United States District Court, W.D. Virginia, Big Stone Gap Division
Pamela Meade Sargent United States Magistrate Judge
I. Background and Standard of Review
Plaintiff, Peter Joe Lawson, (“Lawson”), filed this action challenging the final decision of the Commissioner of Social Security, (“Commissioner”), determining that he 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).
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 Lawson protectively filed his application for DIB on December 3, 2010, alleging disability as of August 27, 2010, due to a back injury, depression, anxiety, bipolar disorder, memory problems, panic attacks, arthritis and severe pain in the knees and legs. (Record, (“R.”), at 180, 192, 196, 223-24.) The claim was denied initially and on reconsideration. (R. at 100-04, 106, 108-10.) Lawson then requested a hearing before an administrative law judge, (“ALJ”), (R. at 115), and a hearing was held on December 11, 2012, at which Lawson was represented by counsel. (R. at 28-55.)
By decision dated December 21, 2012, the ALJ denied Lawson’s claim. (R. at 15-27.) The ALJ found that Lawson met the nondisability insured status requirements of the Act for DIB purposes through December 31, 2014. (R. at 17.) The ALJ also found that Lawson had not engaged in substantial gainful activity since August 27, 2010, his alleged onset date. (R. at 17.) The ALJ found that the medical evidence established that Lawson suffered from severe impairments, namely lumbar spine degenerative disc disease; degenerative joint disease of the bilateral knees; hyperlipidemia; bipolar disorder; generalized anxiety disorder; and major depressive disorder, but he found that Lawson 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 17-19.) The ALJ found that Lawson had the residual functional capacity to perform a range of simple, routine and repetitive sedentary work in a low-stress environment, which was defined as involving only occasional decision making or changes in the work setting, and which allowed for a sit/stand option every 30 minutes, which did not require him to crawl or to climb ladders, ropes or scaffolds, which did not require more than occasional balancing, stooping, kneeling, crouching or climbing of ramps and stairs, which did not require concentrated exposure to hazardous or moving machinery and unprotected heights, which did not require more than occasional interaction with the public and co-workers, and which would accommodate him being off-task about 10 percent of a normal workday. (R. at 19.) Therefore, the ALJ found that Lawson was unable to perform his past relevant work as a coal miner and cutting machine operator. (R. at 25.) Based on Lawson’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 Lawson could perform, including jobs as an assembler, a packer and a gate guard. (R. at 25-26.) Thus, the ALJ found that Lawson was not under a disability as defined by the Act and was not eligible for DIB benefits through the date of the decision. (R. at 27.) See 20 C.F.R. § 404.1520(g) (2015).
After the ALJ issued his decision, Lawson pursued his administrative appeals, (R. at 10-11), but the Appeals Council denied his request for review. (R. at 1-4.) Lawson 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 (2015). The case is before this court on Lawson’s motion for summary judgment filed January 30, 2015, and the Commissioner’s motion for summary judgment filed March 4, 2015.
Lawson was born in 1970, (R. at 180), which, at the time of the ALJ’s decision, classified him as a “younger person” under 20 C.F.R. § 404.1563(c). He has an eleventh-grade education and certification in underground mining. (R. at 31-32, 197.) Lawson has past relevant work experience as a coal miner. (R. at 198.) Lawson testified at his hearing that he had difficulty concentrating due to his anxiety and depression. (R. at 33.) He also stated that he had five to six panic attacks monthly, each lasting for the better part of a day, and which had no specific triggers. (R. at 34-35.) Lawson testified that he took medication for these panic attacks, and when he had one, he would try to read a book and “get [his] mind reeled back in.” (R. at 35.) He stated that he spent most of his time at home, noting that he was afraid to be around people and became very nervous in public, which he defined as 15 or more strangers. (R. at 36, 41.) He stated that he could go into grocery stores or other large stores for short periods of time, he participated in some church activities and tried to hunt and fish “a little bit to try to get some exercise and easement of the mind.” (R. at 41-42.) Lawson estimated that he had gone hunting only three or four times that year behind his house and for approximately two hours at most. (R. at 42.) He testified that he had a driver’s license and drove once or twice weekly for less than 10 miles to pick up a few groceries. (R. at 43.) Lawson stated that his wife took care of the household chores and paid the bills, and his 23-year-old son took care of most of the yard work. (R. at 38-39.)
