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Gilliam v. Berryhill

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

May 1, 2017

TRAVIS D. GILLIAM, 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, Travis D. Gilliam, (“Gilliam”), 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). 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 Gilliam protectively filed applications for DIB and SSI on December 19, 2011, alleging disability as of September 3, 2009, due to adult attention deficit hyperactivity disorder, (“ADHD”); knee problems; bipolar disorder; manic depression; aggression disorder; back pain; insomnia; extreme anxiety; grief issues; and fatigue. (Record, (“R.”), at 124-27, 139, 143, 149, 151, 813-21.) The claims were denied initially and on reconsideration. (R. at 72-74, 81-82, 83-85.) Gilliam then requested a hearing before an administrative law judge, (“ALJ”). (R. at 86.) A hearing was held by video conferencing on February 2, 2015, at which Gilliam was represented by counsel. (R. at 848-87.)

         By decision dated March 19, 2015, the ALJ denied Gilliam's claims. (R. at 18-29.) The ALJ found that Gilliam met the nondisability insured status requirements of the Act for DIB purposes through March 31, 2017.[2] (R. at 20.) The ALJ also found that Duty had not engaged in substantial gainful activity since September 3, 2009, the alleged onset date. (R. at 20.) The ALJ found that the medical evidence established that Gilliam suffered from a combination of severe impairments, namely history of personality disorder; major depressive disorder; anxiety-related disorder; history of substance use disorder; Hepatitis C; and degenerative joint disease of the knees status-post surgeries, but he found that Gilliam 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 21-23.) The ALJ also found that Gilliam had the residual functional capacity to perform simple, easy-to-learn, unskilled light work[3] that did not require more than occasional operation of foot controls with the lower extremities; balancing; kneeling; crouching; stooping/bending; climbing of ramps and stairs; or interaction with supervisors, co-workers and the public; and which did not require crawling; climbing of ladders, ropes or scaffolds; exposure to hazards; or handling food or beverages. (R. at 23.) The ALJ also found that Gilliam needed a static work environment with few changes in work routines and settings. (R. at 23.) Thus, the ALJ found that Gilliam was unable to perform any past relevant work. (R. at 27.) Based on Gilliam's age, education, work history and residual functional capacity and the testimony of a vocational expert, the ALJ found that there were other jobs available that Gilliam could perform, including a packing line worker, a garment folder, a weight tester, a cuff folder and an assembler. (R. at 27-28.) Therefore, the ALJ found that Gilliam was not under a disability as defined under the Act and was not eligible for benefits. (R. at 29.) See 20 C.F.R. §§ 404.1520(g), 416.920(g) (2016).

         After the ALJ issued his decision, Gilliam pursued his administrative appeals, (R. at 11-13), but the Appeals Council denied his request for review of the ALJ's decision. (R. at 6-10.) He 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). The case is before this court on Gilliam's motion for summary judgment filed October 27, 2016, and on the Commissioner's motion for summary judgment filed December 1, 2016.

         II. Facts

         Gilliam was born in 1977, (R. at 124), which classifies him as a “younger person” under 20 C.F.R. §§ 404.1563(c), 416.963(c). He obtained his general equivalency development, (“GED”), diploma and has vocational training in welding. (R. at 144, 872-74.) He has past relevant work as a welder. (R. at 144, 854-55.)

         At his hearing, Gilliam testified that he was laid off from his job as a welder in September 2009, was last self-employed in lawn care in 2010 and last worked as a welder in 2014. (R. at 854-55.) He testified that he received unemployment compensation for less than a year after being laid off. (R. at 855-56.) Gilliam stated that he could not return to welding because it is too hard on his knees, on which he had undergone two surgeries on the left and had a torn meniscus on the right. (R. at 860.) He noted continued left knee problems, including locking up, ankle cramping and pain shooting into his back, but was not seeing a doctor for this because he could not afford treatment. (R. at 861.) Gilliam also testified that his “nerves” prevented him from going outside very much because he did not like to be around people. (R. at 863.) He reported difficulty focusing and crying at times. (R. at 864.) Gilliam stated that he had seen a counselor in the past, but had not done so in a long time because he could no longer afford treatment. (R. at 863.) He testified that he had abused drugs in the past, but had been clean since 2013 or 2014. (R. at 864-65.) He stated that over an eight- to 12-month period, his mother and grandmother died, and he lost his wife, his son and his house. (R. at 867.) Gilliam also testified that he suffered from Hepatitis C, which caused him much concern, but for which he was not receiving treatment. (R. at 869-71.)

