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Lovern v. Berryhill

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

December 8, 2017

ROLAND G. LOVERN, JR., 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, Roland G. Lovern, Jr., (“Lovern”), filed this action challenging the final decision of the Commissioner of Social Security, (“Commissioner”), determining that he was not eligible for disability insurance benefits, (“DIB”), under the Social Security Act, as amended, (“Act”), 42 U.S.C.A. § 423 (West 2011). Jurisdiction of this court is pursuant to 42 U.S.C. § 405(g). This case is before the undersigned magistrate judge upon transfer pursuant to the consent of the parties under 28 U.S.C. § 636(c)(1).

         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 Lovern protectively filed a previous DIB claim on July 3, 2008, alleging disability as of April 30, 2008, which was denied by decision dated October 28, 2009.[2] (Record, (“R.”), at 64-74.) While this decision was on appeal to the Appeals Council, Lovern protectively filed a new application for DIB[3] on October 28, 2009, alleging disability as of October 24, 2009, [4] based on a back/spinal injury, anxiety, depression and hypertension. (R. at 18, 210-13, 239, 243.) The claim was denied initially and on reconsideration. (R. at 108-12, 114-18, 119, 120-22, 124-26.) Lovern then requested a hearing before an administrative law judge, (“ALJ”), (R. at 127.) The ALJ held a hearing on October 28, 2011, and by decision dated February 2, 2012, the ALJ denied Lovern's claims. (R. at 18-28, 35-60.) This denial was appealed, (R. at 13), and the Appeals Council denied Lovern's request for review. (R. at 1-4.) Lovern then filed an action in this court seeking review of the ALJ's unfavorable decision.

         By Opinion and Order entered September 29, 2014, in Case No. 2:13cv00014, the undersigned remanded Lovern's claim to the Commissioner based on her finding that substantial evidence did not support the ALJ's finding that Lovern did not suffer from a severe mental impairment. (R. at 713-53.) On remand from this court, the Appeals Council vacated the ALJ's decision and remanded the case to the ALJ for further consideration.[5] (R. at 709-11.) On remand, a video hearing was held before an ALJ on June 9, 2015. (R. at 680-708.)

         By decision dated January 28, 2016, the ALJ denied Lovern's claim. (R. at 639-70.) The ALJ found that Lovern met the nondisability insured status requirements of the Act for DIB purposes through December 31, 2013.[6] (R. at 643.) The ALJ also found that Lovern had not engaged in substantial gainful activity during the period October 29, 2009, through the date last insured, December 31, 2013. (R. at 643.) The ALJ found that the medical evidence established that Lovern suffered from severe impairments, namely lumbar spine degenerative disc disease status-post laminectomy; cervical spine degenerative disc disease; obesity; depression; anxiety; pain disorder; social phobia; and panic attacks, but he found that Lovern 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 643, 655.) The ALJ found that Lovern had the residual functional capacity to perform low-stress sedentary work[7] which allowed a sit/stand option at will; that did not require him to climb ladders, ropes or scaffolds; that did not require more than occasional climbing of ramps and stairs, balancing, stooping, kneeling, crawling or crouching; that did not require him to work around moving machinery or heights; and did not require more than occasional interaction with the public or co-workers. (R. at 657.) The ALJ found that, through the date last insured and the date of his decision, Lovern could not perform his past relevant work. (R. at 668.) Based on Lovern's age, education, work history and residual functional capacity and the testimony of a vocational expert, the ALJ found that, through the date last insured and through the date of his decision, jobs existed in significant numbers in the national economy that Lovern could perform, including jobs as an assembler, a weight tester and a cuff folder. (R. at 669.) Thus, the ALJ found that Lovern was not under a disability as defined under the Act from October 24, 2009, [8] through December 31, 2013, the date last insured, and was not eligible for benefits. (R. at 670.) See 20 C.F.R. § 404.1520(g) (2017).

         II. Facts

         Lovern was born in 1978, (R. at 210, 685), which classifies him as a “younger person” under 20 C.F.R. § 404.1563(c). He has a high school education and some college course work. (R. at 43, 250, 685.) He has past relevant work experience as a field supervisor for a communications company, a butcher and a product support advisor in a call center for a consumer electronics business. (R. at 244, 254, 686-88.)

