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Stump v. Colvin

United States District Court, N.D. West Virginia

December 16, 2016

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          BAILEY, JUDGE



         Matthew Todd Stump (“Plaintiff”) brought this action pursuant to 42 U.S.C. §§ 405(g) for judicial review of the final decision of the defendant, Commission of the Social Security Administration (“Defendant, ” and sometimes “the Commissioner”), denying Plaintiff's claim for disability insurance benefits (“DIB”) under Title II of the Social Security Act. The matter is awaiting decision on cross motions for summary judgment and has been referred to the undersigned United States Magistrate Judge for submission of proposed findings of fact and recommended disposition. 28 U.S.C. §§ 636(b)(1)(B); Fed.R.Civ.P. 72(b); L.R. Civ. P. 9.02.


         On September 25, 2012, Plaintiff filed a Title II application for a period of disability and DIB, alleging disability beginning May 21, 2012. Plaintiff's claims were denied on January 3, 2013, at the initial level and on January 23, 2013, at the reconsideration levels. Plaintiff thereafter requested a hearing, which Administrative Law Judge Peter Jung (“ALJ”) held on March 10, 2014, and at which Plaintiff, represented by Jan Dils generally, and at the hearing by non-attorney representative Shannan Hinzman, and Nancy Shapero, an impartial Vocational Expert (“VE”) testified. On April 9, 2014, the ALJ entered a decision finding Plaintiff was not disabled. Plaintiff appealed this decision to the Appeals Council and, on January 13, 2015, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner.

         II. FACTS

         A. Personal History

         At the administrative hearing held on March 10, 2014, Plaintiff testified that he was born on October 15, 1966 (R. 32), making him forty-seven (47) years old at the time of the hearing. Plaintiff obtained his GED, the highest level of education he has completed. Id. Plaintiff resides with his wife and son, who is in school (R. 260).

         B. Medical History Summary

         1. Medical History prior to May 21, 2012

         An MRI on Plaintiff's cervical cord and spine on November 6, 2003 showed sparring at ¶ 4-5 (R. 301). Plaintiff's spinal cord was observed to be mildly indented by a moderate size right paracentral disc protrusion at ¶ 5-6. Id. A similar paracentral disc protrusion was also observed at ¶ 6-7, without direct indentation of the spine. Id. Moderate central canal stenosis was also observed at ¶ 4-5 and C6-7. Id. Chiropractic Treatment Records from Johnson Chiropractic Clinic from August 23, 2011 to April 13, 2012 generally reflect ongoing treatment and issues with his cervical, dorsal, lumbar, and lumbosacral spine (R. 223).

         Plaintiff was admitted to the hospital in October 2011 after a venous ultrasound revealed evidence of deep (left popliteal) vein thrombosis in Plaintiff's left leg (R. 253). Plaintiff was started on Warfarin therapy, began wearing support stockings, and reported feeling better at the end of October 2011 (R. 288). However, his leg was still warm to the touch and often swelled with prolonged standing (R. 288, R. 290). In November 2011, Plaintiff complained of night sweats, dizziness, and high blood pressure (R. 287) In addition to Lasix, Toprol, and Lisinopril, Plaintiff also began taking Xanax for Generalized Anxiety Disorder noted by Dr. Humphrey (R. 217). On April 3, 2012, Plaintiff reported frequent headaches, for which he was prescribed Vicodin (R. 278, 282).

         2. Medical History from May 21, 2012

         On May 21, 2012, Plaintiff had to leave work due to lightheadedness and dizzy spells (R. 279). Emergency Medical Services transported him to the hospital, where an EKG conducted at that time was normal. Id.

         On June 5, 2012, Plaintiff complained again of dizziness, for which an MRI was done on June 26, 2012 (R. 249). The MRI showed mild microvascular ischemic changes in Plaintiff's brain, a chronic infarct in the right cerebellar hemispbauhere, and a chronic lacunar infarct in the left cerebellum. Id. Plaintiff was diagnosed with a cerebral embolism with cerebral infarction, late effects of cerebrovascular disease (ataxia), and primary hypercoagulable state (R. 218).

