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Horton v. Berryhill

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

October 5, 2017

CODY NELSON HORTON, 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, Cody Nelson Horton, (“Horton”), filed this action challenging the final decision of the Commissioner of Social Security, (“Commissioner”), denying his claim for child's insurance benefits based on disability, (“CDIB”), and supplemental security income, (“SSI”), benefits under Title XVI of the Social Security Act, as amended, (“Act”), 42 U.S.C.A. §§ 402(d), 1381-1383d. (West 2011 & West 2012 & Supp. 2017). 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 Horton protectively filed his applications for CDIB and SSI[2] on December 5, 2011, alleging disability as of October 15, 2011, due to scoliosis, club foot, cleft palate and learning difficulties. (Record, (“R.”), at 224-27, 234-35, 247, 251.) The claims were denied initially and upon reconsideration. (R. at 121-23, 127-29, 132-34, 138-40, 143-44, 146, 148-50, 152-57, 159-61.) Horton then requested a hearing before an ALJ. (R. at 162-63, 183-84.) The ALJ held a video hearing on February 23, 2015, at which Horton was represented by counsel. (R. at 28-58.)

         By decision dated March 31, 2015, the ALJ denied Horton's claims. (R. at 13-23.) The ALJ found that Horton was born in 1992, and, therefore, had not attained age 22 as of October 15, 2011, the alleged onset date. (R. at 16.) The ALJ found that Horton had not performed any substantial gainful activity since October 15, 2011, the alleged onset date. (R. at 16.) The ALJ found that the medical evidence established that Horton suffered from severe impairments, namely scoliosis; bilateral club foot; obesity; Perthes disease[3] of the right hip; diabetes mellitus; high blood pressure; and status-post back surgery with rod placement, but he found that Horton 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 16.) The ALJ found that Horton had the residual functional capacity to perform sedentary work[4] that did not require kneeling, crawling or climbing; that allowed for occasional stooping and crouching; that allowed him to alternately sit and stand at his workstation one to two times between scheduled breaks for a few minutes each time; that allowed only frequent handling and fingering; and that allowed the use of a cane to ambulate 100 feet or more. (R. at 17.) The ALJ stated that he gave the 2011 residual functional capacity assessment limiting Horton to light work some weight to the extent the findings of Horton's physical limitations and restrictions were somewhat more restrictive than was determined. (R. at 13.) The ALJ found that new and material evidence supported the additional limitations as found in the 2015 decision. (R. at 13.) The ALJ found that Horton had no past relevant work. (R. at 21.) Based on Horton's age, education, work history and residual functional capacity and the testimony of a vocational expert, the ALJ found that a significant number of jobs existed in the national economy that Horton could perform, including jobs as an assembler, a cuff folder and a weight tester. (R. at 21-22.) Therefore, the ALJ concluded that Horton was not under a disability as defined by the Act and was not eligible for CDIB or SSI benefits. (R. at 22-23.) See 20 C.F.R. §§ 404.350(a)(5), 404.1520(g), 416.920(g) (2017); see also 42 U.S.C.A. § 1382c(a)(3)(A)-(B) .

         After the ALJ issued his decision, Horton pursued his administrative appeals, (R. at 8-9), but the Appeals Council denied his request for review. (R. at 1-5.) Horton 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 (2017). The case is before this court on Horton's motion for summary judgment filed January 20, 2017, and the Commissioner's motion for summary judgment filed March 16, 2017.

         II. Facts

         Horton was born in 1992, (R. at 224, 234), which classifies him as a “younger person” under 20 C.F.R. §§ 404.1563(c), 416.963(c). He has a high school education and no past work experience. (R. at 252.) He reported that he did not attend special education classes. (R. at 252.) Horton stated that he received disability benefits as a child, but the benefits ceased when he attained age 18. (R. at 36-37, 77.) He stated that he watched movies and read books. (R. at 37.) Horton stated that he helped dust “a little bit, ” but his father performed the remaining household duties. (R. at 37-38.) He stated that he had attempted to obtain his driver's license on three occasions, but failed the test each time. (R. at 38.) Horton stated that he had trouble understanding and reading the test. (R. at 50.) He stated that he took over-the-counter ibuprofen for his pain because he had no insurance to purchase prescription pain medication. (R. at 38.) He stated that he was unable to lift items from a table in front of him that weighed more than 15 pounds; bend and lift items from the floor that weighed more than 10 pounds; walk more than 25 minutes without a cane; stand more than 15 minutes without interruption; or sit more than 20 minutes without interruption. (R. at 39, 41, 44.) Horton stated that he occasionally walked for exercise. (R. at 39.) He stated that he used a cane to help ease the pain on his right side. (R. at 40.)