Martin Kranitz, a vocational expert, also was present and testified at Lawson’s hearing. (R. at 45-53.) Kranitz characterized Lawson’s past work as a cutting machine operator in an underground coal mine as medium work, but more likely heavy work as it was performed by Lawson. (R. at 45-46.) When asked to consider a hypothetical individual of Lawson’s age, limited education and past work experience, who could perform simple, routine, repetitive medium work that required no more than occasional climbing of ladders, ropes or scaffolds and no more than occasional stooping, kneeling, crouching and crawling, that did not require concentrated exposure to hazards like moving machinery and heights, and that required no more than occasional interaction with the public or with co-workers, Kranitz testified that such an individual could not perform Lawson’s past work as an underground coal miner, but could perform other jobs existing in significant numbers in the national economy, including jobs as a stock selector, a machine feeder and a bus person in a restaurant. (R. at 46-47.) When Kranitz was asked to consider a hypothetical individual who could perform simple, routine, repetitive light work in a low-stress environment, which was defined as involving only occasional decision making or changes in the work setting, but who could never climb ladders, ropes or scaffolds and never crawl, who could occasionally climb ramps or stairs and occasionally balance, stoop, kneel and crouch, who could occasionally interact with the public or with co-workers, who would be off-task about 10 percent of the workday to deal with the effects of both pain and mental limitations and who must avoid concentrated exposure to hazards like moving machinery and heights, Kranitz testified that such an individual could perform the jobs of an assembler, a gate guard and a packer. (R. at 47-48.) Kranitz next was asked to consider the same hypothetical individual, but who could stand or walk for just two hours out of an eight-hour day and sit for up to six hours and who would need a sit/stand option at 30-minute intervals. (R. at 49.) Kranitz testified that such an individual could perform the light jobs enumerated, but in lower numbers. (R. at 49.) Kranitz next was asked to consider the same hypothetical individual, but who likely would be off-task about 20 to 25 percent of the workday, who likely would be absent from work at least twice monthly and who would need additional breaks each workday to deal with the effects of pain and mental limitations. (R. at 50.) Kranitz testified that such an individual could not perform any jobs. (R. at 50.) Kranitz next testified that, if an individual had no ability to behave in an emotionally stable manner, employment would be precluded if the individual acted in an unstable way during the course of the workday. (R. at 51.) Likewise, Kranitz testified that an individual with no ability to maintain attention or concentration could not work. (R. at 51-52.) Lastly, Kranitz testified that an individual who missed two days or more of work per month would be precluded from employment. (R. at 53.)
In rendering his decision, the ALJ reviewed medical records from Lee County Public Schools; Lee County Community Hospital; Stone Mountain Health Services; Pain Medicine Associates; Holston Medical Group; Dr. James Louthan, M.D.; Indian Path Medical Center; Blue Ridge Internal Medicine; Dr. Uzma Ehtesham, M.D., a psychiatrist; Mountain States Medical Group; Lee Regional Medical Center; East Kentucky Psychological Services; Dr. Kevin Blackwell, D.O.; Robert S. Spangler, Ed.D., a licensed psychologist; Jeanne Buyck, Ph.D., a state agency psychologist; Dr. Michael Hartman, M.D., a state agency physician; Louis Perrott, Ph.D., a state agency psychologist; and Dr. Richard Surrusco, M.D., a state agency physician.
The record reveals that Lawson saw Dr. Kelly McQueen, D.O., his treating physician, on November 23, 2009, with complaints of depression. (R. at 415-17, 422-24, 538-40.) He requested to restart Cymbalta, stating that he had responded well to it in the past. (R. at 415, 423, 539.) Lawson denied any suicidal, homicidal or bizarre thoughts. (R. at 416, 423, 539.) He complained of decreased appetite and sleep, depression, decreased motivation, less enjoyment, crying spells and anxiousness, but no panic attacks. (R. at 416, 423, 539.) Lawson requested a referral to a Christian counselor. (R. at 416, 423, 539.) On physical examination, Lawson’s attitude was normal and cooperative with appropriate behavior. (R. at 416, 423, 539.) He was alert, awake and oriented with a depressed mood, but without evidence of anxiety, schizophrenia, personality disorder or other psychiatric disorders. (R. at 416, 423, 539.) There was no evidence of suicidal, homicidal or harmful behavior, judgment was appropriate, and insight was clear with a good understanding of his condition. (R. at 416, 423, 539.) Dr. McQueen diagnosed chronic major depression, and she restarted Cymbalta. (R. at 417, 424, 540.) The referral specialist provided information regarding a Christian counselor, but there is no evidence in the record that Lawson followed through with counseling. (R. at 411, 428, 530.) Lawson returned to Dr. McQueen on June 23, 2010, reporting the recent death of a sister. (R. at 409, 429, 521.) He also reported stopping the Cymbalta, stating that it did not always help him. (R. at 409, 429, 521.) Lawson reported continued highs and lows, but denied suicidal thoughts or plans. (R. at 409, 429, 521.) He reported both anxiety and depressive symptoms. (R. at 409, 429, 521.) Lawson was fully oriented, but tearful, his attitude was normal, and he had no suicidal tendencies or homicidal ideation. (R. at 410, 430, 522.) Dr. McQueen diagnosed chronic major depression and prescribed Cymbalta. (R. at 410, 430, 522.) She discussed the need for Lawson to see a psychiatrist due to his never having benefitted from any medication and her opinion that he might have bipolar disorder. (R. at 410, 430, 522.) She referred him to Dr. Somiah. (R. at 410, 430, 522.)
