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McNutt v. Berryhill

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

April 10, 2017

JASON S. MCNUTT, 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, Jason S. McNutt, (“McNutt”), 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 McNutt protectively filed his applications for DIB and SSI on December 9, 2011, alleging disability as of September 15, 2010, due to post-traumatic stress disorder, (“PTSD”); left arm, shoulder and bilateral knee problems; anxiety; panic attacks; depression; and back pain. (Record, (“R.”), at 211-17, 227, 231, 257.) The claims were denied initially and upon reconsideration. (R. at 113-15, 122-25, 127-32, 134-36.) McNutt then requested a hearing before an administrative law judge, (“ALJ”). (R. at 137-38.) The ALJ held a hearing on May 29, 2014, at which McNutt was represented by counsel. (R. at 40-69.)

         By decision dated July 17, 2014, the ALJ denied McNutt's claims. (R. at 20-35.) The ALJ found that McNutt met the nondisability insured status requirements of the Act for DIB purposes through December 31, 2015. (R. at 22.) The ALJ found that McNutt had not engaged in substantial gainful activity since September 15, 2010, the alleged onset date.[2] (R. at 22.) The ALJ found that the medical evidence established that McNutt had severe impairments, namely mild sensorineural hearing loss; bilateral chondromalacia patellae; low back issues; back and shoulder residuals from a motor vehicle accident; an adjustment disorder with anxiety; a panic disorder without agoraphobia; and PTSD, but she found that McNutt 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 22-23.) The ALJ found that McNutt had the residual functional capacity to perform simple, repetitive, unskilled, light work[3] that did not require more than occasional climbing of ramps and stairs, kneeling, crawling, crouching and stooping; that did not require more than frequent balancing and reaching overhead with the left upper extremity; that did not require him to work around hazardous machinery, unprotected heights, climbing of ropes, ladders or scaffolds, vibrating surfaces or loud background noise; and that did not require more than occasional interaction with co-workers, supervisors and the public. (R. at 26-27.) The ALJ found that McNutt was unable to perform his past relevant work. (R. at 33.) Based on McNutt'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 McNutt could perform, including jobs as an inspector/grader, a packer and a cleaner. (R. at 34-35.) Thus, the ALJ concluded that McNutt was not under a disability as defined by the Act, and was not eligible for DIB or SSI benefits. (R. at 35.) See 20 C.F.R. §§ 404.1520(g) 416.920(g) (2016).

         After the ALJ issued her decision, McNutt pursued his administrative appeals, (R. at 13), but the Appeals Council denied his request for review. (R. at 1-3.) McNutt 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 McNutt's motion for summary judgment filed July 14, 2016, and the Commissioner's motion for summary judgment filed August 16, 2016.

         II. Facts

         McNutt was born in 1974, (R. at 44, 211), which classifies him as a “younger person” under 20 C.F.R. §§ 404.1563(c), 416.963(c). McNutt completed some college through the military and has an OSHA safety inspection certification. (R. at 45.) He has past work experience as a veterans affairs service officer, a railroad conductor, an OSHA safety inspector, and he served in the military in the infantry as a sergeant. (R. at 45-46, 64-65.) McNutt stated that he received compensable disability through the Department of Veterans Affairs, (“VA”), for service-connected injuries to his knees. (R. at 47.) He stated that the compensable percentage for his bilateral knee condition was 40 percent. (R. at 47.) McNutt also stated that his PTSD has been determined a compensable disability by the VA. (R. at 48.) He stated that he received injuries from a motor vehicle accident in 2008. (R. at 48.) McNutt stated that he could walk up to 15 minutes without interruption and that he could not sit for more than 10 minutes without interruption due to anxiety. (R. at 50.)

         Robert W. Jackson, a vocational expert, also was present and testified at McNutt's hearing. (R. at 63-68.) Jackson was asked to consider a hypothetical individual of McNutt's age, education and work history, who would be limited to simple, repetitive, unskilled light work that did not require more than occasional climbing of ramps and stairs, kneeling, crawling, crouching and stooping; that did not require more than frequent balancing and reaching overhead; that did not require him to work around hazardous machinery, unprotected heights, climbing of ropes, ladders, scaffolds, vibrating surfaces or loud background noise; and that did not require more than occasional interaction with co-workers, supervisors and the public. (R. at 65-66.) Jackson stated that the individual could not perform McNutt's past relevant work, but that he could perform light jobs existing in significant numbers in the national economy, including those of an inspector/grader, [4] a packer[5] and a cleaner.[6] (R. at 66-67.) Jackson was asked to consider the same individual, but who could stand and walk two hours in an eight-hour workday. (R. at 67.) He stated that there would be sedentary[7] jobs available that such an individual could perform, including jobs as an assembler, [8] an inspector/grader[9] and a machine operator.[10] (R. at 67.) Jackson was asked to consider the same individual, but who could stand for 15 minutes, sit for 10 minutes, walk 50 to 100 feet or for up to 15 minutes and who would be off task 15 to 20 percent of a workday. (R. at 68.) He stated that there would be no jobs available that such an individual could perform. (R. at 68.)

