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Salyers v. Colvin

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

October 27, 2016

THOMAS W. SALYERS, 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, Thomas W. Salyers, (“Salyers”), filed this action challenging the final decision of the Commissioner of Social Security, (“Commissioner”), determining that he 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). 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 Salyers protectively filed an application[1] for SSI[2] on December 23, 2010, alleging disability as of December 15, 2006, [3] due to chronic back pain resulting from a spinal fusion of the L5-S1 discs; migraines; sinus problems; nerve damage in right jaw; mutilated big toe of the left foot; bilateral knee pain; difficultly eating; nervousness; and inability to concentrate. (Record, (“R.”), at 184-87, 203, 207, 216, 219.) The claim was denied initially and on reconsideration. (R. at 112-14, 117, 122-24, 126-28.) Salyers then requested a hearing before an administrative law judge, (“ALJ”). (R. at 129-30.) A video hearing was held on November 29, 2012, at which Salyers was represented by counsel. (R. at 36-57.)

         By decision dated December 7, 2012, the ALJ denied Salyers's claim. (R. at 16-29.) The ALJ found that Salyers had not engaged in substantial gainful activity since December 23, 2010, the date of his application. (R. at 18.) The ALJ found that the medical evidence established that Salyers suffered from severe impairments, namely back pain, status-post fusion surgery in 1998; cervical spine strain; neuropathic pain in the jaw and mouth due to traumatic injury and drug abuse damage; headaches; obesity; and history of cocaine abuse, but he found that Salyers 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 18, 21.) The ALJ found that Salyers had the residual functional capacity to perform simple, routine, repetitive, unskilled light work[4] that did not require more than occasional kneeling, crawling, crouching, stooping, balancing, climbing and interaction with others, due to difficulty talking based on mouth and sinus conditions; that did not require more than frequent operation of foot controls, reaching, handling, fingering and feeling; and that did not require him to climb ladders, ropes or scaffolds or to work around concentrated exposure to temperature extremes, excessive noise and vibrations and work hazards. (R. at 22.) The ALJ found that Salyers had no past relevant work. (R. at 27.) Based on Salyers'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 Salyers could perform, including jobs as a night cleaner, a library shelving clerk and a cafeteria attendant. (R. at 28.) Thus, the ALJ found that Salyers was not under a disability as defined by the Act and was not eligible for SSI benefits. (R. at 28-29.) See 20 C.F.R. § 416.920(g) (2015).

         After the ALJ issued his decision, Salyers pursued his administrative appeals, (R. at 11), but the Appeals Council denied his request for review. (R. at 1-6.) Salyers 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 Salyers's motion for summary judgment filed January 11, 2016, and the Commissioner's motion for summary judgment filed February 16, 2016.

         II. Facts

         Salyers was born in 1979, (R. at 184), which classifies him as a “younger person” under 20 C.F.R. § 416.963(c). Salyers has a high school education, two years of college and no past work experience. (R. at 42, 208.) Salyers admitted that he had never had a job lasting for more than a couple of months. (R. at 42.) He stated that he attempted to be a self-employed computer repairman, but was unable to perform the job because of his inability to concentrate. (R. at 42.) Salyers stated that he fell on a machete and injured his mouth. (R. at 42-43.) He stated that he snorted cocaine, which damaged his sinuses and throat. (R. at 43-44.) Salyers testified that he did not take any medication for depression or anxiety. (R. at 45.) He stated that he was receiving counseling for his symptoms of anxiety and depression. (R. at 46.) Salyers reported that his mother was homebound and that he “waits on her, giving her oxygen and [meeting her] other needs.” (R. at 824.) In discussing helping his mother, Salyers stated that, “I do all the driving and shopping because she won't leave the house.” (R. at 1089.)

