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Moore v. Colvin

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

June 1, 2016

TOLLIE D. MOORE, Plaintiff
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant


          Pamela Meade Sargent United States Magistrate Judge.

         I. Background and Standard of Review

         Plaintiff, Tollie D. Moore, (“Moore”), 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). Neither party has requested oral argument, therefore, this case 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 Moore protectively filed his applications for SSI and DIB on May 9, 2011, alleging disability as of April 9, 2011, [1] due to lumbar spine arthritis; bulging discs; depression; anxiety; difficulty remembering and concentrating; difficulty being in crowds; neck pain; difficulty sleeping; high blood pressure; and tendonitis. (Record, (“R.”), at 304-05, 308-12, 317, 322, 348.) The claims were denied initially and upon reconsideration. (R. at 208-10, 215-17, 221-23, 225-28, 230-35, 237-39.) Moore then requested a hearing before an administrative law judge, (“ALJ”). (R. at 240.) A hearing was held by video conferencing on June 20, 2013, at which Moore was represented by counsel. (R. at 71-106.)

         By decision dated July 16, 2013, the ALJ denied Moore’s claims. (R. at 55-65.) The ALJ found that Moore met the nondisability insured status requirements of the Act for DIB purposes through December 31, 2011. (R. at 57.) She found that Moore had not engaged in substantial gainful activity since April 9, 2011, the alleged onset date. (R. at 57.) The ALJ found that the medical evidence established that Moore had severe impairments, namely degenerative disc disease of the cervical/lumbar spine; left shoulder arthritis; affective disorder; anxiety disorder; and borderline intellectual functioning, but she found that Moore 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 57-59.) The ALJ found that Moore had the residual functional capacity to perform simple, repetitive, unskilled light work[2] that did not require more than frequent handling, fingering, feeling and overhead reaching; that did not require concentrated exposure to climbing ladders, ropes or scaffolds or working on vibrating surfaces, at unprotected heights or near hazardous machinery; that did not require more than occasional balancing, kneeling, crawling, stooping, crouching, climbing ramps or stairs and pushing/pulling with the upper extremities; and that did not require more than occasional interaction with the general public. (R. at 59-60.) The ALJ found that Moore was able to perform his past relevant work as a chip mixer at a paper plant. (R. at 63.) Based on Moore’s age, education, work history and residual functional capacity and the testimony of a vocational expert, the ALJ also found that a significant number of other jobs existed in the national economy that Moore could perform, including jobs as a night cleaner, a mail routing clerk and a cafeteria attendant. (R. at 64-65.) Thus, the ALJ concluded that Moore was not under a disability as defined by the Act and was not eligible for DIB or SSI benefits. (R. at 65.) See 20 C.F.R. §§ 404.1520(f), (g), 416.920(f), (g) (2015).

         After the ALJ issued her decision, Moore pursued his administrative appeals, (R. at 8), but the Appeals Council denied his request for review. (R. at 1-6.) Moore 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 Moore’s motion for summary judgment filed July 7, 2015, and the Commissioner’s motion for summary judgment filed July 27, 2015.

         II. Facts

         Moore was born in 1962, (R. at 78, 304, 308), which, at the time of the ALJ’s decision, classified him as a “person closely approaching advanced age” under 20 C.F.R. §§ 404.1563(d), 416.963(d). He has a seventh-grade education and past work experience as a factory laborer and a roof bolter in a coal mine, a forklift operator in a warehouse and a worker in a board mill drying chips to make pressed wood. (R. at 78-80, 323.) Moore testified that he stopped working in the coal mine after suffering a work injury, for which he received Workers’ Compensation benefits. (R. at 81.)

         Moore stated that he was scheduled to undergo a decompression and fusion surgery on his back the month following the hearing. (R. at 81.) He testified that he had numbness in both legs, the right worse than the left. (R. at 95.) He stated that he could stand and sit for up to 20 minutes at a time and that his doctor had restricted him from lifting more than 8 or 9 pounds. (R. at 82.) Moore testified that he had to lie down daily for about an hour and that he slept only three or four hours nightly due to hand numbness and leg pain. (R. at 96-97.) He stated that he sometimes needed a cane when walking “a hundred yards or so, ” but that it was not doctor-prescribed. (R. at 81-82.) He also stated that he sometimes had difficulty with bathing and grooming due to pain. (R. at 86.)

