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McGraw v. Berryhill

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

February 20, 2019

STEPHANIE N. MCGRAW, 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, Stephanie N. McGraw, (“McGraw”), filed this action challenging the final decision of the Commissioner of Social Security, (“Commissioner”), denying her claim for supplemental security income, (“SSI”), under the Social Security Act, as amended, (“Act”), 42 U.S.C.A. § 1381 et seq. (West 2012 and 2018 Supp.). Jurisdiction of this court is pursuant to 42 U.S.C. § 1383(c)(3). 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. 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 McGraw protectively filed her application for SSI on April 26, 2013, alleging disability as of September 18, 2012, due to a back injury; depression; anxiety; obsessive compulsive disorder, (“OCD”); bilateral knee injuries; and severe allergies. (R. at 188-92, 210, 214.) The claim was denied initially and upon reconsideration. (R. at 97-99, 103-05, 109-11, 113-15.) McGraw then requested a hearing before an ALJ. (R. at 116-17.) The ALJ held a hearing on January 8, 2016, at which McGraw was represented by counsel. (R. at 42-67.)

         By decision dated February 8, 2016, the ALJ again denied McGraw's claim. (R. at 10-27.) The ALJ found that McGraw had not engaged in substantial gainful activity since April 26, 2013, the date of her SSI application. (R. at 12.) The ALJ found that the medical evidence established that McGraw had severe impairments, namely low average to borderline intellectual functioning; anxiety disorder; depressive disorder; fibromyalgia; lumbago; patellofemoral syndrome; and obstructive lung defect, but he found that McGraw 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 12.) The ALJ found that McGraw had the residual functional capacity to perform simple, routine, unskilled light work[1] that did not require the use of foot controls; that required only occasional climbing, stooping, kneeling, crouching and crawling and exposure to pulmonary irritants and chemicals; that did not require exposure to hazards, strict production rate or pace work or interaction with the public; and that required no more than occasional decision making, changes in the work setting or interaction with co-workers. (R. at 15.) The ALJ found that McGraw was unable to perform her past relevant work. (R. at 26.) Based on McGraw'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 McGraw could perform, including jobs as a garment folder, a garment bagger and a retail marker. (R. at 26-27.) Thus, the ALJ concluded that McGraw was not under a disability as defined by the Act, and was not eligible for SSI benefits. (R. at 27.) See 20 C.F.R. § 416.920(g) (2018).

         After the ALJ issued his decision, McGraw pursued her administrative appeals, (R. at 183-85), but the Appeals Council denied her request for review. (R. at 1-5.) McGraw 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 (2018). This case is before this court on McGraw's motion for summary judgment filed March 12, 2018, and the Commissioner's motion for summary judgment filed April 6, 2018.

         II. Facts

         McGraw was born in 1983, (R. at 188), which classifies her as a “younger person” under 20 C.F.R. § 416.963(c). McGraw obtained her general equivalency development, (“GED”), diploma, and she has past work as a kitchen worker, a lunch lady and a custodian. (R. at 48, 62, 215.) McGraw stated that she homeschooled her nine-year-old daughter. (R. at 50-51.) She stated that she instructed her daughter two to three hours a day. (R. at 52.) McGraw stated that she suffered from emotional difficulties as a result of having an abortion at age 13 and being in many abusive relationships. (R. at 53.) She stated that her medications caused fatigue and affected her ability to concentrate. (R. at 54.) McGraw stated that she used an Albuterol inhaler up to four times a day. (R. at 60.)

         Rick Bradley, a vocational expert, was present and testified at McGraw's hearing. (R. at 62-66.) Bradley was asked to consider a hypothetical individual of McGraw's age, education and work history, who could perform simple, routine, unskilled light work that did not require the use of foot controls; that did not require exposure to hazards, including hazardous machinery and unprotected heights; that did not require climbing of ladders, ropes or scaffolds; that did not require more than occasional climbing of ramps and stairs, stooping, kneeling, crouching and crawling or exposure to pulmonary irritants such as fumes, odors, dusts, gases, poorly ventilated areas and chemicals; that did not require more than occasional decision making, changes in the work setting or strict production rate or pace requirements; that did not require interaction with the public; and that required no more than occasional interaction with co-workers. (R. at 63.) Bradley stated that such an individual could not perform McGraw's past relevant work, but that the individual could perform light, unskilled jobs that existed in significant numbers in the national economy, including those of a garment folder, a garment bagger and a retail marker. (R. at 64.) Bradley stated that there would be no jobs available that the individual could perform should she be unable to follow work rules, to relate to others, to function independently, to behave in an emotionally stable manner and miss two to three days of work a month. (R. at 64-65.) He stated that there would be no jobs available should the individual be limited to sedentary[2]lifting and carrying; who could stand and/or walk only 30 minutes a day; and who could sit for only 30 minutes to one hour a day. (R. at 65.) Bradley further testified that there would be no jobs available should the individual be off task more than 10 percent of a workday. (R. at 65.)