         Gilliam testified that he watched television and read some during the day, noting that it “soothe[d]” him. (R. at 875.) He testified that, after his mother's death, he began living with her best friend, who took care of everything around the house, except he kept his room clean. (R. at 876.)

         Vocational expert, Asheley Wells, also testified at Gilliam's hearing. (R. at 878-85.) Wells classified Gilliam's work as a welder as medium[4] and skilled. (R. at 880.) When asked to consider a hypothetical individual of Gilliam's age, education and work experience, who was limited to simple, easy-to-learn, repetitive medium work that did not require more than occasional climbing of ramps, stairs, ladders, ropes and scaffolds, kneeling, crouching and crawling; that did not require more than frequent balancing and stooping; that required no more than occasional exposure to hazards, such as dangerous moving machinery and unprotected heights; and that did not require more than occasional interaction with the public, supervisors and co-workers, Wells testified that such an individual could not perform Gilliam's past work as a welder, but could perform jobs existing in significant numbers in the national economy, including those of a hand packager, a dishwasher and a hospital cleaner. (R. at 880-81.) Wells next was asked to consider the same hypothetical individual, but who was limited to the performance of simple, easy-to-learn, repetitive unskilled light work that did not require pushing or pulling with the lower extremities, such as the operation of foot controls; that required no more than occasional balancing and stooping/bending; that required no exposure to hazards, such as dangerous moving machinery and unprotected heights; and that required no handling of food or beverages. (R. at 882.) This individual also would require a static work environment with few changes in work routines and settings. (R. at 882-83.) All the other limitations included in the first hypothetical remained the same. (R. at 882.) Wells testified that such an individual could perform jobs existing in significant numbers in the national economy, including those of an assembler, a packing line worker and a garment folder. (R. at 883.) When Wells was asked to consider the same hypothetical individual, but who could perform sedentary[5] work that did not require standing or walking more than two hours in an eight-hour workday, he testified that such an individual could perform jobs existing in significant numbers in the national economy, including those of a weight tester, a cuff folder and an assembler. (R. at 883-84.) Wells testified that all the aforementioned jobs permitted no more than one monthly absence and that an individual must be on task for at least 90 percent of the day to be employable. (R. at 884.) Lastly, when Wells was asked to consider a hypothetical individual with the limitations set out in psychologist Lanthorn's January 2015 mental assessment of Gilliam, he testified that such an individual could not perform any jobs. (R. at 884-85.)

         In rendering his decision, the ALJ reviewed medical records from Norton Community Hospital; Stone Mountain Health Services; Frontier Health; Indian Path Medical Center; Southwestern Virginia Mental Health Institute; Community Physicians; William D. Sims, M.Ed.; Dr. Kevin Blackwell, D.O.; Dr. Andrew Bockner, M.D., a state agency physician; Dr. Donald Williams, M.D., a state agency physician; Louis Perrott, Ph.D., a state agency psychologist; Dr. William Rutherford, Jr., M.D., a state agency physician; The Laurels; Highlands Pathology Consultants; Dr. Uzma Ehtesham, M.D.; Johnston Memorial Hospital; Bristol Regional Medical Center; Mountain View Regional Medical Center; and B. Wayne Lanthorn, Ph.D.