         At his June 2015 hearing, Lovern testified that counseling had been beneficial. (R. at 694.) He stated that medication helped his symptoms of depression. (R. at 694-95.) Lovern reported that he watched television, played video games and read daily. (R. at 285.) He reported that he did not need reminders to take care of his personal needs or to take his medications. (R. at 283.) Lovern reported that he had no problems getting along with authority figures and that he handled stress “fairly well.” (R. at 287.)

         On December 12, 2011, AnnMarie E. Cash, a vocational expert, completed vocational interrogatories concerning Lovern's work-related abilities. (R. at 304-07.) She was asked to assume a hypothetical individual of Lovern's age, education and work experience, who had the residual functional capacity to perform sedentary work that required only occasional stooping, kneeling, crawling and crouching and positional changes every 45 minutes. (R. at 305.) She stated that the individual could perform Lovern's past work as a product support advisor/customer service. (R. at 305.) Cash also stated that the individual could perform other jobs that existed in significant numbers, including a ticket checker, a telephone clerk and a general office clerk. (R. at 306.)

         Cash completed a second set of interrogatories[9] indicating that, an individual of Lovern's age, education, work experience who was limited to performing sedentary work that required no squatting, stooping, crouching, crawling, working around unprotected heights, ladder climbing or stair stepping and who required position changes every 30 to 45 minutes, could not perform Lovern's past work. (R. at 318, 320-21.) She stated that due to the hypothetical individual being limited to sedentary work that did not allow stooping, there would be no jobs available that the individual could perform. (R. at 320.) Cash was asked to assume the same individual, but who would be limited to standing and/or walking a total of two hours in an eight-hour workday, but without interruption for 30 minutes; sit for a total of two hours in an eight-hour workday without interruption for 30 minutes; never stoop, kneel, crouch or crawl; and who would be absent from work more than two days a month. (R. at 320.) Cash stated that there would be no jobs available that such an individual could perform. (R. at 320.) Cash was asked to assume the same individual, but who had no useful ability to deal with work stresses or to maintain attention/concentration and who would be absent from work more than two days a month. (R. at 321.) She stated that there would be no jobs available that such an individual could perform. (R. at 321.) Cash was asked to consider the same individual, but who had an unsatisfactory ability to interact appropriately with the public, supervisors or co-workers; to respond appropriately to usual work situations and changes in a routine work setting; and who would be absent from work more than two days a month. (R. at 321.) She stated that there would be no jobs available that such an individual could perform. (R. at 321.)

         Asheley Wells, a vocational expert, also was present and testified at Lovern's June 2015 hearing. (R. at 701-06.) Wells testified that a hypothetical individual of Lovern's age, education and work history, who could perform low-stress, light[10] work that did not require him to climb ladders, ropes or scaffolds or to work around moving machinery or heights; that required only occasional climbing of ramps or stairs, kneeling, stooping, crouching or crawling; and that required occasional decision making, changes in the work setting or interaction with the public or co-workers could not perform Lovern's past work, but that he could perform other jobs existing in significant numbers in the national economy, including jobs as a night cleaner, an assembler and a packing line worker, all at the light level of exertion. (R. at 703-04.) Wells next testified that the same hypothetical individual, but who could stand and/or walk two hours in an eight-hour workday, sit up to six hours of an eight-hour workday and occasionally operate foot controls, could perform sedentary jobs such as an assembler, a weight tester and a cuff folder. (R. at 704-05.) Wells stated that the same individual, but who would be limited to lifting items weighing up to 10 pounds occasionally, could perform the jobs previously identified. (R. at 705.) Wells was asked to consider the same individual, but who could not engage in a production rate or pace work; who would be distracted 20 percent of the workday; and who would be absent from work at least two times a month. (R. at 705-06.) She stated that such an individual could not perform any work. (R. at 706.)

         On September 9, 2015, Wells completed a set of interrogatories indicating that, an individual of Lovern's age, education and work experience who was limited to performing low-stress, sedentary work that required a sit/stand option, provided the individual remained on task while in either position; that required no climbing of ladders, ropes or scaffolds; that required only occasional climbing of ramps or stairs, balancing, stooping, kneeling, crouching or crawling; that did not require him to work around moving machinery or heights; and that required no more than occasional interaction with the public or co-workers could perform a significant number of medium[11] exertion jobs, including jobs as a meat cutter, a cable installer and a technical support advisor. (R. at 827-30.) She stated that there also was a significant number of sedentary jobs available that such an individual could perform, including jobs as an assembler, a weight tester and a cuff folder. (R. at 829.)