         On June 26, 2012, a carotid Doppler ultrasound was completed, showing largely normal limits for results and “no hemodynamically significant carotid arterial stenosis” (R. 251). Under “Findings, ” it was noted that “[d]ue to patient large body habitus, there is [sic] some technical difficulties.” Id.

         On August 2, 2012, Plaintiff was referred to Dr. Charles Levy for review of this abnormal MRI of his brain (R. 227). Dr. Levy noted that Plaintiff complained of throbbing headaches and dizziness that began about 3 months ago, with no known injury, and usually began in the occipital region travelling superiorly to the frontal region of the brain. Id. Plaintiff's headaches were “aggravated with nothing in particular, and alleviated with medications and rest.” Id. Plaintiff also complained of dizziness, vision changes, and speech difficulty; he denied problems with gait, coordination, or bowel and bladder dysfunction at that time. Id. The MRI showed a “small encephalomalacic focus in the right cerebellar hemisphere, possibly from chronic ischemic disease, possibly post-traumatic.” Id. Dr. Levy ordered an MRI of Plaintiff's brain including MRA of the cerebral vasculature, and a referral to neurology (R. 230).

         On August 9, 2012, Plaintiff had a Magnetic Resonance Angiography (MRA) pursuant to Dr. Levy's orders (R. 231). Dr. Meyers noted, in relevant part for the MRA, “[n]o significant abnormalities identified to explain the right cerebellar infarct; consider evaluation of the aortic arch and proximal cervical arteries.” Id. For the MRI, Dr. Meyers noted primarily normal findings, excepting “a chronic 20 x 12 mm area of encephalomalacia in the right inferior cerebellum consistent with an old infarct, ” a “tiny 3 mm punctuate are of focal volume loss in the left cerebellum that may be a small old lacunar infarct, ” unchanged since the prior study (R. 233).

         Subsequently, on August 22, 2012, Plaintiff saw Dr. Jay Bauerle, M.D. pursuant to Dr. Levy's neurology referral. (R. 235). At this point, Plaintiff reported taking Vicodin (hydrocodone-acetominophen) for pain, Lasix, Lisinopril, Pravastatin, Toprol, Warfarin, and Xanax for anxiety (R. 236). Dr. Bauerle's assessment was “cerebral embolism; with cerebral infarction, primary hypercoagulable state, and late effects of cerebrovascular disease, ataxia.” Id. He noted that:

[Plaintiff's] embolic appearing right cerebellar infarct and the left insular collection of smaller infarcts, as seen on MRI, are concerning for a cardiac source of emboli. The The history of deep venous thrombosis is suggestive of a hypercoagulable state. Were the patient to have a patent foramen ovale, which occurs in ~ 25% of the population, venous thrombi could cause cerebral infarction. The patient needs a transesophageal echocardiogram, a laboratory workup for thrombophilia and a hematology consultation, as laboratory tests are not available for all hypercoagulable disorders. Many hypercoagulable disorders are familial, so diagnosis of such an issue in one patient can be valuable preventatively for their family members. After the above evaluations, consider MR angiography of the carotid and vertebral arteries.

Id. Dr. Bauerle ordered a transesophageal echocardiography along with a number of laboratory tests in order to confirm or rule out potential causes. Id. Dr. Bauerle considered both physical structural abnormalities - specifically, a patent foramen ovale - and blood clotting disorders as potential causes (noting Plaintiff's family history of stroke[1] and Plaintiff's personal history of deep vein thrombosis in conjunction with Plaintiff's current brain diagnoses). Id.

         An echocardiogram was completed on September 21, 2012, which Dr. Humphrey opined was of “poor quality, ” lacked 2-D measurements or Doppler study, and was thus limited (R. 248). Subsequently, a transesophageal echocardiogram including Doppler study was completed on October 5, 2012, which showed primarily normal results, excepting “mild dilation of the left atrium” and “mild mitral regurgitation, ” and “[n]o evidence of any significant valvular heart disease or intramural thrombus” (R. 246).

