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Cox v. Berryhill

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

September 20, 2017

BENJAMIN W. COX, Plaintiff
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant



         I. Background and Standard of Review

         Plaintiff, Benjamin W. Cox, (“Cox”), 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 Cox protectively filed applications for DIB and SSI on July 2, 2012, alleging disability as of April 27, 2012, due to hypothyroidism; diabetes; depression; social anxiety; obesity; swelling in the legs; right leg sciatic nerve problems; low back pain; osteoarthritis in the back; arthritis in the neck and hands; and liver problems. (Record, (“R.”), at 232-37, 238-39, 253.) The claims were denied initially and on reconsideration. (R. at 80-91, 92-103, 104-16, 117-29, 136-38, 143-45, 149-51.) Cox requested a hearing before an administrative law judge, (“ALJ”), which was held on September 4, 2014, at which Cox was represented by counsel. (R. at 34-74, 166-67.)

         By decision dated November 26, 2014, an ALJ denied Cox's claims. (R. at 17-33.) The ALJ found that Cox met the nondisability insured status requirements of the Act for DIB purposes through December 31, 2017. (R. at 19.) The ALJ found that Cox had not engaged in substantial gainful activity since April 27, 2012, the alleged onset date. (R. at 19.) The ALJ found that the medical evidence established that Cox had severe impairments, namely insulin-dependent diabetes mellitus; low back pain; obesity; history of bilateral carpal tunnel and cubital tunnel syndrome, status-post bilateral surgical procedures; bilateral visual disorders, including nonproliferative diabetic neuropathy, bilateral cataracts, vitreous hemorrhage and diabetic macular edema; inflammatory polyarthritis, not otherwise specified; and a combination of mental impairments with diagnoses of depressive disorder; anxiety disorder; and personality disorder, but she found that Cox 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 19-22.) The ALJ found that Cox had the residual functional capacity to perform a limited range of simple, repetitive unskilled light work[2] that required lifting no more than 20 pounds maximally and 10 pounds frequently; that required no more than occasional pushing/pulling with the upper or lower extremities, climbing of ramps and stairs, balancing, kneeling, crawling, stooping, crouching or interacting with co-workers and supervisors; that required no more than frequent handling, feeling and fingering; that did not require concentrated exposure to extreme temperatures; that did not require working around hazardous machinery, unprotected heights or vibrating surfaces and that required no climbing of ladders, ropes and scaffolds, interaction with the public or reading of very small print. (R. at 22-25.) The ALJ found that Cox was unable to perform his past relevant work. (R. at 25.) Based on Cox'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 Cox could perform, including jobs as an assembler, a packer and an inspector/tester/sorter. (R. at 25-26.) Thus, the ALJ concluded that Cox was not under a disability as defined by the Act, and was not eligible for DIB or SSI benefits. (R. at 26.) See 20 C.F.R. §§ 404.1520(g) 416.920(g) (2016).

         After the ALJ issued his decision, Cox pursued his administrative appeals, (R. at 8-11), but the Appeals Council denied his request for review. (R. at 1-7.) Cox 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 Cox's motion for summary judgment filed October 27, 2016, and the Commissioner's motion for summary judgment filed December 28, 2016.

         II. Facts[3]

         Cox was born in 1974, (R. at 232, 238), which classifies him as a “younger person” under 20 C.F.R. §§ 404.1563(c), 416.963(c). He has a college education and past relevant work as a customer service representative, an information technology specialist and a retail sales associate. (R. at 254.) At his September 4, 2014, hearing, Cox testified that he last worked as a customer service representative in April 2012, but had to stop working due to his health, noting that he could not handle his pain, his anxiety was at an “extreme high, ” he was depressed, and he did not want to get out. (R. at 42-43.) He stated that he suffered from insulin-dependent type I diabetes and had been hospitalized once in 2007 with ketoacidosis. (R. at 44.) He stated that he had used an insulin pump since 2000, but that his sugar levels continued to fluctuate, going as high as 500 a couple of times weekly. (R. at 55-56.) He testified that he also took Metformin, which caused bowel issues and that he had to use to restroom six to 10 times over an eight-hour period due to diarrhea or other bowel problems. (R. at 62.) Cox further stated that his diabetes caused frequent urinary urges, causing him to use the restroom three to four times in an eight-hour period. (R. at 61.)

