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Penner v. Berryhill

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

February 17, 2017

ALICIA J. BROWN PENNER, Plaintiff
v.
NANCY A. BERRYHILL,[1] Acting Commissioner of Social Security, Defendant

          MEMORANDUM OPINION

          PAMELA MEADE SARGENT, UNITED STATES MAGISTRATE JUDGE

         I. Background and Standard of Review

         Plaintiff, Alicia J. Brown Penner, (“Penner”), 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 Penner protectively filed an application for DIB on May 13, 2010, alleging disability as of July 29, 2009, due to tinnitus nitrous, vertigo and mitral valve prolapse. (Record, (“R.”), at 308-09, 388, 392.) The claim was denied initially and on reconsideration. (R. at 131-59.) Penner then requested a hearing before an administrative law judge, (“ALJ”), and a hearing was held on March 21, 2012, at which Penner was represented by counsel and a vocational expert testified. (R. at 92-129, 163, 200.) By decision dated April 13, 2012, the ALJ denied Penner's claim. (R. at 163-80.) After the ALJ issued his decision, Penner pursued her administrative appeals, (R. at 243), and the Appeals Council remanded her claim to the ALJ for further evaluation. (R. at 185-89.)

         On remand, by decision dated February 27, 2014, the ALJ, again, denied Penner's claim. (R. at 16-44.) The ALJ found that Penner met the nondisability insured status requirements of the Act for DIB purposes through December 31, 2016. (R. at 18.) The ALJ also found that Penner had not engaged in substantial gainful activity since her alleged onset date of July 29, 2009.[2] (R. at 18.) The ALJ found that the medical evidence established that Penner suffered from severe impairments, namely congenital hand and foot bone shortening, degenerative disc disease, migraines, vestibular system disorder, obstructive sleep apnea, obesity, affective disorder, anxiety disorder and somatoform disorder, but he found that Penner 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 19-22.) The ALJ found that Penner had the residual functional capacity to perform light work[3] that did not require occasionally lifting items weighing more than 50 pounds, frequently lifting items weighing more than 20 pounds, sitting for more than five hours in an eight-hour workday, standing more than three hours in an eight-hour workday or walking more than one hour in an eight-hour workday. (R. at 22.) The ALJ also found that Penner could occasionally push/pull with both hands, frequently handle, finger and feel with both hands, continuously reach both overhead and in all other directions with both hands, frequently operate foot controls with both feet, should never climb ladders, ropes and scaffolds, could frequently stoop and crouch, occasionally climb ramps/stairs, balance, kneel and crawl, occasionally work around unprotected heights or moving mechanical parts, could be continuously exposed to operating a motor vehicle, humidity and wetness, dusts, odors, fumes, temperature extremes and vibrations. (R. at 22.) He also found that Penner could understand, remember and carry out simple and complex instructions, make judgments on simple and complex, work-related decisions, but she had a moderate limitation on her ability to interact appropriately with the public, supervisors and co-workers and on her ability to respond appropriately to usual work situations and to changes in a routine work setting. (R. at 22.) The ALJ found that, through the date last insured, Penner was unable to perform her past relevant work. (R. at 43.) Based on Penner's age, education, work experience and residual functional capacity and the testimony of a vocational expert, the ALJ found that, through the date of his decision, jobs existed in significant numbers in the national economy that Penner could perform, including jobs as a small parts assembler, a laundry folder and an electronic worker. (R. at 43-44.) Thus, the ALJ found that, through the date of his decision, Penner was not under a disability as defined by the Act, and was not eligible for DIB benefits. (R. at 44.) See 20 C.F.R. § 404.1520(g) (2016).

         After the ALJ issued his decision, Penner pursued her administrative appeals, (R. at 12), but the Appeals Council denied her request for review. (R. at 1-3.) Penner 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 (2016). The case is before this court on Penner's motion for summary judgment filed February 10, 2016, and the Commissioner's motion for summary judgment filed March 21, 2016.

