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Call v. Berryhill

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

July 25, 2018

MICHAEL ANDREW CALL, 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, Michael Andrew Call, (“Call”), 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 Call protectively filed applications for DIB and SSI on April 18, 2012, alleging disability as of December 15, 2011, based on diabetes; depression; anxiety; paranoia; panic attacks; knee problems; numbness and pain in his feet and ankles; and a torn rotator cuff of the right shoulder. (Record, (“R.”), at 411-16, 445, 455, 485.) The claims were denied initially and upon reconsideration. (R. at 188-90, 194, 199-201, 203-05.) Call then requested a hearing before an administrative law judge, (“ALJ”). (R. at 207-08.) A hearing was held on September 10, 2014, and a supplemental hearing was held on March 2, 2015, at which Call was represented by counsel. (R. at 60-100.) By decision dated March 9, 2015, the ALJ denied Call's claims. (R. at 168-77.) Call pursued his administrative appeals, (R. at 349), and, on April 28, 2016, the Appeals Council remanded his case for further action. (R. at 185-86.) Upon remand, a third hearing was held on August 25, 2016, at which Call was represented by counsel. (R. at 42-59.)

         By decision dated November 23, 2016, the ALJ denied Call's claims. (R. at 10-26.) The ALJ found that Call met the nondisability insured status requirements of the Act for DIB purposes through December 31, 2016. (R. at 12.) The ALJ also found that Call had not engaged in substantial gainful activity since December 15, 2011, the alleged onset date. (R. at 12.) The ALJ found that the medical evidence established that Call suffered from severe impairments, namely an anxiety disorder with social phobia; obesity; rotator cuff injury; osteoarthritis; and diabetes mellitus, but he found that Call 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 12-13.) The ALJ found that Call had the residual functional capacity to perform sedentary work[1] except that he was only able to occasionally kneel, crouch, stoop, balance, climb ramps and stairs, reach overhead with the right upper extremity and interact with others; he could frequently reach in other directions, handle and finger with the bilateral upper extremities; and he could never crawl or climb ladders, ropes and scaffolds, interact with the public or have direct contact with crowds of unfamiliar people. (R. at 15.) The ALJ found that Call was unable to perform his past relevant work. (R. at 24.) Based on Call's age, education, work history and residual functional capacity and the testimony of a vocational expert, the ALJ also found that jobs existed in significant numbers in the national economy that Call could perform, including jobs as an assembler, a weight tester and an addressing clerk. (R. at 24-25.) Thus, the ALJ found that Call was not under a disability as defined under the Act, and was not eligible for DIB or SSI benefits. (R. at 25-26.) See 20 C.F.R. §§ 404.1520(g) 416.920(g) (2017).

         After the ALJ issued his decision, Call pursued his administrative appeals, (R. at 409), but the Appeals Council denied his request for review. (R. at 1-5.) Call 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 Call's motion for summary judgment filed December 22, 2017, and the Commissioner's motion for summary judgment filed January 26, 2018.

         II. Facts

         Call was born in 1972, (R. at 63, 411, 413), which classifies him as a “younger person” under 20 C.F.R. §§ 404.1563(c), 416.963(c). He has a college degree in machine shop and past relevant work experience as a gluer, a dishwasher and an assistant operator at a stair and handrail parts manufacturer. (R. at 64, 68-69, 81-82, 456.) Call stated that his days consisted of watching television, taking care of his dog and cat, visiting friends and occasionally fishing with friends. (R. at 65.) Call testified that he had trouble using his right hand to pick up small objects and to grip objects. (R. at 51-52.) He stated that he experienced numbness in his feet, which made him “wobbly.” (R. at 74-75.) Call stated that he had to prop his feet for 30 minutes to an hour daily due to numbness in his feet. (R. at 75.)