         In rendering his decision, the ALJ reviewed medical records from Dr. Patricia Vanover, M.D.; Norton Community Hospital; B. Wayne Lanthorn, Ph.D., a licensed clinical psychologist; D. Kaye Weitzman, L.C.S.W., a licensed clinical social worker; Holston Valley Medical Center; Solutions Counseling, LLC; Stone Mountain Health Services; Dr. Kevin Blackwell, D.O.; Mountain View Regional Medical Center; Johnston Memorial Hospital; Crystal Burke, L.C.S.W.; Arthritis Associates of Kingsport, P.L.L.C.; Associated Neurologists of Kingsport; Dr. Ken W. Smith, M.D.; Blue Ridge Neuroscience Center; and Wellmont Health System.

         The record shows that on August 9, 2000, when Lovern was only 22 years old, he underwent complete bilateral L4 and L5 and partial S1 laminectomies and medial facetectomies with additional resection of the left L5-S1 herniated nucleus pulposus by Dr. Ken W. Smith, M.D., a neurosurgeon. (R. at 373-76.) When Lovern was discharged in satisfactory condition on August 11, 2000, it was noted that he had significant improvement of leg pain. (R. at 377-78.)

         X-rays of Lovern's lumbar spine, dated July 24, 2009, showed postsurgical changes at the L4-L5 level, some mild narrowing at the L4-L5 level, as well as minimal change at ¶ 3-L4 level. (R. at 347.) Mild scattered degenerative spurring also was present with no spondylolysis. (R. at 347.) Mild degenerative changes also were present in the lower facets. (R. at 347.) It was concluded that there was no acute abnormality. (R. at 347.)

         On September 21, 2009, B. Wayne Lanthorn, Ph.D., a licensed clinical psychologist, evaluated Lovern at the request of Lovern's attorney. (R. at 355-65.) Lovern reported his daily activities to include watching television, reading and playing computer games, but basically staying at home. (R. at 359-60.) Lovern's speech was clear and intelligible, and his grooming and hygiene were adequate. (R. at 359-60.) His affect was described as mixed. (R. at 360.) Lovern reported that antidepressant medication had been helpful and that he was only occasionally irritable. (R. at 360.) He indicated no significant problems with memory or concentration. (R. at 360.) Lanthorn noted no signs of ongoing psychotic processes or any evidence of delusional thinking. (R. at 360.)

         Lanthorn administered the Wechsler Adult Intelligence Sale - Fourth Edition, (“WAIS-IV”), and Lovern achieved a full-scale IQ score of 108. (R. at 356, 361.) Lanthorn also administered the Minnesota Multiphasic Personality Inventory - 2, (“MMPI-2”), which indicated the presence of some depression, which contributed to social withdrawal and some erratic to poor concentration at times. (R. at 362-63.) The test results also indicated the presence of some anxiety, tension, worry and emotional discomfort. (R. at 363.) Lanthorn noted that Lovern seemed to worry to excess, which also contributed to problems with concentration. (R. at 363.) The test results also indicated that Lovern's concentration skills and memory were adequate. (R. at 363.)

         Lanthorn diagnosed Lovern with a pain disorder associated with both psychological factors and general medical conditions, chronic; a mood disorder with major depressive-like episode, moderate, due to chronic physical problems, pain and limitations; and alcohol abuse in sustained full remission; and he assessed Lovern's then-current Global Assessment of Functioning, (“GAF”), [12] score at 55.[13](R. at 364.) Lanthorn felt that Lovern had no limitations regarding learning simple or moderately complicated tasks in the work setting and only mild limitations with regard to sustaining concentration and persisting at tasks. (R. at 365.) He opined that Lovern had mild to moderate difficulties dealing with the changes and requirements in a work setting. (R. at 365.)

         Lanthorn also completed a mental assessment, indicating Lovern had an unlimited ability to understand, remember and carry out simple job instructions; a satisfactory ability to follow work rules, to relate to co-workers, to maintain attention and concentration and to understand, remember and carry out detailed job instructions; and a seriously limited ability 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 complex job instructions, to maintain personal appearance, to behave in an emotionally stable manner, to relate predictably in social situations and to demonstrate reliability. (R. at 366-68.) Lanthorn opined that Lovern would be absent more than two days monthly from work due to his impairments or treatment. (R. at 368.)

