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Hilliard v. Colvin

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

September 28, 2016

KIMBERLY DENISE HILLIARD, 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, Kimberly Denise Hilliard, (“Hilliard”), 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 Hilliard protectively filed an application for DIB on January 18, 2012, alleging disability as of November 7, 2011, due to chronic obstructive pulmonary disease, (“COPD”); heart problems; diabetes; depression; anxiety; tachycardia; neuropathy in the feet and legs; uncontrolled pain in the lower extremities; memory difficulties; and inability to be in crowds. (Record, (“R.”), at 20, 176, 195-201, 237, 269, 278.) The claim was denied initially and on reconsideration. (R. at 100-02, 105-08.) Hilliard then requested a hearing before an administrative law judge, (“ALJ”). (R. at 111-12.) A hearing was held by video conferencing on November 6, 2013, at which Hilliard was represented by counsel. (R. at 33-59.)

         By decision dated January 29, 2014, the ALJ denied Hilliard's claim. (R. at 20-28.) The ALJ found that Hilliard met the nondisability insured status requirements of the Act for DIB purposes through December 31, 2015.[1] (R. at 22.) The ALJ also found that Hilliard had not engaged in substantial gainful activity since November 7, 2011, her alleged onset date. (R. at 22.) The ALJ found that the medical evidence established that Hilliard suffered from severe impairments, namely asthma; COPD; history of arrhythmia ablation times three in 2007 with no recurrent problems; diabetes; obesity; depression; and anxiety, but she found that Hilliard 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 22-23.) The ALJ found that Hilliard had the residual functional capacity to perform simple, routine, repetitive light work[2] that did not require more than occasional climbing of ramps and stairs, bending, stooping, kneeling, crouching and crawling, that required no climbing of ladders, scaffolds or ropes, that did not require concentrated exposure to temperature extremes and that required no more than occasional exposure to dust, chemicals and fumes, and that required no public interactions and no more than occasional interaction with co-workers and supervisors. (R. at 24.) The ALJ found that Hilliard was unable to perform her past relevant work as a licensed practical nurse, (“LPN”), or a certified nursing assistant, (“CNA”). (R. at 27.) Based on Hilliard'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 Hilliard could perform, including jobs as an inventory clerk, a food prep worker and an office helper. (R. at 28.) Thus, the ALJ found that Hilliard was not under a disability as defined by the Act and was not eligible for DIB benefits. (R. at 28.) See 20 C.F.R. § 404.1520(g) (2015).

         After the ALJ issued her decision, Hilliard pursued her administrative appeals, (R. at 15-16), but the Appeals Council denied her request for review. (R. at 1-6.) Hilliard 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 Hilliard's motion for summary judgment filed September 26, 2015, and the Commissioner's motion for summary judgment filed October 29, 2015.

         II. Facts

         Hilliard was born in 1963, (R. at 195), which, at the time of the ALJ's decision, classified her as a “person closely approaching advanced age” under 20 C.F.R. § 404.1563(d). Hilliard has a high school education and a nursing degree. (R. at 182, 238.) She has past work experience as an LPN and a CNA. (R. at 179, 238, 246.) Hilliard stated that in February 2009, she was hospitalized with acute respiratory failure secondary to asthma. (R. at 39.) Hilliard stated that Dr. Arnold, her primary care physician, was treating her respiratory ailments. (R. at 38.) She stated that she could not work due to shortness of breath, neuropathic pain in the lower extremities, memory loss, confusion and panic attacks. (R. at 40.) She stated that she was prescribed oxygen after her 2009 hospitalization, which she wore nightly and, sometimes, during the day, and that she took breathing treatments at least once daily and carried a rescue inhaler. (R. at 41-42, 46.) Hilliard testified that the steroids in the breathing treatments made her more nervous and “jittery-like.” (R. at 47.) Hilliard testified that she experienced shortness of breath when showering, bathing, dressing, at times, and walking up inclines and that weather changes and certain smells caused wheezing. (R. at 42- 43, 46.) Hilliard also stated that she had pain from the hips and lower back all the way down to her feet. (R. at 43.) She stated that she also had pain in her wrists and that, at times, her feet, toes and fingers would go numb, which she attributed to her diabetes. (R. at 43.) Hilliard estimated that she could walk for three to five minutes before experiencing pain and having to stop to catch her breath, that she could lift items weighing less than 10 pounds, and she stated that she had to rest three to four hours during the day due to body fatigue and pain. (R. at 44-45.)

