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Harris v. Colvin

United States District Court, W.D. Virginia

August 15, 2016

MARY K. HARRIS, Plaintiff
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant



         I. Background and Standard of Review

         Plaintiff, Mary K. Harris, (“Harris”), filed this action challenging the final decision of the Commissioner of Social Security, (“Commissioner”), denying her 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 Harris protectively filed her applications for SSI and DIB on August 12, 2011, alleging disability as of August 1, 2010, [1] due to rheumatoid arthritis, (“RA”); fibromyalgia; carpal tunnel syndrome, (“CTS”); migraine headaches; depression; anxiety; panic attacks; diabetes; chronic fatigue syndrome; stomach ulcers; acid reflux; left knee pain; chronic back pain; temporomandibular joint disorder, (“TMJ”); and difficulty concentrating and staying on task. (Record, (“R.”), at 118, 341-42, 345-50, 362, 370.) The claims were denied initially and upon reconsideration. (R. at 249-51, 256-58, 262-64, 266-68, 270-75, 277-79.) Harris then requested a hearing before an administrative law judge, (“ALJ”). (R. at 280-81.) A hearing was held by video conferencing on July 18, 2013, at which Harris was represented by counsel. (R. at 136-75.)

         By decision dated August 13, 2013, the ALJ denied Harris’s claims. (R. at 118-30.) The ALJ found that Harris met the nondisability insured status requirements of the Act for DIB purposes through December 31, 2012.[2] (R. at 120.) She found that Harris had not engaged in substantial gainful activity since August 1, 2010, the amended alleged onset date. (R. at 121.) The ALJ found that the medical evidence established that Harris had severe impairments, namely possible/borderline diabetes mellitus; obesity (BMI about 37); possible fibromyalgia and inflammatory arthritis/polyarthralgia involving the back, lower extremities and upper extremities; migraines; depression; and anxiety, but she found that Harris 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 121-24.) The ALJ found that Harris had the residual functional capacity to perform simple, repetitive, unskilled light work[3] that did not require more than frequent handling, feeling, fingering and reaching overhead and that did not require more than occasional balancing, kneeling, crawling, stooping, crouching, climbing ramps and stairs and interacting with the general public. (R. at 124-25.) She further found that Harris must avoid concentrated exposure to extremely cold temperatures and avoid all exposure to hazardous machinery, unprotected heights, climbing ladders, ropes or scaffolds, working on vibrating surfaces and working around excessively loud background noise such as heavy traffic or jackhammers. (R. at 125.) The ALJ found that Harris was unable to perform her past relevant work as an accounting clerk, a tax preparer, an auto body shop manager and an office manager. (R. at 128.) Based on Harris’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 Harris could perform, including jobs as an assembler, a packer/folder and an inspector/sorter. (R. at 128-29.) Thus, the ALJ concluded that Harris was not under a disability as defined by the Act and was not eligible for DIB or SSI benefits. (R. at 130.) See 20 C.F.R. §§ 404.1520(g), 416.920(g) (2015).

         After the ALJ issued her decision, Harris pursued her administrative appeals, but the Appeals Council denied her request for review. (R. at 1-6.) Harris 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 Harris’s motion for summary judgment filed July 20, 2015, and the Commissioner’s motion for summary judgment filed September 24, 2015.

         II. Facts

         Harris was born in 1972, (R. at 142, 341, 345), which classifies her as a “younger person” under 20 C.F.R. §§ 404.1563(c), 416.963(c). She has a high school education with one year of college instruction and past work experience as an accounting clerk, a tax preparer, an auto body shop manager and an office manager at a coal company. (R. at 142-44, 363.) Harris testified that she last worked as an accounting clerk in April 2007. (R. at 142-43.) She testified that she had RA in her hands, as well as CTS, and that a brace given to her for the CTS did not help. (R. at 143, 145.) Harris testified that she had numbness in the tips of her fingers most of the time, that she dropped things and had difficulty using a keyboard. (R. at 145, 156.) She testified that she took prednisone for her RA, which she also had in her feet, ankles, knees, hips, back, shoulders, elbows, wrists, fingers and neck, but that it caused swelling, requiring her to take Lasix also. (R. at 145, 147.) She estimated that she could walk about 200 feet at a time, stand and sit for about 15 minutes before having to change positions and lift less than five pounds. (R. at 145-46.) Harris further testified that she had diabetes, suffered from migraine headaches at least once monthly, sometimes lasting upwards of four days, had TMJ and that she experienced swelling of the legs and feet daily, requiring her to lie down and elevate her feet for at least five hours in an eight-hour day. (R. at 146-47, 151, 160-61.) Harris testified that she took Lortab and Percocet for pain, but that they made her drowsy and “foggy.” (R. at 161-62.)