         Vocational expert, Asheley Wells, also testified at Salyers's hearing. (R. at 54-56.) Wells was asked to consider a hypothetical individual of Salyers's age, education and lack of work experience, who would be limited to simple, routine, repetitive, unskilled light work that did not require exposure to hazards or climbing of ladders, ropes or scaffolds; that did not require more than frequent use of the hands and arms for reaching, handling, fingering, feeling and no more than frequent foot control operation; that did not require more than occasional climbing of ramps and stairs, balancing, stooping, kneeling, crouching, crawling and interaction with others; and that did not require concentrated exposure to temperature extremes, excessive vibration and excessive noise. (R. at 54-55.) Wells stated that the individual could perform jobs existing in significant numbers in the national economy, including those of a night cleaner, a library shelving clerk and a cafeteria attendant. (R. at 55.) Wells stated that there would be no jobs available if the same hypothetical individual would be off task 25 percent of the workday or workweek; had an inability to satisfactorily interact with others and to deal with work stress; and would miss more than four days of work a month. (R. at 56.)

         In rendering his decision, the ALJ reviewed records from Wise County Public Schools; Howard S. Leizer, Ph.D., a state agency psychologist; Dr. Brian Strain, M.D., a state agency physician; Dr. Robert McGuffin, M.D., a state agency physician; Dr. Andrew Bockner, M.D., a state agency physician; Bristol Regional Medical Center; Dr. Galileo T. Molina, M.D.; Dr. B. Keith Elliott, D.D.S.; Dr. Ronald F. Godat, D.D.S.; Dr. Maria Bryan, D.D.S.; Dr. Jeff Montgomery, D.D.S.; Dr. Stephen J. Yallourakis, D.D.S.; Dr. Newton Carroll Mullins, D.D.S.; Dr. Stephen M. Kimbrough, M.D.; Dr. Maurice E. Nida, D.O.; Dr. Robert D. Kilgore, D.M.D.; Robert S. Spangler, Ed.D., a licensed psychologist; Lonesome Pine Hospital; Dr. Esther F. Adade, M.D.; Norton Community Hospital; Frontier Health; Tri-State Mountain Neurology Associates; Dr. William Humphries, M.D.; and University of Virginia Health System. Salyers's attorney also submitted medical records from Lonesome Pine Hospital and Frontier Health to the Appeals Council.[5]

         In August 1998, Salyers underwent a bilateral L5-S1 decompression, laminectomy, diskectomy and interbody arthrodesis to treat his five-year history of back pain resulting from a soccer injury. (R. at 274-85.)

         Salyers received much dental and endodontic care for his teeth from June 2008 through August 2012; some of this treatment was for damage sustained after Salyers fell on a machete that penetrated into his mouth. (R. at 344-413, 440-79, 482-513, 581-84, 966-70.)

         On August 7, 2008, Dr. Stephen M. Kimbrough, M.D., performed a neurological consultation. (R. at 585-86.) Salyers reported that he fell on a machete while cutting brush and it penetrated into his mouth hitting his teeth. (R. at 585.) Salyers reported an aching constant pain that fluctuated in intensity. (R. at 585.) Dr. Kimbrough reported that Salyers's pain was not typical of trigeminal neuralgia or neuritic pain. (R. at 585.) Dr. Kimbrough found no evidence of any specific nerve injury other than that which was localized to the area that was directly traumatized. (R. at 585.) Dr. Kimbrough prescribed neuropathic medication. (R. at 586.) On October 20, 2008, Salyers reported that his medication had been helpful overall; however, he continued to complain of neuropathic pain. (R. at 429.) Dr. Kimbrough reported that Salyers's examination was normal. (R. at 429.)

         On April 20, 2009, Salyers continued to complain of burning and stinging in his jaw. (R. at 428.) He reported that his pain symptoms had improved with medications. (R. at 428.) Examination was normal, with the exception of hypersensitivity in his right jaw. (R. at 428.) On June 30, 2009, Salyers complained of neuropathic pain in his mouth and right jaw. (R. at 427.) Although Salyers reported increased burning, stinging and pain in his upper teeth area, he stated that his medications had “helped overall.” (R. at 427.) Dr. Kimbrough diagnosed neuropathic pain in the mouth and right jaw. (R. at 427.) On October 22, 2009, Salyers's examination was normal, with the exception of hypersensitivity in the right jaw and “a little bit” in the upper lip area. (R. at 434.)

