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Deel v. Berryhill

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

January 31, 2019

MELISSA D. DEEL, Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant

          REPORT AND RECOMMENDATION

          Pamela Meade Sargent United States Magistrate Judge

         I. Background and Standard of Review

         Plaintiff, Melissa D. Deel, (“Deel”), filed this action challenging the final decision of the Commissioner of Social Security, (“Commissioner”), denying her claim for disability insurance benefits, (“DIB”), under the Social Security Act, as amended, (“Act”), 42 U.S.C.A. § 423 et seq. (West 2011 & 2018 Supp.). Jurisdiction of this court is pursuant to 42 U.S.C. § 405(g). Neither party has requested oral argument. This case is before the undersigned magistrate judge by referral pursuant to 28 U.S.C. § 636(b)(1)(B). As directed by the order of referral, the undersigned now submits the following report and recommended disposition.

         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 Deel protectively filed her application for DIB on May 23, 2014, alleging disability as of July 6, 2013, based on residuals from neck surgery, anxiety, depression and attention deficit hyperactivity disorder, (“ADHD”). (Record, (“R.”), at 19, 204-05, 223.) The claim was denied initially and upon reconsideration. (R. at 120-22, 126-28, 131-34, 136-38.) Deel then requested a hearing before an administrative law judge, (“ALJ”). (R. at 139-40.) The ALJ held a hearing on December 1, 2016, at which Deel was represented by counsel. (R. at 47-82.)

         By decision dated January 27, 2017, the ALJ denied Deel's claim. (R. at 19-41.) The ALJ found that Deel met the nondisability insured status requirements of the Act for DIB purposes through December 31, 2016. (R. at 21.) The ALJ found that Deel had not engaged in substantial gainful activity since July 6, 2013, the alleged onset date.[1] (R. at 21.) The ALJ found that, through the date last insured, the medical evidence established that Deel had severe impairments, namely cervical spine degenerative disc disease, status-post surgery; and lumbar spine degenerative changes, but he found that Deel 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 21-24.) The ALJ found that, through the date last insured, Deel had the residual functional capacity to perform light work[2] that required no more than frequent climbing of ramps and stairs and occasional climbing of ladders, ropes or scaffolds, kneeling, stooping, crouching and crawling. (R. at 24.) The ALJ found that, through the date last insured, Deel was unable to perform her past relevant work. (R. at 39.) Based on Deel'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, a significant number of jobs existed in the national economy that Deel could perform, including jobs as a companion, a housekeeper and a laundry worker. (R. at 39-40) Thus, the ALJ concluded that, through the date last insured, Deel was not under a disability as defined by the Act, and was not eligible for DIB benefits. (R. at 41.) See 20 C.F.R. § 404.1520(g) (2018).

         After the ALJ issued his decision, Deel pursued her administrative appeals, (R. at 272), but the Appeals Council denied her request for review. (R. at 1-5.) Deel 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 (2018). This case is before this court on Deel's motion for summary judgment filed June 20, 2018, and the Commissioner's motion for summary judgment filed July 9, 2018.

         II. Facts

         Deel was born in 1980, (R. at 204), which classifies her as a “younger person” under 20 C.F.R. § 404.1563(c). Deel has a high-school education and past work experience as a certified nursing assistant, (“CNA”), and as a personal care aide. (R. at 56-57, 224.) Deel testified that she experienced anxiety attacks nightly. (R. at 63.)