         Asheley Wells, a vocational expert, also was present and testified at Call's September 2014 hearing.[2] (R. at 80-87.) Wells was asked to consider a hypothetical individual of Call's age, education and work history, who could occasionally lift and carry items weighing up to 10 pounds with his right arm and up to 20 pounds with his left arm; who could sit for six hours in an eight-hour workday; who could stand and walk four hours in an eight-hour workday; who could only occasionally reach overhead, as well as push and pull; who could frequently reach in all other directions and continuously handle, finger and feel with his right hand; who could frequently reach overhead, as well as push and pull, and continuously reach and/or finger and feel with his left hand and arm; who could occasionally operate equipment, climb stairs and ramps, balance and kneel; who could frequently stoop; and who could never climb ladders, crouch, crawl or work around food or other types of products due to having hepatitis C. (R. at 82-83.) Wells stated that the individual could not perform Call's prior work, but that a significant number of light[3] jobs existed in the national economy that such an individual could perform, including jobs as an assembler. (R. at 83-85.) She was asked to assume the same individual, but who was limited as indicated in the assessment of Dr. Laurie E. Rennie, M.D., (R. at 681-86), and who could not work around the public and could perform only simple one-to-three step jobs. (R. at 86.) Wells stated that the hypothetical individual could perform light jobs that existed in significant numbers in the national economy, including jobs as an assembler, a packing line worker and a garment folder. (R. at 86.) Wells also stated that there would be no jobs available should the hypothetical individual be limited as indicated by the assessment of licensed clinical social worker, Marcy S. Rosenbaum. (R. at 87, 627-28.)

         Mark Hileman, a vocational expert, testified at Call's March 2015 supplemental hearing. (R. at 95-99.) Hileman was asked to consider a hypothetical individual of Call's age, education and work history, who could occasionally lift and carry items weighing up to 20 pounds with his right arm and frequently lift and carry items weighing up to 20 pounds with his left arm; who could sit six hours in an eight-hour workday and stand and walk four hours in an eight-hour workday; who could occasionally reach overhead, push and pull with his right hand and frequently reach in all other directions, handle, finger and feel with his right hand; who could frequently reach overhead, as well as push and pull with his left hand and continuously reach in all directions, handle, finger and feel with his left hand; who could occasionally use his left and right feet for the operation of foot controls; who could never climb ladders or scaffolds, crouch and crawl; who could occasionally climb ramps and stairs, balance and kneel; who could frequently stoop; who could never work around unprotected heights, humidity, wetness and extreme cold; who could occasionally work around extreme heat and vibration; and who could perform simple, routine, unskilled, one-to-three step jobs that did not require interaction with the public. (R. at 96-97.) He stated that there would be a significant number of unskilled, light jobs that existed in the national economy that such an individual could perform, including jobs as a checker, a laundry folder and a bindery-machine offbearer. (R. at 98.)

         Wells also testified at Call's August 2016 hearing. (R. at 56-58.) She was asked to consider a hypothetical individual of Call's age, education and work history, who had the residual functional capacity to perform sedentary work; who could occasionally stoop, crouch, kneel, climb stairs, balance, reach overhead with the right dominant upper extremity and interact with co-workers and supervisors; and who could not crawl or climb ladders; who could frequently reach, handle and finger bilaterally; and who could not have public interaction or direct contact with crowds or unfamiliar persons. (R. at 56-57.) Wells stated that such an individual could perform unskilled sedentary jobs that existed in significant numbers in the national economy, including jobs as an assembler, a weight tester and an addressing clerk. (R. at 57.) Wells also testified that the same hypothetical individual, but who was limited to using his right dominant upper extremity to only occasionally reach, handle and finger, could not perform the jobs previously identified. (R. at 57.) Wells further stated that there would be no jobs available should the individual be limited as indicated in the medical source statement completed by Rosenbaum. (R. at 57-58.)

         In rendering his decision, the ALJ reviewed medical records from Joseph Leizer, Ph.D., a state agency psychologist; Dr. Robert Keeley, M.D., a state agency physician; David Deaver, Ph.D., a state agency psychologist; Dr. Robert McGuffin, M.D., a state agency physician; Dr. Victoria Grady, M.D.; Marcy S. Rosenbaum, L.C.S.W.; Dr. Laurie E. Rennie, M.D., a medical expert; Saltville Medical Center; Johnston Memorial Hospital; Abingdon Surgical Associates; Abingdon Family Practice; Dr. Stephanie H. Alford, M.D.; and Christopher M. Carusi, Ph.D., a licensed clinical psychologist.

         Call received treatment and counseling at the Saltville Medical Center from December 2010 through July 2016[4] for generalized anxiety disorder; panic disorder without agoraphobia; major depressive disorder; upper respiratory infections; a skin abscess; right shoulder and knee pain; hypertension; diabetes mellitus; hyperlipidemia; cellulitis; low back pain; right elbow joint pain; flank pain; and thrombocytopenia. (R. at 556, 558-59, 562, 565-66, 568, 570, 572, 574, 576, 578, 583, 586, 588, 632-33, 636, 638, 640-42, 646-47, 650-53, 657, 660-63, 675, 698, 705-14, 717-18, 829, 836, 866, 868, 870, 885, 889-92, 896, 898, 900, 904, 913, 917, 929.)