         Gilliam presented to Mountain View Regional Medical Center, (“Mountain View”), on August 30, 2009, with complaints of an abscessed tooth. (R. at 602-10.) When he refused Tylenol #3, instead requesting Lortab, Dr. Jack K. Cox, II, M.D., advised Gilliam he would need to follow up with his dentist to get a prescription. (R. at 604-05.) His behavior was appropriate, and he was alert and oriented. (R. at 605.) Gilliam presented to Norton Community Hospital, (“Norton Community”), on October 7, 2010, with a right shin laceration. (R. at 299-300, 648-55.) He was calm with no homicidal or suicidal ideations. (R. at 649.) Gilliam received stitches and Keflex. (R. at 198, 653-54.)

         Gilliam was seen at the William A. Davis Clinic at Stone Mountain Health Services, (“Stone Mountain”), on August 23, 2011, with complaints of “nerves, ” anxiety, depression and sleep difficulties. (R. at 206-08.) He reported chronic anxiety and depression since childhood, worsened by being unemployed. (R. at 206.) He denied suicidal or homicidal ideations, but admitted getting Xanax and Subutex off the street. (R. at 206.) Gilliam reported that he had just begun weekly psychological counseling. (R. at 206.) His mood was anxious and depressed, but he spoke calmly and was not tearful, and he was fully oriented with normal memory, judgment and insight. (R. at 207.) Gilliam was diagnosed with anxiety and depression, for which he was prescribed Vistaril and Celexa. (R. at 208.) On September 28, 2011, Gilliam presented with complaints of being “really nervous” and having an agitated anxiety. (R. at 203-05.) He requested Ativan, Valium or Klonopin for his anxiety, noting that he did not want Xanax due to past abuse issues. (R. at 205.) Given his history of drug abuse, the doctor was not comfortable prescribing any benzodiazepines, and Gilliam left the appointment. (R. at 205.) When he returned on November 22, 2011, he complained of right knee pain with bending, and he requested to see a psychiatrist for anxiety. (R. at 200-02.) He was diagnosed with hand pain, knee pain and a general anxiety disorder, and he was referred to an orthopaedist. (R. at 202.)

         Gilliam continued to receive treatment at Stone Mountain and Frontier Health through December 2011 for depression and anger issues. (R. at 462-70, 473, 483-89, 548-49, 763-75.) On August 2, 2011, he reported that he was looking for employment and would like to reconcile with his wife from whom he had been separated for six years. (R. at 773.) He stated that Xanax had helped him in the past, and he admitted taking Suboxone and Xanax illegally for the previous two years for his nerves. (R. at 773-74.) He denied suicidal ideations, but noted homicidal thoughts when he got really angry. (R. at 774.) Gilliam could not pinpoint any triggers for his anger. (R. at 774.) He was depressed, withdrawn and agitated with impaired impulse control and sleep disturbance. (R. at 774.) Gilliam was diagnosed with drug dependence; sedative, hypnotic or anxiolytic dependence; and depressive disorder, not elsewhere classified; and his then-current GAF score was assessed at 50, [6] with his highest in the previous six months being 55[7] and his lowest being 40.[8] (R. at 773.) He was referred to James Kegley for therapy and anger management. (R. at 774-75.) Gilliam saw Kegley on two occasions from August 9, 2011, through November 14, 2011. (R. at 220-22, 238, 462-69, 483-89, 535, 548, 761-71.) On August 9, 2011, he stated that he had been looking for employment since being laid off in September 2009. (R. at 474-75, 763.) Although he was separated from his wife, they were living together with their six-year-old son. (R. at 474, 763.) Gilliam had age-appropriate activities of daily living skills, but he endorsed moderate rage, social withdrawal, memory impairment, anger, depressed mood and insomnia; and he endorsed mild anxiety. (R. at 466-68, 767.) He denied suicidal ideation, but admitted to past homicidal thoughts against his wife and a man with whom she was unfaithful. (R. at 467.) He admitted using Xanax the previous day, and he reported going to the Laurels two or three years previously, which was unsuccessful. (R. at 220.) Gilliam reported no major health problems and no psychiatric hospitalizations. (R. at 485-86.) Kegley scheduled Gilliam for individual and group counseling. (R. at 767.)

