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Pilkenton v. Colvin

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

July 14, 2016

VONDA K. PILKENTON, 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, Vonda K. Pilkenton, (“Pilkenton”), 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 Pilkenton protectively filed an application for DIB on January 11, 2012, alleging disability as of December 7, 2011, due to fibromyalgia; degenerative disc disease; arthritis; bulging discs; neck spurs; hypothyroidism; acid reflux disease; hernia; ulcers; carpal tunnel in the right hand; neuropathy; depression; and anxiety. (Record, (“R.”), at 170-73, 190, 232.) The claim was denied initially and on reconsideration. (R. at 86-88, 92-94, 97-100, 102-104.) Pilkenton then requested a hearing before an administrative law judge, (“ALJ”). (R. at 105-06.) A hearing was held on September 6, 2013, at which Pilkenton was represented by counsel. (R. at 26-59.)

         By decision dated January 2, 2014, the ALJ denied Pilkenton’s claim. (R. at 9-25.) The ALJ found that Pilkenton meets the nondisability insured status requirements of the Act for DIB purposes through June 30, 2017. (R. at 11.) The ALJ also found that Pilkenton had not engaged in substantial gainful activity since December 7, 2011, her alleged onset date.[1] (R. at 11.) The ALJ found that the medical evidence established that Pilkenton suffered from severe impairments, namely chronic pain disorder; generalized osteoarthritis; diagnosed fibromyalgia; cervical spine arthritis; history of carpal tunnel syndrome with release procedures bilaterally; depressive and anxiety disorders; and borderline intellectual functioning, but he found that Pilkenton 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 11-12.) The ALJ found that Pilkenton had the residual functional capacity to perform sedentary work[2] that did not require more than occasional climbing, balancing, kneeling, crouching, crawling, stooping and overhead reaching; that did not require more than frequent reaching in all other directions, fingering and handling; that allowed her to shift positions in place at the work station; that did not require more than short, simple instructions; that did not involve interaction with the public; and that required no more than brief interaction with others throughout the workday, lasting no more than one to three minutes at a time. (R. at 14.) The ALJ found that Pilkenton was unable to perform her past relevant work. (R. at 23.) Based on Pilkenton’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 Pilkenton could perform, including jobs as a night cleaner and mail routing clerk. (R. at 23-24.) Thus, the ALJ found that Pilkenton was not under a disability as defined by the Act and was not eligible for DIB benefits. (R. at 25.) See 20 C.F.R. § 404.1520(g) (2015).

         After the ALJ issued his decision, Pilkenton pursued her administrative appeals, (R. at 272-75), but the Appeals Council denied her request for review. (R. at 1-4.) Pilkenton 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 Pilkenton’s motion for summary judgment filed December 31, 2015, and the Commissioner’s motion for summary judgment filed February 2, 2016.

         II. Facts

         Pilkenton was born in 1964, (R. at 170), which, at the time of the ALJ’s decision, classified her as a “younger person” under 20 C.F.R. § 404.1563(c). Pilkenton obtained her general equivalency development, (“GED”), diploma. (R. at 31, 191.) She has past work experience as a telephone representative, a supervisor for a call center and a deli worker. (R. at 36, 49.) Pilkenton stated that the medication she took for arthritis, fibromyalgia and panic attacks gave her “some relief, ” but that she continued to experience pain. (R. at 34-35, 45.) She stated that her medication caused drowsiness and an inability to concentrate. (R. at 38.) Pilkenton stated that she participated in counseling and that it was “somewhat” helpful. (R. at 40.) She stated that she worked on crafts for a couple of hours once a week, including quilting. (R. at 42.)

         Vocational expert, Asheley Wells, also testified at Pilkenton’s hearing. (R. at 49-56.) Wells classified Pilkenton’s work as a telephone representative as sedentary and semi-skilled, her work as a deli worker as medium[3] and unskilled and her work as a chief telephone operator as sedentary and skilled. (R. at 49.) Wells was asked to consider a hypothetical individual of Pilkenton’s age, education and work experience, who would be limited to sedentary work that did not require more than occasional stooping; kneeling; crouching; climbing of steps; and overhead reaching; that did not require her to perform constant reaching, handling or fingering; that would require only short, simple instructions; and that did not require more than limited interaction with the public, co-workers and supervisors. (R. at 50-51.) Wells stated that such an individual could perform Pilkenton’s past work as a telephone representative. (R. at 50.) Wells stated that the individual also could perform other jobs existing in significant numbers in the national economy, including those of an inspector, tester and sorter; a peanuts worker; an assembler; a production helper; and an almond blancher. (R. at 51.) Wells was asked to consider the same individual, but who would be limited to occasional handling and fingering. (R. at 52.) He stated that there would be no jobs available that such an individual could perform. (R. at 52.)

