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Gibson v. Berryhill

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

March 17, 2017

LISA M. GIBSON, 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, Lisa M. Gibson, (“Gibson”), filed this action challenging the final decision of the Commissioner of Social Security, (“Commissioner”), determining that she was not eligible for supplemental security income, (“SSI”), under the Social Security Act, as amended, (“Act”), 42 U.S.C.A. § 1381 et seq. (West 2012). Jurisdiction of this court is pursuant to 42 U.S.C. § 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 Gibson filed a previous application for SSI on June 30, 2008, which was denied initially and on reconsideration. (R. at 64.) Thereafter, by decision dated November 2, 2010, an ALJ denied Gibson's claim. (R. at 64-75.) The Appeals Council denied Gibson's request for review, and Gibson appealed the ALJ's unfavorable decision to this court. (R. at 89-93.) By Judgment dated December 20, 2013, this court affirmed the ALJ's unfavorable decision. See Gibson v. Colvin, Case No. 2:12cv00026. (Docket Item No. 18.) Therefore, res judicata attached to the prior decision. Gibson protectively filed her current application for SSI on November 13, 2010, alleging disability as of November 3, 2010, due to chronic obstructive pulmonary disease, (“COPD”); pain in the legs, arms and back; carpal tunnel syndrome; degenerative disc disease; seizures; urine problems; depression; nerves; and bipolar disorder; dizziness; numbness; and cramps. (Record, (“R.”), at 193-96, 217, 221, 238.) The claim was denied initially and on reconsideration. (R. at 112-14, 118-20, 123-24, 126-28, 130-32.) Gibson then requested a hearing before an administrative law judge, (“ALJ”). (R. at 133-34.) A hearing was held on October 29, 2013, at which Gibson was represented by counsel. (R. at 41-60.)

         By decision dated November 26, 2013, the ALJ denied Gibson's claim. (R. at 21-34.) The ALJ found that Gibson had not engaged in substantial gainful activity since November 3, 2010, the alleged onset date.[2] (R. at 23.) The ALJ determined that the medical evidence established that Gibson suffered from severe impairments, namely degenerative disc disease and/or changes in the lumbar spine and cervical spine; emphysema/COPD; hepatitis - liver problems; affective disorders; anxiety-related disorders; possible seizure disorder; and a history of polysubstance abuse (alcohol and drugs). (R. at 23-24.) The ALJ also found that, in 2013, the claimant was diagnosed with cirrhosis and hepatic failure. (R. at 24.) The ALJ found that, since November 3, 2010, Gibson had not had 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 24-28.) The ALJ found that, prior to March 28, 2013, Gibson had the residual functional capacity to perform simple, repetitive, unskilled light work, [3] that did not require more than six hours of standing, sitting and/or walking in an eight-hour workday; that did not require more than occasional balancing, kneeling, crouching, crawling or climbing of ramps or stairs and interacting with co-workers and supervisors; that did not require concentrated exposure to temperature extremes, excess humidity, pollutants and irritants; that required no exposure to hazards, climbing of ladders, ropes or scaffolds, working on vibrating surfaces or interacting with the public; and that did not require driving tasks. (R. at 28.) The ALJ also found that Gibson could respond appropriately to supervision, co-workers and usual work situations. (R. at 28.) The ALJ found that, beginning on March 28, 2013, Gibson had the residual functional capacity to perform simple, repetitive, unskilled sedentary work[4] that did not require standing and/or walking more than two hours in an eight-hour workday or sitting more than six hours in an eight-hour workday; that required no more than occasional balancing, kneeling, crouching, crawling, or climbing of ramps or stairs; that did not require concentrated exposure to temperature extremes, excess humidity, pollutants and irritants; that did not require any exposure to hazards, ladders, ropes or scaffolds or working on vibrating surfaces; and that did not require the performance of driving tasks. (R. at 32.) The ALJ also found that Gibson could not interact with the public and could only occasionally interact with co-workers and supervisors, but that she could respond appropriately to supervision, co-workers and usual work settings. (R. at 32.) The ALJ found that, since November 3, 2010, Gibson was unable to perform any past relevant work. (R. at 32.) The ALJ further found that, prior to March 28, 2013, Gibson was a “younger person, ” but since March 28, 2013, [5] Gibson's age category changed to a “person closely approaching advanced age.” (R. at 32.) The ALJ found that, prior to March 28, 2013, considering Gibson's age, education, work history and residual functional capacity and the testimony of a vocational expert, jobs existed in significant numbers in the national economy that Gibson could have performed, including jobs as a production worker, a packing line worker and a production helper. (R. at 33.) Thus, the ALJ found that, prior to March 28, 2013, Gibson was not under a disability as defined by the Act and was not eligible for SSI benefits. (R. at 34.) See 20 C.F.R. § 416.920(g) (2016). The ALJ found that, beginning on March 28, 2013, considering Gibson's age, education, work history and residual functional capacity and the testimony of a vocational expert, there were no jobs existing in significant numbers in the national economy that Gibson could perform. (R. at 34.) See 20 C.F.R. §§ 416.960(c), 416.966 (2016). More specifically, the ALJ found that, beginning on March 28, 2013, even if Gibson had the residual functional capacity for the full range of sedentary work, a finding of disabled was directed by the Medical-Vocational Guidelines, (“the Grids”), found at 20 C.F.R. Part 404, Subpart P, Appendix 2. (R. at 34.) Therefore, the ALJ found that Gibson was not disabled prior to March 28, 2013, but became disabled on that date and continued to be disabled through the date of the decision. (R. at 34.)

