologist; and Wellmont Lonesome Pine Hospital. Absher's attorney submitted additional evidence from Dr. TaranDeep Kaur, M.D., to the Appeals Council.[5]

The record shows that Absher received mental health treatment from Wise County Behavioral Health Services, ("Wise County"), beginning in August 2005, and continuing through August 2008. (R. at 375-472.) He saw counselors and a psychiatrist for both counseling and medication management. Absher saw Michael Halcomb, B.A., a case manager, from May 29, 2007, through April 8, 2008. (R. at 375-409.) Over this time, Absher admitted to a long-standing history of substance abuse, including alcohol, marijuana, opiates and benzodiazepines. (R. at 389, 392, 407, 768.) He was advised to contact The Laurels regarding inpatient detoxification, but he never completed such treatment because he did not think he had a substance abuse problem. (R. at 398, 400, 406-07.) According to Halcomb, Absher failed to recognize a connection between his mood state and his extensive substance abuse, and he became very angry when Halcomb suggested his emotional problem was primarily substance-abuse related. (R. at 395, 407.) Absher had difficulty with rudimentary communication and social interaction, and he reported being very anxious. (R. at 398, 409.) He reported difficulty coping with anxiety, and Halcomb opined that Absher used medication and other substances to cope with stress. (R. at 398.) Absher denied suicidal or homicidal ideations, and there was no evidence of thought disturbance, hallucinations or delusions. (R. at 389, 394-95, 407.) Over this time, Absher reported on multiple occasions that he had ceased using substances, but a urine drug screen on November 1, 2007, was positive for opiates, and Absher admitted continued use of alcohol, benzodiazepines, opiates and marijuana. (R. at 389, 392, 768.) Furthermore, on October 24, November 16, and November 26, 2007, Absher expressed concern about passing drug screens from his probation officer. (R. at 392, 394, 396.) However, he relayed his plans to use a "kit" to cleanse himself, to drink plenty of cranberry juice and water to flush his system and to "take something" to help him pass the screens. (R. at 392, 394, 396.) Halcomb noted that Absher viewed these drug screens as part of a "system to beat." (R. at 394.) On August 23, 2007, Absher reported that he was very anxious, but Halcomb described him as alert with a euthymic mood and congruent affect. (R. at 398.) On November 16, 2007, Halcomb reported that Absher appeared consistently anxious. (R. at 394.) On April 8, 2008, Halcomb completed a DSM-IV Assessment of Absher, diagnosing him with depressive disorder; anxiety disorder, not otherwise specified; and antisocial personality disorder. (R. at 375-76.) He assessed Absher's then-current Global Assessment of Functioning, ("GAF"), [6] score at 50, [7] with his highest in the previous six months being 50 and his lowest being 40.[8] (R. at 375.)

Absher saw Dr. Rhonda Bass, M.D., a psychiatrist, on two occasions, once on July 5, 2007, and again on November 26, 2007. (R. at 390-91, 402-04.) Again, Absher reported his extensive substance abuse history, dating back to his teenage years. (R. at 402.) On July 5, 2007, Absher made intermittent eye contact, established some rapport and exhibited appropriate behavior and mannerisms. (R. at 403.) He had normal speech and only mildly increased psychomotor activity. (R. at 403.) Absher's mood was moderately to severely anxious, and his affect was mildly labile, but appropriate to the conversation. (R. at 403.) He presented no overt symptoms of psychosis, showed no cognitive impairment and demonstrated no then-current dangerousness to himself or others. (R. at 403.) Absher denied then-current suicidal or homicidal ideations, as well as auditory or visual hallucinations. (R. at 404.) Dr. Bass diagnosed Absher with alcohol dependence; polysubstance dependence (marijuana, Xanax, Lortab); polysubstance abuse (Suboxone, Valium, fentanyl patches, morphine, Skelaxin, cocaine, methamphetamine, Percocet); and substance-induced mood disorder with mixed features of depression and anxiety. (R. at 403.) She placed his then-current GAF score at 40, with the highest in the previous year being 30.[9] (R. at 403.) Dr. Bass opined that his symptoms would best be managed on an inpatient basis, for fear that he might accidentally overdose from mixing prescribed detoxification medications with more alcohol or drugs. (R. at 403-04.) Absher was agreeable to voluntary admission to such a detoxification program. (R. at 404.) However, when Absher returned to Dr. Bass on November 26, 2007, he reported that he had left The Laurels against medical advice. (R. at 390.) He reported overwhelming anxiety, mood swings and paranoia, but denied suicidal ideation. (R. at 390.) Dr. Bass described Absher as depressed and anxious, he made poor eye contact and established little rapport. (R. at 390.) His behavior and mannerisms were inappropriate, and he provided inadequate/evasive answers to questions. (R. at 390.) Absher's speech was normal in rate and rhythm, and psychomotor activity was only mildly increased. (R. at 390.) He did not converse easily or actively participate in treatment discussions and decisions. (R. at 390.) Absher admitted continued use of alcohol, Lortab and Klonopin since last being seen in July 2007, but he minimized his substance abuse. (R. at 390.) He expressed concern about failing a drug screen the next day for his probation officer, which would result in incarceration or seven months of detoxification and/or rehabilitation. (R. at 390.) Dr. Bass reported that Absher was looking for a "magic bullet" and that he lacked insight into his behavior. (R. at 390.)

Absher saw Dr. Jennifer Ayers, D.O., and Dr. Jody Bentley, D.O., on numerous occasions from July 18, 2007, through April 9, 2009, with complaints of depression and anxiety. (R. at 474-84, 489-90, 815-28, 890-98.) In July 2007, he reported independently discontinuing Celexa because it did not help, but Drs. Bentley and Ayers reinitiated it. (R. at 489-90.) Absher was alert and oriented with no focal deficits at that time. (R. at 489-90.) In August 2007, Absher again reported not taking Celexa as prescribed, stating that he could not afford it. (R. at 482.) However, when he was advised of a generic formulation, he stated that the medication did not help. (R. at 482.) Drs. Bentley and Ayers informed Absher that they might have to cease treatment of him if he continued to abuse substances. (R. at 482.) In September 2007, Absher reported lots of anger, but he denied suicidal or homicidal attempts. (R. at 481.) In September, October and November 2008, Absher was depressed with a very flat affect, and he reported feeling anxious and edgy all of the ...

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