         Harris also testified that she suffered from depression, anxiety and mood swings, for which she took Prozac and Xanax, and for which she attended five or six counseling sessions in 2006, but had not returned because she could not afford to pay for it. (R. at 148-49, 158.) She testified that, despite taking medication, she still experienced daily crying spells. (R. at 157.) Harris also testified that she had difficulty with motivation, concentration, persistence and pace and finishing tasks. (R. at 157.) She stated that her mother had been doing the grocery shopping and paying the bills since 2010. (R. at 154.) Harris testified that, since her previous ALJ hearing, her ability to perform daily activities had gotten much worse, noting that she could no longer bend, stoop, kneel or squat due to back, knee and hip pain and an inability to get back up. (R. at 154-55.) Harris testified that she had difficulty dressing herself, and she had cut her hair short so it was not so difficult to maintain. (R. at 156.)

         John Newman, a vocational expert, also was present and testified at Harris’s hearing. (R. at 162-74.) Newman classified Harris’s past work as an accounting clerk as sedentary[4] and marginally skilled, as a tax preparation clerk as sedentary and semi-skilled, as an auto body repair appraiser as light and skilled and as an office manager as sedentary and skilled. (R. at 164.) Newman testified that a hypothetical individual of Harris’s age, education and work history, who could perform simple, repetitive, unskilled light work that required no more than occasional climbing of ramps and stairs, balancing, kneeling, crawling, stooping, crouching and interacting with the general public, that required no more than frequent handling, feeling, fingering and reaching overhead, that did not require exposure to hazardous machinery, unprotected heights, climbing ladders, ropes and scaffolds, working on vibrating surfaces or working around excessively loud background noise, such as jackhammers or heavy traffic, and that did not require concentrated exposure to extreme cold temperatures, could not perform any of Harris’s past work. (R. at 165.) However, Newman testified that such an individual could perform other jobs existing in significant numbers in the national economy, including those of an assembler, a packer, a laundry folder and a tester/sorter. (R. at 166.) Newman next testified that the same hypothetical individual, but who could stand and/or walk for only four hours in an eight-hour workday with positional changes every 30 to 40 minutes between sitting and standing, who had limitations with respect to the hands, who could use foot pedals frequently, who could not crouch or crawl and who should avoid stair climbing, squatting and kneeling, could not perform any of Harris’s past work, but could perform the sedentary jobs of a final assembler, a packer, a stuffer, an inspector/tester/sorter and a gauger. (R. at 166-68.)

         Newman further testified that, if the same hypothetical individual would miss two to four days of work monthly, she could perform neither any of Harris’s past work nor any other jobs. (R. at 168.) Newman testified that this same individual, but who could stand for up to 30 minutes without interruption and sit for up to 45 minutes without interruption, who could use the upper extremities for overhead activities one-third of the day and who could use foot pedals up to one- third of the workday, could perform the sedentary jobs previously identified. (R. at 169.) However, Newman testified that a hypothetical individual with the limitations set out in Dr. Moore’s May 12, 2011, evaluation could not perform any jobs. (R. at 170, 434-38.) He also testified that an individual whose ability to grasp, turn and twist objects in both the dominant and nondominant hand was limited to 10 percent of a workday, and whose ability to perform fine manipulations with the fingers was limited to 10 percent of the workday, could not perform any competitive employment at any exertional level. (R. at 171-72.) Likewise, Newman testified that an individual with a seriously limited ability to demonstrate reliability and to maintain attention and concentration and a limited ability to follow work rules could not perform any competitive employment. (R. at 172-73.) Newman also testified that an individual who would be off-task greater than 10 percent of the workday could not sustain gainful employment. (R. at 173.)

         In rendering her decision, the ALJ reviewed records from Dr. William Bell, III, M.D., a rheumatologist; Mountain View Regional Medical Center Lab; Lonesome Pine Hospital; Holston Valley Medical Center; Dr. R. Michael Moore, M.D.; Arthritis Associates; Dr. Kevin Blackwell, D.O.; Lab Corp; and B. Wayne Lanthorn, Ph.D., a licensed psychologist. Harris’s attorney submitted additional medical records from Norton Community Hospital and Dr. Moore to the Appeals Council.[5]

         For purposes of demonstrating Harris’s medical history prior to the time period relevant to this court’s decision, the undersigned takes note of the following medical records. In November 2004, Harris saw Dr. William Bell, III, M.D., a rheumatologist, after testing yielded a positive rheumatoid factor of 13. (R. at 407, 419.) In both March and July 2007, Harris presented to the emergency department at Lonesome Pine Hospital with complaints of migraine headaches. (R. at 412-15.) She received Imitrex and Midrin and was discharged home in improved condition. (R. at 413-14.)