         After the ALJ issued her partially favorable decision, Gibson pursued her administrative appeals, (R. at 10-12), and the Appeals Council granted her request for review. (R. at 1-8.) By order dated June 19, 2015, the Appeals Council found that, as of September 28, 2013, when Gibson turned 50 years old, [6] she became a “person closely approaching advanced age, ” at which time the Grids directed a finding of disabled. (R. at 6.) Gibson then filed this action seeking review of the Appeals Council's partially favorable decision, which now stands as the Commissioner's final decision. See 20 C.F.R. § 416.1481 (2016). The case is before this court on Gibson's motion for summary judgment filed April 25, 2016, and on the Commissioner's motion for summary judgment filed May 31, 2016.

         II. Facts[7]

         Gibson was born in 1963, (R. at 44, 193), which, at the time of the alleged onset date, classified her as a “younger person” under 20 C.F.R. § 416.963(c), but at the time of the ALJ's decision, classified her as a “person closely approaching advanced age” under 20 C.F.R. § 416.963(d). Gibson obtained a General Equivalency Development, (“GED”), diploma and has six months of college instruction. (R. at 56, 222.) She has past work experience as a cashier, a cook, a prep cook and an owner of a country grocery store. (R. at 222.) She testified that she had a history of seizures and had been experiencing concentration and memory difficulty since having a seizure in June 2013, for which she was hospitalized. (R. at 47-48, 51.) She stated that, at the time of that hospitalization, she had a diagnosis of cirrhosis and had some swelling of the feet, legs and stomach. (R. at 48.) Gibson testified that she had not consumed alcohol since June 2013. (R. at 48.) She testified that, since the June 2013 seizure, she could no longer work. (R. at 51.) Gibson also testified that she could get around better prior to this seizure, noting that she was no longer able to go to the grocery store because she got “dizzy headed.” (R. at 52.) She testified that she had not driven in 10 or 15 years due to the seizures. (R. at 52.)

         Gibson testified that she suffered from depression and anxiety, which had worsened over the years. (R. at 54-55.) She reported crying spells and panic attacks. (R. at 55.) However, Gibson testified that she was not receiving any treatment for her mental impairments at the time of the hearing. (R. at 50.) She stated that she had seen a counselor in the past, but he canceled her appointment approximately a month prior to the hearing, and she had not heard back from him. (R. at 50.) She stated that she was not sure why she was seeing him. (R. at 50.) Gibson testified that she was psychiatrically hospitalized in 2008 after finding some drugs along the side of the road, which she took with alcohol. (R. at 50-51.)

         Asheley Wells, a vocational expert, also was present and testified at Gibson's hearing. (R. at 56-59.) Wells classified Gibson's past work experience as a fast food worker as medium[8] and unskilled, as performed; as a salad counter attendant as medium and semi-skilled, as performed; as a cashier at a grocery store as light and unskilled; and as an owner of a small market as light and skilled. (R. at 56-57.) Wells was asked to consider a hypothetical individual “such as the claimant, ”[9] who had the residual functional capacity to perform only simple, repetitive, unskilled light work, with some postural and environmental limitations, and which required no interactions with the general public and no more than occasional interaction with co-workers and supervisors. (R. at 57.) This individual could respond appropriately to supervision, co-workers and usual work situations. (R. at 57.) Wells testified that such an individual could not perform any of Gibson's past relevant work, either as she performed it or as it customarily is performed in the national economy. (R. at 57.) Next, Wells was asked to consider the same hypothetical individual who was a “younger person” at the alleged onset date of disability, but who became a “person closely approaching advanced age, ” with Gibson's education and past work experience. (R. at 57-58.) Wells testified that such an individual could perform the jobs of a production worker, a packing line worker and a production worker, such as a garment folder. (R. at 58.) Wells was asked to consider the same hypothetical individual, but who had some more limiting postural limitations, and who would have substantial problems with even simple work due to memory difficulties. (R. at 58.) Wells testified that such an individual could not perform any of Gibson's past relevant work, nor could she perform any other work existing in significant numbers in the national economy. (R. at 58-59.) Wells testified that Gibson's skilled and semi-skilled work would not have generated skills that could be transferred to skilled or semi-skilled work within the parameters of this third hypothetical. (R. at 59.)