         In rendering his decision, the ALJ also reviewed records from Wise County Public Schools; Stephanie Fearer, Ph.D., a state agency psychologist; Dr. Andrew Bockner, M.D., a state agency physician; Dr. Jack Hutcheson, M.D., a state agency physician; Mountain View Regional Medical Center, (“Mountain View”); Dr. Jim C. Brasfield, M.D.; Mountain States Health Alliance; Appalachian Rehabilitation Team, Inc.; Dr. Uzma Ehtesham, M.D., a psychiatrist; Dr. James W. Campbell, D.O.; Stacey Gipe, P.A., a physician's assistant; Lonesome Pine Hospital, (“Lonesome Pine”); Norton Community Hospital; MSMG Community Orthopedics; Mountain View Regional Cardiopulmonary; Dr. Vijay Kumar, M.D.; Dr. Tony O. Haley, M.D.; Dr. James T. Potter, Jr., M.D.; and Dr. John Iaquinto, M.D.

         On February 18, 1998, McGraw, a ninth-grade student at the time, was referred for evaluation upon her father's request, to determine if special education services were needed. (R. 292-310.) The Wechsler Intelligence Scale for Children Third Edition, (“WISC-III”), was administered, and McGraw obtained a full-scale IQ score of 84±3. (R. at 308.) McGraw was found to not be eligible for special education classes. (R. at 298.)

         On March 12, 2010, McGraw saw Dr. James W. Campbell, D.O., for complaints of anxiety, depression and fatigue. (R. at 400-02.) McGraw was alert and oriented; no focal deficits were noted; her muscle strength was normal and equal in the upper and lower extremities; and her gait and speech were grossly intact. (R. at 401.) Dr. Campbell diagnosed anxiety/depression with possible panic attacks, fatigue and decreased libido. (R. at 401.) On April 12, 2010, McGraw reported that Celexa controlled her anxiety and panic attacks. (R. at 394.) On September 21, 2010, McGraw reported that Celexa was not working, as she was more stressed and anxious. (R. at 391.) McGraw stated that she had mood swings and had repeatedly started checking things in the house. (R. at 391.) Stacey Gipe, P.A., a physician's assistant, reported that McGraw was in no distress, her affect was good, and she did not appear to be anxious or depressed. (R. at 391.) Gipe diagnosed anxiety with symptoms of OCD. (R. at 391.)

         On September 13, 2012, McGraw presented to the emergency room at Lonesome Pine for complaints of low back pain. (R. at 414-20.) Her mental status and pulmonary examination were within normal limits. (R. at 415-17.) McGraw's back was nontender; straight leg raising tests were positive on the right; deep tendon reflexes and strength were symmetrical; and her mood and affect were normal. (R. at 416-17.) X-rays of McGraw's lumbar spine showed mild L5-S1 disc space narrowing. (R. at 444.) X-rays of McGraw's thoracic spine and right hip were normal. (R. at 445-46.) She was diagnosed with sciatica. (R. at 417.) On December 10, 2012, McGraw saw Dr. Campbell for complaints of intermittent right hip pain. (R. at 385.) McGraw stated that she had fallen due to loss of sensation in her right leg. (R. at 385.) Dr. Campbell diagnosed mild recurrent major depression and hip joint pain. (R. at 385.)

         On April 10, 2013, McGraw presented to the emergency room at Lonesome Pine for complaints of low back pain and spasms. (R. at 421-25.) Musculoskeletal examination showed normal strength and range of motion, as well as tenderness to palpation at the T5-L1 level, and McGraw had normal mood, affect and cognition. (R. at 423.) McGraw was diagnosed with lumbar sprain. (R. at 423.) On April 16, 2013, McGraw presented to the emergency room at Lonesome Pine for complaints of back pain. (R. at 426-35.) McGraw had no lower extremity weakness or sensory findings; normal muscle strength and tone; equal and symmetrical reflexes; adequate range of motion; no significant deformity of the lower back; lower thoracic spine tenderness; right and left paravertebral spasm; and no extremity edema or calf tenderness. (R. at 429.) She was diagnosed with backache and paravertebral muscle spasm. (R. at 429.)

         On May 28, 2013, Dr. Jim C. Brasfield, M.D., saw McGraw for her complaints of lumbar discomfort and knee pain. (R. at 343-44.) Dr. Brasfield reported that McGraw ambulated well; her reflexes were normal; straight leg raising tests were negative; her spine was straight; and she had normal strength in both legs. (R. at 343.) X-rays of McGraw's lumbar spine and right hip were normal. (R. at 343.) Dr. Brasfield ordered a nuclear bone scan. (R. at 344.) On June 14, 2013, McGraw continued to complain of bilateral knee pain and “some low back pain.” (R. at 345-46.) Dr. Brasfield noted that McGraw had positive medial joint line tenderness, indicative of a probable meniscal tear. (R. at 345.) Dr. Brasfield diagnosed low back pain with bilateral knee complaints, and orthopedic referral was recommended. (R. at 345.)