         Asheley Wells, a vocational expert, was present and testified at Horton's hearing. (R. at 53-57.) Wells was asked to consider a hypothetical individual who was in the age group of late teens to age 23, who had a high school education and no work history, who was limited to sedentary work that did not require kneeling, crawling or climbing, that did not require more than occasional stooping or crouching, that did not require more than frequent bilateral handling and fingering and that allowed the individual to alternate between sitting and standing, giving the individual the opportunity to do so at their workstation one to two times between scheduled breaks. (R. at 53.) Wells stated that the individual could perform jobs that were available existing in significant numbers in the national economy, including those of an assembler, a cuff folder and a weight tester. (R. at 53-54.) Wells stated that the individual could do these jobs should he be required to use a cane or assistive device to ambulate more than 100 feet. (R. at 54.)

         Wells was asked to consider the same individual, but who would be limited as indicated by Dr. Michael's assessment. (R. at 54.) In particular, Wells was asked to consider an individual who could stand and walk for less than two hours in an eight-hour workday, sit for at least six hours in an eight-hour workday and occasionally lift items weighing up to 10 pounds. (R. at 54.) She stated that, although the jobs cited did not require very much walking, all competitive employment would be precluded if the number of work hours totaled less than eight hours. (R. at 54-55.) She stated that, if the person could sit for up to eight hours, he could perform the previously identified jobs. (R. at 55.) Wells stated that the jobs cited required frequent lifting and handling of objects that did not weigh much and allowed a sit/stand option at the individual's work station. (R. at 55-56.) She stated that there would be no jobs available that such an individual could perform should he be incapable of maintaining concentration to perform simple tasks. (R. at 56-57.)

         In rendering his decision, the ALJ reviewed records from Stephen P. Saxby, Ph.D., a state agency psychologist; Dr. Lewis Singer, M.D., a state agency physician; Jeanne Buyck, Ph.D., a state agency psychologist; Dr. J. Astruc, M.D., a state agency physician; Dr. Kevin Blackwell, D.O.; Dr. Gary E. Michael, M.D.; Shriners Hospitals for Children; Holston Medical Group; Clinch River Health Services, Inc.; and Dr. Ashok V. Mehta, M.D. Horton's attorney also submitted additional medical records from Clinch River Health Services to the Appeals Council.[5]

         The record shows that Horton was admitted to the Shriners Hospitals for Children for bilateral postero-medial releases; bilateral ankle medial malleolar screw placement; a spinal fusion; and removal of medial malleolar hardware from both ankles resulting from club foot and scoliosis. (R. at 415-23.) In October 2007, x-rays of Horton's pelvis showed mild flattening of the femoral heads bilaterally; residual previous Legg-Perthes disease; the femoral heads were directed towards the socket of the hipbone bilaterally; and no evidence of acute abnormality. (R. at 425.) X-rays of Horton's thoracolumbar spine showed hardware present, intact and without evidence for complication. (R. at 426.) X-rays of Horton's ankles showed irregularity of the talar dome, [6] particularly on the left, and several degrees of ankle valgus on the left. (R. at 424.) In October 2009, Horton complained of bilateral hip pain and low back pain. (R. at 406, 410.) It was noted that Horton ambulated with a reciprocating heel-to-toe gait with a fat-thigh type gait. (R. at 406.) Horton had approximately 20 to 30 degrees of external foot progression. (R. at 406.) On examination, Horton's left hip had virtually no internal rotation and approximately 30 degrees of external rotation with fairly good abduction. (R. at 406.) He reported that his pain was “fairly tolerable.” (R. at 406.)

         On November 18, 2007, Dr. Kevin Blackwell, D.O., examined Horton at the request of Disability Determination Services. (R. at 300-04.) Horton reported that he had difficulty “keeping up with his gait, ” which caused him to stumble and, at times, fall. (R. at 301.) Horton stated that he did well at school educationally. (R. at 301-02.) Dr. Blackwell noted that Horton's gait was unsteady, and he walked with everted ankles. (R. at 303.) Horton's back was tender along the paraspinal muscles with no muscle spasm. (R. at 303.) Dr. Blackwell diagnosed cleft palate deformity; foot deformity, club feet status-post surgery; history of scoliosis; and elevated blood pressure. (R. at 303.) Dr. Blackwell opined that Horton could stand for up to two hours in an eight-hour workday with normal positional changes; sit for up to eight hours in an eight-hour workday with normal positional changes; he could not squat, kneel, crawl, climb ladders or stairs or ...


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