         In rendering her decision, the ALJ reviewed records from Bon Secours St. Mary's Hospital; Wise County Health Department; Ridgeview at Bristol Regional Medical Center; Lonesome Pine Hospital; Wise County Behavioral Health Services; Stone Mountain Health Services; Norton Community Hospital; University of Virginia Health Systems; B. Wayne Lanthorn, Ph.D., a licensed clinical psychologist; Southwest Surgical Clinic; Dr. Kevin Blackwell, D.O.; Remote Area Medical Clinic; Dr. L. D'Amato, M.D.; Community Clinic; Frontier Health Assessment & Forensic Services; Indian Path Medical Center; Health Wagon; Holston Medical Group; Howard S. Leizer, Ph.D., a state agency psychologist; Dr. Joseph Duckwall, M.D., a state agency physician; Eugenie Hamilton, Ph.D. a state agency psychologist; and Dr. Robert McGuffin, M.D., a state agency physician.

         By way of background, the court notes that Gibson was hospitalized at Ridgeview at Wellmont Bristol Regional Medical Center on a temporary detention order on April 12, 2008, after overdosing on 12 beers, two shots of liquor, Valium and Xanax. (R. at 275-303, 619-20.) She denied suicidal thoughts on admission, and she denied all past psychiatric history, including medications, counseling and hospitalizations. (R. at 279.) On admission, she was moderately depressed and moderately anxious with a blunted affect. (R. at 280.) Gibson was discharged on April 14, 2008, with diagnoses of depression, not otherwise specified; adjustment disorder; and a Global Assessment of Functioning, (“GAF”), [10] score of 60.[11] (R. at 275.) At the time of discharge, Gibson's affect was a little bit brighter, she was fully oriented, recent and remote memory appeared intact, she denied auditory or visual hallucinations or delusions, she denied suicidal or homicidal ideation, and her judgment and insight were fair. (R. at 276.) She was not prescribed any medications, but was advised to follow up with Wise County Behavioral Health Services, (“WCBHS”). (R. at 275.)

         Gibson was seen at WCBHS from February 14, 2006, through March 12, 2009, during which time she successfully completed Virginia Alcohol Safety Action Program, (“VASAP”), sessions after receiving a charge of driving under the influence. (R. at 323-80.) Over this time, she had a euthymic mood with congruent affect. (R. at 353-65, 367-78.) She did not have any overt signs of substance abuse. (R. at 353-65, 367-78.) On July 21, 2008, Gibson was seen for a Crisis Intervention/Consultation. (R. at 614-15.) She reported being depressed and attempting to obtain disability benefits. (R. at 614.) A history of substance abuse/dependence was noted. (R. at 615.) Gibson was diagnosed with depressive disorder, not elsewhere classified, and her GAF score was assessed at 50.[12] (R. at 615.) From August 8, 2008, through December 16, 2009, Gibson saw James Kegley, MS, sporadically, for mental health counseling to address complaints of depression and anxiety. (R. at 326-51, 649-95.) Over this time, she reported depression due to multiple life stressors, including being unemployed and seeking disability benefits, physical health complaints, financial and transportation difficulties and difficulty with a long-term relationship that had ended in 2000. (R. at 329, 650, 659, 671, 673, 681, 688, 692.) Kegley stated that Gibson was able to complete all activities of daily living and independent living with no intervention. (R. at 331.) Gibson reported no substance abuse issues. (R. at 333.) She was diagnosed with major depressive disorder; anxiety disorder, not otherwise specified; nicotine dependence; and a GAF score of 50, with 50 being her highest and lowest scores in the previous six months. (R. at 339.) Over this time, her mood was mildly depressed with congruent affect, with the exception of one occasion in August 2009, when her mood ranged from moderately to severely depressed, and one occasion in September 2009, when it was mildly to moderately depressed. (R. at 649-50, 657, 659, 671, 673, 681, 688, 691-93.) On November 5, 2009, Gibson stated that she had a new partner, and they had “a ball together, ” going places together and planning to celebrate Thanksgiving together. (R. at 650.) Gibson was dressed and groomed better than at times in the past. (R. at 650.) Kegley noted that her new relationship appeared to lessen some of Gibson's daily stress. (R. at 650.) On December 16, 2009, WCBHS received a call from Norton Community stating that she was admitted the previous day with a blood alcohol level of .487.[13] (R. at 648.) Gibson had stated that she was “just partying and drank too much.” (R. at 648.) Gibson also reported drinking every day. (R. at 648.) Gibson was discharged by Kegley on February 17, 2010, after she failed to make contact with him after numerous attempts. (R. at 621, 644.)