         3. Medical Reports/Opinion

         a. Disability Determination Explanation at the Initial Level

         On November 12, 2012, Dominic Graziano, M.D. opined Plaintiff was “Partially Credible . . . mer [Medical Evidence of Record] does not support degree of alleged impairments, ” and that “Normal mental status does not support his claims of limitations in this domain” (R. Under “Weighing of Opinion Evidence, ” the report stated “[t]here is no indication that there is medical or other opinion evidence” (R. 60). Dr. Graziano concluded Plaintiff had the following exertional limitations: occasionally lift 50 pounds; frequently lift 25 pounds; stand, walk, or sit 6 hours in an 8-hour work day; and unlimited pushing and pulling (R. 60). Dr. Graziano concluded Plaintiff had the following postural limitations: occasionally climb ramps/stairs; never climbing ladders/ropes/scaffolds; never balancing; occasionally stooping, kneeling, crouching, and crawling, which he supported with “small cva with wide based atalgic gait, mildly unsteady gait” (R. 61). Dr. Graziano concluded Plaintiff had the following environmental limitations: Unlimited extreme cold, extreme heat, wetness, humidity, noise, and fumes etc.; avoid even moderate exposure to vibration; and avoid all exposure to hazards (machinery, heights, etc.), and could perform Light work. Id.

         On December 29, 2012, Debra Lilly, Ph.D. listed the following Medically Determinable Impairment Diagnoses: 1) Other Disorders of the Nervous System: Priority - Primary, Severity - Severe; 2) Organic Brain Syndrome, Priority - Secondary, Severity - Non Severe; 3) Anxiety Disorders: Priority: Other, Severity: Non Severe, ” none of which she found to satisfy A, B, or C criteria (R. 58). Dr. Lilly found mild restriction of activities of daily living, mild difficulties in maintaining social functioning, and mild difficulties in maintaining concentration, persistence, or pace. Dr. Lilly further opined “The claimant has a history of CVFA with reports of cognitive issues. These are not apparent upon testing. His activities of daily living do not reflect significant difficulties secondary to a mental disorder. Non Severe” (R. 59).

         b. Neuropsychological Evaluation / Consultative Evaluation Report

         On December 11, 2012, licensed psychologist Cynthia Spaulding conducted a neuropsychological evaluation of Plaintiff (R.259). At this time, Plaintiff reported loss of balance, severe headaches, and perspiration. Id. In her Consultative Evaluation Report, Dr. Spaulding observed the following: Plaintiff had poor hygiene and “fair” grooming. Id. Plaintiff had an impaired gait, and his psychomotor activity level was mildly retarded. Id. Plaintiff's affect was “mildly restricted” (reduced range of emotional expression) and his mood was neutral. Id. Spaulding described Plaintiff's speech as “rambling, ” with “evident” word retrieval difficulties. Id. Plaintiff appeared older than his chronological age. Id. Plaintiff's immediate and recent memory were both unimpaired; but his remote memory was impaired. (R. 262).

         Plaintiff's scores on the Wechsler Adult Intelligence Scale for Adults - Fourth Edition (WAIS-IV) were in the low to average range (“judgment was mildly impaired based on the claimant obtaining a standard score of seven on the Comprehension Subtest of the WAIS-IV”) (R. 262). Plaintiff's attention span was within normal limits, based on a standard score of eight on the Digit Span Subtest of the WAIS-IV. Id. Plaintiff was cooperative, had appropriate eye contact, and social functioning was normal. Id.

         Dr. Spaulding diagnosed “Axis I: Cognitive Disorder, NOS” [not otherwise specified] based on “word retrieval difficulties, difficulty recalling details of his personal history, reported symptoms and medical evidence of a prior stroke” (R. 263). Dr. Spaulding diagnosed “Anxiety Disorder, NOS” based on “panic attacks in which he struggles to breathe, has chest pain and becomes dizzy.” Id. Dr. Spaulding listed Plaintiff's prognosis as “Guarded.” Id.

         c. Disability Determination Explanation at the Reconsideration Level

         On January 18, 2013, Pedro Lo, M.D. signed an assessment that was identical to the previous assessment by Dr. Graziano, differing only in 1) his addition of the following note: “mer in the file reviewed. Affirm [Dr. Graziano's] prior assessment of 11/12/12, ” and 2) finding Plaintiff could perform Medium work (R. 73).