         Cox also stated that he suffered from diabetic retinopathy and macular edema, and he testified that he could not read small print. (R. at 45.) However, he stated that he did not wear reading glasses or contact lenses and that his ability to watch television was “fairly decent.” (R. at 45.) He testified that he had spondylosis of the back, but had been diagnosed with only low back pain. (R. at 45.) Cox stated that he underwent surgery for carpal tunnel syndrome in 2011 and that he continued to experience swelling, numbness and tingling of the hands. (R. at 46.) Nonetheless, he testified that he was not then receiving any treatment for this condition. (R. at 46.) Cox testified that the hand swelling caused difficulty gripping and grasping objects. (R. at 57-58.) He described the sensation in his hands as “needles” and “bee stings.” (R. at 58.) Cox testified that he had neuropathy in his feet and that he tried to stay off of them and keep them elevated three to four hours throughout the day. (R. at 46-47.) He stated that he had been doing this since May or June 2012. (R. at 47.) He stated that the sensation in his feet was similar to that in his hands, but he also had a burning sensation. (R. at 58.) Cox stated that he could not take anything for pain other than Tylenol because he was in renal failure, for which he had been treated since 2009 or 2010. (R. at 48.) Cox stated that he had been told to cut back on the amount of protein in his diet and to only take Tylenol. (R. at 49.) Cox testified that a kidney specialist had advised to “keep a close eye and monitor[] it.” (R. at 49.)

         Cox further testified that he suffered from depression, for which he had never been hospitalized. (R. at 49, 54.) He testified that the last time he took mental health medications was in April 2012 because he could not afford them. (R. at 54-55.) He stated that he had been in counseling since 2010. (R. at 43, 60.) Cox stated that he had anxiety or panic attacks, during which his heart raced and he did not want to be around people. (R. at 59.) He stated that he left his home “very rarely, ” noting that he usually stayed in his bedroom “resting or something.” (R. at 59.) He described his depressive symptoms to include tiredness, increased appetite, feeling really sad, crying a lot and having no motivation to get out of bed. (R. at 59.) Cox noted that four or five times weekly he would not get out of bed to shower and dress. (R. at 59-60.) Cox stated that, in April 2012, he was experiencing a lot of work-related stress, noting that breaks were being taken away, and he was allowed only a lunch break in a 10-hour period. (R. at 61.) He further stated there was a lot of negativity. (R. at 61.)

         Cox testified that he had lived with his parents since losing his house in November 2012. (R. at 52.) He stated that he usually stayed home, sitting around or lying in bed. (R. at 51-52.) Cox stated that he took care of a fish aquarium, but a friend bought the supplies for him. (R. at 52.) He denied performing any household activities due to pain in his low back, legs and knees. (R. at 53.) Cox further testified that he became short of breath with exertion, estimating he could walk 20 feet before becoming short of breath, stand for 10 minutes and sit for about 20 minutes. (R. at 53-54.) Cox estimated that he could lift five pounds. (R. at 54.) He testified that being on his feet too long caused low back pain, and if he did not sit down, his legs got weak and shaky. (R. at 56-57.) He also stated that his feet would swell after being on them for five to 10 minutes and that he suffered swelling in his legs and ankles daily, all as a result of his improperly functioning kidneys. (R. at 57.) Cox testified that bending at the waist was “extremely painful” and that stooping, squatting and kneeling were “very difficult, ” as they increased his pain, and he had to pull himself back up. (R. at 58-59.)

