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Fleming v. Berryhill

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

March 26, 2019

JACKIE O. FLEMING, 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, Jackie O. Fleming, (“Fleming”), filed this action challenging the final decision of the Commissioner of Social Security, (“Commissioner”), denying his 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). The 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 Fleming protectively filed his application for DIB on November 26, 2013, alleging disability as of February 18, 2013, based on rheumatoid arthritis in right knee, diabetes, depression, anxiety, memory and concentration difficulties and difficulty sleeping. (Record, (“R.”), at 17, 186-87, 204, 208, 237, 239, 260.) The claim was denied initially and upon reconsideration. (R. at 78-86, 88-100, 106-08, 113-15.) Fleming then requested a hearing before an administrative law judge, (“ALJ”). (R. at 117-18.) The ALJ held a hearing on June 9, 2016, at which Fleming was represented by counsel. (R. at 41-77.)

         By decision dated August 31, 2016, the ALJ denied Fleming's claim. (R. at 17-33.) The ALJ found that Fleming met the nondisability insured status requirements of the Act for DIB purposes through December 31, 2018. (R. at 9.) The ALJ found that Fleming had not engaged in substantial gainful activity since February 18, 2013, the alleged onset date.[1] (R. at 19.) The ALJ found that, through the date of her decision, the medical evidence established that Fleming had severe impairments, namely obesity; diabetes mellitus; right knee meniscal tear and degenerative joint disease/osteoarthritis status-post surgery with acute venous embolism and thrombosis status-post knee arthroscopy; rheumatoid arthritis; history of obstructive sleep apnea; depressive disorder; and mood disorder, but she found that Fleming 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 19-22.) The ALJ found that, through the date of her decision, Fleming had the residual functional capacity to perform light work[2] that required no more than standing and walking for 90 minutes at a time or a total of four hours and sitting for a total of six hours in an eight-hour workday, occasional pushing and pulling with his lower extremities, climbing of ramps and stairs, balancing, kneeling, stooping and crouching with no crawling, exposure to hazardous machinery, working at unprotected heights, climbing ladders, ropes or scaffolds, working on vibrating surfaces, concentrated exposure to extremely cold temperatures, excess humidity or pulmonary irritants or driving. (R. at 22-23.) The ALJ also found that Fleming was limited to no more than frequent required use of hand controls with an option to change positions between sitting and standing every 90 minutes briefly and in place without leaving the work station. (R. at 23.) He also found that Fleming was able to understand, remember and carry out simple instructions in repetitive, unskilled work and respond appropriately to supervision, co-workers and usual work situations, but limited to only occasional interaction with the general public, co-workers and supervisors. (R. at 23.) The ALJ found that Fleming was unable to perform his past relevant work. (R. at 31.) Based on Fleming's age, education, work history and residual functional capacity and the testimony of a vocational expert, the ALJ found that a significant number of jobs existed in the national economy that Fleming could perform, including jobs as a nonpostal mail clerk, a hand packer and a production inspector. (R. at 31-32) Thus, the ALJ concluded that Fleming was not under a disability as defined by the Act, and was not eligible for DIB benefits. (R. at 32-33.) See 20 C.F.R. § 404.1520(g) (2018).

         After the ALJ issued his decision, Fleming pursued his administrative appeals, (R. at 183), but the Appeals Council denied his request for review. (R. at 1-5.) Fleming 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 Fleming's motion for summary judgment filed March 9, 2018, and the Commissioner's motion for summary judgment filed April 9, 2018.

         II. Facts

         Fleming was born in 1970, (R. at 50, 186), which classified him as a “younger person” under 20 C.F.R. § 404.1563(c) at the time of the ALJ's decision. Fleming has a high-school education and past work experience as a sheriff's deputy and an equipment operator. (R. at 46, 50.) Fleming testified that, since undergoing gastric bypass surgery, he no longer suffered from diabetes, hypertension, elevated cholesterol or sleep apnea. (R. at 51, 55.) Fleming stated that he used a cane to walk most of the time. (R. at 52-53.) Fleming testified that he could walk only 30 yards without stopping and could sit for only 5-15 minutes and stand for only 10 minutes before needing to change positions. (R. at 53.) Fleming said that he could lift only eight pounds comfortably. (R. at 55.) Fleming stated that he developed a deep vein thrombosis, or blot clot, after knee surgery. (R. at 53.) Fleming said he also had been diagnosed with rheumatoid arthritis. (R. at 54.)