On September 1, 2010, Lawson reported not doing well and that he had not seen the psychiatrist because he did not take insurance. (R. at 404, 431, 515.) He was fully oriented with a blunted, flat, sad, tearful and worried affect. (R. at 405, 432, 516.) His attitude was normal, and he had no suicidal tendencies or homicidal ideations. (R. at 405, 432, 516.) Dr. McQueen diagnosed bipolar disorder, she discontinued Cymbalta and prescribed Symbyax. (R. at 404-05, 431-32, 515-16.) She discussed the urgent need for Lawson to see a psychiatrist. (R. at 406, 433, 517.) On September 10, 2010, Lawson reported continued depression. (R. at 396, 438, 505.) He reported going to Dr. Somiah’s office, but again was told they did not take his insurance. (R. at 396, 438, 505.) Lawson’s attitude was normal, and his affect was blunted, flat and tearful, but he had no suicidal tendencies or homicidal ideation. (R. at 397, 439, 506.) Dr. McQueen diagnosed chronic major depression and prescribed Cymbalta. (R. at 397, 439, 506.) She again urged Lawson to see a psychiatrist for treatment of possible bipolar disorder. (R. at 397, 439, 506.) On September 14, 2010, Dr. McQueen requested a psychiatry consult. (R. at 394, 443, 502.) On September 27, 2010, Lawson noted slight improvement in his depression. (R. at 388, 445, 496.) He was fully oriented with a sad, tearful and worried affect, but he had a normal attitude with no suicidal tendencies or homicidal ideation. (R. at 390, 447, 498.) Dr. McQueen diagnosed bipolar disorder and again requested a psychiatry consult. (R. at 390, 447, 498.)
The record reveals that Lawson saw Dr. Uzma Ehtesham, M.D., a psychiatrist, on a monthly basis for approximately two years, from November 15, 2010, to December 10, 2012. On November 15, 2010, he complained of depression and mood swings, excessive worry, sadness, low self-esteem, hopelessness, agitation, racing thoughts, decreased sleep, impulsivity, paranoia and visual hallucinations. (R. at 570.) He reported that his depression started “a while ago” and had worsened. (R. at 570-71.) Lawson reported that he had seen a counselor and had taken Symbyax, Cymbalta, Zoloft and Paxil. (R. at 571.) On mental status examination, Lawson’s hygiene and grooming were good, he maintained eye contact, his speech was normal, and he exhibited normal motor activity. (R. at 573.) His affect was flat, anxious, agitated and irritable with congruent mood and thoughts. (R. at 573.) He exhibited excessive worry and anticipatory anxiety, but he denied suicidal or homicidal ideations. (R. at 573.) No delusions were elicited, there was no evidence of mania, and Lawson did not appear to be responding to internal stimuli. (R. at 573.) Lawson reported hallucinations, but he was fully oriented, his thought processes were goal-oriented, his insight was good, and his judgment was intact. (R. at 573.) Dr. Ehtesham diagnosed Lawson with severe, recurrent major depressive disorder with psychotic behavior, and she assessed his then-current Global Assessment of Functioning, (“GAF”),  score at 56. (R. at 575.) She decreased his dosage of Symbyax and prescribed Lithium. (R. at 575.) On November 29, 2010, he reported less anger and less mind racing. (R. at 568.) His anxiety was rated as a three on a 10-point scale. (R. at 568.) He denied hallucinations, and no attention symptoms were noted. (R. at 568.) Eye contact was intermittent, and speech was spontaneous. (R. at 568.) Lawson’s affect was anxious and agitated with congruent mood. (R. at 568.) He denied suicidal or homicidal ideation, no delusions were elicited, and there was no evidence of mania. (R. at 568.) Lawson’s insight was fair/poor, and his judgment was intact/improved. (R. at 568.) Dr. Ehtesham prescribed Vistaril, Lithium and Geodon. (R. at 568-69.)