         Vocational expert John Newman also was present and testified at Cox's hearing. (R. at 64-72.) Newman classified Cox's past work as a customer service representative as sedentary[4] and semi-skilled, as a retail sales associate, as performed by Cox, as medium[5] and unskilled and as an information technology specialist as medium and skilled. (R. at 66.) Newman was asked to consider a hypothetical individual such as Cox, who could perform simple, repetitive unskilled work that required lifting and carrying no more than 20 pounds occasionally, up to 10 pounds frequently, standing, walking and sitting up to six hours in an eight-hour day, occasionally pushing and pulling with the upper and lower extremities to the lift/carry amounts, occasionally climbing ramps and stairs, balancing, kneeling, crawling, stooping and crouching, frequently handling, feeling and fingering objects, who needed to avoid concentrated exposure to extreme temperatures, hazardous machinery, unprotected heights, climbing ladders, ropes and scaffolds and working on vibrating surfaces, who could have no interaction with the general public and no more than occasional interaction with supervisors and co-workers and who would have to avoid reading very small print. (R. at 66-67.) Newman testified that such an individual could not perform Cox's past relevant work, but could perform other jobs existing in significant numbers in the national economy, including those of an assembler, a packer, a laundry folder and an inspector/sorter. (R. at 67-68.) Newman testified that the same hypothetical individual, but who would miss more than two workdays monthly, could not perform any work due to an unacceptable rate of absenteeism. (R. at 68-69.) Newman next testified that the individual in the first hypothetical, but who would be limited to handling and fingering objects less than one-third of an eight-hour workday due to diabetic neuropathy and carpal tunnel symptoms, could not perform any work. (R. at 69-70.) Newman next testified that the first hypothetical individual, but who was seriously limited in the ability to deal with work stresses, functioning independently and demonstrating reliability, could not perform competitive employment. (R. at 70-71.) Next, Newman testified that an individual with the restrictions set out in Paula Meade's May 25, 2014, physical assessment, with the exception of a changed restriction from an ability to never climb, stoop, kneel, crouch and crawl to an ability to rarely perform these activities and an ability to occasionally balance, could not perform any jobs. (R. at 71.) Lastly, Newman testified that an individual who would be off-task greater than 10 percent of the workday could not maintain substantial gainful activity. (R. at 72.)

         In rendering her decision, the ALJ reviewed records from Wellmont Health System; Clinch Valley River Health Services; Lonesome Pine Hospital; Holston Medical Group; Holston Valley Ambulatory Surgery Center; Anne B. Jacobe, LCSW; Solutions Counseling; B. Wayne Lanthorn, Ph.D., a licensed clinical psychologist; Dr. Matthew Beasey, M.D.; Holston Valley Medical Center; Wise County Social Services; The Regional Eye Center; Paula Meade, FNP; Karen Odle, LPC; Mary Beth Bentley, FNP; The Health Wagon; Dr. Andrew Bockner, M.D., a state agency physician; Dr. Richard Surrusco, M.D., a state agency physician; Howard S. Leizer, Ph.D., a state agency psychologist; and Dr. R.S. Kadian, M.D., a state agency physician.

