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Pope v. Colvin

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

March 18, 2016

JANIE SUE POPE, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

MEMORANDUM OPINION

Pamela Meade Sargent United States Magistrate Judge

I. Background and Standard of Review

Plaintiff, Janie Sue Pope, (“Pope”), 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 “‘substantial evidence.’”” Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (quoting Laws, 368 F.2d at 642).

The record shows that Pope protectively filed an application for DIB on January 17, 2011, alleging disability as of September 2, 2010, due to diabetes, mini strokes, vision problems, partial colon removal, possible periodontal gum disease, obesity, high cholesterol and hypertension. (Record, (“R.”), at 186-87, 201, 204.) The claim was denied initially and on reconsideration. (R. at 102-104, 108-10, 113, 115-17, 119-21.) Pope then requested a hearing before an administrative law judge, (“ALJ”), (R. at 143.) A video hearing was held on May 14, 2013, at which Pope was represented by counsel. (R. at 37-75.)

By decision dated June 13, 2013, the ALJ denied Pope’s claim. (R. at 22-32.) The ALJ found that Pope met the nondisability insured status requirements of the Act for DIB purposes through December 31, 2014. (R. at 24.) The ALJ also found that Pope had not engaged in substantial gainful activity since September 2, 2010, her alleged onset date.[1] (R. at 24.) The ALJ found that the medical evidence established that Pope suffered from severe impairments, namely transient ischemic attacks, (“TIAs”); hypertension; diabetes mellitus with retinopathy; obesity; migraines; anemia; peripheral arterial disease; gastritis; and duodenitis, [2] but she found that Pope 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 24-25.) The ALJ found that Pope had the residual functional capacity to perform light work[3] that did not require more than occasional climbing of ramps and stairs, that allowed for only frequent balancing, bending, stooping, kneeling, crouching and crawling and that did not require her to climb ladders, ropes or scaffolds and that did not require concentrated exposure to unprotected heights and dangerous equipment. (R. at 26.) The ALJ also found that Pope was limited to frequent visual far acuity. (R. at 26.) The ALJ found that Pope was able to perform her past relevant work as a coal distribution coordinator. (R. at 30.) In addition, based on Pope’s age, education, work history and residual functional capacity and the testimony of a vocational expert, the ALJ also found that other jobs existed in significant numbers in the national economy that Pope could perform, including jobs as an office helper, a mail routing clerk and a file clerk. (R. at 31-32.) Thus, the ALJ found that Pope was not under a disability as defined by the Act, and was not eligible for DIB benefits. (R. at 32.) See 20 C.F.R. § 404.1520(f), (g) (2015).

After the ALJ issued her decision, Pope pursued her administrative appeals, (R. at 16), but the Appeals Council denied her request for review. (R. at 3-7.) Pope 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 Pope’s motion for summary judgment filed May 5, 2015, and the Commissioner’s motion for summary judgment filed May 29, 2015.

II. Facts

Pope was born in 1955, (R. at 186), which classifies her as a “person of advanced age” under 20 C.F.R. § 404.1563(e). She has a high school education and past relevant work as a coal distribution coordinator. (R. at 62, 205.) Pope stated that she watched her favorite television show and that she was able to remember what happened on the show. (R. at 60-61.) She stated that her job as a coal distribution coordinator involved weighing coal, weighing coal trucks and doing paperwork. (R. at 62.) Pope stated that she could not return to her job as a coal distribution coordinator because of her memory problems. (R. at 65.)

Vocational expert, Gerald Wells, also testified at Pope’s hearing. (R. at 66-73.) Wells classified Pope’s work as light, but sedentary[4] as performed because she sat most of the day, and skilled. (R. at 66.) Wells was asked to consider a hypothetical individual of Pope’s age, education and work experience, who would be limited to light work that did not require more than occasional climbing of stairs and ramps, that did not require more than frequent balancing, stooping, kneeling, crouching and crawling, that did not require her to climb ladders, scaffolds and ropes, that did not require concentrated exposure to unprotected heights and dangerous equipment and that allowed frequent visual far acuity. (R. at 67-68.) Wells stated that such an individual could perform Pope’s past relevant work, as classified in the Dictionary of Occupational Titles, (“DOT”). (R. at 68.) Wells also stated that there would be other jobs available at the light exertional level that existed in significant numbers that such an individual could perform, including jobs as an office helper, a mail routing clerk and a file clerk. (R. at 68-69.)

