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Keith v. Colvin

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

October 28, 2016

TINA LOUISE KEITH, 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, Tina Louise Keith, (“Keith”), 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). Neither party has requested oral argument in this matter.

         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 Keith filed an application for DIB on December 21, 2012, alleging disability as of March 15, 2009, due to neck injury, back problems and fibromyalgia. (Record, (“R.”), at 183-84, 201.) The claim was denied initially and on reconsideration. (R. at 102-04, 107-10, 112-14.) Keith then requested a hearing before an administrative law judge, (“ALJ”). (R. at 115-16.) A video hearing was held on November 6, 2014, at which Keith was represented by counsel. (R. at 51-73.)

         By decision dated January 30, 2015, the ALJ denied Keith's claim. (R. at 32-45.) The ALJ found that Keith met the nondisability insured status requirements of the Act for DIB purposes through March 31, 2014. (R. at 34.) The ALJ also found that Keith had not engaged in substantial gainful activity since March 15, 2009, her alleged onset date.[1] (R. at 34.) The ALJ found that, through the date last insured, the medical evidence established that Keith suffered from severe impairments, namely degenerative disc disease of the lumbar spine; status-post cervical spine fusion in 2009; anxiety disorder; and disorders of fibromyalgia, but he found that Keith 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 34-37.) The ALJ found that, through the date last insured, Keith had the residual functional capacity to perform a range of sedentary work[2] with the capacity to fulfill work with short and simple, but not detailed, work instructions, that did not require more than occasional interpersonal interaction, overhead reaching, climbing of ramps and stairs, balancing, kneeling, crawling, crouching and stooping and that did not require climbing of ladders, ropes or scaffolds or exposure to hazards and heights. (R. at 37-43.) The ALJ found that Keith was unable to perform any of her past relevant work. (R. at 43.) Based on Keith'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 Keith could perform, including jobs as a cleaner, a packer, an inspector/grader and a small parts assembler. (R. at 43-45.) Thus, the ALJ found that Keith was not under a disability as defined by the Act and was not eligible for DIB benefits. (R. at 45.) See 20 C.F.R. § 404.1520(g) (2015).

         After the ALJ issued his decision, Keith pursued her administrative appeals, (R. at 20), but the Appeals Council denied her request for review. (R. at 8-10.) Keith 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 Keith's motion for summary judgment filed on January 5, 2016, and the Commissioner's motion for summary judgment filed January 20, 2016.

         II. Facts

         Keith was born in 1966, (R. at 59), which, at the time of the ALJ's decision, classified her as a “younger person” under 20 C.F.R. § 404.1563(c). Keith completed the ninth grade in school and has past work experience as a sewing machine operator, a housekeeper, a nurse's aide, a floor cleaner and a caregiver. (R. at 57, 69.)

         Vocational expert, Robert Jackson, also testified at Keith's hearing. (R. at 68-73.) Jackson classified Keith's prior work as a sewing machine operator as light[3] semi-skilled work. (R. at 69.) He also classified her prior work as a caregiver and a nurse's aide as medium, [4] semi-skilled work and her work as a housekeeper and a floor cleaner as medium, unskilled work. (R. at 69.) Jackson was asked to consider a hypothetical individual of Keith's age, education and work experience, who would be limited to light or sedentary work that did not require more than occasional bending, crouching, stooping, balancing, climbing of steps and stairs and interaction with supervisors and co-workers and that did not require working around heights or hazards, such as dangerous machinery, climbing ladders or scaffolds or public interactions. (R. at 69-70.) Jackson stated that such an individual could not perform Keith's past work. (R. at 70.) Jackson stated that the individual who was capable of sedentary work could perform other jobs existing in significant numbers in the national economy, including those of an inspector/grader and a small parts assembler. (R. at 71.) He stated that the individual capable of light work could perform other jobs existing in significant numbers in the national economy, as well, including those of a cleaner and a packer. (R. at 71.) Jackson stated that no jobs would be available for a person who would be off-task 25 percent of the time due to medication side effects or who missed two days a month due to pain and symptoms. (R. at 72.)

         In rendering his decision, the ALJ reviewed medical records from Howard S. Leizer, Ph.D., a state agency psychologist; Dr. Bert Spetzler, M.D., a state agency physician; David L. Niemeier, Ph.D., a state agency psychologist; Dr. Robert Keeley, M.D., a state agency physician; Virginia Commonwealth University, (“VCU”), Health Systems; Family Physicians of Marion; Johnston Memorial Hospital; Wytheville Family Medicine; Carilion Spine Clinic; New River Valley Medical Center; and Dr. Kari Lucas, M.D.

         Keith treated with Family Physicians of Marion from 2008 to 2011. (R. at 305-79.) During this time, it appears that Keith was seen monthly for medication refills, including narcotic pain medication. (R. at 367-79.) Many of these treatment notes, however, do not contain the date of treatment. (R. 305, 307-14, 321-23, 325, 327.)

