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Hicks v. Berryhill

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

March 29, 2019

WAYLON SHANE HICKS, 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, Waylon Shane Hicks, (“Hicks”), filed this action challenging the final decision of the Commissioner of Social Security, (“Commissioner”), denying his claims 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). This case is before the undersigned magistrate judge by 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 Hicks protectively filed an application for DIB on October 1, 2013, alleging disability as of April 6, 2013, based on major depressive affective disorder; generalized anxiety disorder; and specific phobias. (Record, (“R.”), at 11, 172-73, 191.) The claim was denied initially and upon reconsideration. (R. at 94-96, 99-102, 104-06.) Hicks then requested a hearing before an administrative law judge, (“ALJ”). (R. at 107-08.) A hearing was held on July 28, 2016, at which Hicks was represented by counsel. (R. at 34-65.)

         By decision dated August 31, 2016, the ALJ denied Hicks's claim. (R. at 11-21.) The ALJ found that Hicks met the nondisability insured status requirements of the Act for DIB purposes through December 31, 2018. (R. at 13.) The ALJ found that Hicks had not engaged in substantial gainful activity since April 6, 2013, the alleged onset date.[1] (R. at 13.) The ALJ found that the medical evidence established that Hicks had severe impairments, namely post-traumatic stress disorder, (“PTSD”); major depressive disorder; and obsessive-compulsive disorder, (“OCD”), but he found that Hicks 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 13-14.) The ALJ found that Hicks had the residual functional capacity to perform a full range of work at all exertional levels, but he was limited to performing simple, routine tasks consisting of no more than four steps; work that did not require interaction with the public; that required no more than occasional interaction with co-workers and supervisors; that was limited to only a few day-to-day changes; and that did not require fast production rate pace or maintaining strict daily production quotas. (R. at 15.) The ALJ found that Hicks could not perform any of his past relevant work. (R. at 20.) Based on Hicks's age, education, work experience, 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 Hicks could perform, including jobs as a cleaner, a groundskeeper and a laundry worker. (R. at 20-21.) Thus, the ALJ concluded that Hicks was not under a disability, as defined in the Social Security Act, and was not eligible for disability insurance benefits. (R. at 21.) See 20 C.F.R. § 404.1520(g) (2018).

         After the ALJ issued his decision, Hicks pursued his administrative appeals, (R. at 170, 238-39), but the Appeals Council denied his request for a review. (R. at 1-6.) Hicks 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 Hicks's motion for summary judgment filed March 9, 2018, and the Commissioner's motion for summary judgment filed April 12, 2018.

         II. Facts[2]

         Hicks was born in 1973, (R. at 39, 172), which classifies him as a “younger person” under 20 C.F.R. § 404.1563(c). Hicks has a high school education and past work experience as a corrections sergeant[3] and officer at a maximum security prison. (R. at 38-40, 192.) While working at the prison, Hicks witnessed a close friend and fellow guard suffer multiple stab wounds to his chest, back and eye. (R. at 44-45.) Being the first to respond, Hicks saved his friend's life and disarmed the inmate. (R. at 44-45.) He stated that he considered hurting himself so that he did not have to return to work. (R. at 45-46.) He stated that he participated in counseling in 2006, 2008 and 2010.[4] (R. at 44.) Hicks stated that he drove his daughter to school; drove his wife places;[5] mowed the lawn; helped his daughter with homework; communicated with family members on Facebook; and occasionally attended family gatherings. (R. at 49, 55-59.) He stated that, as a result of his training, he was constantly and consistently looking out for potential threats. (R. at 49-50.)

         Robert Jackson, a vocational expert, testified at Hicks's hearing. (R. at 61-64.) Jackson was asked to consider a hypothetical individual of Hicks's age, education and work history, who had no exertional limitations; who would be limited to performing simple, routine tasks of up to four steps; who could not have any interaction with the public; who could have only occasional interaction with supervisors and co-workers; and who could perform in a work environment with few day-to-day changes. (R. at 62.) Jackson stated that the hypothetical individual could not perform Hicks's past work; however, he stated that the individual could perform work that existed in significant numbers, including jobs as a cleaner, a groundskeeper and a laundry worker. (R. at 62-63.)

         Jackson was asked to consider a second hypothetical individual with the same limitations as previously described, but who could not perform in a work environment that required fast production rate pace or maintaining strict daily production quotas. (R. at 63.) Jackson stated that the individual could perform the previously mentioned jobs. (R. at 63.) Jackson was then asked to consider a third hypothetical individual who would be limited to performing simple, routine tasks of up to four steps; who could not interact with the public, co-workers or supervisors; and who required a work environment with only a few day-to-day changes that did not require fast production rate pace or maintaining strict production quotas. (R. at 63-64.) Jackson stated that there would be no jobs available that such an individual could perform. (R. at 64.)

         In rendering his decision, the ALJ also reviewed records from Dr. R. Scott Macdonald, M.D., a neurologist; Dr. Ronald S. Smith, M.D.; Anne B. Jacobe, L.C.S.W., a licensed clinical social worker; Lee County Behavioral Health Services; Deidra Fisher Taylor, L.C.S.W., a licensed clinical social worker; Leslie E. Montgomery, Ph.D., a state agency psychologist; Stonsa N. Insinna, Ph.D., a state agency psychologist; and Mary Alice Fields, L.P.C., a licensed professional counselor.

