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Foster-McVey v. Colvin

United States District Court, W.D. Virginia, Abingdon Division

September 28, 2016

JUDY A. FOSTER-MCVEY, 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, Judy A. Foster-McVey, (“Foster-McVey”), 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). Foster-McVey has requested oral argument in this matter, but the court will deny that request based on its finding that the parties' briefs have adequately addressed the relevant issues.

         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 Foster-McVey protectively filed her application for SSI on August 17, 2011, alleging disability as of April 1, 2004, due to severe depression, panic attacks, problems concentrating and understanding things, angry outbursts, back problems, high blood pressure, possible diabetes, thyroid problems, sinus problems, irritable bowel syndrome, hernia, anxiety and gastroesphogeal reflux disease. (Record, (“R.”), at 13, 202-08, 214, 227.) The claim was denied initially and on reconsideration. (R. at 13, 90-102, 104-19, 121-25, 128, 131-33, 135-37.) Foster-McVey then requested a hearing before an administrative law judge, (“ALJ”). (R. at 138-40.) A video hearing was held on October 16, 2013, at which Foster-McVey was represented by counsel. (R. at 13, 27-65.)

         By decision dated November 6, 2013, the ALJ denied Foster-McVey's claim. (R. at 13-21.) The ALJ found that Foster-McVey had not engaged in substantial gainful activity since August 17, 2011, the date of her application. (R. at 15.) The ALJ determined that the medical evidence established that Foster-McVey suffered from severe impairments, namely bipolar disorder, borderline intellectual functioning, personality disorder, obesity, irritable bowel syndrome and a hernia, but he found that Foster-McVey 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 15-17.) The ALJ found that Foster-McVey had the residual functional capacity to perform simple, easy-to-learn, repetitive, unskilled light work, [1] that did not require more than six 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 of ramps and stairs, kneeling, crouching, stooping and interaction with co-workers and supervisors; that did not require climbing ladders, ropes or scaffolds, crawling, interacting with the public, concentrated exposure to vibration or hazards and which was in a static work environment with few changes in work routines and settings. (R. at 17-19.) The ALJ found that Foster-McVey had no past relevant work. (R. at 19.) Based on Foster-McVey'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 Foster-McVey could perform, including jobs as an assembler, an inspector/tester/sorter and a packer. (R. at 20.) Thus, the ALJ found that Foster-McVey 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, Foster-McVey pursued her administrative appeals, (R. at 7-9), but the Appeals Council denied her request for review. (R. at 1-4.) Foster-McVey 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 the Commissioner's motion for summary judgment filed September 25, 2015.

         II. Facts

         Foster-McVey was born in 1977, (R. at 19), which, at the time of the ALJ's decision, classified her as a “younger person” under 20 C.F.R. § 416.963(c). Foster-McVey completed the eighth grade in school. (R. at 35.) Foster-McVey testified that she could not work due to a hernia in her upper right stomach and depression, anxiety and bipolar issues. (R. at 37.) Foster-McVey stated that her hernia was painful and that it would “pull” any time she attempted to lean over to pick anything up. (R. at 39.) Foster-McVey also stated that she suffered from irritable bowel syndrome with diarrhea and cramping. (R. at 41.) She said that she would use the restroom with diarrhea three to four times a day. (R. at 41.) Foster-McVey stated, at her hearing, that she did not take any medication because she could not afford any. (R. at 42.) Foster-McVey testified that she also suffered from back pain that radiated down her buttocks into her right leg and foot. (R. at 49.)

         Foster-McVey testified that her bipolar disorder caused her to have “really bad mood swings.” (R. at 43.) She also said that sometimes she would go without sleep for a week at a time. (R. at 43.) Foster-McVey admitted that she had cut her wrists on four prior occasions, but she said that these acts were not suicide attempts. (R. at 44.) Instead, she said the cutting provided her with a “release.” (R. at 44.) Foster-McVey stated that she usually stayed to herself and did not attend church or family outings. (R. at 44.) She said that she spent most of her day sitting or lying in her room. (R. at 48.) She also said that she gets so depressed that she sometimes does not bathe for multiple days. (R. at 51.)

