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Jennings v. Berryhill

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

March 3, 2017

CRYSTAL JENNINGS, Plaintiff,
v.
NANCY A. BERRYHILL, [1]Defendant.

          REPORT AND RECOMMENDATION

          Joel C. Hoppe United States Magistrate Judge

         Plaintiff Crystal Jennings asks this Court to review the Commissioner of Social Security's (“Commissioner”) final decision denying her applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act (the “Act”), 42 U.S.C. §§ 401-434, 1381-1383f. The case is before me by referral under 28 U.S.C. § 636(b)(1)(B). ECF No. 14. Having considered the administrative record, the parties' briefs and oral arguments, and the applicable law, I find that the Commissioner's decision is not supported by substantial evidence. Therefore, I recommend that the Court DENY the Commissioner's Motion for Summary Judgment, ECF No. 18, and REMAND the case for further administrative proceedings.

         I. Standard of Review

         The Social Security Act authorizes this Court to review the Commissioner's final decision that a person is not entitled to disability benefits. See 42 U.S.C. § 405(g); Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). The Court's role, however, is limited-it may not “reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment” for that of agency officials. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Instead, the Court asks only whether the Administrative Law Judge (“ALJ”) applied the correct legal standards and whether substantial evidence supports the ALJ's factual findings. Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011).

         “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). It is “more than a mere scintilla” of evidence, id., but not necessarily “a large or considerable amount of evidence, ” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence review takes into account the entire record, and not just the evidence cited by the ALJ. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-89 (1951); Gordon v. Schweiker, 725 F.2d 231, 236 (4th Cir. 1984). Ultimately, this Court must affirm the ALJ's factual findings if “conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled.” Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)). However, “[a] factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law.” Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).

         A person is “disabled” if he or she is unable to engage in “any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). Social Security ALJs follow a five-step process to determine whether an applicant is disabled. The ALJ asks, in sequence, whether the applicant (1) is working; (2) has a severe impairment; (3) has an impairment that meets or equals an impairment listed in the Act's regulations; (4) can return to his or her past relevant work based on his or her residual functional capacity; and, if not (5) whether he or she can perform other work. See Heckler v. Campbell, 461 U.S. 458, 460-62 (1983); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The applicant bears the burden of proof at steps one through four. Hancock, 667 F.3d at 472. At step five, the burden shifts to the agency to prove that the applicant is not disabled. See id.

         II. Procedural History

         Jennings applied for DIB and SSI on September 9, 2011, alleging disability caused by hernia repair, asthma, chronic obstructive pulmonary disease (“COPD”), and arthritis in the right knee. Administrative Record (“R.”) 60, 70, ECF No. 11. She alleged onset of her disability on September 14, 2010, at which time she was thirty-nine years old. Id. Disability Determination Services (“DDS”), the state agency, denied her claims at the initial, R. 60-79, and reconsideration stages, R. 96-119. On May 15, 2014, Jennings appeared with counsel at an administrative hearing before ALJ Brian P. Kilbane, at which time the ALJ heard testimony from Jennings and Barristade Hensley, Ed.D., a vocational expert (“VE”). R. 24-54.

         ALJ Kilbane denied Jennings's claims in a written decision issued on June 9, 2014. R. 11-23. He found that Jennings had severe impairments of COPD, left leg arthropathy, obesity, and status post adhesion and hernia repairs. R. 13. Jennings's medically determinable impairments of gastroesophageal reflux disease, mild hyperopic astigmatism, deep vein thrombosis (“DVT”), hyperlipidemia, migraine headaches, and affective disorder were found to be nonsevere, and an alleged impairment of low back pain was not supported by the record. R. 13-15. The ALJ next determined that none of Jennings's impairments, alone or combination, met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1-in particular Listings 1.00 (disorders of the musculoskeletal system), 3.02 (chronic pulmonary insufficiency), and 5.06 (inflammatory bowel disease). R. 15-16.

         As to Jennings's residual functional capacity (“RFC”), [2] the ALJ found that she could perform light work[3] with no climbing of ladders, ropes, or scaffolds; occasional kneeling, crouching, crawling, and climbing of ramps or stairs; frequent stooping; and avoidance of concentrated exposure to environmental hazards. R. 16-21. Based on this RFC and the VE's testimony, the ALJ found that Jennings could perform her past relevant work as a customer service representative and cashier, or alternatively, could perform other work existing in significant numbers in the national and regional economies, including non-postal mail clerk, order clerk, and hand packer. R. 21-23. He therefore concluded that Jennings was not disabled. R. 23.

         Jennings sought review of the ALJ's opinion by the Appeals Council. R. 6-7. She submitted additional evidence for consideration, which the Appeal Council entered into the record. R. 4. On October 22, 2015, the Appeals Council denied Jennings's request for review without explanation. R. 1-3. This appeal followed.

         III. Facts

         Jennings has a long history of gastrointestinal (“GI”) issues dating back to 2000, when a television fell onto her chest, rupturing gastric contents into her mediastinum and abdomen. R. 684.[4] She underwent acute repair of a perforation to her upper GI tract at that time and had subsequent, similar repairs in 2001 and 2003. R. 304, 684. Around the time of her alleged onset date, she was hospitalized at Martinsville Regional Medical Center following an episode in which she experienced difficult defecation, sharp pain in the epigastrium, diffuse pain in the lower abdominal quadrants, shortness of breath, and vomiting blood. Id. A CT scan of her abdomen showed free peritoneal air, and an exploratory laparotomy found multiple adhesions, a viable incarcerated incisional hernia, and peritonitis of unknown etiology, but a site of perforation could not be identified. Id. Her hernia was excised, and her abdomen was flushed and closed. R. 684. She made slow progress over the next two weeks, experiencing a constant low-grade fever and moderate leukocytosis, which did not improve with antibiotic treatment. R. 684- 85. Another CT scan revealed free fluid in the right upper quadrant of the abdomen and in the pelvis. R. 685.

         On September 29, Jennings was transferred to Carilion Roanoke Memorial Hospital (the “hospital”) for treatment of her postoperative complications and abdominal abscesses. Id. Her abscesses were drained, with fecal matter present in the output of one drain, and a repeat CT scan suggested perforation of the sigmoid colon. Id. On October 3, Bruce A. Long, M.D., performed a sigmoid and left colon resection with distal transverse colostomy. Id.[5] Jennings remained hospitalized for about two weeks with some complications, including DVT in the bilateral lower extremities and slow progress with physical therapy. R. 685-86. She was discharged on October 19, at which time she tolerated a regular diet, had regular bowel movements, ambulated with a walker, and was in stable condition with her pain well-controlled. R. 686. Following her discharge, she received home nursing care for her colostomy site and her surgical wound. R. 757. She continued with home care until October 31, at times struggling because of a limited ability to ambulate, weakness, and pain around her surgical site, but at the time of her discharge she was able to perform activities of daily living with assistance. See generally R. 783-832.

         The record is then silent until March 15, 2011, at which time Jennings returned to Dr. Long for a follow-up visit. R. 707-10. She showed gradual improvement, but complained of some nausea and loss of appetite. R. 707. There was no evidence of bowel obstruction or persistent sepsis, and a CT scan showed that the abscess in her upper abdomen had resolved. R. 677, 709. On April 11, Jennings visited David H. Lewis, M.D., her primary care physician, with complaints of difficulty sleeping and increased nervousness. R. 1055. Dr. Lewis noted that her colostomy was functioning and that she was tender around her incision ...


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