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Tolbert v. Berryhill

United States District Court, W.D. Virginia, Abingdon Division

May 23, 2018

SHARON LEIGH TOLBERT, Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant

          MEMORANDUM OPINION

          Pamela Meade Sargent, United States Magistrate Judge.

         I. Background and Standard of Review

         Plaintiff, Sharon Leigh Tolbert, (“Tolbert”), filed this action challenging the final decision of the Commissioner of Social Security, (“Commissioner”), determining that she was not eligible for supplemental security income, (“SSI”), under the Social Security Act, as amended, (“Act”), 42 U.S.C.A. § 1381 et seq. (West 2012). Jurisdiction of this court is pursuant to 42 U.S.C. § 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 Tolbert protectively filed an application for SSI on July 16, 2012, alleging disability as of July 16, 2012, [1] based on mitral valve prolapse; hypokalemia; esophagus erosion; esophagitis intestinal spasms; irritable bowel syndrome; gastritis; arthritis; problems with the rotator cuff of the right shoulder; duodenal ulcers; gastroesophageal reflux disease, (“GERD”); and hiatal hernia. (Record, (“R.”), at 224-27, 236, 240.) The claim was denied initially and upon reconsideration. (R. at 116-18, 123-24, 126-28, 130-32.) Tolbert then requested a hearing before an administrative law judge, (“ALJ”). (R. at 133-34.) Hearings were held by video on September 29, 2014, and June 12, 2015, at which Tolbert was represented by counsel. (R. at 43-94.)

         By decision dated July 31, 2015, the ALJ denied Tolbert's claim. (R. at 24-37.) The ALJ found that Tolbert had not engaged in substantial gainful activity since July 16, 2012, the application date. (R. at 26.) The ALJ determined that the medical evidence established that Tolbert suffered from severe impairments, namely right shoulder tendinopathy with rotator cuff disorder; irritable bowel syndrome, stable with treatment regimen; history of mitral valve prolapse; mild coronary artery disease; cervicalgia; generalized anxiety disorder; and borderline personality traits, but he found that Tolbert 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 26-27.) The ALJ found that Tolbert had the residual functional capacity to perform light work[2] that allowed her to stand four to six hours in an eight-hour workday, walk three to four hours in an eight-hour workday and sit six to eight hours in an eight-hour workday; that allowed her to lift and carry items weighing up to 15 pounds with the left upper extremity and up to five pounds with the dominant right upper extremity; that did not require overhead reaching with the right upper extremity; and that did not require her to understand, remember and carry out detailed work instructions. (R. at 29.) The ALJ found that Tolbert was unable to perform any of her past relevant work. (R. at 35.) Based on Tolbert's age, [3] 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 Tolbert could perform, including jobs of a cashier, a gate guard and a sales attendant. (R. at 35-36.) Thus, the ALJ concluded that Tolbert was not under a disability as defined by the Act, and was not eligible for SSI benefits. (R. at 36-37.) See 20 C.F.R. § 416.920(g) (2017).

         After the ALJ issued his decision, Tolbert pursued her administrative appeals, (R. at 13), but the Appeals Council denied her request for review. (R. at 1-3.) Tolbert 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. § 416.1481 (2017). This case is before this court on Tolbert's motion for summary judgment filed September 13, 2017, and the Commissioner's motion for summary judgment filed October 13, 2017.

         II. Facts

         Tolbert was born in 1962, (R. at 224), which, at the time of her alleged disability onset classified her as a “person closely approaching advanced age” under 20 C.F.R. § 416.963(d). Tolbert has an eleventh-grade education and past work experience as a sewing machine operator and an inspector in the garment industry. (R. at 62-63, 241.) Tolbert stated that she helped take care of her elderly mother four days a week by cooking for her; doing her laundry; getting her medications and administering them to her; taking her to her doctor's appointments; helping her get dressed; and helping her get in and out of the shower. (R. at 62, 71-72, 269.)

         Victor Baranauskas, a vocational expert, also was present and testified at Tolbert's September 2014 hearing. (R. at 90-92.) Baranauskas was asked to identify the exertional level of a home care aide or care giver. (R. at 90.) He stated that these jobs were medium, [4] semi-skilled jobs. (R. at 90.) Baranauskas was asked to consider a hypothetical individual of Tolbert's age, education and no relevant work history, who had the residual functional capacity to perform light work, that did not require more than occasional stooping, crouching and climbing steps; that did not require working around excessively cold temperatures; and who could perform tasks involving no more than short, simple instructions. (R. at 90-91.) In addition, this individual could interact appropriately to supervision, the public and co-workers. (R. at 91.) Baranauskas testified that such an individual could perform light jobs existing in significant numbers in the national economy, including jobs as a fast food worker, a cashier and a cafeteria attendant. (R. at 91.) He stated that these jobs required no more than occasional overhead reaching. (R. at 92.)