         In a DSM-IV Assessment form, completed on August 16, 2011, Gilliam was diagnosed with an impulse control disorder; depressive disorder; opioid dependence; and sedative, hypnotic or anxiolytic dependence; and his then-current GAF score was assessed at 50. (R. at 761-62.) He failed to show for appointments on August 23, October 5, October 24, and November 3, 2011. (R. at 242, 247, 541, 544, 547.) On November 14, 2011, Gilliam had his first counseling session with Kegley, at which time he complained of relationship issues with his wife and stated he wanted a job. (R. at 238, 535.) He reported that he had “beat” his pain medication addiction and had been clean for two months. (R. at 238, 535.) He reported staying nervous and having no motivation and stated that he had to “fix [his] mind” before he could return to the workforce. (R. at 238, 535.) He stated that he was “fine” when he was on his medications and had requested Xanax from Stone Mountain, but they had prescribed him other mood medications. (R. at 238, 535.) He displayed no indication of suicidal or homicidal ideations, and his mood was mildly depressed with congruent affect. (R. at 238, 535.) Gilliam did not keep his appointments on December 5, December 13 or December 20, 2011. (R. at 233-37, 530-34.)

         Dr. Uzma Ehtesham, M.D., a psychiatrist, completed a mental assessment of Gilliam on January 19, 2012, finding that he had a seriously limited ability to follow work rules; to relate to co-workers; to deal with the public; to use judgment; to interact with supervisors; to deal with work stresses; to function independently; to understand, remember and carry out simple, detailed and complex job instructions; to maintain personal appearance; to behave in an emotionally stable manner; and to relate predictably in social situations. (R. at 723-25.) She found that Gilliam had no useful ability to maintain attention and concentration. (R. at 723.) Although Dr. Ehtesham supported these findings with Gilliam's problems of depression of anxiety, she noted that she had not seen him since 2005. (R. at 723-24.) Dr. Ehtesham found that Gilliam could manage benefits in his own best interest, and she stated that she was unsure how frequently he would be absent from work due to his impairments or treatment. (R. at 725.)

         Gilliam continued to receive services from Frontier Health through June 2012, but he continued to miss numerous appointments. He did not keep an appointment with Kegley on January 16, 2012, but on February 22, 2012, he expressed a desire for return services. (R. at 226-27, 229, 523-24, 526.) When Gilliam was seen for screening on March 5, 2012, he stated that he needed to find a psychiatrist to be put back on Xanax. (R. at 225, 522, 757-60.) At that time, Gilliam's wife asked that Gilliam be admitted to Ridgeview, stating that he physically threatened her and his mother when he did not get the medication he wanted. (R. at 758.) She reported that Gilliam's mother gave him morphine, Lortab and Xanax, and arguments ensued when she refused to do so. (R. at 758.) Gilliam denied suicidal or homicidal ideations, as well as psychosis, but he admitted to continued use of Xanax and Suboxone “off the street” for his nerves. (R. at 225, 522, 759.) He did not wish to go to the Laurels, however, stating that there were more drugs there that “out here.” (R. at 225, 522, 759.) It was determined that Gilliam did not meet the criteria for hospitalization. (R. at 759.) He was diagnosed with impulse control disorder, unspecified; depressive disorder, not elsewhere classified; and drug dependence; and his then-current GAF score was placed at 50. (R. at 759.) That same day, Gilliam advised Kegley that Xanax was the best medication for him, as Celexa made him more agitated. (R. at 225, 522.) Gilliam had a mildly depressed mood with congruent affect. (R. at 225, 522.) Kegley provided contact information for Dr. Ehtesham, a psychiatrist, and Dr. Balluyot for a Suboxone program. (R. at 225, 522.) Following this session, Gilliam's wife advised Kegley that their seven-year-old son had been taken from them by the Department of Social Services, (“DSS”), due to Gilliam's drug use. (R. at 224, 521.) However, when Kegley suggested treatment at the Laurels, Gilliam's wife requested admission to Ridgeview. (R. at 224, 521.) She claimed that they could not afford for Gilliam to see Dr. Ehtesham and did not desire outpatient substance abuse treatment. (R. at 224, 521.)