         Wells was asked to consider a hypothetical individual of Pilkenton’s age, education and work experience, who could sit up to two hours in an eight-hour workday, but no more than 30 minutes at a time; who could stand and/or walk up to eight hours, if given the opportunity for brief hourly position changes; who had no manipulative limitations; who could perform only frequent reaching, handling and fingering; and who would require only limited interaction with co-workers and supervisors. (R. at 53-55.) Wells stated that there were light[4] jobs available that such an individual could perform, including jobs as a night cleaner and a mail routing clerk. (R. at 53-54.) Wells stated that the jobs identified would not be available should the hypothetical individual be limited to occasional handling and fingering. (R. at 56.) He also stated that there would be no jobs available that an individual could perform should she have an inability to deal with work stresses. (R. at 56.)

         In rendering his decision, the ALJ reviewed medical records from Wise County Public Schools; Dr. David Sheppard, D.O.; Norton Community Hospital; Anthony E. Holt, D.O., a neurologist; Dr. Maurice E. Nida, D.O.; Christina K. Hammonds, N.P., a nurse practitioner; Dr. David C. Williams, M.D., a state agency physician; Patricia Bruner, Ph.D., a state agency psychologist; Dr. Bruce M. Miller, M.D.; Julie Jennings, Ph.D., a state agency psychologist; Dr. Michael Hartman, M.D., a state agency physician; Anne B. Jacobe, L.C.S.W., a licensed clinical social worker with Solutions Counseling; Janet S. Elswick, F.N.P., a family nurse practitioner; B. Wayne Lanthorn, Ph.D., a licensed clinical psychologist; and Phil Pack, M.S. Pilkenton’s attorney also submitted medical records from The Health Wagon; Jacobe; and Dr. Nida to the Appeals Council.[5]

         The record shows that Dr. David Sheppard, D.O., treated Pilkenton from 2005 through 2009 for numbness; paresthesia; gastroesophageal reflux disease, (“GERD”); leg edema; cervical disc disease; questionable fibromyalgia; osteoarthritis; carpal tunnel syndrome; neuropathy; multinodular goiter; anxiety; hypothyroidism; back pain; fatigue; arthralgias; degenerative joint disease; depression; questionable gout/foot pain; hiatal hernia; and palpitations. (R. at 424-86.) On February 13, 2007, Pilkenton complained of back pain. (R. at 450.) X-rays of Pilkenton’s lumbar spine showed mild degenerative change and disc space narrowing. (R. at 411.) Dr. Sheppard diagnosed lumbar strain and radiculopathy. (R. at 450.) On April 3, 2007, an ultrasound of Pilkenton’s thyroid showed hypoechoic nodules in both lobes of the gland, which likely were degenerating colloid nodules. (R. at 412.) On October 1, 2007, Pilkenton complained of pain all over. (R. at 444.) She stated that she had to leave work because of the pain, and she had not returned to work. (R. at 444.) Physical examination was normal. (R. at 444.) On January 19, 2009, Pilkenton complained of neck pain. (R. at 428-29.) Examination revealed pain with palpation over the paraspinal muscles in the left cervical neck region; normal muscle strength in the upper and lower extremities; and deep tendon reflexes were 2/4 bilaterally. (R. at 428.) X-rays of Pilkenton’s cervical spine showed mild spondylitic degenerative change. (R. at 422.) Dr. Sheppard diagnosed cervical pain. (R. at 428.) On March 2, 2009, Pilkenton reported that she was doing much better since participating in physical therapy and using her medication. (R. at 424.) Examination was normal, including the finding of no gross joint deformities; full range of motion of all extremities; no clubbing, cyanosis or edema; and pedal pulses were 2/4 bilaterally. (R. at 424.)

         On June 11, 2008, Pilkenton was admitted to Norton Community Hospital for complaints of chest pain. (R. at 414-19.) An echocardiogram showed a normal left ventricular size and systolic function with estimated ejection fraction of 60 to 65 percent and trace mitral and tricuspid regurgitation. (R. at 416-17.) She was discharged the next day with a diagnosis of chest pain due to phentermine use. (R. at 414.)

         On July 15, 2008, Pilkenton saw Dr. Anthony E. Holt, D.O., a neurologist, for complaints of left upper extremity pain and weakness, neck pain and neuropathy in the feet. (R. at 391-92.) Dr. Holt diagnosed polyneuropathy, [6] left arm pain and disturbance of sensation. (R. at 391.) On August 5, 2008, a nerve conduction study showed evidence of a mild median neuropathy localized to the left wrist. (R. at 394-96.) An electromyographic, (“EMG”), needle examination was normal. (R. at 396.) On September 16, 2008, Pilkenton complained of paresthesias and dysesthesias in both feet and left arm pain; however, she reported improvement with medication. (R. at 388.) Dr. Holt diagnosed polyneuropathy, most likely small fiber neuropathy; median neuropathy of the left wrist; paresthesias; and dysesthesias. (R. at 387.)