         On January 22, 2013, G. David Allen, Ph.D. likewise signed an assessment identical to Dr. Lilly's, differing only in his addition of the following note: “Following review of all pertinent evidence in this file, the assessment completed on 12/29/2012 is affirmed as written” (R. 70).

         d. Physical Residual Functional Capacity Questionnaire

         On February 17, 2014, treating physician Frederick Humphrey completed an RFC Assessment for Plaintiff (R. 302). While not all of the things Dr. Humphrey wrote were legible, Dr. Humphrey listed the following diagnoses: 1) cerebellar infarct, 2) chronic DVT [deep vein thrombosis] in left leg; 3) generalized anxiety disorder, 4) [indeterminable], 5) obesity, 6) chronic cephalgia, 7) hypertension, 8) hypothyroidism, 9) VI lower extremities. Id. Prognosis was listed as “poor.” Id. Symptoms listed included “Recurrent vertigo, esp. sitting & standing - chronic headaches, chronic left leg pain.” Id. Dr. Humphrey identified pain experienced by Plaintiff as “mild pain left leg - main problems are headaches - (Severe at times) & recurrent vertigo, present most of the time & difficulty walking, problems with gait and balance.” Id. Dr. Humphrey identified clinical findings and objective signs “Difficulty standing, swollen left leg - obese 300 lbs.” Id. Dr. Humphrey noted a good response to Coumadin, Lisinopril, Prilosec, and Prevastatin; a fair response to Xanax and Topamax, and noted another medication for swelling of legs. Id. Dr. Humphrey opined that Plaintiff's impairment lasted or could be expected to last at least twelve months. Id.

         Dr. Humphrey further opined that Plaintiff was not a malingerer, that emotional factors did not contribute to the severity of Plaintiff's symptoms and functions limitations, that Plaintiff's anxiety affected his physical condition, and impairments were reasonably consistent with the symptoms and functional limitations (R. 303). He opined that Plaintiff's experience of pain or other symptoms was severe enough to interfere constantly with attention and concentration, and that Plaintiff was incapable of even low stress jobs due to a combination of factors, including suffering from “marked anxiety - very nervous and stressed most of the time, ” as well as “poor concentration” (R. 304).

         Dr. Humphrey opined that Plaintiff could walk “1/2 block only” without rest or severe pain; sit for 10 minutes at one time before needing to get up; stand for 10 minutes before needing to sit down or walk around; sit/stand/walk for two hours in an 8-hour working day; and walk for two minutes every 30 minutes (R. 304-305). Plaintiff would need to take two to three unscheduled breaks per 8-hour workday, resting five minutes before returning to work. (R. 305). Dr. Humphrey opined that Plaintiff could occasionally lift or carry 10 pounds or less, rarely lift or carry 20 pounds, and never lift or carry 50 pounds. Id. Plaintiff could rarely look up or down; occasionally turn head left or right, and frequently hold his head in a static position (R. 306). He could never stoop, crouch, or climb ladders; and rarely twist or climb stairs. Id. Plaintiff had significant limitations with reaching, handing, or fingering; he could use hands and fingers 25% of the time, and his arms 10% of the time. Id. Dr. Humphrey described other limitations as “Does suffer mark [sic] stress & anxiety, problem working around crowds, following commands, & time constraints; He tires easily & would have trouble working full time; He is unable to be gainfully employed on a full time basis” (R. 307).

         C. Testimonial Evidence

         At the administrative hearing held on March 10, 2014, Plaintiff testified that he was born on October 15, 1966 (making him forty-seven (47) years old at the time of the hearing) (R. 32). Plaintiff obtained his GED, the highest level of education he has completed. Id.

         Plaintiff next testified regarding his work history. Plaintiff's last job was with Simonton Building Products, where he was employed from April of 1999 through May of 2012 - almost thirteen (13) years (R. 33). Plaintiff described his typical workday as “taking big stacks of vinyl off of a rack and loading them on a saw, running drill, using the saw, measuring pieces as you cut them out, rubbing frames for windows” (R. 33). Plaintiff testified that he would stand and walk eight out of eight hours in a workday, and that the typical weight of items he lifted was between 25 and 50 pounds (R. 34). Plaintiff is right-handed, five feet eight inches (5'8”) tall, and weighs three hundred (300) pounds. Id.