         John Newman, a vocational expert, also was present and testified at Foster-McVey's hearing. (R. at 52-63.) Newman was asked to consider a hypothetical individual of Foster-McVey's age, education and no work history, who had the residual functional capacity to perform only simple, easy-to-learn, repetitive, unskilled medium[2] work at a steady work environment with few changes in work routine, who could stand and/or walk for a total of about six hours in an eight-hour workday and could sit with normal breaks for about six hours in an eight-hour workday, who could frequently stoop, kneel, crouch and climb ramps and stairs but could only occasionally climb ladders, ropes and scaffolds and crawl, who should avoid concentrated exposure to hazards such as dangerous machinery and unprotected heights and who should not interact with the public, but could occasionally interact with supervisors and co-workers. (R. at 54-55.) Newman identified jobs that existed in significant numbers at the medium, unskilled level that such an individual could perform, including jobs as a mold assembler, a packer and a linen room attendant. (R. at 55-56.) Newman was asked to consider the same hypothetical individual, but who had the residual functional capacity to perform light work that did not require more than occasional kneeling, crouching, stooping, bending and climbing of ramps and stairs and did not require any climbing of ladders, ropes or scaffolds or crawling. (R. at 56-57.) He identified jobs that existed in significant numbers at the light, unskilled level that such an individual could perform, including jobs as an assembler, a packer and an inspector/tester/sorter. (R. at 57.)

         In rendering his decision, the ALJ reviewed records from Walnut Grove Family Medicine; Highlands Community Services; Cumberland Mountain Community Services; Johnston Memorial Hospital; Appling Hospital; Kathy Jo Miller, M.Ed.; Robert S. Spangler, Ed.D.; Dr. Leticia Peltzer, M.D.; Robert Keeley, a state agency medical consultant; Dr. Andrew Bockner, M.D., a state agency physician; Louis Perrot, Ph.D., a state agency psychologist; and Dr. Robert McGuffin, M.D., a state agency physician.

         The medical records show that Foster-McVey sought treatment for anxiety and depression as early as 2003, (R. at 307, 309, 815-17), and she sought treatment for back pain as early as 2004. (R. at 299-302, 794-96, 801-02, 822-24, 829-31, 849, 858-59, 861-62.) In 2004, she sought treatment at an emergency department for possible seizures. (R. at 759-60, 772-75.)

         On December 25, 2009, Foster-McVey sought treatment at the emergency department of Johnston Memorial Hospital, (“JMH”), for complaints of vomiting and diarrhea. (R. at 378-83.) She had full normal range of motion and muscle strength in her extremities. (R. at 379.) Her abdomen was not tender to palpation. (R. at 379.) Foster-McVey was diagnosed with irritable bowel syndrome and told to follow up with her regular physician. (R. at 380.) Foster-McVey again sought treatment at the JMH emergency department for complaints of vomiting without diarrhea on January 7, 2010. (R. at 367-69.) According to Foster-McVey, she recently had eaten some barbecue potato chips, and she becomes sick whenever she eats spicy food. (R. at 367.) She complained of mild abdominal tenderness upon palpation in the left lower quadrant of her abdomen. (R. at 368.) She was diagnosed with dehydration due to vomiting, treated and discharged. (R. at 369.)

         On September 4, 2010, Foster-McVey sought treatment at the JMH emergency department for complaints of shoulder pain due to “using the computer.” (R. at 356.) On this date, she did not complain of any abdominal pain. An examination revealed normal findings, full range of motion in all of her joints and extremities, with the exception of pain in right shoulder. (R. at 357.) The physician diagnosed acute myofascial strain, gave Foster-McVey a prescription for Darvocet-N, Flexeril and ibuprofen and discharged her. (R. at 357.)