         On July 20, 2010, Gibson saw C. Looney, a family nurse practitioner, at Stone Mountain Health Services, (“Stone Mountain”), for a general physical in order to file a disability claim. (R. at 553-55.) Gibson did not note any psychiatric difficulties, and Looney noted no abnormalities with orientation, memory, mood and affect or insight and judgment. (R. at 553-54.) She was prescribed Celexa for depression and anxiety. (R. at 555.)

         Gibson returned to counseling with Kegley in July 2010. (R. at 641.) In an intake assessment, dated July 2, 2010, she reported that her mother's death in 2005 and the loss of her family business in 2006 caused much of her anxiety and depression. (R. at 616-18.) She denied any suicidal or homicidal ideations, as well as auditory or visual hallucinations. (R. at 617.) She was provisionally diagnosed with major depressive disorder, single episode; anxiety state, unspecified; and nondependent tobacco use disorder. (R. at 617.) Her then-current GAF score was assessed at 60, with the highest being 65[14] and the lowest being 50 in the previous six months. (R. at 617.) She was noted to be depressed and anxious with sleep disturbance and a history of substance abuse/dependence. (R. at 617-18.) It further was noted that there had been a marked reduction in Gibson's psychiatric, adaptive or behavioral functioning or an extreme increase in personal distress, as supported by Gibson's reports that her depression and anxiety had increased in the previous six months due to increased life stressors, physical health problems and financial problems. (R. at 618.) Gibson continued to see Kegley through August 27, 2010. (R. at 575-83, 591-603, 605-07, 638-39.) On July 30, 2010, his diagnoses of Gibson remained unchanged, but he placed her GAF score at 50. (R. at 595.) However, Kegley noted that Gibson was able to complete all activities of daily living and independent living with no intervention. (R. at 580.) She reported depression and anxiety due to her various past and current life issues. (R. at 580.) Gibson reported occasional use of alcohol. (R. at 582.) In August 2010, she reported having panic attacks once or twice weekly, but stated she did not know what caused them. (R. at 639.) Gibson was mildly depressed with congruent affect. (R. at 639.) She reported going to the library once or twice weekly for diversion/leisure. (R. at 639.) On August 27, 2010, she reported that her nerves were “always bad, ” and she wished she was able to work. (R. at 638.) Gibson reported continued daily panic attacks, and she stated that her anxiety was such that she did not want to be near anyone. (R. at 638.) Her mood was mildly depressed with congruent affect. (R. at 638.)

         On September 29, 2010, in connection with her previous SSI application, Gibson saw B. Wayne Lanthorn, Ph.D., a licensed clinical psychologist, for a psychological evaluation at the request of her counsel. (R. at 560-71.) Gibson reported attending counseling and that she had just begun taking Celexa. (R. at 564.) She had a flat affect, and her mood was described as an agitated depression. (R. at 565.) She reported crying daily with a progressively worsening short-term memory. (R. at 565.) Gibson reported concentration difficulties and mind wandering with distractibility. (R. at 565.) She reported having panic attacks for several years. (R. at 565.) The Wechsler Adult Intelligence Scale - Fourth Edition, (“WAIS-IV”), was administered, on which Gibson achieved a full-scale IQ score of 62, placing her in the extremely low range of intellectual functioning. (R. at 566.)[15] The Minnesota Multiphasic Personality Inventory - Second Edition, (“MMPI-2”), also was administered, the results of which indicated that Gibson might have responded in a random or unselected manner to items toward the end of the test. (R. at 567-68.) Therefore, her profile had to be interpreted with clinical caution due to the validity scales. (R. at 568.)

         Lanthorn diagnosed Gibson with major depressive disorder, recurrent, severe; pain disorder associated with both psychological factors and general medical conditions, chronic; anxiety disorder with both panic attacks and generalized anxiety disorder due to chronic physical problems, pain and limitations; mild mental retardation; and rule out personality disorder. (R. at 569-70.) He placed her then-current GAF score at 50. (R. at 570.) Lanthorn opined that Gibson was able to manage her own funds, and he deemed her psychological prognosis guarded. (R. at 570.) He found that Gibson was functioning in the mild mentally retarded range. (R. at 570.) He concluded that Gibson was severely depressed with frequent panic attacks and ongoing generalized anxiety, but that she had intact communication skills and was capable of exercising appropriate self-care. (R. at 570-71.) Lanthorn concluded that Gibson had severe psychological limitations with regard to functioning in gainful employment at that time. (R. at 571.)

         Lanthorn also completed a mental assessment, indicating that Gibson had either a seriously limited or no useful ability in all areas of making occupational, performance and personal/social adjustments. (R. at 572-74.) He noted that his diagnoses of Gibson supported this mental assessment. (R. at 572.) Lanthorn opined that Gibson could manage benefits in her own best interest and that ...


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