         On March 10, 2010, Salyers reported that his pain medication regimen helped him to tolerate his pain. (R. at 433.) Dr. Kimbrough reported that Salyers's examination was normal, with the exception of hypersensitivity of the right jaw. (R. at 433.) On September 2, 2010, Salyers reported that the pain in his left upper jaw area had resolved. (R. at 432.) He complained of increased back pain. (R. at 432.) Salyers's examination was normal, with the exception of a “little bit” of reduced reflex in his ankles and tenderness in his right S1 joint. (R. at 432.) On September 28, 2010, Salyers requested a medication refill. (R. at 603.) Dr. Kimbrough refused the request, stating that, if Salyers was taking the medication as prescribed, he would have extra medication. (R. at 603.)

         On January 28, 2011, Dr. Kimbrough refused to complete a disability form for Salyers. (R. at 602.) On March 24, 2011, Salyers complained of low back pain and neuropathic pain in his mouth. (R. at 601.) Salyers reported that he was doing relatively well with his medications. (R. at 601.) Dr. Kimbrough reported that there was no evidence of aphasia, agnosia or apraxia. (R. at 601.) Salyers had normal reflexes in the upper and lower extremities; tenderness in his back; reduced straight leg raising; reduced reflexes in the ankles; and normal strength and coordination. (R. at 601.) Also on that day, Dr. Kimbrough stated that Salyers was unable to engage in any substantial gainful activity because of his physical and mental impairments related to chronic severe neuropathic pain in his mouth area. (R. at 579.)

         On February 16, 2010, Salyers saw Dr. Esther F. Adade, M.D., with complaints of back pain. (R. at 573.) Salyers also reported anxiety and depression. (R. at 573.) Dr. Adade noted that Salyers's affect was normal. (R. at 573.) Dr. Adade diagnosed chronic pain and asthma, stable. (R. at 573.) On May 20, 2010, Salyers complained of a cyst behind his left knee. (R. at 572.) Salyers did not complain of depression or anxiety, and it was noted that he had a normal affect. (R. at 572.) On June 4, 2010, an ultrasound of Salyers's right knee was normal. (R. at 526.) On August 4, 2010, Salyers saw Dr. Adade to discuss the results of his ultrasound. (R. at 571.) Salyers did not complain of depression or anxiety, and it was noted that he had a normal affect. (R. at 571.) On August 27, 2010, x-rays of Salyers's lumbar spine showed postoperative changes at the L5-S1 level. (R. at 567.) On September 24, 2010, Salyers did not complain of depression or anxiety, and it was noted that he had a normal affect. (R. at 570.) Dr. Adade diagnosed myofascial pain, sinusitis and nicotine dependence. (R. at 570.) On November 17, 2010, a CT scan of Salyers's head was normal. (R. at 563.) Also on that day, a CT scan of Salyers's paranasal sinuses showed chronic pansinusitis with exacerbation. (R. at 565.) On December 1, 2010, Salyers complained of chronic pain. (R. at 569.) Salyers did not complain of depression or anxiety, and it was noted that he had a normal affect. (R. at 569.)

         On April 12, 2010, Salyers presented to the emergency room at Lonesome Pine Hospital, (“Lonesome Pine”), for sinusitis and a cyst to the left knee. (R. at 523-24.) On August 27, 2010, Salyers presented to the emergency room at Lonesome Pine for complaints of back pain. (R. at 528-29.) He was diagnosed with acute low back pain and lumbar sprain. (R. at 529.) On November 17, 2010, Salyers presented to the emergency room with complaints of migraine headaches. (R. at 781-89.) He was diagnosed with a headache and sinus headache. (R. at 783, 788.) On June 7, 2011, ...


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