         On November 16, 2010, Foster-McVey was treated and released at the JMH emergency department for right upper quadrant abdominal pain with diarrhea and nausea. (R. at 338-41.) Foster-McVey gave a history of thyroid problems, a hiatal hernia and irritable bowel syndrome. (R. at 338.) Physical examination on this date was, in large part, normal except for some moderate abdominal tenderness upon palpation in the right upper quadrant. (R. at 339.) Examination of Foster-McVey's back showed normal, painless range of motion. (R. at 339.) Her behavior/mood was noted as “pleasant, cooperative.” (R. at 339.)

         Foster-McVey was examined by Dr. J. Burt Banks, M.D., with Walnut Grove Family Medicine, on September 14, 2010. (R. at 391-93). She told Dr. Banks that she had a history of hypothyroidism, allergic rhinitis, earache worse on left, gastroesophageal reflux disease, irritable bowel syndrome and a sleep disorder. (R. at 391.) Foster-McVey stated that her symptoms of irritable bowel syndrome were intermittent with migratory abdominal pain and alternating constipation and diarrhea. (R. at 391.) Dr. Banks noted that Foster-McVey consumed a large amount of caffeinated drinks each day. (R. at 392.) Dr. Banks stated that Foster-McVey was obese, and he listed her height at 5 feet, 6 inches and her weight as 245 pounds. (R. at 391-92.) He did note some epigastric tenderness. (R. at 393.) Foster-McVey did not complain of any back problems, and Dr. Banks did not diagnose any musculoskeletal problems.

         Foster-McVey returned to see Dr. Banks on October 5, 2010, and stated that her stomach cramps and bloating had gotten worse over the previous few weeks. (R. at 394.) She also complained of acid reflux symptoms and pain from a hiatal hernia. (R. at 394.) Dr. Banks noted some epigastric tenderness. (R. at 395.) Dr. Banks changed Foster-McVey's medication for both acid reflux and irritable bowel syndrome. (R. at 395.)

         On November 19, 2010, Foster-McVey told Dr. Banks that she had sought treatment in the emergency room that week due to increased cramping, pain and diarrhea. (R. at 397.) Foster-McVey's weight was listed at 250 pounds. (R. at 397.) Dr. Banks again noted epigastric tenderness. (R. at 398.) He, again, changed her medications for acid reflux and irritable bowel syndrome. (R. at 398.) On November 23, 2010, Foster-McVey returned for treatment of an ear infection, and she reported that her irritable bowel symptoms had improved. (R. at 400.)

         On January 6, 2011, Foster-McVey saw Dr. Banks with complaints of a cough and diarrhea. (R. at 403.) Dr. Banks diagnosed sinusitis and prescribed an antibiotic. (R. at 404.) Dr. Banks's note makes no mention of any complaint of back pain. (R. at 403-04.) He did record that Foster-McVey was then taking Tylenol with codeine, but he did not note why. (R. at 403.) Foster-McVey saw Dr. Banks again on February 2, 2011, for complaints of continued ear pain, congestion and cough and intermittent irritable bowel symptoms, alternating from constipation to diarrhea. (R. at 456.) On this occasion, Foster-McVey also reported that she took Tylenol with codeine for pain. (R. at 456.)

         On January 13, 2011, Foster-McVey sought treatment at the JMH emergency department for back pain for the past several years. (R. at 543-45.) She complained of intermittent flare-ups of lower back pain with radiation into her right buttocks and right lateral thigh. (R. at 543.) She said the pain was worse with excessive walking or bending. (R. at 543.) She stated that she could not treat with her primary physician because he would no longer prescribe medication for her back pain. (R. at 543.) She did not, however, report that she was taking Tylenol with codeine for pain, as she had informed Dr. Banks. It was noted that Foster-McVey appeared comfortable and in no acute distress. (R. at 543.) She had normal range of motion in her back with no vertebral tenderness noted. (R. at 544.) There was some muscle spasm in her right low back. (R. at 544.) Strength and muscle tone was normal in all extremities. (R. at 544.) Gait and deep tendon reflexes were normal. (R. at 544.) She was discharged with a prescription for Flexeril. (R. at 544.)

