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Blanton v. Colvin

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

February 1, 2017

GLENN A. BLANTON, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

          MEMORANDUM OPINION

          Pamela Meade Sargent United States Magistrate Judge

         By: Pamela Meade Sargent United States Magistrate Judge I. Background and Standard of Review Plaintiff, Glenn A. Blanton, (“Blanton”), filed this action challenging the final decision of the Commissioner of Social Security, (“Commissioner”), denying his claims for disability insurance benefits, (“DIB”), and supplemental security income, (“SSI”), under the Social Security Act, as amended, (“Act”), 42 U.S.C.A. §§ 423 and 1381 et seq. (West 2011 & West 2012). Jurisdiction of this court is pursuant to 42 U.S.C. §§ 405(g) and 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). Neither party has requested oral argument; therefore, this case 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 Blanton protectively filed his applications for DIB and SSI[1] on October 11, 2011, alleging disability as of September 15, 2011, due to a herniated disc in his thoracic spine, carpal tunnel syndrome, depression and inability to handle stress. (Record, (“R.”), at 324-40, 355, 359, 397, 407.) The claims were denied initially and upon reconsideration. (R. at 181-204.) Blanton then requested a hearing before an administrative law judge, (“ALJ”). (R. at 205.) Blanton's original hearing was scheduled on June 13, 2013; however, Blanton requested a continuance so that he could submit additional evidence related to an upcoming neurological examination. (R. at 102-20.) The ALJ held a second hearing on January 15, 2014, at which Blanton was represented by counsel. (R. at 37-78.)

         By decision dated March 28, 2014, the ALJ denied Blanton's claims. (R. at 12-31.) The ALJ found that Blanton met the nondisability insured status requirements of the Act for DIB purposes through December 31, 2016. (R. at 15.) The ALJ found that Blanton had not engaged in substantial gainful activity since September 15, 2011, the alleged onset date.[2] (R. at 15.) The ALJ found that the medical evidence established that Blanton had severe impairments, namely thoracic and lumbar spine arthrosis; headache disorder; gastroesophageal reflux disease, (“GERD”); history of hyperlipidemia; vertigo; carpal tunnel syndrome, status-post bilateral carpal tunnel release; borderline intellectual functioning; anxiety; and depression, but he found that Blanton did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 15, 21.) The ALJ found that Blanton had the residual functional capacity to perform simple, unskilled, light work[3] that did not require him to sit more than four hours in an eight-hour workday; that did not require him to stand and/or walk more than four hours in an eight-hour workday; that did not require more than occasional crouching, stooping and overhead reaching; and that did not require continuous reaching, handling or fingering with the bilateral upper extremities. (R. at 27.) The ALJ found that Blanton was unable to perform his past relevant work. (R. at 29.) Based on Blanton's age, education, work history and residual functional capacity and the testimony of a vocational expert, the ALJ found that a significant number of other jobs existed in the national economy that Blanton could perform, including jobs as a gate guard/night guard and a cafeteria attendant. (R. at 29-30.) Thus, the ALJ concluded that Blanton was not under a disability as defined by the Act and was not eligible for DIB or SSI benefits. (R. at 31.) See 20 C.F.R. §§ 404.1520(g) 416.920(g) (2016).

         After the ALJ issued his decision, Blanton pursued his administrative appeals, (R. at 6-8, 423-25), but the Appeals Council denied his request for review. (R. at 1-5.) Blanton 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, 416.1481 (2016). This case is before this court on Blanton's motion for summary judgment filed May 13, 2016, and the Commissioner's motion for summary judgment filed June 14, 2016.

         II. Facts

         Blanton was born in 1975, (R. at 324, 328), which classifies him as a “younger person” under 20 C.F.R. §§ 404.1563(c), 416.963(c). Blanton has a high school education and past work experience as a material handler, an installer of mobile homes, an order clerk and a machine operator. (R. at 29, 66-68, 116-18, 360.) Blanton stated that medication helped his headaches “a little bit.” (R. at 46.) He stated that he could stand and walk for up to five minutes without interruption. (R. at 50.) Blanton stated that, when he stands for a long time, his legs feel “real heavy.” (R. at 50.) He stated that it was difficult for him to keep his balance due to dizziness. (R. at 52.) Blanton stated that he experienced periods of blurred vision. (R. at 53.) He stated that he quit his job because he “started messing up” and he did not want to be fired. (R. at 54-55.) Blanton stated that his medication helped his symptoms of anxiety. (R. at 55.) Other than being evaluated by psychologist Steward, Blanton stated that he had not been treated by a psychologist, counselor or mental health therapist. (R. at 55-56.) Blanton stated that he had never used cocaine or illegal drugs, and that, while he had consumed alcoholic beverages in the past, he was not an alcoholic. (R. at 64-65.)