         As for Cox's alleged physical impairments, by way of background, the record reveals that he has been treated for type I diabetes since he was nine years old. (R. at 696.) He also has undergone numerous diagnostic tests, including x-rays of the cervical spine, taken on January 25, 2010, which showed no significant degenerative changes, and x-rays of the lumbar spine, dated February 24, 2010, which showed mild degenerative spondylosis, but no acute abnormality. (R. at 1277, 1297.) These lumbar x-rays also showed slight wedging of the T11 and T12 vertebral bodies. (R. at 1277.) An MRI of the lumbar spine, dated February 26, 2010, showed T11 and T12 compressions and degenerative changes, but no definite neural impingement. (R. at 1272-73.) An MRI of the thoracic spine, dated March 17, 2010, showed mild compression deformities of the T11 and T12 levels of the spine, which appeared to be chronic, but no acute abnormality was evident. (R. at 1264.) An MRI of the lumbar spine, dated December 15, 2010, showed mild lumbar spondylosis without significant interval change. (R. at 1182-83.) An ultrasound of the abdomen, also dated December 15, 2010, showed echogenic liver, consistent with steatosis.[6] (R. at 1188.) An August 25, 2011, abdominal CT scan showed progression in hepatomegaly and hepatic steatosis, but stable splenomegaly; atrophy of the medial segment of the left lobe of the liver and caudate lobe, of unclear significance; and age-advanced pancreatic atrophy. (R. at 1101, 1567.) August 26, 2011, x-rays of the cervical spine were normal. (R. at 1099.) Based on Cox's complaints of headaches, a CT scan, taken on September 2, 2011, strongly suggested chronic bilateral mastoiditis and chronic otitis media, but, otherwise, was unremarkable. (R. at 1093.) A CT guided liver biopsy, performed on October 31, 2011, revealed findings consistent with hepatic steatohepatitis/fatty liver disease. (R. at 936-38.)

         The record also shows that Cox treated his diabetes, hypothyroidism, hypertension and hyperlipidemia with Holston Medical Group from January 3, 2012, to April 20, 2012. Over this time, some mild edema of the lower extremities was noted, but Cox consistently had a normal gait and normal strength and muscle tone in the extremities, as well as normal foot examination. (R. at 754, 819, 830, 870, 882, 886.) Cox was obese, with his weight during this time period recorded as being from 298 to 307 pounds. (R. at 753, 819, 830, 869, 886, 893.) Blood pressure readings were 172/86, (R. at 893), 148/76, (R. at 830), 138/82, (R. at 886), 160/90, (R. at 881), 122/82, (R. at 819), and 140/80. (R. at 869.) He denied symptoms of peripheral neuropathy, gastrointestinal complaints and numbness and tingling in the legs. (R. at 753, 827-28, 881, 883.) Over this time, Cox did complain of stress, headaches, right hip pain and some back pain. (R. at 883, 886, 893.) On March 8, 2012, Cox received injections for lower back and hip pain. (R. at 887-88.) X-rays of the hips were mostly unremarkable, and x-rays of the lumbar spine showed only mild spondylosis, mild compression deformity at the T12 vertebra, minimal discogenic abnormalities at the L3-L4 and T11-T12 levels of the spine and mild anterior wedging of the T11 vertebra. (R. at 889, 891.) Cox reported more than once that he was not taking his medications as directed. (R. at 828, 883.) He reported that he was doing well with CPAP treatment. (R. at 866, 893.) Over this time, Cox was consistently alert and oriented with a normal mood and affect, as well as intact insight and judgment. (R. at 754, 830, 882, 886, 894.) On January 3, 2012, Dr. Michael Nannenga, M.D., noted that Cox had diabetic nephropathy, but on March 22, 2012, hepatic function testing was normal. (R. at 755, 828.) On March 30, 2012, Cox's microalbumin levels and microalbumin/creatinine ratio were high, but TSH levels were normal. (R. at 913, 921.) Cox was diagnosed with diabetic nephropathy, hypertension, hyperlipidemia, hypothyroidism, elevated liver enzymes, nonalcoholic steatohepatitis, microalbuminuria, uncontrolled type I diabetes, neuropathy, neck pain, migraine headaches, hip pain, sciatica and lower back pain. (R. at 754, 820, 831, 887.) Cox was continued on medications and advised to exercise and lose weight. (R. at 754, 821-22, 831-32, 870.) On April 20, 2012, Cox reported that he would be looking for a new job because his employer would not accommodate his limitations due to diabetes and severe sleep apnea. (R. at 866.)

