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Case 1:12-cv-00056-JPJ-PMS Document 17 Filed 09/20/13 Page 1 of 10 Pageid#: 377

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA

ABINGDON DIVISION



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OPINION



Case No. 1:12CV00056



By: James P. Jones
United States District Judge

JESSE DREW GULLION,

Plaintiff,

v.

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,1

Defendant.


Jesse Drew Gullion, Pro Se Plaintiff; Eric P. Kressman, Regional Chief
Counsel, Region III, Lori Karimoto, Assistant Regional Counsel, and Allyson
Jozwik, Special Assistant United States Attorney, Office of the General Counsel,
Social Security Administration, Philadelphia, Pennsylvania, for Defendant.





In this social security case, I affirm the decision of the Commissioner.



I

Plaintiff Jesse Drew Gullion filed this action challenging the final decision

of the Commissioner of Social Security (the “Commissioner”) denying his claim

for supplemental security income (“SSI”) pursuant to Title XVI of the Social









1 Carolyn W. Colvin became the Acting Commissioner on February 14, 2013, and
is substituted for Michael J. Astrue as the defendant in this suit pursuant to Fed. R. Civil
P. 25(d).





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Security Act (the “Act”), 42 U.S.C.A. §§ 1381-83f (West 2012 & Supp. 2013).

Jurisdiction of this court exists under 42 U.S.C.A. § 1383(c)(3).

Gullion protectively applied for SSI on January 13, 2009, initially alleging

disability beginning May 1, 2008, though he later amended his alleged onset date

to January 13, 2009. His claim was denied initially and upon reconsideration. A

hearing was held before an administrative law judge (“ALJ”) on November 6,

2009, at which Gullion, represented by counsel, and a vocational expert (“VE”)

testified. On February 25, 2011, the ALJ issued a decision finding that Gullion

was not disabled under the Act. Gullion requested review by the Social Security

Administration’s Appeals Council. The Appeals Council denied his request for

review, thereby making the ALJ’s decision the final decision of the Commissioner.

Gullion then filed a complaint in this court seeking judicial review of the

Commissioner’s decision.

The parties have filed cross motions for summary judgment, which have

been briefed. The case is ripe for decision.



II

Gullion was 42 years old on the date of the ALJ’s decision. He has a high

school diploma and has past relevant work as a screen printer.




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Gullion claims disability based on hip and knee pain and emotional stress.

In September 2007, during a domestic dispute, he was dragged by a car a short

distance and suffered minor injuries; he was treated at the emergency room and

released. (R. at 227-45.) A brain CT scan revealed some fluid collection, and the

doctor thought an MRI might be beneficial. (R. at 234.) Gullion received inpatient

mental health treatment in April 2008, at which time he was diagnosed with

intermittent explosive disorder, personality disorder, and impulse control disorder

and was assigned Global Assessment of Functioning (“GAF”) scores of 32 and

41.2

(R. at 247-78.) He showed significant improvement on Trileptal and was

“quite stable after taking his medication.” (R. at 249-50.)

In November 2008, Gullion returned for follow-up mental health treatment

and reported that he was handling his relationship stress reasonably well, despite

having separated from his wife and having a protective order against him. (R. at

279.) He denied any outbursts or explosive behavior and also denied any other

medical problems. (R. at 279.) Marlon Anthony Graham, M.D., ruled out impulse

control disorder and obsessive compulsive disorder, but diagnosed intermittent


2 A GAF score indicates an individual’s overall level of functioning at the time of
examination. It is made up of two components: symptom severity and social occupational
functioning. A GAF score ranging from 61 to 70 indicates some mild symptoms or some
difficulty in social, occupational, or school functioning; a GAF score ranging from 51 to
60 denotes functioning with moderate symptoms or moderate difficulty in social,
occupational, or school functioning; a GAF score ranging from 41 to 50 indicates
functioning with serious symptoms or any serious impairment in social, occupational, or
school functioning. Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental
Disorders 32-34 (4th ed. 2000).



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explosive disorder and personality disorder and assigned a GAF score of 45. (R. at

279-80.) Dr. Graham recommended counseling and continuing medication, as well

as a brain MRI. (R. at 280.) In the coming months, Gullion described sadness and

suspicion but continued to deny outbursts and explosive anger, and Dr. Graham

noted that Gullion seemed to be doing much better. (R. at 282-82, 313.)

In late March 2009, Gullion’s condition deteriorated when he learned his

estranged wife was seeing another man. (R. at 314.) A counselor at Mount Rogers

Community Services Board noted that Gullion was anxious and paranoid, and the

counselor suspected Gullion had stopped taking his medications. (R. at 314.) In

mid-April 2009, Gullion continued to obsess over getting his wife to return to him

and would not listen to his counselor’s advice. (R. at 311.) His psychiatrist started

him on Zoloft. (R. at 312.)

William Humphries, M.D., examined Gullion at the state agency’s request in

May 2009, related to complaints of knee and hip pain. (R. at 287-90.) The

examination was largely unremarkable, and Dr. Humphries opined that Gullion’s

only restriction would be a limitation of no more than occasional crawling. (Id.)

In May 2009, Joseph Duckwall, M.D., a state agency physician, reviewed

Gullion’s record and opined that Gullion could perform medium work limited to

only occasional crawling. (R. at 63-73.)




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Gullion continued to attend counseling sessions from May through

September 2009, but there was no change in his progress other than some minimal

improvement in early September. (R. at 304-10.) Gullion reported doing well on

September 9, 2009. (R. at 302.) Gullion visited Family Physicians of Marion in

June 2009, but the records from this visit do not reveal much. (R. at 293-94.)

A state agency psychologist, Richard J. Milan, Jr., Ph.D., reviewed Gullion’s

file in October 2009 and concluded that Gullion’s mental impairments would not

prevent him from meeting the basic demands of competitive work. (R. at 85-86.)