         Medical expert, Dr. William S. Erwin, Jr., M.D., also testified at Blanton's hearing. (R. at 57-64.) Dr. Erwin stated that the record showed that Blanton had an abnormal MRI; GERD; thoracic and lumbar osteoarthrosis; bulging discs; a history of hyperlipidemia; a history of chronic tenderness and vertigo; and a history of depression and anxiety. (R. at 60-61.) Dr. Erwin stated that Blanton's impairments did not meet or equal a listed impairment. (R. at 62.) He stated that, Steward's assessment, indicating that Blanton's emotional and psychiatric problems were so severe that he could not work, was the first time that the record indicated that Blanton suffered from such a severe level of depression and anxiety. (R. at 62.) Dr. Erwin stated that, if Steward's assessment was accepted, Blanton would meet a psychiatric listed impairment. (R. at 62.) He stated that Blanton's documented functional impairments, aside from his documented physical impairments, were not severe enough to render him unable to work. (R. at 63.) Dr. Erwin stated that there would be some impact on Blanton's activities as a result of osteoarthrosis of the thoracic lumbar spine. (R. at 63.) Dr. Erwin stated that Blanton's physical impairments would not preclude him from sitting six hours in an eight-hour workday or limit him to less than six hours of standing and/or walking in an eight-hour workday. (R. at 64.)

         Gerald Wells, a vocational expert, also was present and testified at Blanton's hearing. (R. at 66-76.) Wells was asked to consider a hypothetical individual of Blanton's age, education and work history, who would be limited to simple, light work that did not require more than occasional overhead reaching, stooping and crouching; that did not require more than frequent reaching, handling or fingering; and who would be able to understand, remember and carry out short, simple instructions, to follow a supervisor's directions, to interact with others and to adapt to or respond to routine work changes. (R. at 68-69.) Wells stated that the individual could perform jobs existing in significant numbers in the national economy, including those of a mail room clerk and an order filler. (R. at 69.) Wells was asked to consider the same individual, but who would be limited to sedentary[4]work. (R. at 70.) He stated that there would be jobs available that such an individual could perform, including jobs as a dispatcher of maintenance workers, an inspector, a tester/sorter and a surveillance monitor. (R. at 69-71.) He stated that all jobs identified would allow for some alternation of sitting and standing while remaining at the work station. (R. at 71-72.) He stated that all jobs identified would be eliminated if the individual was limited to only occasional bilateral handling, fingering and feeling. (R. at 72.) When asked if the individual would be limited to only occasional handling, fingering and feeling with one upper extremity, Wells stated that there would be a very narrow range of jobs available, such as a ticket taker and a host. (R. at 72-73.) Wells stated that it would be difficult for a person to sustain work in these jobs if they were absent from work more than one day a month. (R. at 73.)

         When asked to consider an individual who could occasionally lift 20 pounds and sit, stand and/or walk up to four hours in an eight-hour workday, Wells stated that the individual could perform jobs as a gate guard, a night guard and a cafeteria cashier. (R. at 74-75.) Wells stated that these jobs did not require overhead reaching, more than occasional stooping and crouching and constant other reaching, handling and fingering. (R. at 75.) He stated that, as long as the individual could follow short, simple instructions, follow a supervisor's directions and interact with others appropriately, the individual could perform the jobs as a gate guard, a night guard and a cafeteria cashier. (R. at 75.)

         In rendering his decision, the ALJ reviewed records from Wise County Public Schools; Dr. Robert Keeley, M.C., a state agency physician; Howard S. Leizer, Ph.D., a state agency psychologist; Dr. Joseph Duckwall, M.D., a state agency physician; Appalachian Orthopaedic Associates, P.C.; Dr. Matthew W. Wood, Jr., M.D.; Stacey Gipe, P.A., a physician's assistant; L. Andrew Steward, Ph.D., a licensed clinical psychologist; Dr. Gale E. Jackson, M.D.; Dr. Emily S. Shields, M.D., a neurologist; Dr. Larry Hartman, M.D.; Dr. Wes Campbell, D.O.; Norton Community Hospital; Dr. David Jones, M.D., a neurologist; University of Virginia Hospital; and Dr. Pema O. Bhutia, M.D.