         On July 17, 2013, Dr. Campbell saw McGraw for complaints of worsening depression. (R. at 380-81.) Dr. Campbell reported that McGraw's physical examination was normal, and her mood was dysthymic, empty, unhappy, depressed and anxious. (R. at 380-81.) Dr. Campbell diagnosed worsening major depression, recurrent, and insomnia, and he referred her to psychiatry and counseling for further evaluation. (R. at 381.)

         On August 26, 2013, McGraw presented to the emergency room at Norton Community Hospital for complaints of bilateral knee pain. (R. at 355-62.) X-rays of McGraw's knees were normal. (R. at 360-61.) McGraw was diagnosed with Osgood-Schlatter disease, [3] knee pain and calcific tendonitis of the knees. (R. at 355, 357.)

         On September 4, 2013, McGraw saw Dr. John Iaquinto, M.D., for complaints of bilateral anterior knee pain. (R. at 696.) McGraw's knees had full range of motion, no ligamentous laxity, positive patellar apprehension and compression test bilaterally and mild effusion on the left. (R. at 696.) Dr. Iaquinto diagnosed bilateral patellofemoral syndrome with a history of Osgood-Schlatter disease and prominent tibial tubercles bilaterally, possibly degenerative meniscus tear. (R. at 696.) Dr. Iaquinto ordered physical therapy. (R. at 696.) In September 2013, McGraw underwent physical therapy at Appalachian Rehabilitation Team, Inc., for her complaints of bilateral anterior knee pain. (R. at 363-76.) On September 27, 2013, McGraw reported that therapy helped her right knee, but that her left knee continued to be worse. (R. at 372-76.) It was noted that McGraw had made some improvements with therapy, including decreased right knee pain; however, she continued to have quad tightness and pain and swelling in both knees. (R. at 373, 375.)

         The record shows that McGraw saw Dr. Uzma Ehtesham, M.D., a psychiatrist, from October 2013 through December 2015, who diagnosed McGraw with panic disorder without agoraphobia; and major depressive affective disorder, recurrent episode, moderate. (R. at 520-53, 563-65, 700-45, 782-86.)[4] On October 2, 2013, Dr. Ehtesham reported that McGraw had an anxious affect and congruent mood and thought. (R. at 520-25.) McGraw complained of anger and anxiety. (R. at 520.) Dr. Ehtesham routinely assessed McGraw's then-current Global Assessment of Functioning, (“GAF”), [5] score at 58.[6] (R. at 525, 529, 553.)

         During treatment, Dr. Ehtesham reported that McGraw's anxiety ranged from a three to an eight on a 10-point scale. (R. at 530, 532, 534, 536, 538, 544, 547, 550, 557, 561, 705, 708, 710, 715, 718, 721, 724, 727, 730, 733, 736, 739, 741.) Dr. Ehtesham reported that McGraw's depression ranged from a one to five on a 10-point scale. (R. at 526, 530, 532, 534, 536, 538, 541, 544, 547, 550, 554, 561, 705, 708, 710, 715, 718, 727, 730, 736, 739, 741, 783, 785.) Dr. Ehtesham reported that McGraw's panic ranged from a two to three on a 10-point scale. (R. at 526, 541, 544, 554.) Dr. Ehtesham routinely found that McGraw displayed no symptoms of post-traumatic stress disorder, (“PTSD”), or difficulties with attention; she had fair hygiene and grooming; normal motor activity and gait; a euthymic and congruent affect; improved insight; fair to intact judgment; and goal-oriented thought process. (R. at 520, 526, 530, 532, 534, 536, 538-39, 541, 544, 547, 550, 554-55, 557, 559, 561, 708-09, 710-11, 713, 716-17, 719, 722-23, 725-26, 728-29, 731-32, 734-35, 737, 740, 742, 784, 786.)

         On October 7, 2013, Stephanie Fearer, Ph.D., a state agency psychologist, completed a Psychiatric Review Technique form, (“PRTF”), finding that McGraw suffered from an affective disorder. (R. at 73-74.) Fearer found that there was insufficient evidence to evaluate McGraw's mental functioning. (R. at 73-74.)

         On October 14, 2013, Stacey Gipe, P.A., saw McGraw for her complaints of headaches and dizziness. (R. at 382-83.) Gipe noted that McGraw had some positive fibromyalgia trigger points around the clavicles, posterior neck, shoulders, elbows and knees. (R. at 382.) McGraw had a euthymic mood. ...


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