         On April 8, 2013, Hicks saw Anne B. Jacobe, L.C.S.W., a licensed clinical social worker, for feeling a “sense of impending doom” and difficulty making himself go back to work. (R. at 263.) Jacobe reported that Hicks had a mixed mood; anxious affect; intact orientation and thought process; and fair judgment and insight. (R. at 263.) She diagnosed specific phobia[6] and anxiety and assessed Hicks's then-current Global Assessment of Functioning, (“GAF”), [7] score at 60, [8]with his highest GAF score being 65 within the past year.[9] (R. at 263.) Jacobe recommended that Hicks be off work for two weeks. (R. at 263.) Hicks saw Jacobe throughout 2013 and reported depression; anxiety; irritability; auditory delusions; nightmares and difficulty concentrating. (R. at 259, 264, 458-59, 464, 466.) During this time, Jacobe noted that Hicks had a depressed mood; anxious affect; intact orientation; auditory delusions; and fair judgment and insight. (R. at 259, 264, 455, 458-59, 465-66.) Hicks's thought process was described as rambling, racing and slowed. (R. at 259, 264, 455, 458-59, 465-66.)

         On April 17, 2013, Hicks saw Dr. Ronald S. Smith, M.D., for complaints of panic attacks, sleep impairment and anxiety.[10] (R. at 316.) Hicks stated that he had a “sense of impending doom, ” that he was having problems with his work environment and that he attempted to avoid interacting with the public. (R. at 316.) Dr. Smith diagnosed panic attacks; generalized anxiety disorder with phobia; and major depression. (R. at 313.) He assessed Hicks's then-current GAF score at 60. (R. at 313.)

         On May 17, 2013, Jacobe completed an insurance form, advising that Hicks could return to work on June 17, 2013. (R. at 253.) She cited Hicks's reduced focus and concentration and increased irritability as symptoms that impaired his ability to work. (R. at 252.) On June 11, 2013, Dr. Smith reported that Hicks was not ready to return to work. (R. at 305.) On July 11, 2013, Jacobe completed an insurance form, advising that Hicks should stay out of work beyond June 11, 2013. (R. at 248.) She cited Hicks's racing thoughts, anxiety and auditory hallucinations as symptoms that impaired his ability to work. (R. at 248.) Jacobe stated that it was “undetermined” when Hicks could return to work. (R. at 249.) On July 12, 2013, Hicks reported that his auditory hallucinations had decreased. (R. at 297.) Dr. Smith diagnosed panic attacks; generalized anxiety disorder with phobia; and major depressive disorder. (R. at 297.) He assessed Hicks's then-current GAF score at 60. (R. at 297.)

         On July 23, 2013, Dr. R. Scott Macdonald, M.D., a neurologist, saw Hicks at Dr. Smith's request for evaluation of an abnormal brain MRI. (R. at 240-41.) Hicks reported that his auditory hallucinations were controlled with medications. (R. at 240.) Dr. Macdonald reported that Hicks was alert, oriented and cooperative; he had intact memory; he had an appropriate affect; and he expressed no hallucinations. (R. at 240.) Hicks's neurological examination was normal with the exception of bilateral hearing loss. (R. at 241.) A review of Hicks's brain MRI showed nonspecific unidentified bright objects, (“UBOs”); however, Dr. Macdonald did not suspect a demyelinating disorder, such as multiple sclerosis. (R. at 241-42.)

         In September, October and November 2013, Hicks continued to report “weird dreams, ” and hearing hissing in his ears, but he denied hearing voices. (R. at 275-76, 289, 449-50.) In November 2013, Hicks told Dr. Smith that he was looking for work. (R. at 289.) Dr. Smith assessed Hicks's then-current GAF score at 60. (R. at 289.)

         On November 26, 2013, Dr. Smith completed a mental work capacity evaluation, indicating that Hicks was diagnosed with panic attacks, generalized anxiety, major depression and a nightmare disorder. (R. at 320-24.) He assessed Hicks's then-current GAF score between 55 and 60. (R. at 320.) Dr. Smith opined that Hicks had no limitations in his ability to understand and remember very short and simple instructions; to follow work rules; to ask simple questions or request assistance; to demonstrate reliability; to maintain personal appearance and basic standards of neatness and cleanliness; to be aware of normal hazards and take appropriate precautions; and to travel in unfamiliar places or use public transportation. (R. at 321-23.) He opined that Hicks had a slight limitation in his ability to remember locations and work-like procedures; to understand and remember detailed instructions; to carry out very short and simple instructions; to maintain regular attendance and be punctual within customary tolerances; to sustain an ordinary routine without supervision; to make simple work-related decisions; to perform at a consistent pace without an unreasonable number of rest periods; to accept instructions and respond appropriately to criticism from supervisors; to get along with co-workers or peers without distracting them or exhibiting behavioral extremes; to maintain socially appropriate behavior; to respond appropriately to usual work situations and to changes in a routine work setting; and to set realistic goals or make plans independently of others. (R. 321-23.)

         Dr. Smith found that Hicks had a satisfactory ability to carry out detailed instructions; to maintain attention and concentration for extended periods; to sustain work activities within a full-time work schedule; to function independently; and to work in coordination with or in proximity to others without being distracted by them. (R. at 321-23.) He found that Hicks had a seriously limited ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to interact appropriately with the general public. (R. at 321-22.) He found that Hicks could not sustain any work activity for five days a week, eight hours a day, 52 weeks a year because his “anxiety may interfere on occasion.” (R. at 323.)

         Throughout 2014, Hicks continued treating with Dr. Smith and Jacobe for complaints of anxiety; nightmares; guilt; anger; isolation; lack of motivation; low energy; difficulty concentrating; and flashbacks. (R. at 422-33, 441-47.) During this time, Jacobe noted that Hicks had a depressed and irritable mood; anxious affect; intact orientation; intact and racing thought process; he had no paranoia or delusions; and he had fair judgment. (R. at 441, 446.) Dr. Smith noted that Hicks had poor eye contact; appropriate and constricted affect; anxious and depressed ...


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