         In rendering his decision, the ALJ reviewed records from Howard S. Leizer, Ph.D., a state agency psychologist; Dr. Shirish Shahane, M.D., a state agency physician; Louis Perrott, Ph.D., a state agency psychologist; and Salem Veterans Affairs Medical Center, (“VAMC”).

         The record shows that McNutt received treatment from VAMC from August 2003 through December 2013 for backaches; panic disorder without agoraphobia; closed clavicle fracture; hypertension; hypercholesterolemia; joint pain; adjustment disorder with mixed anxiety and depressed mood; and chondromalacia patellae. (R. at 288-572.) On July 16, 2010, x-rays of McNutt's right knee were normal. (R. at 362.) On December 6, 2010, an audiology examination showed McNutt's hearing acuity to be within normal limits and tinnitus. (R. at 310-12.)

         On May 12, 2011, McNutt was voluntarily admitted for increased anxiety, secondary to stress. (R. at 306-10.) He reported that he recently broke up with his girlfriend. (R. at 307.) Upon discharge the following day, it was noted that McNutt was in a stable mental state and was devoid of any acute psychosis, paranoia, persecutory ideation and any mood instability. (R. at 308.) He was diagnosed with an adjustment disorder with anxiety and depressed mood; panic disorder without agoraphobia; and PTSD. (R. at 307.) His Global Assessment of Functioning score, (“GAF”), [11] upon admission was assessed at 47, [12] and upon discharge, his GAF score was assessed at 55.[13] (R. at 307.) On June 1, 2011, it was noted that McNutt called requesting a refill on his hydrocodone prescription. (R. at 352.) It was noted that McNutt had received 201 tablets of hydrocodone since May 9, 2011. (R. at 352.) McNutt was advised that this was in violation of his pain contract and that no refills would be issued before the allowable time. (R. at 352.)

         On June 16, 2011, Dr. Mark B. Detweiler, M.D., M.S., a psychiatrist with VAMC, saw McNutt for medication management and interpersonal therapy. (R. at 344-46.) McNutt reported that his mood was “better” and that he was trying to find a job. (R. at 344.) He stated that he was considering going to school for a vocation that would allow him to be outdoors. (R. at 344.) He denied bilateral knee pain and was not wearing knee braces. (R. at 345.) Dr. Detweiler reported that McNutt made good eye contact; he was pleasant and cooperative; his thoughts were logical and goal-oriented; his thought content was without any suicidal or homicidal ideations, plan or intent; he did not endorse hallucinosis or behavioral dyscontrol; he was oriented; and his insight and judgment were deemed fair to good. (R. at 345.) Dr. Detweiler assessed McNutt's then-current GAF score at 55. (R. at 346.) On August 23, 2011, Dr. Detweiler saw McNutt for medication management and interpersonal therapy. (R. at 333-35.) McNutt reported that he had returned to work and felt “great.” (R. at 333.) He stated that he was working for a construction company and was in a training position for being an “OSHA safety superintendent.” (R. at 333.) McNutt reported that his anxiety had decreased and denied other symptoms. (R. at 333.) Dr. Detweiler reported that McNutt was suntanned; looked healthy; walked without a knee brace; was pleasant, cooperative and overly solicitous; his thoughts were linear, logical and goal-oriented; his thought content without any suicidal or homicidal ideations, plan or intent; he did not endorse hallucinosis or behavioral dyscontrol; he was oriented; his insight and judgment were good; and he had returned to a baseline behavior. (R. at 334.) Dr. Detweiler assessed McNutt's then-current GAF score at 70[14] to 75.[15] (R. at 335.)

         On September 20, 2011, Dr. Detweiler discussed with McNutt the problems of him getting clonazepam due to his continually changing address and the “cast of persons in his environment who may not be totally interested in his welfare.” (R. at 327.) McNutt reported that he lost his construction job. (R. at 327.) He stated that he continued to look for a job and a permanent place to live and that he had a job interview scheduled that week. (R. at 327.) Dr. Detweiler assessed McNutt's then-current GAF score at 55. (R. at 328.) On November 1, 2011, McNutt reported that his anxiety symptoms were responding well to medication. (R. at 323.) Dr. Detweiler noted that McNutt's affect was euthymic with full range; his thought processes were linear, logical and goal-oriented; his thought content was without any suicidal or homicidal ideations, plan or intent, without paranoia, delusions or compulsions; and his insight and judgment were good. (R. at 323.) McNutt's then-current GAF score was assessed at 65. (R. at 324.)

         On January 26, 2012, McNutt reported that he was attempting to get a job on an American army base in Germany so that he could be near his son. (R. at 464.) On February 13, 2012, McNutt reported that hydrocodone worked well at controlling his back pain. (R. at 458.) On February 21, 2012, McNutt reported that he had been working temporarily doing house remodeling. (R. at 454.) He stated that he still experienced anxiety attacks, but that they responded well to clonazepam. (R. at 455.) McNutt stated that he continued to search for work. (R. at 455.) Dr. Detweiler reported that McNutt was pleasant and cooperative; his affect was dysthymic with full range; his thought processes were linear, logical and goal-directed; his thought content was without suicidal or homicidal ...


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