         The record shows that Lovern saw D. Kaye Weitzman, L.C.S.W., a licensed clinical social worker, from September 2009 through April 2013. Weitzman diagnosed Lovern with a mood disorder; a generalized anxiety disorder; a major depressive disorder; agoraphobia with panic disorder; social phobia; and anxiety. (R. at 369, 502-04, 539-42, 558-65, 613, 624, 851-60, 908-09.) In September 2009, Weitzman assessed Lovern's then-current GAF score at 40, [14] with his highest score being 75[15] within the past year. (R. at 369.) During this time, Weitzman repeatedly described Lovern's mood as depressed with an anxious affect, his orientation and thought processes were intact, and his judgment and insight were deemed fair. (R. at 369, 503-04, 539-42, 558-65, 613, 624, 851-60.) In May 2010, September 2011, April 2012 and May 2012, Weitzman noted that Lovern displayed paranoia and delusions. (R. at 540, 624, 857-58.) In March 2010, Lovern reported that his medication helped him to rest, which improved his mood. (R. at 542.) In September 2010, Lovern reported that he felt “much better” and was without panic. (R. at 563.) Weitzman noted that Lovern was “maintaining decreased panic.” (R. at 563.) In May 2011, Lovern reported that he was “doing well” with his medications. (R. at 559.) In September 2011, Lovern complained of increased panic. (R. at 624.) Weitzman noted that Lovern's mood was depressed and irritable with an anxious affect, his orientation and thought processes were intact, and his judgment and insight were deemed fair. (R. at 624.) Weitzman noted that Lovern was decompensating due to increased pain. (R. at 624.) In February 2012, Weitzman reported that Lovern was not functioning at a competitive level despite Lovern's reports that he was doing well on medications. (R. at 860.) In January 2013 and February 2013, Weitzman reported that Lovern was decompensating secondary to pain, panic attacks and depression. (R. at 851-82.)

         On March 22, 2013, Weitzman completed a mental assessment, [16] finding that Lovern had a seriously limited ability to maintain personal appearance. (R. at 862-64.) She found that Lovern had no useful 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 maintain attention and concentration; to understand, remember and carry out complex, detailed and simple job instructions; to behave in an emotionally stable manner; to relate predictably in social situations; and to demonstrate reliability. (R. at 862-63.) Weitzman found that Lovern would be absent from work more than two days monthly due to his impairments or treatment. (R. at 864.)

         On October 12, 2009, Lovern saw Dr. Patricia Vanover, M.D., [17] with complaints of increasingly severe low back pain. (R. at 505-06.) Lovern stated that he could care for his own needs and that he took pain medication sparingly due to fear of addiction. (R. at 505.) Lovern had marked tenderness of the lumbosacral paraspinal muscles, and range of motion was restricted. (R. at 505.) Station was normal, but gait was slow and ambling. (R. at 505.) Dr. Vanover diagnosed hypertension, chronic low back pain, depression and chronic gout. (R. at 505.) On April 28, 2010, physical examination showed that Lovern's gait was slow and ambling, he exhibited marked tenderness in the lumbosacral area with spasm, and his range of motion was restricted. (R. at 537.) Lovern was oriented, and his memory, mood, affect, judgment and insight were normal. (R. at 537.) Dr. Vanover reminded Lovern to remain as active as possible. (R. at 538.) On July 27, 2010, Lovern reported that his medications helped his symptoms of depression and anxiety, but that they did not completely alleviate them. (R. at 543.) Lovern was oriented, and his memory, affect, judgment and insight were normal. (R. at 544.) He had a depressed mood. (R. at 544.)

         On September 7, 2010, Lovern stated that he was “extremely anxious” most of the time. (R. at 610.) Lovern reported taking an occasional Xanax, which helped him. (R. at 610.) He further reported that his pain medication worked “fairly well, ” but he still had a great deal of pain. (R. at 610.) Lovern described his hypertension as under good control. (R. at 610.) Physical examination showed that Lovern's gait was slightly unsteady, and there was tenderness over the lumbosacral area. (R. at 611.) Range of motion of the back was decreased secondary to pain and body habitus. (R. at 611.) Lovern's orientation, memory, mood, affect, judgment and insight all were deemed normal. (R. at 611.) On October 25, 2010, Lovern reported that Xanax XR was helping with anxiety, but he remained “quite anxious” and had difficulty sleeping due to pain. (R. at 607.) Lovern exhibited tenderness over the lumbosacral area and decreased range of motion secondary to pain and habitus. (R. at 608.) His orientation, memory, mood, affect, judgment and insight all were deemed ...


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