         Fleming testified that he took a number of medications, which made him drowsy and unsteady on his feet when he stood up. (R. at 55.) He also said that he stayed angry and depressed with mood swings and was irritable. (R. at 56, 61.) He said that he could not sleep and would cry easily. (R. at 61.) He said that he had no energy. (R. at 62.) Fleming stated that he drove on occasion, but only for short distances. (R. at 58.) Fleming testified that he was in too much pain to work. (R. at 59.) He said that he was in constant pain in his hands, feet, back and neck. (R. at 59.) Fleming said that he spent most of his days seated in a recliner with his feet elevated. (R. at 59.) Fleming said that his daily pain level was an 8 on a 10-point scale. (R. at 60.) Fleming also said that his fingers stayed numb constantly. (R. at 60.)

         Barry Hensley, a vocational expert, also was present and testified at Fleming's hearing. (R. at 64-74.) Hensley classified Fleming's past work as a deputy sheriff and as a heavy equipment operator as medium[3] and skilled. (R. at 65.) Hensley was asked to consider a hypothetical individual of Fleming's age, education and work history, who could perform light work that did not require more than 90 minutes of walking at a time or four hours total of standing and walking and six hours of sitting in an eight-hour workday, with the need to change positions between sitting and standing every 90 minutes, briefly without leaving the workstation, and no crawling, exposure to hazardous machinery, working at unprotected heights, climbing ladders, ropes or scaffolds or working on vibrating surfaces. (R. at 66.) Hensley was asked to consider an individual whose pushing and pulling with the lower extremities was limited to occasional with an occasional ability to climb ramps and stairs, balance, kneel, stoop and crouch and who needed to avoid concentrated exposure to extreme cold temperatures, excess humidity and pulmonary irritants, but who was able to understand, remember and carry out simple instructions in repetitive unskilled work and respond appropriately to supervision, co-workers and usual work situations that involved only occasional interactions with the general public, co-workers and supervisors. (R. at 66-67.) Hensley testified that such an individual could not perform Fleming's past work, but could perform other work existing in significant numbers in the national economy, including jobs as a nonpostal mail clerk, a hand packer and a production inspector. (R. at 67-68.) Hensley testified that an individual who was off task 11 to 20 percent of the time could not perform any work. (R. at 70.) Hensley also stated that there would be no jobs that an individual who was unable to use his hands at least one-third of the workday could perform. (R. at 71.) He also said there would be no jobs available for a person who missed work more than two days a month. (R. at 71-72.) He also said that, if a person was unable to stoop, he could not work. (R. at 73.)

         In rendering her decision, the ALJ reviewed records from Wellmont Lonesome Pine Hospital; Franklin Woods Community Hospital; Dr. Kevin Blackwell, D.O.; Mountain States Rehabilitation; Johnston Memorial Hospital; Wellmont Holston Valley Medical Center; University of Virginia, (“UVA”), Hospital; Dr. Timothy McGarry, M.D.; Dr. Maurice Nida, D.O.; Southwest Virginia Outpatient Center; Blue Ridge Orthopedics & Sports Medicine; Charles E. Williams, Jr., P.T.; Dr. Andrew Kramer, D.O.; Dr. Rene L. Brown, D.O.; Patrick Farley, Ed.D.; Wellmont Medical Associates; Cavalier Pharmacy; Dr. Richard Surrusco, M.D., a state agency physician; Dr. R. S. Kadian, M.D., a state agency physician; and Dr. David Lurie, M.D.

         The evidence of record contains numerous opinions regarding Fleming's residual functional capacity. On October 28, 2013, Dr. Maurice Nida, D.O., completed a Physician's Report for Fleming for the Virginia Retirement System. (R. at 716-19.) On this Report, Dr. Nida stated that Fleming was unable to lift, bend, sit, stand or walk for long periods of time due to joint pain, joint swelling, joint redness and morning stiffness. (R. at 716.) Dr. Nida said that symptoms were present in Fleming's feet, hands, wrists, shoulders and neck. (R. at 716.) Dr. Nida stated that Fleming suffered from rheumatoid arthritis and had been referred to a rheumatology specialist. (R. at 716.) Dr. Nida stated that Fleming's condition had worsened over the previous year. (R. at 717.) Dr. Nida checked a box, indicating that he considered Fleming permanently disabled from performing his usual work duties. (R. at 717.)

         From the record, it appears that Dr. Nida, or residents with his office, have treated Fleming since as early as July 26, 2012. (R. at 779-81.) In July 2012, Dr. Nida noted that Fleming suffered from diabetes mellitus and hyperlipidemia. (R. at 779.) Fleming denied any joint pain, anxiety or depression at that time. (R. at 779.) On October 29, 2012, Fleming complained of pain in his left knee from arthritis. (R. at 774.) On January 10, 2013, Fleming complained of stress and being nervous. (R. at 768.) On April 1, 2013, Fleming complained of pain, swelling, warmth and tenderness in his left hand. (R. at 763.) On April 16, 2013, Fleming complained of joint pain, swelling and stiffness in his shoulders, ...


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