         Asheley Wells, a vocational expert, also was present and testified at Deel's hearing. (R. at 74-80.) Wells classified Deel's past work as a CNA and a personal care aide as medium[3] and semi-skilled. (R. at 75.) Wells was asked to consider a hypothetical individual of Deel's age, education and work history, who could perform light work that did not require more than frequent climbing of ramps and stairs and that did not require more than occasional climbing of ladders, ropes or scaffolds, stooping, kneeling, crouching and crawling. (R. at 75.) Wells testified that such an individual could not perform Deel's past work, but could perform other work existing in significant numbers in the national economy, including jobs as a companion position, a housekeeper and a laundry worker. (R. at 75-77.) Wells was next asked to consider the same individual, but who would be able to sit, stand and walk four hours in an eight-hour workday; who would be limited to simple, routine and repetitive tasks; who could have no more than occasional interaction with the public; who would be limited to making simple work-related decisions; and who would be absent from work one day a month. (R. at 77.) Wells testified that there would be no full-time positions available that such an individual could perform due to the sitting, standing and walking limitation. (R. at 77-78.) Next, Wells was asked to consider the individual described in the second hypothetical, but who would be limited to occasionally lifting and carrying items weighing 10 pounds; frequently lifting and carrying items weighing less than 10 pounds; sitting, standing and walking for two hours in an eight-hour workday; who could never climb ladders, ropes or scaffolds, balance, kneel, crouch or crawl; who could occasionally be exposed to unprotected heights and moving mechanical parts and vibration; who would be off task five percent of the time during an eight-hour workday; and who would be absent from work two days a month. (R. at 79.) Wells testified that such an individual could not perform any work. (R. at 79-80.)

         In rendering his decision, the ALJ reviewed records from Stephanie Fearer, Ph.D., a state agency psychologist; Dr. Richard Surrusco, M.D., a state agency physician; Joseph Leizer, Ph.D., a state agency psychologist; Dr. James Darden, M.D., a state agency physician; LeConte Medical Center; Haysi Clinic; Pikeville Medical Center; Buchanan General Hospital; Norton Community Hospital; Meadowview Ear, Nose & Throat Specialists; Dr. William J. Wallace, M.D.; Judy B. Millington, Ph.D., a licensed psychologist; Malena Mullins, NP-C, a nurse practitioner; Alysia Hoover-Thompson, Psy.D., a licensed clinical psychologist; Dr. Norman W. Mayer, M.D.; and Dr. Ronald S. Smith, M.D., a psychiatrist.

         On July 6, 2013, Deel presented to the emergency room at LeConte Medical Center following a motor vehicle accident. (R. at 273-85.) X-rays of Deel's lumbar and thoracic spine were normal. (R. at 280.) X-rays of Deel's cervical spine showed lack of cervical lordosis. (R. at 280.) She was diagnosed with low back strain, tenderness in the thoracic spine and cervical strain. (R. at 276-77.)

         The record shows that Malena Mullins, NP-C, a nurse practitioner at the Haysi Clinic, treated Deel from July 2013 through November 2016 for various complaints, including neck pain; low back pain; left ankle and foot pain; anxiety; and depression. (R. at 287-99, 517-19, 523-30, 541-47, 610-19, 621-36, 651-72, 711-18, 741-55, 777-80.) On July 26, 2013, Mullins saw Deel for complaints of neck and low back pain resulting from a motor vehicle accident. (R. at 290-91.) Deel had a normal gait; her cervical spine showed tenderness to palpation, but was otherwise stable without subluxation or laxity; her thoracic spine showed tenderness to palpation, but was otherwise normal; her lumbar spine was normal; she had normal range of motion and joint stability of the upper and lower extremities; motor examination revealed normal muscle tone, bulk and strength; and she had appropriate judgment, good insight and proper orientation. (R. at 291.) Mullins diagnosed spinal stenosis of the lumbar region and backache, unspecified. (R. at 291.) On December 6, 2013, an MRI of Deel's cervical spine showed mild degenerative changes at the C5-C6 disc level with a moderate to large size disc herniation and mild diffuse bulging disc at the C6-C7 disc level. (R. at 300-01.) An MRI of Deel's lumbar spine was normal. (R. at 303.)

         On January 28, 2014, Deel saw Dr. Norman W. Mayer, M.D., for complaints of neck pain. (R. at 307-11.) Dr. Mayer reported that Deel was alert and oriented, she had normal intellect and intact memory; she had no sensory loss or motor weakness; her balance, gait and coordination were intact; her fine motor skills were normal; and her deep tendon reflexes were preserved and symmetric. (R. at 309-10.) Dr. Mayer diagnosed cervicalgia, cervical disc displacement and cervical spinal stenosis, and he recommended an anterior cervical discectomy and fusion of the C5-C6 disc space. (R. at 310.) Dr. Mayer performed this procedure on March 21, 2014. (R. at 319-74, 380-434.) Dr. Mayer gave a postoperative diagnosis of herniated nucleus pulposus and cervical stenosis at the C5-C6 disc space with cervical radiculopathy. (R. at 433.) On April 22, 2014, Deel reported pain improvement. (R. at 502-05.) It was noted that Deel was not using any assistive device. (R. at 502.) Dr. Mayer reported that Deel's cervical radiculopathy had resolved and that her neck pain was “dramatically improved.” (R. at 504.)

