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Vikara v. Saul

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

September 10, 2019

TONIA D. VIKARA, Plaintiff
v.
ANDREW SAUL, [1] Commissioner of Social Security, Defendant

          MEMORANDUM OPINION

          Pamela Meade Sargent United States Magistrate Judge

         I. Background and Standard of Review

         Plaintiff, Tonia D. Vikara, (“Vikara”), filed this action challenging the final decision of the Commissioner of Social Security, (“Commissioner”), determining that she was no longer eligible for disability insurance benefits, (“DIB”), under the Social Security Act, as amended, (“Act”), 42 U.S.C.A. § 423 (West 2011 & Supp. 2019). Jurisdiction of this court is pursuant to 42 U.S.C. § 405(g). 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).

         By decision dated April 2, 2009, Vikara was found to be disabled as of December 12, 2008, the comparison point decision, (“CPD”). (Record, (“R.”), at 16.) However, on April 9, 2015, the Social Security Administration terminated Vikara's benefits, finding that her condition had improved, and she no longer met a listed impairment. (R. at 16, 144-46.) Vikara requested reconsideration of this decision, but the cessation determination was upheld. (R. at 148, 173-79.) Vikara requested a hearing before an administrative law judge, (“ALJ”). (R. at 184.) A video hearing was held on February 22, 2017, at which Vikara was represented by counsel. (R. at 47-70.)

         By decision dated May 24, 2017, the ALJ found that, as of April 9, 2015, Vikara no longer was disabled. (R. at 16-28.) The ALJ found that Vikara had not engaged in substantial gainful activity through May 24, 2017, the decision date. (R. at 18.) The ALJ found that the medical evidence established that, at the time of the CPD, on April 2, 2009, Vikara had anorexia nervosa; anemia; chronic fatigue syndrome; depressive disorder; and generalized anxiety disorder. (R. at 18.) The ALJ found that, at the time of the CPD, Vikara's impairments met the criteria of 20 C.F.R. Part 404, Subpart P, Appendix 1, § 5.08, the listing for weight loss due to any digestive disorder. (R. at 18.) The ALJ found that medical improvement occurred as of April 9, 2015, and, as of that date, Vikara had severe impairments, namely status-post ankle fracture; status-post gastrectomy due to gastric ulcer; nutritional deficiency; chronic obstructive pulmonary disease, (“COPD”); anxiety; depression; and history of anorexia nervosa. (R. at 18-19.) However, the ALJ also found that Vikara 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 18.) The ALJ further found that, as of April 9, 2015, Vikara had the residual functional capacity to perform sedentary[2] work, except that she could lift and carry items weighing up to 10 pounds; that she could stand and/or walk for two hours and sit with no limitation; that she could perform work that required no more than occasional climbing and balancing; that required no more than frequent stooping, kneeling, crouching and crawling; that did not require her to handle heavy objects or require pushing and pulling more than 10 pounds; and that did not require exposure to moving machinery, temperature extremes, dusts, chemicals, fumes and humidity. (R. at 21.) The ALJ found that Vikara had no past relevant work. (R. at 27.) Based on Vikara's age, education, work history and residual functional capacity and the testimony of a vocational expert, the ALJ found that Vikara could perform jobs existing in significant numbers in the national economy, including those of an assembler and an inspector/grader. (R. at 27-28.) Therefore, the ALJ found that Vikara was not under a disability as defined by the Act and was not eligible for benefits as of April 9, 2015. (R. at 28.) See 20 C.F.R. § 404.1594(f)(8) (2018).

         After the ALJ issued his decision, Vikara pursued her administrative appeals, (R. at 318, 384-86), but the Appeals Council denied her request for review. (R. at 1-6.) Vikara 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). The case is before this court on Vikara's motion for summary judgment filed October 2, 2018, and the Commissioner's motion for summary judgment filed October 10, 2018.

         II. Facts

         Vikara was born in 1973, (R. at 320), which classifies her as a “younger person” under 20 C.F.R. § 404.1563(c). She has a high school education and past work experience at a restaurant and a call center. (R. at 57.) Vikara was in a motor vehicle accident in September 2016, at which time her weight dropped and she was “vomiting a lot again.” (R. at 54-55.) She stated that she stopped taking her prescription acid suppression medications and was taking over-the-counter medications instead. (R. at 55-56.) Vikara underwent stomach surgery in December 2016. (R. at 56.) At the time of surgery, she weighed 69 pounds, but soon following surgery, her weight returned to 89 to 90 pounds.[3] (R. at 63.) Vikara stated that she could stand and move for an hour before needing to sit down. (R. at 58.) She testified that she could not perform a sit-down job because she was mentally and physically exhausted. (R. at 58.) Vikara reported that, on a daily basis, she went to the grocery store to get what she needed for dinner for that day, and then she cleaned the house, loaded the dishwasher and did the laundry. (R. at 449-50.) She stated that her husband cared for the garden and yard, but she did the housework, cooking and grocery shopping. (R. at 450.)