Donald Williams, M.D., another state agency physician, reviewed Gullion’s file on

the same day and opined that Gullion could lift 10 pounds frequently and 20

pounds occasionally; stand for four hours and sit for six hours in an eight-hour

workday; could only occasionally push or pull foot controls due to knee pain;

could frequently climb stairs, balance, and stoop; and could only occasionally

climb ladders/ropes/scaffolds, kneel, crouch, and crawl due to his brain cyst and

knee pain; but had no other physical limitations. (R. at 84-85.)

Gullion also sought treatment for an earache in July and September 2009.

(R. at 317-21.)

Gullion testified that he lived alone and fully cared for himself, performed a

number of household chores, cared for and played with his children, drove

regularly, managed his own finances and schedule, and generally performed a




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broad range of activities of daily living. He stated that he had stopped working for

reasons related to his employer and family situation, not because of his

impairments. (R. at 31-52.)

The ALJ found that Gullion had the severe impairments of benign neoplasm

of the brain or nervous system and personality disorders, but that these did not

meet or equal listed impairments. The ALJ concluded that Gullion could perform

a modified range of light work, including several representative jobs that exist in

significant numbers in the national economy, and thus was not disabled. Gullion

does not contest any particular aspect of the ALJ’s decision, but argues that he is

disabled and has submitted a letter from a psychiatrist stating that Gullion has been

treated for Major Depressive Disorder, Recurrent type, moderate since June 15,

2010, and is prescribed Lamictal. The letter, signed by Marilou V. Inocalla, M.D.,

also states an opinion that Gullion is unable to maintain gainful employment.



III

The plaintiff bears the burden of proving that he is under a disability.

Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). The standard for

disability is strict. The plaintiff must show that his “physical or mental impairment

or impairments are of such severity that he is not only unable to do his previous

work but cannot, considering his age, education, and work experience, engage in




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any other kind of substantial gainful work which exists in the national

economy . . . .” 42 U.S.C.A. § 1382c(a)(3)(B).

In assessing disability claims, the Commissioner applies a five-step

sequential evaluation process. The Commissioner considers whether the claimant:

(1) has worked during the alleged period of disability; (2) has a severe impairment;

(3) has a condition that meets or equals the severity of a listed impairment; (4)

could return to his past relevant work; and (5) if not, whether he could perform

other work present in the national economy. See 20 C.F.R. § 416.920(a)(4) (2013).

The fourth and fifth steps of the inquiry require an assessment of the claimant’s

residual functional capacity, which is then compared with the physical and mental

demands of the claimant’s past relevant work and of other work present in the

national economy. Id. at 869.

In accordance with the Act, I must uphold the Commissioner’s findings if

substantial evidence supports them and the findings were reached through the

application of the correct legal standard. Craig v. Chater, 76 F.3d 585, 589 (4th

Cir. 1996). Substantial evidence means “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Richardson v. Perales,

402 U.S. 389, 401 (1971) (internal quotation marks and citation omitted).

Substantial evidence is “more than a mere scintilla of evidence but may be

somewhat less than a preponderance.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th




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Cir. 1966). It is the role of the ALJ to resolve evidentiary conflicts, including

inconsistencies in the evidence. Seacrist v. Weinberger, 538 F.2d 1054, 1056-57

(4th Cir. 1976). It is not the role of this court to substitute its judgment for that of

the Commissioner. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).

I have reviewed the record evidence and conclude that the ALJ’s decision is

supported by substantial evidence. Gullion stopped working for reasons unrelated

to his impairments, never had any problems caused by his mental impairments

while he was working, and was capable of caring for himself and his children and

performing a variety of daily activities despite his impairments. The objective

medical evidence that relates to the relevant time period does not indicate that

Gullion’s impairments are so severe as to preclude employment.

Evidence outside the administrative record that has been submitted for the

first time to the district court may only be used to evaluate whether the case should

be remanded to the Commissioner. See 42 U.S.C.A. § 405(g) (West 2011). It may

not be used to reverse the decision of the Commissioner. Accordingly, I may only

consider the letter from Dr. Inocalla submitted by Gullion in support of his Motion

for Summary Judgment to determine whether a remand is appropriate in this case.

“A remand on the basis of new evidence is warranted only if the new evidence is

material and there is good cause for its late submission.” Hayes v. Astrue, 488 F.

Supp. 2d 560, 564 (W.D. Va. 2007).

There

is no requirement

that




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the new evidence existed during the period on or before the date of the

Commissioner’s decision. See Reichard v. Barnhart, 285 F. Supp. 2d 728, 733

(S.D.W. Va. 2003). “Evidence is material if there is a reasonable possibility that

the new evidence would have changed the outcome.” Wilkins v. Sec’y, Dep’t of

Health & Human Servs.,, 953 F.2d 93, 96 (4th Cir. 1991).

According to the letter, Dr. Inocalla had begun treating Gullion several

months before the ALJ issued his decision, yet Gullion has offered no reason for

the late submission of this evidence. Moreover, Dr. Inocalla provides no

explanation of her conclusion that Gullion cannot sustain gainful employment,

instead simply stating that he has been diagnosed with depression and is taking

medication. Because this new evidence is immaterial and Gullion has not shown

good cause for its late submission, I find that a remand is not warranted.

Based on my review of the record, I conclude that the ALJ’s decision was

supported by substantial evidence, and it will be affirmed.



IV

For the foregoing reasons, the plaintiff’s Motion for Summary Judgment will

be denied, and the defendant's Motion for Summary Judgment will be granted. A

final judgment will be entered affirming the Commissioner’s final decision

denying benefits.




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DATED: September 20, 2013

/s/ James P. Jones
United States District Judge





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