When Lawson returned to Dr. McQueen on December 8, 2010, she noted that he had been taking Geodon and Lithium and was more stable and feeling better, but did “not want to admit it, ” as he had filed for disability. (R. at 551, 584.) It was noted that he “still [had] bad days, but they [were] manageable.” (R. at 551, 584.) On physical examination, Lawson was awake, alert and fully oriented with an improved mood. (R. at 552, 585.) Dr. McQueen noted that Lawson was actually smiling and not tearful, and she described his affect as “almost content.” (R. at 552, 585.) She recommended that Lawson continue psychiatric treatment and medications. (R. at 552, 585.)
Lawson returned to Dr. Ehtesham in December 2010 and January 2011. During this time, he reported that his depression was improving, he was less sad and anxious, and he experienced fewer mood swings. (R. at 564, 566.) His depression was rated as a three and his mania as a three to four. (R. at 564, 566.) Eye contact was intermittent, and Lawson’s affect was anxious and agitated with congruent mood. (R. at 564, 566.) No delusions were elicited, and there was no evidence of mania. (R. at 564, 566.) Lawson’s insight was deemed fair/poor, while his judgment was intact/improved. (R. at 564, 566.) In January 2011, although Lawson reported paranoia, his thought processes were goal-oriented. (R. at 564.) Dr. Ehtesham continued him on Vistaril, Lithium and Geodon during this time. (R. at 564, 567.)
When Lawson returned to Dr. McQueen on January 19, 2011, she noted that he was seeing a psychiatrist for treatment of bipolar disorder. (R. at 549, 580, 724.) He was awake, alert and fully oriented at that time. (R. at 550, 581.)
On January 31, 2011, Dr. Ehtesham completed a Mental Status Evaluation Form of Lawson, stating that he experienced mood swings and anger problems and that he isolated himself. (R. at 559-63.) She described him as cooperative, fully oriented and sad with fair memory and illogical thought content, confusion at times, decreased concentration, persistence and task completion, a concrete thinker with poor judgment and becoming irritable under stress. (R. at 561-62.) Dr. Ehtesham did not offer any diagnosis. (R. at 559.) Lawson continued to treat with Dr. Ehtesham from February through April 2011. Over this time, he reported improvement in his depression, mood swings and anger, but a decreased ability to focus. (R. at 606, 608, 610, 612.) His depression was rated from a four to a six during this time, his anxiety a three to an eight and his mania a five. (R. at 606, 608, 610, 612.) On February 21, 2011, Lawson endorsed auditory hallucinations and racing thoughts. (R. at 612.) However, by March and April 2011, he denied hallucinations, and no attention symptoms were noted. (R. at 606, 610.) Lawson’s affect was consistently described as anxious with congruent mood. (R. at 606, 608, 610, 612.) Lawson also consistently denied suicidal or homicidal ideation, he exhibited intermittent eye contact and spontaneous speech, his insight was fair/poor, and his judgment was intact/improved. (R. at 606, 608, 610, 612.) Dr. Ehtesham continued to treat Lawson with medications during this time, including Lithium, Vistaril, Geodon, Klonopin and Lamictal. (R. at 606-13.)
When Lawson saw Dr. McQueen on April 18, 2011, she noted that he was awake, alert, fully oriented, pleasant and cooperative. (R. at 578-79.)
Lawson continued treating with Dr. Ehtesham in May and June 2011. On May 3, 2011, he reported that his anger, depression and anxiety all were decreasing, and his anxiety was rated a five. (R. at 604.) By May 19, 2011, he reported increased depression and continued mind racing, and his anxiety was rated an eight and his depression a four. (R. at 602.) On June 17, 2011, Lawson reported improving depression, and his anxiety was rated a five and his depression a three. (R. at 600.) During this time, Lawson denied hallucinations, he denied suicidal or homicidal ideations, he displayed intermittent eye contact and spontaneous speech, and no attention symptoms were noted. (R. at 600, 602, 604.) Lawson’s insight was deemed to be fair/poor and his judgment ...