         Ronald Jackson, a vocational expert, also was present and testified at Vikara's hearing. (R. at 67-69.) Jackson testified that a hypothetical individual of Vikara's age, education and work history, who had the residual functional capacity to lift and carry items weighing up to 10 pounds; who could stand and walk no more than two hours in an eight-hour workday; who had no limitations on her ability to sit; who could occasionally climb and balance; who could frequently stoop, kneel, crouch and crawl; who could not handle heavy objects weighing more than 10 pounds; who could not push or pull items weighing more than 10 pounds; and who would need to avoid exposure to moving machinery, temperature extremes, dust, chemicals, fumes and humidity. (R. at 67-68.) Jackson stated that there were sedentary jobs that existed in significant numbers that such an individual could perform, such as an assembler and an inspector/grader. (R. at 68.) Jackson stated that there would be no jobs available should the individual be absent from work two days or more a month or if the individual required extra breaks throughout the day. (R. at 68-69.)

         In rendering his decision, the ALJ reviewed medical records from Norton Community Hospital; Dr. R. S. Kadian, M.D., a state agency physician; David Deaver, Ph.D., a state agency psychologist; Howard S. Leizer, Ph.D., a state agency psychologist; Dr. Luc Vinh, M.D., a state agency physician; Dr. Lance C. Dozier, M.D.; Mountain View Regional Medical Center, (“Mountain View”); Dr. Sung-Joon Cho, M.D.; Elizabeth A. Jones, M.A., a licensed senior psychological examiner; Wellmont Medical Associates; Norton Community Hospital; Caring Touch Home Health, Inc.; and Dr. Daniel E. Krenk, D.O.

         On November 15, 2013, Vikara underwent an esophagogastroduodenoscopy, (“EGD”), for recurrent symptoms of abdominal pain, nausea and vomiting. (R. at 394.) The EGD showed gastritis. (R. at 394.) Dr. Lance C. Dozier, M.D., reported that Vikara had stopped regularly taking her acid suppression medication prior to undergoing the EGD. (R. at 394.) She was restarted on her medication, and on December 3, 2013, Vikara stated that she was much improved, and she denied abdominal pain, nausea and vomiting. (R. at 394.) She weighed 94 pounds. (R. at 394.) Dr. Dozier reported that Vikara was doing well. (R. at 394.)

         On January 16, 2014, Vikara reported no gastrointestinal complaints. (R. at 393.) Dr. Dozier reported that Vikara was thin, but well-developed and doing well. (R. at 393.) She weighed 96 pounds. (R. at 393.) On April 25, 2014, Vikara complained of some abdominal pain, but she denied nausea and vomiting. (R. at 392.) She weighed 96 pounds. (R. at 392.) Dr. Dozier reported that Vikara was thin, but well-developed and doing reasonably well. (R. at 392.) As of January 2015, Vikara weighed 104 pounds, (R. at 406), and she experienced no abdominal pain, fatigue, nausea or vomiting. (R. at 404.)

         On March 19, 2015, Dr. Sung-Joon Cho, M.D., examined Vikara at the request of Disability Determination Services. (R. at 441-44.) Vikara weighed 100 pounds. (R. at 442.) Dr. Cho reported that Vikara's weight was appropriate for her height. (R. at 443.) Vikara was comfortable; she walked without any assistive devices; she sustained a normal grip in both hands; she had a normal station and gait; she had normal motor function in the upper and lower extremities; she had full range of motion in all joints; deep tendon reflexes were normal; and her orientation, affect, thought content, memory and general fund of knowledge were all unremarkable. (R. at 443.) Dr. Cho diagnosed possible chronic fatigue syndrome or possible nutritional deficiencies. (R. at 444.) Dr. Cho opined that Vikara could occasionally lift and carry items weighing up to 30 pounds and frequently lift and carry items weighing up to 10 pounds; and frequently climb, balance, stoop, kneel, crouch and crawl. (R. at 444.) He found no manipulative or environmental limitations. (R. at 444.)

         On April 3, 2015, Dr. R. S. Kadian, M.D., a state agency physician, completed a medical assessment, indicating that Vikara had the residual functional capacity to perform light[4] work. (R. at 92-99.) No. postural, manipulative, ...


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