         Plaintiff last worked on May 21, 2012, when he experienced an episode at work wherein he “got real lightheaded and stumbled, ” and had high blood pressure, which continued along with the dizziness (R. 35). Emergency personnel at Plaintiff's place of employment administered an EKG, which was normal, but personnel took Plaintiff home. Id. Since then, Plaintiff has been seeing Dr. Humphrey, his primary care doctor, once per month on average. Id. Plaintiff has collected disability payments following the incident based on long-term disability. Id. See also (R. 172).

         Plaintiff next testified regarding his treatment. He advised Dr. Humphrey “tried putting [Plaintiff] on an anti-motion or a motion sickness pill to see if that would steady me and that didn't help” (R. 37). Plaintiff has not had any surgeries, physical therapies, pain injections, or pain blocks since May of 2012. Id. Plaintiff's conditions have been managed with medication, from which he experiences no side effects. Id.

         Plaintiff testified that the dizzy spells are the worst of his impairments (R. 37). Plaintiff reported experiencing episodes of dizziness “just about everyday” and without warning: “It'll happen all of a sudden and I'll get real weak in my knees” Id. The dizzy spells do not typically last more than ten to fifteen (10-15) seconds. Plaintiff reported having fallen “like 13 or 14 times” from dizzy spells since 2012, though those falls have not required emergency treatment to date (R. 37). The dizzy spells are accompanied by painful headaches that require medication and between two (2) to five (5) hours of sleep to treat:

Q: Have you told Dr. Humphrey about them?
A: Yes.
Q: What has he told you about them?
A: He thought that I should have been getting better, but that is why - is causing the dizzy spells is from the stroke.
Q: Okay. So you said you have these dizzy spells everyday. How often during a typical day and how long do they last?
A: Well usually they last not very long, but I'll get a real bad headache with it.
Q: Okay. So how long is not very long? Let's kind of break it down a little bit. You have - you get a spell of being dizzy?
A: Yeah, 10 -
Q: You're talking about -
A: -- 10-15 seconds
Q: Okay. So they last about 10 to 15 seconds. And then afterwards you get a headache?
A: Yeah, I'll have - I'll - it's like you can feel it walking up the back of my head and I'll get the headache and I'll go in and take something for the pain and then I'll go in and I'll lay down.
Q: How long does that headache last once you take your medication and lay down?
A: Well, usually I have to go to sleep in order for the headache to stop.
Q: Okay. So how long typically are you laying down sleeping before that goes away?
A: It can be anywhere from two to five hours.
Q: And how often in a typical day do you have those dizzy spells? Just once a day?
A: Sometimes once, sometimes twice. I don't think I've ever had more than two.
Q: Okay. And that happens everyday [sic]?
A: Just about - yeah, just about everyday [sic].
Q: Have they adjusted your blood pressure medication?
A: My blood pressure had read fine every time.
Q: So what medications are they adjusting?
A: None - none of my medications have been adjusted.

(R. 37-39). Plaintiff testified that in terms of medication, he takes Topamax, Coumadin, Xanax, Lasix, Lisinopril, Pravastatin, and Prilosec (R. 40). Plaintiff testified that he does not drive unless he absolutely has to. Id. Although he has not had any accidents while driving since 2012, he has had dizzy spells while driving and is concerned he may hurt someone. Id. When this happens, Plaintiff testified all that he can do is pull over to the side of the road and sit still. Id. Plaintiff has discussed with his doctor “maybe taking my license because [he does]n't want to hurt anybody.” Id.

         Plaintiff also testified about problems with his neck and back, reporting a herniated disc that causes periodic loss of use of, and feeling in, his left arm (R. 41). Plaintiff reports that these symptoms are worse when he puts more stress and strain on it, and better when he does not use it much. Id. Plaintiff next discussed problems standing or walking. Id. He testified that he was able to stand or walk for approximately fifteen (15) to twenty (20) minutes before he would be “pushed to his limit” and have to sit down and rest for about an hour (R. 41-42). Problematically, however, Plaintiff's back and neck begin to hurt when he sits for longer than fifteen (15) to twenty (20) minutes. Id.