         Moore further noted that he experienced cramps in his neck, had tendonitis in both wrists and had gout. (R. at 82-83.) Moore stated that he took anti- inflammatory medication for the tendonitis and wore braces “about 90 percent of the time” to immobilize his wrists, but he was not wearing them at the hearing. (R. at 82-83.) He stated that he had experienced difficulty with his grip due to the tendonitis for two or three years, and he had difficulty picking up smaller objects. (R. at 93.) Moore testified that he also had a pinched nerve in his neck, which caused his arms to go numb when he would lie down. (R. at 83, 94.) He stated that he was receiving no treatment for this at the time of the hearing due to a lack of insurance, although surgery had been mentioned. (R. at 83, 95.) He clarified that he was able to undergo back surgery because his treating physician, Dr. Kaur, set it up on a sliding fee schedule. (R. at 95.) Moore testified that he was in the first stage of black lung disease, but was not having too many breathing problems. (R. at 84.) He also stated that he suffered from hypertension and high cholesterol, which was controlled with medication at times, but noted that pain caused his blood pressure to rise. (R. at 91.) Moore testified that he was taking Lortab for pain, which helped if he would lie down after taking it. (R. at 91.)

         Moore also testified that he had been diagnosed with anxiety and depression, for which he saw a counselor monthly, and for which he was taking Lexapro. (R. at 89-90.) He stated that he did not like to be around crowds. (R. at 89.) Moore reported that he had been on medication since attempting suicide two years previously. (R. at 90.)

         Moore testified that he had no hobbies and did not do much throughout the day. (R. at 84.) He stated that, in the past, he had ridden four-wheelers, walked daily for exercise, hiked and fished, but had not done so since 2007 due to pain. (R. at 85.) Moore testified that he had lived with his brother since 2007. (R. at 85.) Moore stated that his brother did the cooking and cleaning. (R. at 85-87.) However, he stated that he “watch[ed] after” his elderly mother, who lived approximately 140 miles away, about twice monthly for a week or two. (R. at 87-88.) Moore testified that his brother drove him there. (R. at 88.) He stated that, when there, his mother did the cooking, and her granddaughter cleaned for her twice a week. (R. at 88.) Moore stated that he drove when he felt like it, but did not drive as far as to his mother’s house, noting that he drove to the grocery store and the pharmacy on occasion. (R. at 88-89.)

         Asheley Wells, a vocational expert, also was present and testified at Moore’s hearing. (R. at 98-105.) Wells classified Moore’s past work as a roof bolter as medium[3] and semi-skilled, but, as performed, at the heavy[4] exertional level. (R. at 99.) Wells further classified Moore’s past work as a chip mixer at the paper plant as light and semi-skilled and as a forklift operator as medium and semi-skilled, but, as performed, at the light exertional level. (R. at 99.) Wells testified that a hypothetical individual of Moore’s age, education and work history, who could perform simple, repetitive, unskilled light work that required no more than occasional pushing and pulling with the upper extremities, no more than occasional climbing of ramps and stairs, balancing, kneeling, crawling, stooping and crouching, no more than frequent reaching overhead, handling, feeling and fingering of objects, which did not require concentrated exposure to hazardous machinery, unprotected heights, climbing ladders, ropes or scaffolds or working on vibrating surfaces, and which did not require more than occasional interaction with the general public, could perform Moore’s past work as a chip mixer. (R. at 100.) Wells also testified that such an individual could perform other jobs existing in significant numbers in the national economy, including those of a night cleaner, a mail routing clerk and a cafeteria attendant. (R. at 101.)

         Wells next testified that the same individual, who could stand and walk for no more than two hours in an eight-hour day, could not perform any of Moore’s past work. (R. at 101.) However, Wells testified that such an individual could perform other jobs existing in significant numbers in the national economy, including those of an inspector/tester/sorter, a packaging and filling machine operator, a production worker and a final assembler. (R. at 102.) Wells testified that the same individual, who also would be off-task 10 to 20 percent of the workday, would not be able to perform any of Moore’s past work or any other work existing in the significant numbers in the national economy. (R. at 103-04.) Wells testified that there were no jobs that an individual could perform if he were expected to miss more than two days of work monthly. (R. at 104.) Wells further testified that an individual who could stand and walk for two hours and sit for one hour would be precluded from all employment. (R. at 105.) Likewise, Wells testified that an inability to climb, stoop, kneel, crouch and crawl would eliminate all employment. (R. at 105.)

