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Salyers v. Colvin

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

May 27, 2016

ROY LEE SALYERS, 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, Roy Lee Salyers, (“Salyers”), 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 Salyers protectively filed his applications for SSI and DIB on February 14, 2012, alleging disability as of January 24, 2012, due to chronic obstructive pulmonary disease, (“COPD”) and back and hip problems. (Record, (“R.”), at 172-79, 195, 199.) The claims were denied initially and upon reconsideration. (R. at 80-82, 87-89, 93-97, 99-104, 106-08.) Salyers then requested a hearing before an administrative law judge, (“ALJ”). (R. at 109.) A hearing was held on November 25, 2013, at which Salyers was represented by counsel. (R. at 25-41.) At his hearing, Salyers amended the date of his alleged onset of disability to December 1, 2012. (R. at 28.)

         By decision dated January 17, 2014, the ALJ denied Salyers’s claims. (R. at 11-20.) The ALJ found that Salyers met the nondisability insured status requirements of the Act for DIB purposes through December 31, 2016. (R. at 13.) He found that Salyers had not engaged in substantial gainful activity since December 1, 2012, the amended alleged onset date. (R. at 13.) The ALJ found that the medical evidence established that Salyers had severe impairments, namely chronic back pain, back spasms and hip and right knee pain, but he found that Salyers 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 13-14.) The ALJ found that Salyers had the residual functional capacity to perform medium[1] work that did not require him to crawl; that did not require more than occasional climbing, balancing, stooping, kneeling and crouching; and that did not require him to work around fumes, odors, dusts, gases or poor ventilation. (R. at 15.) The ALJ found that Salyers was unable to perform any of his past relevant work. (R. at 18.) Based on Salyers’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 Salyers could perform, including jobs as a hand packager, a stock clerk and a material handler. (R. at 18-19.) Thus, the ALJ concluded that Salyers was not under a disability as defined by the Act and was not eligible for DIB or SSI benefits. (R. at 19-20.) See 20 C.F.R. §§ 404.1520(g), 416.920(g) (2015).

         After the ALJ issued his decision, Salyers pursued his administrative appeals, (R. at 6), but the Appeals Council denied his request for review. (R. at 1-4.) Salyers 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 (2015). This case is before this court on Salyers’s motion for summary judgment filed December 23, 2015, and the Commissioner’s motion for summary judgment filed March 15, 2016.

         II. Facts

         Salyers was born in 1954, (R. at 172, 176), which classifies him as a “person of advanced age” under 20 C.F.R. §§ 404.1563(e), 416.963(e). Salyers obtained his general equivalency development, (“GED”), diploma and has past relevant work experience as a laborer for a drilling operation, a maintenance man and a painter. (R. at 28-29, 38, 200.) Salyers testified that he could not work because of pain in his low back and joints, including his hips and right knee. (R. at 30.) He testified that the medications he took helped with the pain. (R. at 30.)

         Barry Hensley, a vocational expert, was present and testified at Salyers’s hearing. (R. at 38-40, 156.) Hensley was asked to consider a hypothetical individual of Salyers’s age, education and work history who had the residual functional capacity to perform medium work, who could occasionally climb, balance, stoop, kneel and crouch, but never crawl, and who could not work in poorly ventilated areas. (R. at 38.) Hensley testified that such an individual could not perform Salyers’s past work, but that there were other jobs existing in significant numbers in the national economy that he could perform, including those of a hand packager, a stock clerk and a materials handler or mover. (R. at 38-39.) Hensley testified that an individual who could lift and/or carry items weighing five to 10 pounds occasionally; who could occasionally stoop, balance, reach, handle, push and pull; who could never climb, kneel, crouch or crawl; who should avoid concentrated exposure to heights, moving machinery, temperature extremes, chemicals, trucks, noise, fumes, humidity and vibration; and who would be absent from work more than two days per month, could not perform any work. (R. at 39.)

         In rendering his decision, the ALJ reviewed records from Wise County Public Schools; Dr. Thomas M. Phillips, M.D., a state agency physician; Dr. Amor Barongan, M.D.; Mountain View Regional Medical Center; Wellmont Lonesome Pine Hospital; Norton Community Hospital; NightHawk Radiology Services; Dr. Robert McGuffin, M.D., a state agency physician; and Medical Associates of Norton.

         Prior to December 1, 2012, Salyers was intermittently treated for complaints of low back and hip pain; gastroesophageal reflux disease, (“GERD”); COPD; seasonal allergies; hyperlipidemia; goiter; and right shoulder pain. (R. at 270-72, 274-81, 291-330, 337, 347-51, 356-79.) On August 21, 2007, Salyers was admitted to Norton Community Hospital with complaints of right lower extremity pain and swelling. (R. at 361-68.) A CT scan of Salyers’s chest showed moderately prominent mediastinal lymph nodes and a right renal cyst. (R. at 345-46.) A CT venography of Salyers’s lower extremities showed no evidence of deep vein thrombosis and a possible Baker’s cyst. (R. at 358.) Salyers was diagnosed with Baker’s cyst of the right gastrocnemius muscle, deep vein thrombosis was ruled out and cellulitis. (R. at 364.)

         On December 3, 2007, x-rays of Salyers’s sacrum and coccyx showed degenerative changes in the lower lumbar spine and degenerative changes at the sacroiliac joints bilaterally. (R. at 357.) On February 1, 2008, an ultrasound of Salyers’s thyroid gland showed a goiter. (R. at 356.) On April 24, 2008, a CT scan of Salyers’s chest showed small lymph nodes in the mediastinum and pleural-based nodules in both lung apices. (R. at 350.) On July 1, 2008, an MRI of Salyers’s lumbar spine showed spondylitic changes; bulging discs at the L2-L3, L3-L4 and L4-L5 levels; narrowing of the L5-S1 disc space with desiccation of the discs; and a tear in the annulus with mild protrusion of the disc posterolaterally on the left side at the L5-S1 level, resulting in slight narrowing of the neural foramen. (R. at 348-49.) On April 22, 2009, an x-ray of Salyers’s right shoulder showed arthritic changes at the head of the humerus. (R. at 347.)

         On October 24, 2011, and November 23, 2011, Salyers saw Dr. Amor A. Barongan, M.D., for complaints of joint pain, swelling, stiffness and decreased range of motion. (R. at 311-13, 317-19.) Salyers had a normal posture and gait and, his mood and affect were described as normal. (R. at 312, 318.) His examination was normal with the exception of moderate tenderness in his lumbosacral spine and large areas of skin color loss below his knees. (R. at 312, 318.) A chest x-ray showed COPD. (R. at 278.) Throughout 2012, Salyers reported low back pain; joint pain, swelling and stiffness; dyspnea upon exertion; wheezing; productive cough; and decreased range of motion. (R. at 291, 296, 300, 305-06, 308, 399-411.) ...


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