         II. Facts

         Penner was born in 1977, (R. at 308, 388), which, at the time of the ALJ's decision, classified her as a “younger person” under 20 C.F.R. § 404.1563(c). Penner has high school education and past work as a cake decorator, a cashier, a draw warp operator, a material handler and a waitress and baker. (R. at 393-94.)

         In rendering his decision, the ALJ reviewed records from Stuarts Draft Family Practice; Blue Ridge Footcare & Surgery, PLC; Augusta Medical Center; Meadowcrest E.N.T. & Facial Cosmetic Center; Harrisonburg Ob/Gyn Associates, P.C.; University of Virginia Hospital Department of Neurology; Dr. Leslie Ellwood, M.D., a state agency physician; Stonsa N. Insinna, Ph.D., LCP, a state agency psychologist; Luc Vinh, a state agency medical consultant; Sandra Francis, Psy.D., a state agency psychologist; Dr. Scott Kohler, M.D., a neurologist; RMH Center for Sleep Medicine; Dr. Glenn E. Deputy, M.D., a neurologist with Harrisonburg Medical Associates; Rockingham Memorial Hospital; Dr. Darin Christensen, M.D., a psychiatrist with Shenandoah Psychiatric Medicine; Janet S. Bienen, LPC, with Page County Counseling PLC; Joseph J. Cianciolo, Ph.D., a consultative licensed clinical psychologist.

         Since Penner contests only the ALJ's finding as to her physical residual functional capacity, the court will address only the evidence of record on this issue. The medical evidence of record shows that Penner began treating for complaints of severe headaches and dizziness as early as 2009. (R. at 588, 603-04, 610, 624.) Based on a lack of objective findings, it was suggested that Penner's symptoms might have been functional in nature or due to a personality disorder. (R. at 593, 608, 614.)

         Penner underwent a Neuropsychological Evaluation by Stephen Zieman, Ph.D., of the University of Virginia Department of Neurology, on January 14, 2010, to rule out dementia versus pseudodementia. (R. at 598.) Penner complained of worsening cognitive abilities, specifically for short-term memory, attention, concentration and motor coordination. (R. at 598.) Penner reported weakness in both hands, swelling of her extremities, fatigue and dizziness and vertigo walking down stairs. (R. at 598.) She reported a history of post-parturm depression, but denied any then-current problem. (R at 599.) Penner presented somewhat disheveled with a slow gait, but no significant deficits in mobility. (R. at 599.) Sensory-motor coordination appeared normal; there were no observed significant deficits in her speech, language, expression or comprehension; she gave up easily on tasks; and she voiced physical complaints, then appeared to recover. (R. at 599.) Dr. Zieman stated that the results of her evaluation might underestimate her then-current capabilities. (R. at 599.) He estimated her intelligence in the average range. (R. at 600.) She performed poorly on numerous tests, but Dr. Zieman noted that her effort was poor. (R. at 600-01.) Dr. Zieman stated that Penner was not experiencing the early stages of a neurodegenerative etiology and, instead, stated that she appeared to meet the criteria for a conversion disorder. (R. at 602.)

         Dr. Glenn E. Deputy, M.D., a neurologist, eventually diagnosed Penner with occipital neuraligia bilaterally, which he treated successfully with nerve block injections. (R. at 836-46, 878, 881-82.) In 2010, when Penner suggested to Dr. Deputy that she was disabled, he noted: “So far it is unclear to me as to whether there is any neurological disability.” (R. at 846.)

         State agency physician Dr. Leslie Ellwood, M.D., completed a Residual Functional Capacity Assessment on Penner on November 30, 2010. (R. at 138-39.) Dr. Ellwood stated that Penner could lift items weighing up to 50 pounds occasionally and 25 pounds frequently and could stand and/or walk up to six hours and sit up to six hours in an eight-hour workday. (R. at 138.) Dr. Ellwood stated that Penner could frequently ...


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