         On August 29, 2008, Keith complained of left shoulder pain, which she rated an 8 on a 10-point scale, and which she said worsened when she sat in the same position at work. (R. at 365.) Her physical examination revealed that she was tender in the C5-6 area of her cervical spine. (R. at 365.) She was diagnosed with cervical degeneration and given a prescription for Vicodin ES, and an MRI was scheduled for September 10, 2008, at Johnston Memorial Hospital, (“JMH”). (R. at 365.)

         A September 10, 2008, report from Dr. Matthew Cobb noted that the MRI of Keith's cervical spine showed degenerative end plate changes with disc space narrowing at the C5-6 and C6-7 levels with anterior thecal sac effacement at both of these levels. (R. at 362-63.) At the C5-6 level, Dr. Cobb noted a broad-based disc osteophyte complex with mild central canal stenosis, more prominent on the left, mild right neuroforaminal stenosis and moderate left neuroforaminal stenosis. (R. at 362.) At the C6-7 level, Dr. Cobb noted a broad-based disc osteophyte complex eccentric to the left with mild central canal stenosis and no significant neuroforaminal stenosis. (R. at 362.) Dr. Cobb's impression was degenerative disc changes at the C5-6 and C6-7 levels with central canal and neuroforaminal stenosis. (R. at 363.)

         Keith returned to see Dayle Zanzinger, F.N.P., at Family Physicians of Marion on September 30, 2008, for complaints of sinus congestion and ear pain and for the results of her recent MRI. (R. at 364.) Keith complained of headache, shoulder pain and neck pain and was prescribed Vicodin. (R. at 364.) On October 6, 2008, Keith returned and saw Dr. David G. Parker, D.O., complaining that Vicodin did not help her pain and caused nausea. (R. at 361.) Keith complained of neck and back pain, and she rated her back pain as a 6 on a 10-point scale. (R. at 361.) Dr. Parker diagnosed spinal stenosis and prescribed Percocet. (R. at 361.) Keith returned to see Dr. Parker on October 20, 2008, and reported that Percocet seemed to help, but she was still sore. (R. at 358.) Dr. Parker diagnosed spinal canal stenosis and neuroforaminal stenosis, prescribed Percocet and recommended a neurosurgical evaluation at the University of Virginia, (“UVA”). (R. at 358.) Keith saw Dr. Parker again on October 31, 2008, and complained that Percocet did not relieve her neck and shoulder pain. (R. at 357.) Dr. Parker diagnosed cervical spinal stenosis and gave her another prescription for Percocet. (R. at 357.) Dr. Parker noted that Keith had an appointment at UVA on February 5, 2009. (R. at 357.)

         Keith saw Zanzinger again on November 19, 2008, for sinusitis. (R. at 360.) She also complained of left shoulder pain. (R. at 360.) Zanzinger diagnosed chronic pain and refilled Keith's Percocet prescription. (R. at 360.) On December 18, 2008, Dr. Parker saw Keith for complaints of worsening pain with cold. (R. at 359.) Dr. Parker diagnosed degenerative disc disease, cervical stenosis and chronic intractable pain; he gave Keith another Percocet prescription. (R. at 359.) Dr. Parker saw Keith again on January 16, 2009, and gave her another Percocet prescription. (R. at 356.)

         Keith returned to Dr. Parker on February 13, 2009, complaining that she had been seen at UVA, and the doctor there “didn't help at all.” (R. at 355.) Keith complained of back pain, which she rated an 8 on a 10-point scale, and she said that her Percocet prescription did not help “much at all any more.” (R. at 355.) Dr. Parker referred Keith to Dr. Graham at the Medical College of Virginia. (R. at 355.) Keith returned for a medication refill on March 12, 2009, and reported that she had an appointment with Dr. Graham on March 17, 2009. (R. at 354.) Dr. Parker noted that Keith was then laid off from work. (R. at 354.)

         Keith saw Dr. R. Scott Graham, M.D., at VCU Health Services/Medical College of Virginia, for a neurosurgical initial visit on March 17, 2009, for complaints of neck and shoulder pain. (R. at 301-02.) Keith reported many years of pain, which radiated into her shoulders on occasion. (R. at 301.) Nonetheless, Dr. Graham noted no radicular symptoms. (R. at 301.) Keith rated her pain at ¶ 8 on a 10-point scale, and she reported that she had been unable to work since July due to pain; she stated that she took Percocet and ibuprofen for pain relief. (R. at 301.)

         Keith stated that she suffered from a history of chronic bronchitis, arthritis and depression. (R. at 301.) She also complained of loss of appetite, weakness, ringing in her ears, occasional headaches, sinusitis, acid reflux, arthritis, depression and anxiety. (R. at 301.) Dr. Graham noted that Keith walked with a normal gait and exhibited normal strength throughout her upper extremities with no sensory abnormalities. (R. at 301.) He also noted that Keith's reflexes were 2. (R. at 301.) Dr. Graham noted that an MRI of Keith's cervical spine from September 2008 showed a focal area of spondylosis at ¶ 5-6 with a bone spur that narrowed to the left foramen. (R. ...


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