         On May 12, 2009, Dr. Maurice E. Nida, D.O., saw Pilkenton as a new patient for her complaints of a goiter and hypothyroidism. (R. at 285-86.) Dr. Nida diagnosed probable fibromyalgia; thyroid goiter; hypothyroidism; neuropathy; and carpal tunnel syndrome. (R. at 286.) On May 21, 2009, an MRI of Pilkenton’s cervical spine showed moderately severe C5-6 spondylosis with combination disc producing mild impression on the anterior margin of the thecal sac and cord and narrowing of the left lateral recess. (R. at 287-88.) On September 17, 2009, Pilkenton reported that she was doing fairly well. (R. at 283.) On January 21, 2010, Pilkenton complained of a lot of muscle pain. (R. at 281.) Dr. Nida reported a normal physical examination. (R. at 281.) On July 21, 2010, Pilkenton reported that she was doing fairly well. (R. at 280.) She reported that her transcutaneous electrical nerve stimulation, (“TENS”), unit helped with her fibromyalgia pain. (R. at 280.) Dr. Nida reported a normal physical examination. (R. at 280.) On October 18, 2010, Pilkenton reported that she was doing fairly well. (R. at 278.) On October 28, 2010, Pilkenton complained of anxiety and depression. (R. at 277.)

         On May 13, 2011, Pilkenton reported that she was doing well. (R. at 306.) Pilkenton’s physical examination was reported as normal. (R. at 306.) On August 18, 2011, Pilkenton complained of fibromyalgia pain and neck, shoulder and back pain with radiculopathy, resulting from “direct trauma and a fall.” (R. at 302.) Dr. Nida noted that Pilkenton had three bulging discs and spurs in her cervical spine. (R. at 302.) Radiculopathy was noted in Pilkenton’s left arm. (R. at 302.) Examination showed widespread trigger tender points in Pilkenton’s back, legs and arm, as well as tenderness in her left ankle with decreased pulses. (R. at 304.) On September 28, 2011, Pilkenton saw Christina K. Hammonds, N.P., a nurse practitioner, for complaints of panic attacks. (R. at 299.) Pilkenton stated that the panic attacks occurred daily and lasted for hours. (R. at 299.) Hammonds noted that Pilkenton’s mood and affect were anxious and tearful. (R. at 301.) Pilkenton reported that her symptoms of anxiety were fairly controlled. (R. at 299.)

         Pilkenton’s examination was normal. (R. at 300-01.) On October 28, 2011, Pilkenton reported that her anxiety symptoms had improved and that she felt “a lot better.” (R. at 296.) She also reported that she had good symptom control of her depression. (R. at 296.) Hammonds reported that Pilkenton’s examination was normal. (R. at 297-98.) On December 8, 2011, Pilkenton reported that she experienced panic attacks daily. (R. at 291.) She stated that she had a lot of stress at home with her family and was unable to work because she could not concentrate. (R. at 291.) Pilkenton reported that her pain and symptoms of depression were relieved with medication. (R. at 291.) She stated that her symptoms of anxiety were improving. (R. at 291.) Pilkenton’s examination was reported as normal. (R. at 292-93.)

         On January 31, 2012, Dr. Nida completed a mental assessment, indicating that Pilkenton had a limited, but satisfactory, ability to use judgment; to function independently; to understand, remember and carry out simple job instructions; to maintain personal appearance; to behave in an emotionally stable manner; to relate predictably in social situations; and to demonstrate reliability. (R. at 326-28.) Dr. Nida opined that Pilkenton had a seriously limited ability to follow work rules; to relate to co-workers; to interact with supervisors; and to understand, remember and carry out complex and detailed job instructions. (R. at 326-27.) He found that Pilkenton had no useful ability to deal with the public; to deal with work stresses; and to maintain attention and concentration. (R. at 326.) He noted that it was “unknown” the number of days that Pilkenton would be expected to be absent from work due to her impairments. (R. at 328.)

         Also on January 31, 2012, Dr. Nida completed a medical assessment, indicating that Pilkenton could occasionally lift and carry items that weighed “very little” and that she could frequently lift and carry items up to one-third of an eight-hour workday. (R. at 376-78.) He opined that Pilkenton could stand and walk up to eight hours in an eight-hour workday and that she could do so for up to one hour without interruption. (R. at 376.) He opined that Pilkenton could sit up to two hours in an eight-hour workday and that she could do so for up to 30 minutes without interruption. (R. at 377.) Dr. Nida opined that Pilkenton could occasionally climb, stoop, kneel, balance and crawl and crouch “very little.” (R. at 377.) Dr. Nida reported that Pilkenton’s abilities to reach, to handle and to push and pull were affected by her impairments. (R. at 377.) He opined that Pilkenton was restricted from working around ...


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