         In rendering her decision, the ALJ reviewed records from Piedmont Community Services; Highlands Neurosurgery; Stone Mountain Health Services; Appalachia Family Health Center; Wellmont Health System; B. Wayne Lanthorn, Ph.D., a licensed psychologist; Dr. Travis Burt, M.D.; Norton Community Hospital; Frontier Health; LabCorp; Wise County Behavioral Health Services; Lonesome Pine Hospital; University of Virginia Medication Center; University of Virginia Hospital East; and Robert S. Spangler, Ed.D., a licensed psychologist. Moore’s attorney submitted additional medical records from Appalachia Family Health Center and University of Virginia Hospital East to the Appeals Council.[5]

         Moore saw B. Wayne Lanthorn, Ph.D., a licensed clinical psychologist, on March 1, 2011, [6] at his attorney’s referral, for a psychological evaluation. (R. at 431-40.) Lanthorn previously saw Moore on September 18, 2007, at which time testing revealed a full-scale IQ score of 74, and he diagnosed Moore with pain disorder associated with both psychological factors and general medical conditions, chronic; major depressive disorder, recurrent, moderate; generalized anxiety disorder; borderline intellectual functioning; and rule out alcohol abuse. (R. at 432.) Contrary to other places in the record, Moore informed Lanthorn in March 2011 that he quit school as a high school freshman, was retained twice and received special education services. (R. at 433.) Moore was then-currently receiving counseling services and medication through Piedmont Community Services. (R. at 434.) He displayed no clinical signs or symptoms associated with delusional thinking, ongoing psychotic processes or hallucinations. (R. at 435.) Moore reported continued depression even with medication and acknowledged that “some days are better than others, ” but he reported depression so severe on some days that he could do almost nothing. (R. at 435.) Moore stated that he preferred to be alone and that he no longer hunted or fished. (R. at 435.) He denied then-current suicidal or homicidal ideation, plans or intent. (R. at 436.) Moore also reported often feeling anxious, tense, on edge, shaky and nauseated, and he described fatiguing quickly, having a “terrible” memory, being distractible, having poor concentration and mind wandering and having difficulty initiating and completing tasks. (R. at 436.)

         Lanthorn administered the Minnesota Multiphasic Personality Inventory - Second Edition, (“MMPI-2”), which indicated that Moore was very depressed and had significant anxiety. (R. at 437.) Lanthorn opined that Moore’s psychopathology was quite serious and included confused thinking, difficulties with logic and concentration and impaired judgment. (R. at 437.) Test results also indicated that Moore was experiencing comparatively severe emotional distress and difficulty with concentration, memory problems and difficulty making decisions. (R. at 438.) Lanthorn diagnosed major depressive disorder, recurrent, severe; anxiety disorder with both panic attacks and generalized anxiety due to chronic physical problems, pain, etc.; pain disorder associated with both psychological factors and general medical condition, chronic; and borderline intellectual functioning; and he placed Moore’s then-current Global Assessment of Functioning, (“GAF”), [7] score at 45 to 50.[8] (R. at 438-39.) He opined that, from a psychological standpoint, Moore’s difficulties were fully credible, and he strongly encouraged him to continue with psychiatric and psychotherapeutic intervention. (R. at 439.) Lanthorn noted that Moore’s functioning had worsened since 2007. (R. at 439.) He concluded that Moore’s psychopathology represented a substantial limitation and prevented him from sustaining gainful employment at that time. (R. at 440.)

         Lanthorn also completed a work-related mental assessment, finding that Moore had a limited, but satisfactory, ability to understand, remember and carry out simple job instructions; a seriously limited ability to follow work rules; to maintain attention/concentration; to understand, remember and carry out detailed, but not complex, job instructions; and to maintain personal appearance; and no useful ability to relate to co-workers; to deal with the public; to use judgment; to interact with supervisors; to deal with work stresses; to function independently; to understand, remember and carry out complex job instructions; to behave in an emotionally stable manner; to relate predictably in social situations; and to demonstrate reliability. (R. at 709-11.) Lanthorn based these findings on his diagnoses of Moore, stated above, and he opined that Moore would be absent from work an average of more than two days monthly. (R. at 709, 711.)

         Moore saw Dr. William M. Platt, M.D., at Highlands Neurosurgery, P.C., on April 13, 2011, with complaints of chronic back pain. (R. at 442-43.) Dr. Platt noted Moore’s diagnosis of lumbosacral strain superimposed on lumbosacral spondylosis after suffering a work injury in December 2005. (R. at 442.) He opined that Moore was at maximum medical improvement with permanent partial impairment. (R. at 442.) Dr. Platt noted that Moore did well on Lortab. (R. at 442.) Although Moore had called the office for a refill on March 29, 2011, Dr. Platt calculated that he should have had enough Lortab to get him through the date of the office visit. (R. at 442.) Moore rated his pain as an 8 on a 10-point scale, which worsened with walking long distances, bending over and lifting much. (R. at 442.) He stated that he could do very little and was not able to work, exercise or walk very far. (R. at 442.) However, Dr. Platt found that “there is not a lot of objective evidence of injury, ” and he noted that, when he asked Moore specifically about his pain, it “[took] him a while to come up with an answer.” (R. at 442.) Moore described his low back pain and right leg pain as constant. (R. at 442.) He stated that he could perform his activities of daily living, but did not do much housework. (R. at 442.) On physical examination, Moore could “come sit-to-stand, ” he could flex about 30 degrees, but did not extend, and he had pain in the right SI joint. (R. at 442.) Dr. Platt diagnosed lumbosacral strain and pain in the pelvic region and right thigh, and he administered an injection in the right SI joint. (R. at 442.) Dr. Platt prescribed Lortab, advising Moore that he would perform a pill count and drug screen follow-up. (R. at 443.)

