United States District Court, W.D. Virginia, Big Stone Gap Division
REBECCA L. MULLINS, Plaintiff
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant
PAMELA MEADE SARGENT UNITED STATES MAGISTRATE JUDGE.
I. Background and Standard of Review
Plaintiff, Rebecca L. Mullins, (“Mullins”), filed this action challenging the final decision of the Commissioner of Social Security, (“Commissioner”), determining that she 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). Mullins has requested oral argument in this matter.
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 Mullins protectively filed her application for SSI on June 21, 2011, alleging disability as of March 7, 2009, due to nerves; a back condition; shoulder and hip problems; swelling of her feet; carpal tunnel syndrome; a heart attack; breathing problems; depression; stomach problems; fatigue; and difficulty concentrating. (Record, (“R.”), at 175-78, 188, 197, 226.) The claim was denied initially and on reconsideration. (R. at 89-91, 95-97, 100, 103-05, 107-09.) Mullins then requested a hearing before an administrative law judge, (“ALJ”). (R. at 110-11.) A video hearing was held on May 10, 2013, at which Mullins was represented by counsel. (R. at 27-57.)
By decision dated May 24, 2013, the ALJ denied Mullins’s claim. (R. at 11-21.) The ALJ found that Mullins had not engaged in substantial gainful activity since June 21, 2011, the date of Mullins’s application. (R. at 13.) The ALJ determined that the medical evidence established that Mullins suffered from severe impairments, namely hypertension; cervical and lumbar degenerative disc disease; obesity; a history of tachycardia; degenerative joint disease of the shoulders; myalgias; post-traumatic stress disorder, (“PTSD”); major depressive disorder; anxiety disorder; and possible borderline intellectual functioning, but he found that Mullins 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.) The ALJ found that Mullins 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 climbing, balancing, stooping, kneeling, crouching or crawling; that did not require more than occasional overhead reaching; that did not require constant reaching in all directions; that did not require more than occasional interaction with co-workers and the public; that allowed her to be off task 10 percent of an eight-hour workday and allowed her to be absent up to one workday a month; and that did not require more than occasional decision making and changes in the work setting. (R. at 16.) The ALJ found that Mullins had no past relevant work. (R. at 19.) Based on Mullins’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 Mullins could perform, including jobs as a general production worker, a material handler and a packer. (R. at 20.) Thus, the ALJ found that Mullins was not under a disability as defined by the Act and was not eligible for SSI benefits. (R. at 21.) See 20 C.F.R. § 416.920(g) (2015).
After the ALJ issued his decision, Mullins pursued her administrative appeals, (R. at 7), but the Appeals Council denied her request for review. (R. at 1-5.) Mullins 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 Mullins’s motion for summary judgment filed July 9, 2015, and the Commissioner’s motion for summary judgment filed August 12, 2015.
Mullins was born in 1964, (R. at 31, 175), which, at the time of the ALJ’s decision, classified her as a “younger person” under 20 C.F.R. § 416.963(c). Mullins obtained her general equivalency development, (“GED”), diploma and has a degree in photography. (R. at 31, 189.) She has worked as a cook; a caretaker for the elderly; a housekeeper; and a waitress. (R. at 189.) Mullins stated that she could sit for up to 30 minutes without interruption and stand for up to one hour without interruption. (R. at 38.) She stated that she was molested by her brother when she was a child and that she had been seeing a counselor for two years. (R. at 41.) Mullins stated that she had no problems cooking for herself or taking care of her personal needs. (R. at 46.)
Robert Jackson, a vocational expert, also was present and testified at Mullins’s hearing. (R. at 51-55.) Jackson was asked to consider a hypothetical individual of Mullins’s age, education and no work history, who had the residual functional capacity to perform medium work that did not require more than occasional climbing, balancing, stooping, kneeling, crouching or crawling; and who had no limitations on standing, walking or sitting. (R. at 51.) Jackson identified jobs that existed in significant numbers at the medium, unskilled level that such an individual could perform, including jobs as an assembler, a packer and a cleaner. (R. at 51-52.) Jackson was asked to consider a second hypothetical individual, who had the residual functional capacity to perform light work that did not require more than occasional climbing, balancing, stooping, kneeling, crouching or crawling; who could occasionally overhead reach and frequently reach; and who could stand/walk and sit for six hours in an eight-hour workday. (R. at 52.) He identified jobs that existed in significant numbers at the light, unskilled level that such an individual could perform, including jobs as an inspector-grader, a packer and a cashier. (R. at 52.)
Jackson was asked to consider the second hypothetical individual, but who could stand/walk for about two hours and sit for up to six hours in eight-hour workday, who could only occasionally make decisions and be exposed to occasional changes in the work setting; who could occasionally interact with the public and co-workers; who would be off task 10 percent of the workday; and who would be absent from work no more than one workday a month. (R. at 53.) He identified jobs that existed in significant numbers at the sedentary, unskilled level that such an individual could perform, including jobs as a small parts assembler, a packer and a material handler. (R. at 53-54.)
Jackson was asked to consider a fourth hypothetical individual, who had the residual functional capacity to perform light work that allowed a sit-stand option at will; that did not require climbing ladders, ropes or scaffolds, balancing, kneeling, crouching or crawling; that did not require more than occasional climbing of ramps or stairs, pushing, pulling or stooping; that did not require more than occasional overhead reaching and frequent reaching; that required no more than occasional decision making and occasional changes in the work setting, occasional interaction with the public and co-workers; and that allowed for being off task at least 20 percent of the workday and being absent from work at least two workdays a month (R. at 54-55.) He stated that there would be no jobs available that such an individual could perform. (R. at 55.)
In rendering his decision, the ALJ reviewed records from Russell County Public Schools; Julie Jennings, Ph.D., a state agency psychologist; Dr. Richard Surrusco, M.D., a state agency physician; Jo McClain, P.C., a state agency professional counselor; Dr. Joseph Duckwall, M.D., a state agency physician; Abingdon Orthopedic Associates, P.C.; Johnston Memorial Hospital; Crystal Burke, L.C.S.W., a licensed clinical social worker; Dr. Charles Wilson, M.D.; Dr. Thomas E. Roatsey, D.O.; Mountain View Regional Medical Center; and B. Wayne Lanthorn, Ph.D., a licensed clinical psychologist.
By way of background, an MRI of Mullins’s neck and back performed in 2003 was within normal limits. (R. at 348.) In October 2004, an MRI of Mullins’s lumbar spine showed a bulging disc at the L5-S1 level, but no ...