         On February 7, 2011, Foster-McVey was seen by Dr. Leticia Peltzer, M.D., at the Ear, Nose & Throat Specialty Center, for complaints of sinus and ear problems and cough. (R. at 415.) Foster-McVey complained of chronic ear pain for six years, with the left side worse, and a cough for the previous month. (R. at 415.) Dr. Peltzer diagnosed TMJ syndrome with atypical facial pain and sinusitis, acute. (R. at 416.)

         Foster-McVey also completed a medical history form for Dr. Peltzer on which she complained of weight change, fevers, sweats, fatigue, double vision, chronic cough, shortness of breath, acid reflux, tinnitus, stopped up/plugged ears, pain in her ears, dry/itchy ears, water in ears, room/head spinning, daily dizziness, headache, feeling depressed, anxiety, carpal tunnel syndrome, enlarged lymph nodes, allergies, sneezing, itchy watery eyes, stuffiness/congestion, bleeding from her nose, drainage, discomfort, sinus pressure, cheek/tooth pain, hoarseness, difficulty swallowing, throat clearing, sore throat, swollen tonsils, mouth breathing, heartburn, sour taste in mouth and sleep apnea. (R. at 417-18.) She denied any osteoarthritis on this medical history, (R. at 417-18), but listed that she suffered from a back problem on another form. (R. at 420.) She did not report any narcotic pain medication.

         Dr. Peltzer ordered physical therapy for Foster-McVey for TMJ pain, neck pain and postural abnormality, and Foster-McVey was evaluated by Barret E. Blevins, P.T., D.P.T., with Mountain States Rehabilitation, on May 6, 2011. (R. at 445-48.) Blevins said that his evaluation of Foster-McVey showed TMJ disorder and effusion, posture imbalance, increased jaw/neck/upper shoulder pain, musculature weakness, soft tissue dysfunction, increased headache frequency and decreased function, activities of daily living performance. (R. at 445.) Foster-McVey reported a two-year history of TMJ pain with no known cause. (R. at 446.) She reported difficulty sleeping, hearing and yawning with two to three headaches a day. (R. at 446.) She complained of aching, sharp, occasionally throbbing pain in her right jaw and face, posterior neck and forehead. (R. at 446.) She said that yawning, chewing food or gum or swallowing pills aggravated her symptoms and that her symptoms were eased with pain medication and relaxation and rest. (R. at 446.) Foster-McVey stated that her symptoms were an annoyance rather than an impairment or disabling, yet she rated her pain an 8 on a 10-point scale. (R. at 446.)

         On February 11, 2011, Foster-McVey sought treatment at Johnston Memorial Hospital for a fall in the bathtub and fracture of her sacrum/coccyx. (R. at 535-38.) She complained that it hurt to sit or bend, but she denied any pain anywhere else. (R. at 536.) The examining physician noted vertebral tenderness at the coccyx with painful range of motion. (R. at 537.) She was discharged with a prescription for Lortab. (R. at 538.)

         On March 9, 2011, Kathy Jo Miller, M.Ed., and Robert S. Spangler, Ed.D., performed a consultative psychological evaluation of Foster-McVey at the state agency's request. (R. at 422-28.) Foster-McVey appeared clean, neat, appropriately dressed, and she was wearing makeup, jewelry and heavy perfume. (R. at 422.) It was reported that she seemed socially confident and comfortable during the evaluation and understood the instructions and demonstrated good concentration. (R. at 422.) Foster-McVey said that she was seeking disability benefits because of “depression and anxiety. I have a really bad problem around people I don't know.” (R. at 423.)

         She reported that she had suffered a panic attack two weeks earlier, for which she sought treatment at the emergency room.[3] (R. at 423.) She stated that she was given a prescription for Xanax at the emergency room, which worked well. (R. at 423.) She stated that her primary physician then gave her a prescription for BuSpar, which made her “more angry” and, then, Klonopin.[4] (R. at 423.) Foster-McVey stated that she had never been to a psychiatrist or a mental health center. (R. at 423.) She claimed that she had a history of suicidal ideation in the past, “but not lately.” (R. at 423.) She said that these suicidal thoughts had occurred after her adoptive mother died in 2006. (R. at 423.) She reported that she had five to six panic attack and “two nervous breakdowns” since she ...


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