         On June 4, 2014, Deel was seen by Alysia Hoover-Thompson, Psy.D., a licensed clinical psychologist at the Haysi Clinic, for depression and anxiety. (R. at 512-13.) Deel refused to take antidepressant medication due to potential for weight gain. (R. at 512.) Deel stated that she was unable to concentrate and had difficulty juggling multiple tasks. (R. at 512.) Hoover-Thompson reported that Deel's mood was mildly depressed with congruent affect; and she had good insight and judgment. (R. at 512.) Hoover-Thompson diagnosed attention deficit disorder, (“ADD”), of childhood; and depressive disorder, not elsewhere classified. (R. at 513.) Hoover-Thompson did not place any restrictions on Deel's work-related abilities. On June 12, 2014, Deel reported neck pain, anxiety and nightmares. (R. at 517-19.) Mullins diagnosed depressive disorder, not elsewhere classified. (R. at 519.) During follow-up visits with Mullins throughout 2014, Deel complained of anxiety and was diagnosed with depressive disorder. (R. at 544, 618, 622, 625.)

         On August 28, 2014, Stephanie Fearer, Ph.D., a state agency psychologist, completed a Psychiatric Review Technique form, (“PRTF”), finding that Deel was mildly restricted in her activities of daily living, had no difficulties in maintaining social functioning, experienced mild difficulties maintaining concentration, persistence or pace and had experienced no repeated episodes of extended-duration decompensation. (R. at 97-98.)

         On August 28, 2014, Dr. Richard Surrusco, M.D., a state agency physician, completed a medical assessment, finding that Deel could perform light work. (R. at 99-100.) He found that Deel could frequently climb ramps and stairs, balance, stoop, kneel, crouch and crawl and occasionally climb ladders, ropes and scaffolds. (R. at 99-100.) No. manipulative, visual, communicative or environmental limitations were noted. (R. at 100.)

         On September 4, 2014, Deel saw Dr. Mayer for complaints of bilateral posterior neck pain with numbness and tingling to her hands. (R. at 558.) She also complained of pain in her legs and left foot. (R. at 558.) Deel stated that she had difficulty concentrating. (R. at 559.) Dr. Mayer reported that Deel had normal orientation and memory, and her cranial nerves were grossly intact. (R. at 560.) X-rays of Deel's cervical spine showed anterior fusion of the C5-C6 disc space in anatomic alignment. (R. at 565.) Dr. Mayer diagnosed displacement of cervical intervertebral disc without myelopathy and lumbago. (R. at 560.) On September 18, 2014, Deel complained of left foot pain. (R. at 567-68.) Dr. Mayer reported that Deel had normal orientation and memory, and her cranial nerves were grossly intact. (R. at 569.) An MRI of Deel's lumbosacral spine showed no disc herniation, canal stenosis or areas of neuroforaminal narrowing. (R. at 552.) X-rays of Deel's cervical spine showed anterior fusion of the C5-C6 disc space in anatomic alignment. (R. at 554.) Dr. Mayer diagnosed spinal stenosis in the cervical region and lumbago. (R. at 569-70.)

         On November 10, 2014, Dr. James Darden, M.D., a state agency physician, completed a medical assessment, finding that Deel could perform light work. (R. at 111-12.) He found that Deel could frequently climb ramps and stairs; occasionally climb ladders, ropes and scaffolds, stoop, kneel, crouch and crawl; and she had an unlimited ability to balance. (R. at 111-12.) No. manipulative, visual, communicative or environmental limitations were noted. (R. at 112.)

         On November 12, 2014, Joseph Leizer, Ph.D., a state agency psychologist, completed a PRTF, finding that Deel had no restrictions in her activities of daily living, had no difficulties in maintaining social functioning, experienced mild difficulties maintaining concentration, persistence or pace and had experienced no repeated episodes of extended-duration decompensation. (R. at 109-10.) Leizer ...


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