Wells stated that there would be no jobs available if the individual would be absent more than one day a month and if the individual had to rest two hours a day, meaning that the person would be off-task 25 percent of the workday. (R. at 70.) Wells was asked to consider the same individual, but who would have occasional limitations in near and far visual acuity and would need the use of a magnifying glass. (R. at 72.) He stated that the individual could not perform Pope’s past work or any job. (R. at 72.) Wells was then asked to assume the first hypothetical individual, but who would need frequent supervision in order to maintain persistence and pace. (R. at 72-73.) He stated that this would be a special accommodation that would not be provided in a normal competitive environment. (R. at 73.) He also stated that it was difficult to sustain work when the individual would be off-task more than 15 percent of the workday. (R. at 73.)

In rendering her decision, the ALJ reviewed medical records from Joseph Leizer, Ph.D., a state agency psychologist; Dr. Donald Williams, M.D., a state agency physician; Dr. Douglas J. Springer, M.D.; Wellmont Lonesome Pine Hospital; Dr. Lawrence Ray Morris, M.D.; Appalachian Physical Therapy and Sports Clinic; Dr. Michael Ford, M.D.; Dr. Howard L. Cummings, M.D.; Dr. R. David Sheppard, D.O.; Dr. Otakar Kreal, M.D.; and Dr. John L. Chapman, M.D.

On August 26, 2010, Pope was admitted to Wellmont Lonesome Pine Hospital where Dr. Michael Ford, M.D., and Dr. Marissa Vitocruz, M.D., assessed her with an altered mental status possibly due to TIA, uncontrolled type II diabetes, dehydration, hypertension and diarrhea. (R. at 286-301.) On examination, although Pope had reduced left leg strength, she had an otherwise unremarkable examination, including full right leg strength, orientation to person, place and time and good short- and long-term memory. (R. at 287.) A CT scan of Pope’s head showed no acute intracranial bleed or lesions, and periventricular and subcortical hypodensities were noted in the right frontal region and in the basal ganglia of the right side, probably secondary to chronic small vessel ischemia. (R. at 295-96.) A Doppler study of Pope’s vertebral and carotid arteries of the neck did not show evidence of hemodynamically significant obstructive lesions. (R. at 297-98.) An echocardiogram was normal. (R. at 299-301.) An MRI of Pope’s brain showed areas of restricted diffusion in the periventricular and deep white matter on both sides, suggestive of acute and subacute ischemia and a couple of small old lacunar infarcts in the basal ganglia region, one on each side. (R. at 302-04.) Pope was diagnosed with arteriosclerotic vascular disease; mini strokes (TIAs); hypertension; type II diabetes; plaques in central nervous system; renal insufficiency, improved with hydration; menopausal syndrome; history of hypothyroidism; post gallbladder surgery; hyperlipidemia; allergies; history of MRSA, recurrent; and significant anemia. (R. at 289.)

On September 20, 2010, Dr. Otakar Kreal, M.D., a neurologist, diagnosed Pope with vasculopathy, poorly controlled diabetes and hypertension and neurological symptoms consistent with a stroke. (R. at 479.) Pope reported symptoms of unintelligible speech, imbalance, leaning and falling if not held, which resulted in her hospitalization in August 2010. (R. at 480.) While her symptoms improved in the hospital, she still had some difficulty getting words out, some imbalance and decreased memory. (R. at 480.) On examination, Dr. Kreal noted that Pope had some aphasia with difficulty naming complex objects, slow and mildly reactive pupils, mild bicep weakness and unstable gait, but she was pleasant, had appropriate behavior, clear speech and normal sensation and coordination. (R. at 481.) Pope’s cornea appeared “dirty looking (scratched-like)” on the left. (R. at 481.) Her visual fields were normal. (R. at 481.) Pope’s ...


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