         Plaintiff next testified about his daily activities and typical day. Plaintiff testified that he will watch television or read books if he can, but that his ability to do those things is affected by his daily headaches (R. 42). Plaintiff used to enjoy working on cars or going to visit family, which he cannot do much anymore because he is afraid to drive unless it is absolutely necessary. Id. Plaintiff reports that his wife has indicated to him that he has significant memory problems, and that he feels depressed because he is “used to working and this isn't . . . something I'm used to and the health thing just seems to get worse and worse.” Id.

         The ALJ then questioned Plaintiff regarding additional health problems. Plaintiff testified that he is completely blind in his left eye, and has “okay” vision in his right eye, except for when reading (R. 44-45). Plaintiff reported having problems with deep vein thrombosis in his lower extremities in October 2011, but that he now takes blood thinners to keep that in check (R. 45). The ALJ asked Plaintiff if he “get[s] along with other people, ” and Plaintiff responded that he did. Id.

         D. Vocational Evidence

         Ms. Nancy Shapero, an impartial vocational expert, also testified at Plaintiff's administrative hearing, The VE classified Plaintiff's work as “a [inaudible] worker in the window factory” classified as “medium work up to an SVP of 3; no transferrable skills” (R. 47).

         The ALJ then asked the VE the following hypothetical:

Let's assume this hypothetical individual's date of birth is October 15, 1966; this individual has a GED with the following limitations: okay. This individual can carry - lift and carry 20 pounds occasionally/10 pounds frequently; standing and walking six hours; sitting six hours; posturally never climbing ladders, ropes, scaffolds; never balance; only occasional for the following: climbing ramps, stairs, stooping, kneeling, crouching, and crawling; visually this individual has the limited depth perception secondary to his or her being blind in one eye; environmentally, this individual must avoid or never work in the heights, machinery, or hazards; avoid even moderate exposure to vibration; avoid concentrated exposure to extreme cold, extreme heat, wetness, and noise; psychologically, this individual is limited to simple, repetitive, routine tasks. Based on those restrictions, can this hypothetical individual perform any of the - or actually only one of the claimant's past work?

(R. 47). The VE stated that such an individual would not being able to perform the past work but could perform other types of work: (1) hand packer, (2) sorter, and (3) janitorial (R. 48). The ALJ then asked a second hypothetical:

Let me give you another hypothetical. Let's - everything else stays the same except we change the exertional requirement to -- or limitation to 10 pounds occasionally /less than 10 pounds frequently; standing and walking two hours; sitting six hours; and then [INAUDIBLE] postural, visual, environmental, and psychological. Would there be any jobs in the national and/or regional economy?

(R. 48-49). The VE testified that the job of (1) hand packer would still be available, in addition to (2) addresser and (3) inspector. The ALJ then asked a third hypothetical:

Okay. Let's -- this is a new hypothetical or -- it's based on Exhibit SF, medical source statement from Dr. Humphrey. We are going to leave the same psychological limitation of simple, repetitive, routine tasks, but physically, this hypothetical individual can sit about two hours, standing and walking about two hours both in an eight-hour workday; lifting up to 10 pounds occasionally/20 pounds rarely; rarely twisting; rarely climbing stairs; never stoop; never crouch; never squat; never climbing ladders; manipulatively, this individual can use 10% bilateral upper extremities for reaching/25% for both handling and fingering. Based on those restrictions, can this hypothetical individual perform any jobs in the nation -- or would there be any jobs in the nation and/or regional economy?

(R. 49). The VE testified that, based on those restrictions, there would be no jobs in the nation or regional economy that such a hypothetical individual could perform. Id. Plaintiff's representative then examined the VE, posing a fourth hypothetical:

Q: Ms. Shapiro, if we took the judge's first and second hypothetical and added that a person would need to be able to change their position about every 10 to 15 minutes; they would need to be able then pretty much to shift at will; and they would need two to three unscheduled breaks a day for up to about five minutes at a time to deal with issues of pain. Would that impact any of the jobs you listed in the first and second hypothetical?
A: Yes, ma'am.
Q: In what way please?
A: They would be ruled ...

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