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Bishop v. Berryhill

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

December 14, 2017

NANCY A. BERRYHILL,[1] Acting Commissioner of Social Security, Defendant


          Pamela Meade Sargent United States Magistrate Judge.

         I. Background and Standard of Review

         Plaintiff, Billy James Bishop, Jr., (“Bishop”), 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 Bishop protectively filed his applications for DIB and SSI on March 29, 2012, alleging disability as of December 10, 2011, due to post-traumatic stress disorder, (“PTSD”); anxiety; panic attacks; problems with the sciatic nerve in his right leg; back pain; hepatitis C; and dermatitis herpetiformis.[2] (Record, (“R.”), at 218-25, 240, 244, 287, 305.) The claims were denied initially and on reconsideration. (R. at 114-16, 120-22, 125-27, 131-33, 136, 138-40, 142-47, 149-51.) Bishop then requested a hearing before an administrative law judge, (“ALJ”). (R. at 152-53.) A video hearing was on October 2, 2015, at which Bishop was represented by counsel. (R. at 43-71.)

         By decision dated October 27, 2015, the ALJ again denied Bishop's claims. (R. at 23-35.) The ALJ found that Bishop met the nondisability insured status requirements of the Act for DIB purposes through September 30, 2012. (R. at 25.) The ALJ found that Bishop had not engaged in substantial gainful activity since December 10, 2011, the alleged onset date. (R. at 25.) The ALJ found that the medical evidence established that Bishop had severe impairments, namely hepatitis C; dermatitis herpetiformis; hypertension; depression; and anxiety, but he found that Bishop 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 25-26.) The ALJ found that Bishop had the residual functional capacity to perform simple, routine, unskilled medium[3] work that allowed regularly scheduled breaks; that did not require him to perform food handling or preparation pre-consumption; that did not require him to work around hazardous machinery, unprotected heights and climbing of ladders, ropes or scaffolds; that did not have strict production rate or pace requirements; and that did not require more than occasional interaction with the public, co-workers and supervisors. (R. at 27-28.) The ALJ found that Bishop was unable to perform his past relevant work. (R. at 33.) Based on Bishop'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 Bishop could perform, including jobs as a night cleaner, a garment folder, a hospital cleaner and a hand packer. (R. at 33-34.) Thus, the ALJ concluded that Bishop was not under a disability as defined by the Act, and was not eligible for DIB or SSI benefits. (R. at 34-35.) See 20 C.F.R. §§ 404.1520(g) 416.920(g) (2017).

         After the ALJ issued his decision, Bishop pursued his administrative appeals, (R. at 16), but the Appeals Council denied his request for review. (R. at 1-5.) Bishop 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). This case is before this court on the Commissioner's motion for summary judgment filed April 24, 2017.[4]

         II. Facts

         Bishop was born in 1981, (R. at 218, 220), 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 some college course work. (R. at 52.) Bishop has past relevant work as a cook, a general laborer and a tile installer. (R. at 49, 52-54, 251.) He stated that he took Paxil for depression and anxiety. (R. at 54.) Bishop stated that he took Subutex. (R. at 54.) He stated that he had used marijuana for a couple of years because “it helps my nerves and calm[s] [me] down from my anxiety attacks….” (R. at 56.) Bishop stated that his skin condition, a gluten-type allergy, would flare up two weeks out of the month. (R. at 58.) He stated that, when these flare-ups occur, he itches all over, which causes him to scratch and bleed. (R. at 59.) Bishop stated that his medication for the allergy helped, but he still continued to break out. (R. at 59-60.)

         Asheley Wells, a vocational expert, was present and testified at Bishop's hearing. (R. at 67-70.) Wells was asked to consider a hypothetical individual of Bishop's age, education and work history, who could perform simple, unskilled medium work that did not require him to handle food or anything pre-consumption; that did not require him to work around hazardous machinery, unprotected heights or climbing of ladders, ropes or scaffolds; who would require regularly scheduled breaks every two hours; who could not work with a strict production rate or pace requirement; and who would not be required to have more than occasional interaction with the public, co-workers or supervisors. (R. at 67-68.) She stated that the individual could not perform any of Bishop's past work, but that other jobs existed in significant numbers that the individual could perform, including jobs as a night cleaner and a garment folder, both at the light[5] exertion level, and jobs as a hospital cleaner and hand packager, both at the medium exertion level. (R. at 69.) Wells stated that there would be no jobs available should the individual miss four or more days of work a month. (R. at 69.) She also stated that there would be no jobs available if the individual was unable to maintain attention and concentration for extended periods, to understand and remember short and simple instructions, to complete a normal workweek without interruptions, to perform at a consistent pace without extended breaks and to get along with co-workers or peers. (R. at 70.)