         On August 12, 2010, Blanton underwent an electromyogram and nerve conduction study, which showed moderately severe bilateral carpal tunnel syndrome. (R. at 672.) The record shows that Blanton underwent bilateral carpal tunnel release in October and November 2010. (R. at 427, 475-78.) In January 2011, Blanton reported that his numbness, paresthesias and pain had resolved. (R. at 428.) He reported that he had returned to work without any problems. (R. at 428.)

         On October 25, 2010, Blanton saw Stacey Gipe, P.A., a physician's assistant with Appalachian Healthcare Associates, P.C., for complaints of thoracic back pain and headaches; however, he stated that he was doing better. (R. at 497.) Blanton reported that his back pain was doing much better and that he was doing well following bilateral carpal tunnel surgery. (R. at 496.) On September 15, 2011, Blanton's examination was normal with the exception of tenderness over his thoracic spine. (R. at 494.) Gipe ordered a thoracic MRI and referred Blanton for a neurosurgery consultation. (R. at 494.) On September 23, 2011, an MRI of Blanton's thoracic spine showed some Schmorl's nodes at the mid thoracic spine with some mild, chronic appearing compression deformities; left paracentral disc protrusion osteophytes complex at the T6-T7 level; and some minor degenerative changes at the T5-T6 level. (R. at 674.) On October 27, 2011, Blanton reported that he was doing much better overall. (R. at 490.) He stated that his pain was under control with medication. (R. at 490.) Gipe noted that Blanton had good grip strength in both hands; he had mild tenderness and some paraspinous thoracic muscle spasm of the back; straight leg raising tests were negative; he had good dorsal plantar flexion of the feet; and a normal gait. (R. at 490-91.) Gipe noted that a form was completed to keep Blanton out of work, but she stated that she could not do this indefinitely. (R. at 491.)

         On November 3, 2011, Gipe and Dr. Wes Campbell, D.O., completed a physical assessment, indicating that Blanton could occasionally lift and carry items weighing up to five pounds; that he could stand and/or walk up to 10 minutes without interruption; and that he could sit up to 15 minutes without interruption.[5](R. at 512-14.) They reported that Blanton could not climb; stoop; kneel; balance; crouch; and crawl. (R. at 513.) They found that Blanton's abilities to reach, to handle, to feel, to push and to pull were affected by his impairment. (R. at 513.) No environmental restrictions were noted. (R. at 514.) They noted that Blanton was “not able to work at all.” (R. at 514.) On January 5, 2012, Blanton stated that, despite the neurosurgeon's belief that he would have no problem with returning to regular work, he was afraid to return to work because he continued to have pain when he did not take his pain medication. (R. at 534.) Gipe noted that Blanton had good range of motion of the thoracic spine; he had negative straight leg raising tests; and he had tenderness over the thoracic paraspinous muscles. (R. at 534.) She reported that Blanton was obviously stressed and mildly depressed. (R. at 534.)

         On October 21, 2011, Dr. Matthew W. Wood, Jr., M.D., a neurosurgeon, saw Blanton for complaints of thoracic pain with lower extremity paresthesias and weakness. (R. at 486-87.) Upon examination, Blanton's upper and lower extremity strengths were normal and symmetric; dorsiflexion and plantar flexion were intact; he had no focal tenderness to palpation in the posterior cervical, thoracic or lumbar region; he had good range of motion of the shoulders with no signs of impingement; straight leg raising tests were negative; his hip examination was unremarkable; and he was neurologically intact. (R. at 486.) Dr. Wood noted that an MRI study performed on September 23, 2011, revealed a small paracentral and left T6-T7 disc protrusion without central canal compromise, spinal cord compression or significant neural foraminal stenosis and a mild encroachment of the T7 nerve root. (R. at 486.) Dr. Wood diagnosed small paracentral and left T7-T7 disc protrusion; thoracic discomfort with some radicular complaints in a T7 distribution; lower extremity paresthesias with fatigue and heaviness of unclear etiology with no findings on his recent MRI study or physical examination; bilateral carpal tunnel decompression performed in 2010; anxiety; GERD; and tobacco use. (R. at 486-87.) Dr. Wood noted that Blanton's small disc protrusion would not cause his lower extremity paresthesias or ...


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