         Harris began seeing her treating physician, Dr. R. Michael Moore, M.D., as early as 2004 with complaints of back pain, stomach pain and stiffness in the hands and knees. (R. at 472-76.) In 2004, Dr. Moore diagnosed her with RA, insomnia, GERD, migraine headaches, depression, acute back strain, bronchitis and asthma, and he prescribed various medications, including Percocet, Flexeril, Midrin, Zoloft, Relafen, Lortab and Ambien. (R. at 472-76.) On May 23, 2005, Dr. Moore diagnosed CTS of the right hand after Harris complained of numbness. (R. at 470.) Throughout 2005, Dr. Moore continued to diagnose RA, insomnia, depression, chronic back strain and anxiety disorder, and he prescribed Ativan and prednisone in addition to her other medications. (R. at 468-71.) In 2006, Dr. Moore added the diagnoses of right TMJ and peripheral edema. (R. at 466-67.) In 2007, Harris continued to complain of RA, anxiety and depression, and she exhibited stiffness and tenderness of the low back, as well as bilateral hand pain and swelling, in May 2007. (R. at 458-62.) In June 2007, Harris reported pain in the buttocks and back after falling in a driveway. (R. at 460.) Throughout 2007, Dr. Moore continued to diagnose anxiety disorder, RA, chronic back strain, depression and fibromyalgia syndrome. (R. at 458-62.) In 2008, Harris complained of RA, stating in December 2008 that she had low back pain, a knot in her back and “jerky” legs. (R. at 453-57.) Throughout 2008, Dr. Moore diagnosed RA, chronic back pain, anxiety disorder, depression, chronic back pain/strain and migraines and prescribed various medications. (R. at 453-57, 515.) An MRI of Harris’s lumbosacral spine, dated July 24, 2008, was normal. (R. at 516.)

         On February 24, 2009, Dr. Moore completed a physical assessment of Harris, finding that she could stand/walk less than two hours and sit for about two hours in an eight-hour workday. (R. at 449-51.) He found that she must walk around every 15 minutes for five minutes, and she needed a job permitting shifting positions at will from sitting to standing to walking. (R. at 450.) Dr. Moore found that Harris would sometimes need unscheduled breaks during an eight-hour workday. (R. at 450.) He found that she could occasionally lift items weighing less than 10 pounds. (R. at 450.) Dr. Moore noted Harris’s diagnoses as RA, chronic back strain and degenerative disc disease, and he deemed her prognosis as poor. (R. at 449.)

         Dr. Kevin Blackwell, D.O., completed a consultative examination of Harris on August 11, 2008. (R. at 509-13.) Harris was alert, cooperative and fully oriented and did not appear to be in any acute distress. (R. at 511.) Physical examination was normal except for some slight “modeling” to the lower extremities, some numbness to the palms of both hands with touch and a positive Tinel’s sign in both wrists.[6] (R. at 511.) Dr. Blackwell diagnosed Harris with probable CTS, bilaterally; multiple joint pains; fibromyalgia; depression and anxiety; hypoglycemia; and left knee pain. (R. at 511.) He opined that she could lift items weighing up to 40 pounds at a time and up to 20 pounds frequently and that she could sit for eight hours in an eight-hour workday and stand for six hours in an eight-hour workday with normal positional changes. (R. at 512.) He also found that she could bend and kneel up to two-thirds of the day and squat for one-third of the day. (R. at 512.) Dr. Blackwell opined that Harris could not stoop repetitively, and she could not crawl, climb ladders or work around unprotected heights. (R. at 512.)

         An MRI of the lumbar spine, dated January 5, 2009, showed early facet joint arthrosis at the L3 through S1 levels of Harris’s spine with no evidence of herniated nucleus pulposus or spinal stenosis. (R. at 422.)

         Harris continued to treat with Dr. Moore in 2010, during which time her hands and knuckles were observed to be red and swollen, she reported that her right leg gave out, and she had a shooting pain from her thigh to her toes. (R. at 441-46.) Harris further reported that she was falling all the time, despite Neurontin helping her shakiness. (R. at 443.) In October 2010, Dr. Moore noted a dark blue spot in the lower midline of the back, where Harris was very tender, and she had positive straight leg raise testing and decreased patellar reflexes. (R. at 443.) Dr. Moore diagnosed RA, chronic back pain, anxiety disorder, migraine headaches, right lower extremity radiculopathy and degenerative disc disease. (R. at 441-46.) He prescribed Lortab, Ativan, Percocet, Maxzide, Celexa, Imitrex, Flexeril, Klonopin, Neurontin, prednisone and Lasix, and he ordered an MRI of the lumbar spine. (R. at 441-46.)

         Harris presented to the emergency department at Holston Valley Medical Center on December 9, 2010, with complaints of back pain and her legs giving way. (R. at 426-32.) She was fully oriented, but in mild distress, and had a decreased range of motion in the back, as well as positive straight leg raise testing, but normal motor sensation, full range of motion, no tenderness to the lower extremities and no pedal edema. (R. at 427.) She was diagnosed ...

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