         In rendering his decision, the ALJ reviewed records from Dr. Carolina Bacani-Longa, M.D., a state agency physician; Dr. Jack Hutcheson, M.D., a state agency physician; Dr. Kevin Blackwell, D.O.; Dr. Art Van Zee, M.D.; and Dr. Russell D. Mader, M.D.

         The record shows, that at age 16, Bishop started snorting Percocet and Lortab; at age 18, he began snorting and injecting OxyContin; he then injected opioids for roughly 10 years, with OxyContin being his drug of choice; and at age 21, he was using IV heroin before switching back to OxyContin. (R. at 429.) In 2004, Bishop went to prison for forged checks, where he was drug-free until his release in July 2006. (R. at 429.) He relapsed three weeks after his release from prison and continued to abuse drugs until July 2008, when he entered a buprenorphine treatment program. (R. at 429-30.) He was initially placed on Suboxone. (R. at 431.)

         The record shows that Dr. Art Van Zee, M.D., treated Bishop from April 2009 through July 2015. Dr. Van Zee diagnosed opioid type dependence; nondependent tobacco use disorder; hepatitis C; mixed or unspecified drug abuse; leg pain; probable lumbar radiculopathy; depression; anxiety, acute gastroenteritis; dermatitis herpetiformis; nocturnal leg cramps; and plantar warts. (R. at 351, 353, 356, 359, 362, 365, 371, 373, 376, 378-79, 393, 396, 398, 405, 407, 410, 417, 419, 421, 426-27, 431, 433, 435, 472, 475-77, 479, 481-94, 497, 501, 504, 508, 512, 516, 519, 527, 530, 534, 538, 542, 546, 550, 553, 556, 559, 562, 565, 568, 571, 574, 578, 581, 585, 589, 595, 603-04, 638-39, 641-42, 646, 650-51, 654-55, 658-59, 662-63, 666-67, 670-71, 674-75, 679.)

         On April 1, 2009, Dr. Van Zee reported that Bishop had been referred to him from the Addiction Education Center for entry into the buprenorphine treatment program. (R. at 429.) On July 2, 2009, Bishop reported that he had taken a “few Klonopin” that someone had given him. (R. at 478.) When Dr. Van Zee observed that Bishop had needle marks, he admitted to recently injecting Ritalin. (R. at 478.) Bishop went to jail from September 9, 2009, through October 5, 2009, because he violated his probation; a urine drug screen was positive for benzodiazepines. (R. at 487.) In December 2009, Bishop requested consideration for reentry into the buprenorphine treatment program. (R. at 487.) On July 24, 2011, x-rays of Bishop's cervical spine showed mild spondylosis, and an x-ray of Bishop's thoracic spine showed nominal scoliosis and spondylosis. (R. at 443, 445.)

         On January 10, 2012, Bishop complained of nausea, vomiting and diarrhea, as well as a rash on his elbows, buttocks and legs. (R. at 576.) He stated that he had missed work the previous day and asked for a work excuse. (R. at 576, 578.). Dr. Van Zee completed a work excuse indicating that Bishop could return to work on January 11, 2012.[6] (R. at 578.) Bishop continued to complain of a rash at visits in February and March 2012. (R. at 579, 583.) On May 22, 2012, Bishop reported that he had stopped working due to increased depression and leg pain, but stated that the main reason he stopped working was because of right leg pain. (R. at 428.) Dr. Van Zee performed a physical examination which revealed that Bishop's reflexes were 2 and equal. (R. at 427.) He was able to walk on his toes and heels, and a straight leg raising test was negative on the left at 75 degrees and positive on the right at 60 degrees. (R. at 427.) X-rays of Bishop's right knee and lumbosacral spine were normal. (R. at 442.) On July 3, 2012, Dr. Van Zee saw Bishop for follow-up care, at which time he reported that he was still somewhat reclusive at home. (R. at 597.) He also reported that he had applied for a job and was applying for ...

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