         Cox saw Paula Hill Meade, FNP at The Health Wagon, to establish his status as a new patient, on October 1, 2012. (R. at 1543-45.) His nonfasting blood sugar level was 261. (R. at 1544.) On examination, Cox was pleasant, cooperative and in no acute distress. (R. at 1544.) He exhibited some elbow tenderness and right hip tenderness with painful range of motion of the hip. (R. at 1544.) There was no clubbing, cyanosis or edema of the extremities, and peripheral pulses were within normal limits. (R. at 1544.) Cranial nerves were grossly intact, and Cox was alert and oriented with good eye contact and clear speech. (R. at 1544.) The remainder of the examination was normal, including a foot exam. (R. at 1544.) Cox reported that he had been without all medications since May, except for Synthroid and insulin. (R. at 1544.) While he reported arthritic pain in his upper extremity joints, he noted that he responded well to Mobic. (R. at 1544.) Meade diagnosed Cox with benign essential hypertension, diabetes, not stated as uncontrolled, and generalized osteoarthritis. (R. at 1544.) She prescribed Lisinopril and Mobic. (R. at 1544.) On October 18, 2012, Cox saw Teresa Gardner, another FNP at The Health Wagon, for a follow-up appointment. (R. at 1541-42.) His blood pressure was 147/81, he weighed 314 pounds, and his nonfasting blood sugar level was 262. (R. at 1541.) Cox reported painful upper extremity joints and neck pain due to not taking Mobic because of lack of resources. (R. at 1541.) On physical examination, Cox was pleasant, cooperative and in no acute distress. (R. at 1541.) Frontal and maxillary sinuses were tender to percussion, and he exhibited right elbow and right hip tenderness with painful range of motion of the hip, but there was no clubbing, cyanosis or edema of the extremities, and peripheral pulses were within normal limits. (R. at 1541.) Cox was alert and oriented with grossly intact cranial nerves, he made good eye contact, and he had clear speech. (R. at 1541.) Cox was diagnosed with diabetes, not stated as uncontrolled, and acute sinusitis. (R. at 1542.) When Cox returned to Gardner on November 12, 2012, his blood pressure was 156/84, he weighed 313 pounds, and his nonfasting blood sugar level was 232. (R. at 1539.) Gardner encouraged Cox to lose weight. (R. at 1539.)

         On December 6, 2012, Dr. Richard Surrusco, M.D., a state agency physician, completed a physical residual functional capacity assessment of Cox, finding that he could perform light work with a limited ability to frequently push/pull with the upper extremities. (R. at 87-89.) Dr. Surrusco found that Cox could occasionally climb ladders, ropes or scaffolds, but could perform all other postural activities frequently. (R. at 87-88.) He further opined that Cox was limited to handling objects frequently with both hands. (R. at 88.) He indicated no visual or communicative limitations, but found that Cox must avoid concentrated exposure to vibration, fumes, odors, dusts, gases, poor ventilation and hazards. (R. at 88-89.) Dr. Surrusco concluded that Cox could perform his past relevant work as a dispatcher. (R. at 91.)

         Cox continued to treat with various healthcare providers at The Health Wagon through June 5, 2013. Over this time, his blood pressure readings were 190/90, 149/72 and 163/88, and his nonfasting blood sugar levels were 187, 224 and 126. (R. at 1522, 1525, 1534.) Cox continued to lose weight during this time, with a recorded weight of 307 pounds on June 5, 2013. (R. at 1522.) Physical examinations were essentially normal, except for tenderness to percussion of the frontal and maxillary sinuses, bilateral elbow tenderness and right hip tenderness with painful range of motion. (R. at 1522, 1525, 1534.) There was no clubbing, cyanosis or edema of the extremities, peripheral pulses were normal, cranial nerves were grossly intact, and Cox exhibited good eye contact and clear speech. (R. at 1522, 1525-26, 1534.) On June 5, 2013, a foot examination was normal. (R. at 1522.) Over this time, Cox was diagnosed with diabetes without mention of complication and not uncontrolled; unspecified essential ...

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