         On March 20, 2015, Baranauskas completed a set of vocational interrogatories, wherein he was asked to consider an individual of Tolbert's age, education and lack of past relevant work experience, who had the residual functional capacity to perform as indicated in the assessments of psychologist Christopher M. Carusi, Ph.D., and Dr. Paul Robb. (R. at 310-12, 433-35, 440-45.) Wells stated that such an individual could perform unskilled sedentary jobs existing in significant numbers in the national economy, including jobs as a final assembler, a polisher and a machine operator. (R. at 311.) He also stated that such an individual could perform unskilled light jobs existing in significant numbers in the national economy, including jobs as a cleaner, a hand packer and a mail clerk. (R. at 311.)

         Asheley Wells, a vocational expert, testified at Tolbert's June 2015 hearing. (R. at 49-53.) Wells was asked to consider a hypothetical individual of Tolbert's age, education and no relevant work history, who could lift and carry items weighing up to five pounds with the right upper extremity; who could perform no overhead reaching with the right upper extremity; who could occasionally reach in all other directions; who could occasionally push and pull with the right upper extremity; and who was right hand dominant. (R. at 49-50.) Wells stated that, the lifting and carrying limitation would require sedentary work, and the reaching overhead limitation precluded sedentary work. (R. at 50.) Wells was asked to consider the same individual, but who could stand four to six hours in an eight-hour workday; walk three to four hours in an eight-hour workday; sit six to eight hours in an eight-hour workday; lift and carry items weighing up to 15 pounds with the left arm and up to five pounds with the right arm; and who was precluded from reaching overhead with the right upper extremity. (R. at 51.) She stated that according to the Dictionary of Occupational Titles, (“DOT”), the walking restriction would fall into the light exertional category, but the lifting restrictions would fall into the sedentary category. (R. at 51-52.) Wells stated that a significant number of jobs existed in the national economy, including jobs as a cashier, a gate guard and a sales attendant, that such a person could perform. (R. at 52-53.) She stated, however, that her testimony was not consistent with the DOT because the DOT listed these jobs as light. (R. at 52.)

         In rendering his decision, the ALJ reviewed records from Dr. Robert McGuffin, M.D., a state agency physician; Dr. Jack Hutcheson, M.D., a state agency physician; Dr. Mark Borsch, M.D.; Cardiovascular Associates; Dr. Lacyoni Moraes-Finglass, M.D.; Johnston Memorial Hospital; Sally Pennings, N.P., a nurse practitioner; Saltville Medical Center; Christopher M. Carusi, Ph.D., a licensed clinical psychologist; Dr. William T. Cummins, M.D.; Abingdon Heart Care and Prevention; Alvin D. McCuiston, P.A., a physician's assistant; University of Virginia Health System; Dr. Jeffrey Neal, M.D.; Dr. Emily Shields, M.D.; Dr. Paul M. Robb, M.D.; and Dr. Jamie C. Goodman, D.O.

         On February 12, 2004, cardiologist, Dr. Lacyoni Moraes-Finglass, M.D., saw Tolbert who stated that, since July 2003, she had been having episodes of chest discomfort and occasional palpitations. (R. at 345-47.) A cardiac examination revealed regular rate and rhythm with normal sound and the presence of an audible, but soft, murmur at the left lower sternal border. (R. at 347.) An electrocardiogram, (“EKG”), showed sinus bradycardia with a heart rate of 55 beats per minute. (R. at 347.) Dr. Moraes-Finglass diagnosed chest pain; history of mitral valve prolapse; tobacco abuse; and palpitations. (R. at 347.)

         On October 17, 2005, Tolbert was admitted to Johnston Memorial Hospital for complaints of a syncopal episode. (R. at 337-43.) An echocardiogram, (“ECG”), and electroencephalogram, (“EEG”), were unremarkable. (R. at 339.) Her discharge diagnosis was syncope, conversion type. (R. at 339.)

         Tolbert was seen by Dr. Mark Borsch, M.D., a cardiologist at Cardiovascular Associates, from January 2006 through February 2014 for mitral valve prolapse; mild regurgitation; fatigue; orthostatic hypotension; palpitations; hematuria; and esophageal spasm. (R. at 314-36, 348-52, 376-81, 426-28.) In July 2007, a stress test showed no evidence of stress induced ischemia. (R. at 335.) In June 2008, an EKG was normal, and Tolbert reported that she was doing well. (R. at 321.) In July 2009, Dr. Borsch reported that Tolbert's pulmonary and neurological examinations were normal. (R. at 319.) He noted a barely audible murmur. (R. at 319.) In June 2010, Tolbert reported that her heart palpitations were better since taking medication; however, she reported that her fatigue had worsened. (R. at 316.) Dr. Borsch reported that Tolbert's examination was normal. (R. at 316-17.) He reported that Tolbert's last two EKGs did not show mitral valve prolapse. (R. at 315.)

         On May 18, 2011, Dr. Borsch reported that Tolbert's examination was normal. (R. at 314-15.) On May 26, 2011, a coronary calcification study showed moderately abnormal calcific coronary atherosclerosis. (R. at 320.) In June 2011, a stress test was normal. (R. at 348-49.) On January 28, 2013, and February 24, 2014, Dr. Borsch noted that Tolbert did not have chest discomfort suggestive of ischemia. (R. at 376, 426.) Tolbert denied palpitations, tachycardia, syncope and presyncope. (R. at ...


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