         Hilliard testified that she lived in a house with her disabled husband, and they could prepare simple meals and grocery shop. (R. at 47-48.) She testified that she read, watched television and attended church services when able. (R. at 48.) She stated that she did not drive due to the numbness and pain in her feet and legs. (R. at 49.) Hilliard testified that she smoked previously, but had quit. (R. at 49-50.) She stated that she was not seeing a counselor for her depression because she did not like to “rehash” everything each time she got a new counselor. (R. at 50.)

         Sanders, [3] a vocational expert, also was present and testified at Hilliard's hearing. (R. at 53-57.) She classified Hilliard's past work as both a CNA and an LPN as medium.[4] (R. at 53.) Sanders testified that a hypothetical individual who could perform light work that required no climbing of ladders, steps or ropes, only occasional climbing of stairs and ramps, balancing, stooping, kneeling and crouching, no crawling and that did not require concentrated exposure to extreme temperatures, humidity and wetness or more than occasional exposure to dust, chemicals and fumes and that required no more than simple, routine, repetitive job tasks with no public interaction and only occasional interaction with co-workers and supervisors could not perform Hilliard's past work, but could perform other jobs existing in significant numbers in the national economy, including those of an inventory checker, a food prep worker and an office helper. (R. at 54-56.) When asked to consider the same hypothetical individual, but who must rest two hours daily, Sanders testified that no work would be available if this resting occurred during the workday. (R. at 56-57.) Sanders testified that, if an individual must miss two days or more of work monthly, she could perform no jobs. (R. at 57.)

         In rendering her decision, the ALJ reviewed medical records from Wellmont Bristol Regional Medical Center; Dr. Dave Arnold, M.D.; Cardiovascular Associates, PC; Sapling Grove Family Physicians; Healing Hands Health Center; Dr. Edwin Cruz, M.D.; Julie Jennings, Ph.D., a state agency psychologist; Dr. Michael Hartman, M.D., a state agency physician; Sandra Francis, Psy.D., a state agency psychologist; and Dr. Catherine Howard, M.D., a state agency physician. Hilliard's attorney also submitted medical records from Bristol Regional Medical Center and Healing Hands Health Center to the Appeals Council.[5]

         The medical evidence included in the record, but dated prior to Hilliard's alleged onset of disability, includes a hospitalization at Wellmont Bristol Regional Medical Center, (“Bristol Regional”), from February 9, through February 12, 2009, for treatment of community acquired pneumonia with acute respiratory failure. (R. at 434-67, 601-03.) Chest x-rays showed no acute cardiopulmonary disease, but a pulmonary function test showed severe obstructive defect. (R. at 455, 457, 460.) Hilliard was discharged in stable condition with diagnoses of acute respiratory failure, secondary to asthma exacerbation; asthma exacerbation; probable COPD; and community-acquired pneumonia. (R. at 435-36.) Dr. Brett Odum, M.D., prescribed Effexor, Xanax, trazodone, prednisone, Spiriva, Advair and Zithromax and strongly encouraged her to quit smoking. (R. at 435, 601.) Thereafter, she presented to the emergency department at Bristol Regional on August 9, 2009, with complaints of persistent chest pain radiating into the left shoulder. (R. at 402-16.) A chest x-ray was normal, and an ECG showed a predominantly normal sinus rhythm, and a Holter monitor study showed normal sinus rhythm, but frequent premature atrial contractions with one atrial couplet. (R. at 404, 413, 432-33.) Hilliard was diagnosed with atypical chest pain. (R. at 404.)

         Hilliard saw Dr. Arun Rao, M.D., a cardiologist at Cardiovascular Associates, PC, for evaluation of arrhythmias and chest pain on August 13, 2009. (R. at 306-07.) Three prior ablations for sinus node modification were noted. (R. at 306.) Dr. Rao found the asymptomatic premature atrial contractions likely due to cold medicine usage. (R. at 306.) Pulmonary and cardiac examinations were normal, Hilliard was fully oriented, and Dr. Rao diagnosed hypertension; frequent, but asymptomatic, premature atrial contractions; and atypical chest pain, probably musculoskeletal. (R. at 307.) Hilliard did not show for a nuclear stress test, and she failed to return for a follow-up appointment on October 15, 2009. (R. at 304-05.)

         Hilliard returned to the emergency department at Bristol Regional on December 27, 2009, with complaints of low back pain and abdominal pain. (R. at 377-83.) She had tenderness to the left lower abdominal quadrant, but a back examination was normal. (R. at 379-80.) A CT scan of the abdomen and pelvis showed no acute process to explain Hilliard's symptoms, but a possible tiny ovarian cyst was noted. (R. at 387-89.)