         A March 15, 2012, DSM-IV Assessment indicated that Gilliam suffered from a depressive disorder; opioid dependence; sedative, hypnotic or anxiolytic dependence; and impulse control disorder. (R. at 218-219.) His then-current GAF score was assessed at 50. (R. at 218.) Gilliam again reported doing odd jobs and that he was actively pursuing employment on his own. (R. at 476-77.) He reported no major health problems, he had age-appropriate activities of daily living skills, and he stated that he enjoyed woodworking for diversion. (R. at 478.) Gilliam reported depression and anger issues with which he needed help. (R. at 479.) Although Gilliam had been evaluated for psychiatric hospitalizations in the past, no referrals had been made. (R. at 479.) He reported no suicidal or homicidal symptoms which would require commitment. (R. at 479.) Gilliam's possible significant substance abuse issues were noted, as was his refusal to accept residential referrals to address this. (R. at 480.) Case management and outpatient therapy services were recommended. (R. at 481-82.) Gilliam again stated that he needed a job for his life to improve. (R. at 482.)

         When Gilliam did not show up for his March 21, 2012, appointment with Kegley, he was discharged from outpatient mental health therapy. (R. at 210-13, 512-16.) In a Discharge Summary from that same day, Gilliam's erratic attendance and refusals to participate in residential substance abuse treatment were noted. (R. at 459.) Gilliam did not show up for his outpatient substance abuse treatment appointment on April 4, 2012, and the following day, he was evaluated pursuant to an emergency custody order issued after making verbal threats and stealing some of his mother's Xanax. (R. at 456-58, 509, 750-56.) He denied stealing the Xanax, but advised he became upset with his wife and spit in her face after discovering her with another man. (R. at 751.) He reported using Xanax and Suboxone and having depression with nightly crying spells for the previous five months. (R. at 751.) He also reported short-term memory problems, but denied auditory or visual hallucinations, as well as suicidal or homicidal ideations. (R. at 751.) On mental status examination, Gilliam had a normal appearance, behavior, orientation, thought content, sensation, insight and judgment, his mood was depressed with a flat affect, and he exhibited impaired concentration and decreased appetite and sleep maintenance. (R. at 753.) His intellectual functioning was deemed average. (R. at 753.) Gilliam was diagnosed with depressive disorder, not elsewhere classified; drug dependence; sedative, hypnotic or anxiolytic dependence; and impulse control disorder, unspecified; and his then-current GAF score was assessed at 45. (R. at 754.) He declined a referral, and no involuntary action was taken. (R. at 755.) He was released home and refused outpatient counseling. (R. at 756.)

         On April 6, 2012, Gilliam's wife stated that he had been threatening to hurt himself and others, that she had an emergency protective order against him and that he had stolen his mother's medications. (R. at 507.) On April 13, 2012, Gilliam's wife advised that he was in jail and that he had been injecting bath salts and using his mother's benzodiazepines. (R. at 506.) On May 15, 2012, Gilliam was encouraged to call and schedule an appointment. (R. at 501-02.) On May 30, 2012, B. Palmer, LPN, saw Gilliam for substance abuse case management, at which time he reported having been incarcerated for misuse of a vehicle and that he and his wife were divorcing. (R. at 500.) He was fully oriented, he denied suicidal or homicidal ideations, his thought processes were intact, and he was coherent and logical. (R. at 500.) He requested something for his nerves, noting that he had been off of all medications for 43 days. (R. at 500.) Gilliam stated that he was not interested in addiction treatment or attending group counseling, and he planned to seek out a doctor who would prescribe nerve medication. (R. at 500.) He asked that his case be closed. (R. at 500.) A June 12, 2012, Substance Abuse History form indicated that Gilliam last used Oxycodone and Xanax on April 23, 2012, and ...


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