         Moore saw Dr. TaranDeep Kaur, M.D., his treating physician, at Appalachia Family Health Center, on May 23, 2011, for a routine medication check. (R. at 453-55, 681-83.) A pill count produced 18 Lexapro pills. (R. at 453, 681.) His blood pressure was described as “up and down.” (R. at 453, 681.) Moore was fully oriented with normal memory, mood and affect. (R. at 454, 682.) Some swelling of the extremities was noted. (R. at 454, 682.) He reported being bothered nearly every day by little interest or pleasure in doing things, as well as feeling down, depressed or hopeless. (R. at 456.) Moore was diagnosed with hypertension, dyslipidemia and depression, and he was continued on Lexapro. (R. at 455, 683.)

         On June 28, 2011, Moore returned to Dr. Platt for a follow-up visit after a June 16, 2011, urine drug screen was positive for Oxycodone, which he was not prescribed. (R. at 566.) A blood serum drug abuse panel was negative for opiates, despite Moore being prescribed Lortab. (R. at 566.) Dr. Platt stated that, more than likely, he would continue to follow Moore for musculoskeletal pain, but would not prescribe opiates. (R. at 566.)

         When Moore saw Dr. Kaur on June 28, 2011, he noted that his blood pressure was better, but complained of neck and back pain. (R. at 583, 678-80.) On August 1, 2011, he complained of not sleeping well and worsened neck pain that radiated into his back between his shoulders over the previous few days. (R. at 580-82, 675-77.) Moore stated that he was going to see Dr. Kotay for a surgical consult. (R. at 580, 675.) Physical examination revealed normal extremities and full orientation with normal memory, mood, affect and judgment/insight. (R. at 581, 676.) Dr. Kaur diagnosed neck pain and hypertension, and she prescribed Prednisone. (R. at 582, 677.)

         That same day, Dr. Kaur completed a physical assessment of Moore, finding that he could lift and/or carry items weighing up to 5 pounds occasionally and up to 10 pounds frequently and that, due to neck pain with radiculopathy, he could stand/walk for a total of two hours in an eight-hour workday and sit for a total of one hour in an eight-hour workday. (R. at 570-72.) She further found that, due to impingement as shown on an MRI, Moore could never climb, stoop, kneel, crouch or crawl, but could frequently balance. (R. at 571.) Dr. Kaur found that Moore’s abilities to reach, to handle, to feel and to push/pull were affected by his impairment due to decreased strength in the upper extremities, which was confirmed by an MRI and exam. (R. at 571.)She further found that Moore had restrictions on his abilities to work around heights, moving machinery, chemicals, dust, fumes or vibration because he could not stay in humid environments due to some black lung, and he had decreased strength in the upper and lower extremities on examination. (R. at 572.) Dr. Kaur also noted that Moore suffered from lower back pain and that he would be absent, on average, more than two days monthly due to his impairments. (R. at 572.)

         On June 30, 2011, Dr. Michael Hartman, M.D., a state agency physician, completed a physical assessment of Moore in connection with his initial disability claims. (R. at 139-40.) Dr. Hartman found that Moore could lift and/or carry items weighing up to 20 pounds occasionally and up to 10 pounds frequently, that he could stand and/or walk, as well as sit, about six hours in an eight-hour workday, that he could push and/or pull up to the lift/carry limitations and that he could occasionally climb ramps, stairs, ladders, ropes and scaffolds, balance, stoop, kneel, crouch and crawl. (R. at 139-40.)

         Howard S. Leizer, Ph.D., a state agency psychologist, completed a Psychiatric Review Technique form, (“PRTF”), of Moore on July 12, 2011, in connection with his initial disability claims. (R. at 137-38.) Leizer found that Moore was mildly restricted in his activities of daily living, had moderate difficulties in maintaining social functioning and in maintaining concentration, persistence or pace and had experienced no repeated episodes of decompensation of extended duration. (R. at 137.) Leizer also completed a mental assessment of Moore, finding that he was moderately limited in his ability to carry out detailed instructions; to maintain attention and concentration for extended periods; to perform activities within a schedule, to maintain regular attendance and to be punctual within customary tolerances; to sustain an ordinary routine without special supervision; to interact appropriately with the general public; to get along with co-workers or peers without distracting them or exhibiting behavioral extremes; and to respond appropriately to changes in the work setting. (R. at 140-42.) In all other ...

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