United States District Court, W.D. Virginia, Big Stone Gap Division
CLIFFORD D. SKEEN, Plaintiff
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant
Pamela Meade Sargent United States Magistrate Judge
I. Background and Standard of Review
Plaintiff, Clifford D. Skeen, (“Skeen”), filed this action challenging the final decision of the Commissioner of Social Security, (“Commissioner”), determining that he 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 Skeen protectively filed his application for SSI on October 13, 2010, alleging disability as of January 1, 2004, due to back, neck and hearing problems, depression, anxiety and a learning disability. (Record, (“R.”), at 213-16, 222, 227.) The claim was denied initially and on reconsideration. (R. at 112-14, 118-20, 123, 126-28, 130-32.) Skeen then requested a hearing before an administrative law judge, (“ALJ”). (R. at 133-34.) A video hearing was held on March 1, 2013, at which Skeen was represented by counsel. (R. at 31-54.)
By decision dated March 14, 2013, the ALJ denied Skeen’s claim. (R. at 11-26.) The ALJ found that Skeen had not engaged in substantial gainful activity since October 13, 2010, the date of Skeen’s application. (R. at 13.) The ALJ determined that the medical evidence established that Skeen suffered from severe impairments, namely cervical spine degenerative disc disease with impingement, cord flattening and stenosis; hypertension; borderline intellectual functioning; and adjustment disorder, but he found that Skeen 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 13-14.) The ALJ found that Skeen had the residual functional capacity to perform sedentary work,  that did not require more than two hours of standing and/or walking in an eight-hour workday and six hours of sitting in an eight-hour workday; that did not require more than occasional stooping or crouching; that did not require more than frequent bilateral reaching, handling and feeling; that would require less than occasional overhead reaching with the left upper extremity; that required the performance of no more than simple, short instructions; that did not require public interaction, but allowed appropriate social contact with others in the workplace that involved brief superficial interaction; and allowed him the ability to hear conversation and speech within a normal occupational environment. (R. at 16.) The ALJ found that Skeen had no past relevant work. (R. at 24.) Based on Skeen’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 Skeen could perform, including jobs as an addresser and a printed circuit board assembly worker. (R. at 25.) Thus, the ALJ found that Skeen was not under a disability as defined by the Act, and was not eligible for SSI benefits. (R. at 26.) See 20 C.F.R. § 416.920(g) (2015).
After the ALJ issued his decision, Skeen pursued his administrative appeals, (R. at 7), but the Appeals Council denied his request for review. (R. at 1-5.) Skeen 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 (2015). The case is before this court on Skeen’s motion for summary judgment filed May 11, 2015, and the Commissioner’s motion for summary judgment filed July 15, 2015.
Skeen was born in 1963, (R. at 36, 213), which, at the time of the ALJ’s decision, classified him as a “younger person” under 20 C.F.R. § 416.963(c).Skeen has a high school education and vocational education training in masonry. (R. at 36, 227-28.) Skeen testified at his hearing that he had “some problems with hearing, ” but he did not need a hearing aid. (R. at 37.) He stated that he suffered from chronic neck and back pain. (R. at 38.) Skeen stated that his pain medication helped, but that he was never completely pain free. (R. at 38.) He stated that his depression medication helped “a little.” (R. at 41.) Skeen stated that he could stand for up to one hour without interruption. (R. at 43.) He stated that he could walk a quarter of a mile without interruption. (R. at 43.) He stated that he like to read books for fun. (R. at 47.)
Mark Heilman, a vocational expert, also was present and testified at Skeen’s hearing. (R. at 49-53.) Heilman stated that Skeen’s last substantial gainful activity was in 1995 or 1996. (R. at 50.) Heilman was asked to consider a hypothetical individual of Skeen’s age, education and no significant work background for 10 to 15 years who had the residual functional capacity to perform sedentary work that did not require more than occasional stooping or crouching; who could frequently reach, handle and feel bilaterally; who could less than occasionally reach overhead with his left upper extremity; who could understand, remember and carry out short, simple instructions; who could interact appropriately with others in the work environment where the tasks involve short, simple instructions; and whose hearing ability was sufficient to hear speech at a conversational level. (R. at 50-51.) Heilman identified jobs that existed in significant numbers at the sedentary, unskilled level that such an individual could perform, including jobs as a pharmaceutical packager, a call-out operator and a telephone information clerk. (R. at 51.)
Heilman was asked to consider the same hypothetical individual, but who would not be able to have much public contact or public interaction of any type and whose interactions with others in the work environment would be limited to occasional, brief and superficial interaction. (R. at 51-52.) Heilman stated that the jobs of a call-out operator and a telephone information clerk would be eliminated. (R. at 52.) However, he stated that the individual could perform the jobs of a printed circuit board touch-up screener and an addressing clerk. (R. at 52.) When asked to consider the same hypothetical individual, but who would be limited to occasional use of the left non dominant upper extremity, Heilman stated that all jobs previously identified, with the exception of the call-out operator, would be eliminated. (R. at 52.)
In rendering his decision, the ALJ reviewed records from Wise County Public Schools; Howard S. Leizer, Ph.D., a state agency psychologist; Dr. Bert Spetzler, M.D., a state agency physician; Dr. Joseph Duckwall, M.D., a state agency physician; Louis Perrott, Ph.D., a state agency psychologist; Appalachia Family Health Center; Kathleen Walker, Ph.D.; Robert S. Spangler, Ed.D., a licensed clinical psychologist; Dr. Kevin Blackwell, D.O.; B. Wayne Lanthorn, Ph.D., a licensed psychologist; and Mountain Home Veterans Administration Medical Center, (“VA”). Skeen’s attorney also submitted a medical source statement from Kathleen Walker, Ph.D., a licensed psychologist with the VA, to the Appeals Council.
On December 2, 2008, B. Wayne Lanthorn, Ph.D., a licensed clinical psychologist, evaluated Skeen at the request of Disability Determination Services. (R. at 330-36.) The Wechsler Adult Intelligence Scale - Third Edition, (“WAIS-III”), was administered, and Skeen obtained a performance IQ score of 72, a verbal IQ score of 82 and a full-scale IQ score of 75. (R. at 330.) Skeen reported that he had not worked for the previous nine years because he could not find a job. (R. at 332.) Lanthorn diagnosed chronic pain disorder associated with psychological factors and general medical conditions; and borderline intellectual functioning. (R. at 335.) He assessed Skeen’s then-current Global Assessment of Functioning, (“GAF”),  score at 61. (R. at 335.) Lanthorn found that Skeen had excellent immediate memory and adequate short-term memory; he was capable of focusing his concentration and persisting at tasks “quite well;” and his communication skills were good. (R. at 336.)
On December 8, 2008, Dr. Kevin Blackwell, D.O., examined Skeen at the request of Disability Determination Services. (R. at 338-42.) He opined that Skeen had the residual functional capacity to perform medium work that did not require crawling, climbing ladders or working around unprotected heights. (R. at 341.) Physical examination was unremarkable. (R. at ...