         Hilliard was seen at Holston Medical Group Urgent Care Clinic, (“Urgent Care”), on four occasions from January 17 through August 30, 2011. (R. at 519-21, 527-29, 532-35.) Over this time, she complained of left shoulder pain radiating down her arm, urinary tract infection symptoms and a possible diverticulitis flare up. (R. at 519-21, 527-29, 532-35.) An x-ray of the left shoulder showed minimal AC degenerative changes, for which Dr. Alfred Harkleroad, M.D., prescribed tramadol, cyclobenzaprine and full range of motion exercises. (R. at 535.) On February 4, 2011, Hilliard exhibited full flexion and extension of the elbow and full range of motion of the shoulder without pain. (R. at 533.) Dr. Harkleroad diagnosed epicondylitis and prescribed meloxicam. (R. at 533.) On July 5 and August 30, 2011, lung and cardiovascular examinations were normal. (R. at 520, 528.) On August 30, 2011, Hilliard was diagnosed with abdominal pain and diverticulitis of the colon. (R. at 520-21.)

         Hilliard saw her primary care physician, Dr. Brett Odum, M.D., on two occasions from April 8 through October 10, 2011, for treatment of asthma, allergy symptoms and anxiety. (R. at 515-18, 530-31.) She had normal lung and cardiovascular examinations on both April 8, and October 10, 2011, and Dr. Odum diagnosed allergic rhinitis and asthma, for which he provided Singulair samples. (R. at 517, 531.) On October 10, 2011, Hilliard denied depression, wheezing, chest pain, shortness of breath and abdominal pain. (R. at 515.) Dr. Odum diagnosed allergic rhinitis and noted that her allergy symptoms were stable. (R. at 517-18.)

         On July 10, 2011, Hilliard presented to the emergency department at Bristol Regional with complaints of low back pain and abdominal pain. (R. at 364-70.) Respiratory and cardiac examinations were normal, but costovertebral angle, (“CVA”), tenderness was noted. (R. at 366.) A CT scan of the abdomen and pelvis revealed no acute abnormalities, and she was diagnosed with acute abdominal pain and back pain. (R. at 366, 374-75.)

         During the time period relevant to Hilliard's disability claim, she presented to the Urgent Care on one occasion, on November 9, 2011, with complaints of shortness of breath and body aches. (R. at 505-07.) Oxygen saturation level was 96 percent. (R. at 505.) Hilliard was in no acute distress with normal lung and cardiovascular examinations. (R. at 506.) An EKG yielded normal results, except for a bigeminy rhythm, [6] and a chest x-ray revealed no evidence of acute cardiopulmonary disease. (R. at 506, 508-13.) Dr. Leighann Livingston, D.O., diagnosed chest pain. (R. at 507.)

         Hilliard presented to the emergency department at Bristol Regional on five occasions between November 9, 2011, and August 21, 2013, with complaints of chest pain and shortness of breath and low back pain radiating into the right leg. (R. at 318-63, 660-84.) On November 9, 2011, respiratory examination was normal, but an irregular cardiac rhythm was noted. (R. at 350.) Hilliard was diagnosed with acute chest pain and cardiac arrhythmias. (R. at 350, 354.) On November 14, 2011, respiratory and cardiac examinations were normal, an EKG showed normal sinus rhythm, and chest x-rays and lab work were normal. (R. at 337, 345.) Hilliard's history of COPD, nightly oxygen usage and prior cardiac ablations were noted, and she was diagnosed with acute chest pain and exacerbated COPD. (R. at 337-38, 340.) On December 8, 2011, Hilliard was anxious and depressed and was in mild distress. (R. at 320.) She had normal respiratory and cardiovascular examinations, chest x-rays and lab work were normal, and an ECG showed a left atrial abnormality, but sinus rhythm. (R. at 300, 326-28, 330-31.) She was diagnosed with acute chest pain and general myalgias, prescribed Neurontin and discharged in improved condition. (R. at 320, 322, 325.)

         On March 24, 2013, Hilliard complained of chest pain symptoms which were described as “pleuritic.” (R. at 676.) She was alert, fully oriented and in no acute distress with a normal mood and affect. (R. at 677.) Hilliard had a normal cardiovascular examination, peripheral pulses were strong and equal, cranial nerves were intact, there was no motor or sensory deficit, no extremity tenderness or edema or calf tenderness, and she had full range of motion in all extremities. (R. at 677.) She was diagnosed with pleuritic pain and central chest pain and discharged in stable condition. (R. at 677, 680.) Hilliard returned to the emergency department at Bristol Regional on August 21, 2013, with complaints of low back pain radiating into the right leg, worsened by movement. (R. at 660-64.) She had mild to moderate lumbosacral paravertebral spasm on the right side, but good range of motion with normal flexion, extension and rotation. (R. at 663.) There was no evidence of lower extremity weakness, no specific ...


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