         Rosenbaum's examinations throughout 2012 repeatedly showed that Call had fair grooming; appropriate behavior; fair insight; no memory problems; normal thought content; normal speech; coherent thought processes; anxious mood and depressed affect; and a then-current Global Assessment of Functioning, (“GAF”), [5]score of 60.[6] (R. at 554, 556, 558-59, 562, 568, 570, 574, 578, 583, 586, 632, 636, 640, 646, 650, 652, 656-57, 660-62.) The record shows that, on six occasions between January and March 2012, Call's GAF score was assessed at 50.[7] (R. at 572, 574, 576, 578, 583, 586.) In March 2012, Call reported that he did not get a job for which he had applied. (R. at 568.) In May 2012, Call reported that he had a busy week fixing his automobile. (R. at 558.) In June 2012, Call reported that he was getting out of the house more, fishing and spending time with friends. (R. at 662.) In September 2012, Rosenbaum noted that Call abruptly left her office making negative comments about the medical facility after being told that his treating nurse practitioner could no longer prescribe controlled substances. (R. at 650-51.)

         On August 18, 2012, Dr. Victoria Grady, M.D., examined Call at the request of Disability Determination Services. (R. at 620-25.) Call reported that he had suffered from depression and anxiety his entire adult life. (R. at 620.) He reported that, since taking medication, he experienced only two panic attacks a week, as opposed to daily panic attacks. (R. at 620-21.) Call reported that he was paranoid, stating that he had “trouble trusting people.” (R. at 621.) He reported a right rotator cuff tear following a motor vehicle accident, which was treated only with physical therapy. (R. at 621.) Call reported that he could not stand for very long because his legs and ankles swell, and he gets tired. (R. at 621.) X-rays of Call's lumbar spine, right shoulder and right knee were normal. (R. at 616-18.) Dr. Grady reported that Call had a normal gait; he was able to balance; he had normal bilateral grip strength; he had normal strength in the upper and lower extremities; he had tenderness and crepitus in his knees; he had limited range of motion in his hips, knees, and cervical and thoracolumbar spines; he had clear, fluent and congruent speech; and appropriate thought processes. (R. at 622-23, 625.) Dr. Grady diagnosed diabetes with neuropathy; depression and anxiety; panic attacks; paranoia; right rotator cuff syndrome; and knee pain. (R. at 623.) Dr. Grady opined that Call could stand, walk and/or sit up to six hours in an eight-hour workday; that he would need to change positions as needed due to knee pain; he could occasionally lift and carry items weighing up to 20 pounds; and he could occasionally reach, handle, feel, grasp, finger, bend, stoop, crouch and squat. (R. at 623.)

         On September 4, 2012, Joseph Leizer, Ph.D., a state agency psychologist, completed a Psychiatric Review Technique form, (“PRTF”), finding that Call had no restrictions on his activities of daily living, experienced only mild difficulties in maintaining social functioning, experienced no difficulties maintaining concentration, persistence or pace and had experienced no repeated episodes of extended duration decompensation. (R. at 110-11.)

         On September 4, 2012, Dr. Robert Keeley, M.D., a state agency physician, found that Call had the residual functional capacity to perform light work. (R. at 112-15.) He found that Call was limited in his ability to push and/or pull with his right upper extremity. (R. at 113.) Dr. Keeley found that Call could occasionally climb, balance, stoop, kneel, crouch and crawl. (R. at 113.) He found that Call was limited to frequent overhead reaching with his right upper extremity. (R. at 114.) No. visual or communicative limitations were noted. (R. at 114.) Dr. Keeley found that Call must avoid concentrated exposure to vibration and hazards, such as machinery and heights. (R. at 114.)

         On October 16, 2012, Rosenbaum completed a mental assessment, indicating that Call had no significant limitations in his ability to carry out very short and simple instructions and to be aware of normal hazards and take appropriate precautions. (R. at 627-28.) She opined that Call was moderately limited in his ability to remember locations and work-like procedures; to understand and remember very short and simple instructions; to sustain an ordinary routine without special supervision; to make simple work-related decisions; to ask simple questions or request assistance; to respond appropriately to changes in the work setting; and to set realistic goals or make plans independently of others. (R. at 627-28.) Rosenbaum found that Call was markedly limited in his ability to understand, remember and carry out detailed instructions; to maintain attention and concentration for extended periods; to perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances; to work in coordination with or proximity to others without being distracted by them; to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; to interact appropriately with the general public; to accept ...


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