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Hibbitts v. Colvin

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

October 31, 2016

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant


          Pamela Meade Sargent, United States Magistrate Judge.

         I. Background and Standard of Review

         Plaintiff, Lois G. Hibbitts, (“Hibbitts”), 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 Hibbitts protectively filed an application for DIB on July 16, 2012, alleging disability as of June 29, 2012, due to severe scoliosis; arthritis; hypothyroidism; fibromyalgia; depression; swelling of the feet; borderline diabetic; and back and hip pain. (Record, (“R.”), at 151-52, 165, 169, 206.) The claim was denied initially and on reconsideration. (R. at 79-81, 85-87, 90-94, 96-98.) Hibbitts then requested a hearing before an administrative law judge, (“ALJ”). (R. at 99.) A hearing was held on March 10, 2014, at which Hibbitts was represented by counsel. (R. at 26-51.)

         By decision dated May 28, 2014, the ALJ denied Hibbitts's claim. (R. at 14-21.) The ALJ found that Hibbitts meets the nondisability insured status requirements of the Act for DIB purposes through December 31, 2016. (R. at 16.) The ALJ also found that Hibbitts had not engaged in substantial gainful activity since June 29, 2012, her alleged onset date.[1] (R. at 16.) The ALJ found that the medical evidence established that Hibbitts suffered from severe impairments, namely bilateral hip osteoarthritis and status-post left hip replacement; scoliosis and degenerative disc disease; diabetes mellitus; and obesity, but he found that Hibbitts 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 16-17.) The ALJ found that Hibbitts had the residual functional capacity to perform sedentary work[2] that allowed the opportunity to alternate between sitting and standing without moving away from her station; that did not require more than occasional stooping, crouching and kneeling; and that allowed her to be absent from work one day a month. (R. at 17.) The ALJ found that Hibbitts was able to perform her past relevant work as a school secretary. (R. at 20.) Thus, the ALJ found that Hibbitts was not under a disability as defined by the Act, and was not eligible for DIB benefits. (R. at 21.) See 20 C.F.R. § 404.1520(f) (2015).

         After the ALJ issued his decision, Hibbitts pursued her administrative appeals, (R. at 7-9), but the Appeals Council denied her request for review. (R. at 1-5.) Hibbitts 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 Hibbitts's motion for summary judgment filed June 13, 2016, and the Commissioner's motion for summary judgment filed July 14, 2016.

         II. Facts

         Hibbitts was born in 1955, (R. at 30, 151), which, at the time of the ALJ's decision, classified her as a “person of advanced age” under 20 C.F.R. § 404.1563(e). Hibbitts has a high school education and past work experience as a school secretary and library assistant. (R. at 30-31, 170.) Hibbitts stated that she could sit up to 25 minutes without interruption. (R. at 39.) She stated that she occasionally used a cane. (R. at 41.) Hibbitts stated that “frustration” was more of a problem for her than depression. (R. at 45.) She stated that she took Aleve and used a heating pad and TENS unit to manage her pain. (R. at 46.) Hibbitts stated that she had been offered narcotic pain medication, but refused to take it because of her fear of addiction. (R. at 45.)

         Vocational expert, Asheley Wells, also testified at Hibbitts's hearing. (R. at 35, 48-49.) Wells classified Hibbitts's work as a library assistant as light[3] and skilled and her work as a school secretary as sedentary and skilled. (R. at 35.) She stated that the job as school secretary customarily allowed for some alternating between sitting and standing. (R. at 48.) Wells stated that the need to engage in no more than occasional stooping, crouching or kneeling would not impact the ability to do the job. (R. at 49.)

         In rendering his decision, the ALJ reviewed records from Dr. Andrew Bockner, M.D., a state agency physician; Dr. Robert McGuffin, M.D., a state agency physician; Alan D. Entin, Ph.D., a state agency psychologist; Dr. Robert Keeley, M.D., a state agency physician; Dr. Dennis Aguirre, M.D.; Dr. Danny A. Mullins, M.D., an orthopaedist; Dr. Sudama S. Tholpady, M.D.; and Dr. Ashley Bevins, D.O.

         On November 2, 2007, Hibbitts saw Dr. Danny A. Mullins, M.D., with complaints of back and left hip pain. (R. at 260, 286.) Dr. Mullins reported that Hibbitts had arthritis of the hip; arthritic changes with scoliosis of the lumbosacral spine; and tenderness over the greater trochanter. (R. at 286.) Dr. Mullins administered a trochanter injection and advised Hibbitts to use a cane. (R. at 286.)

         On February 4, 2008, Hibbitts explained that she previously had been diagnosed with fibromyalgia, and Dr. Dennis Aguirre, M.D., assessed 10 of 18 positive trigger points. (R. at 229-33.) Hibbitts reported low back pain with occasional left hip pain and numbness and tingling in her right leg, after standing too long. (R. at 229.) Hibbitts reported that her functional impairment was moderate, and when present, it interfered with some of her daily activities and ability to sleep. (R. at 229.) Dr. Aguirre diagnosed massive obesity; hypothyroidism; left hip and leg pain; and severe degenerative disease. (R. at 233.) On February 21, 2008, Dr. Aguirre administered an epidural injection for Hibbitts's lumbar radiculopathy. (R. at 228.)

         On April 18, 2008, Hibbitts reported to Dr. Mullins that the previous trochanteric injection did not give her much relief. (R. at 282.) She also reported that the epidural injection gave her some relief, but the pain slowly returned. (R. at 282.) Hibbitts declined referral to a spine surgeon, stating that she believed one of her issues was her weight, with which Dr. Mullins agreed. (R. at 282.) On February 25, 2009, an MRI of Hibbitts's left hip showed subchondral cysts in the left ...

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