Stone v. Colvin

Filing 20

ORDER ADOPTING 17 Final Report and Recommendation AFFIRMING the decision of the Commissioner. IT IS FURTHER ORDERED that this action is DISMISSED. Signed by Judge William S. Duffey, Jr on 2/8/2018. (btql)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ZACHERY STONE,
Plaintiff,
v.

1:16-cv-3563-WSD

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Linda T. Walker’s Final
Report and Recommendation [17] (“Final R&R”). The Final R&R recommends
the Court affirm the decision of the Commissioner of Social Security
(“Commissioner”) to deny Plaintiff Zachery Stone’s (“Plaintiff”) application for a
period of disability, disability insurance benefits, and supplemental security
income under the Social Security Act. Plaintiff did not file objections to the Final
R&R.

I.

BACKGROUND1
On November 5, 2012, Plaintiff filed applications for disability insurance

benefits (“DIB”) and supplemental security income (“SSI”) alleging disability
beginning on September 1, 2005. (Transcript [9] (“Tr.”) at 16, 198-208).
Plaintiff’s claims were denied initially, and on reconsideration on July 31, 2013.
(Tr. 16, 107-08, 137-38). Plaintiff appealed the denial to an Administrative Law
Judge (“ALJ”) and an administrative hearing was held on February 6, 2015. (Tr.
28-77). At the hearing, Plaintiff amended her alleged onset date to November 5,
2012, which was after the expiration of the date she was last insured, June 30,
2010. (Tr. 16). In effect, Plaintiff withdrew her request for a hearing with respect
to her application for DIB under Title II of the Act, as amended. (Id.). The ALJ
noted there was little treatment and no real evidence of a disabling impairment
prior to the expiration of Plaintiff’s insured status on November 5, 2012, and
dismissed Plaintiff’s request for hearing on DIB. (Id.).
On June 10, 2015, the ALJ issued an unfavorable decision on Plaintiff’s SSI
claim finding that she was not disabled. (Tr. 13-22). On August 5, 2015, Plaintiff
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The facts are taken from the Final R&R and the record. The parties have not
objected to any specific facts in the Final R&R, and the Court finds no plain error
in them. The Court thus adopts the facts set out in the R&R. See Garvey
v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993).

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filed a request for review of the ALJ’s Decision. (Tr. 8-12). The Appeals Council
denied Plaintiff’s request for review on July 21, 2016. (Tr. 1-7). Plaintiff, having
exhausted all administrative remedies, filed this action on September 22, 2016.
([3]).
A.

Facts and ALJ’s Findings

Plaintiff, who was fifty-six to fifty-eight years old during the relevant period,
alleges a disability due to arthritis and panic attacks. (Tr. 37, 198-208, 417).
Plaintiff has an eleventh grade education and past relevant work as a cafeteria food
service worker and kitchen helper. (Tr. 37, 67-68). Plaintiff last worked in 2005
and initially alleged she became disabled on September 1, 2005, due to arthritis
and panic attacks. (Tr. 16, 198-208). According to the ALJ, Plaintiff last met the
insured status requirements of the Social Security Act on June 30, 2010. (Tr. 18).
The ALJ found that Plaintiff has not engaged is substantial gainful activity since
November 5, 2012. (Id.). The ALJ found further that there are no medical signs or
laboratory findings to substantiate the existence of a medically determinable
impairment. (Id.). Finally, the ALJ found that Plaintiff has not been under a
disability, as defined in the Social Security Act, from November 5, 2012, through
the date of its decision. (Tr. 22).

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In so finding, the ALJ noted that at the hearing on February 6, 2015, Plaintiff
presented with a one-prong cane. (Tr. 19). She testified that she could stand for
one hour and walk two blocks, but would experience pain thereafter. (Id.).
Plaintiff stated that she can stand or walk for two hours total and sit for a total of
two hours or four hours “off and on.” (Id.). She testified that she could lift two
pounds with one or both arms, but to do so was painful. (Id.). Plaintiff further
testified that she could not bend and can only reach down to her thighs while
standing. (Id.). She alleged that pain affects her ability to focus. (Id.). Plaintiff
also stated that she has problems with anxiety and depression. (Id.).
The ALJ also noted that Plaintiff did not provide any medical evidence to
support her allegations of mental disability during the period at issue. (Id.). The
ALJ observed that Plaintiff only takes Valerian, an herbal preparation, for her
alleged mental health conditions and that the record reflects no mental health
treatment or counseling even though Plaintiff has access to free or low cost
healthcare through the Grady Health System. (Id.).
The ALJ gave “lesser weight” to the opinion of Anne Moore, PsyD,
rendered at a January 19, 2013, consultative psychological evaluation. (Tr. 20).
Dr. Moore concluded that Plaintiff’s ability to interact appropriately with coworkers, supervisors, and the general public was “moderately compromised,” and

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her ability to sustain attention, persistence, and pack was moderately to markedly
compromised as “she seemed to become preoccupied with internal distress and was
unable to [deescalate].” (Id.). Dr. Moore noted that Plaintiff was unaccompanied
and took public transportation to the appointment, had full orientation and knew
the interviewer’s purpose, and had average short-term memory. The ALJ gave
lesser weight to Dr. Moore’s opinions because they appeared to endorse Plaintiff’s
subjective recitation of her alleged mental health concerns and were “out of line
with and unsupported by the remainder of the objective medical evidence of
record.” (Id.).
The ALJ gave substantial weight to the opinion of Bobby A. Crocker, M.D.,
who reported that Plaintiff had a normal physical examination without evidence of
any physical impairment. The ALJ also assessed treatment notes from Erica J.
Han, M.D. at Grady Memorial Hospital, which reveal that Plaintiff exercises
regularly, engaging in yoga and squats. The ALJ found Plaintiff’s testimony less
credible because no one prescribed her cane, and “there is no objective indicia that
would support her allegations of pain and functional limitation.” (Tr. 20). The
ALJ further noted that there is no credible treating physician of record. The ALJ
concluded that there are no medical signs or laboratory findings to substantiate the

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existence of a medically determinable impairment and Plaintiff has not been under
a disability as defined in the Social Security Act.
B.

Final R&R

Plaintiff contends that the Commissioner erred in finding that Plaintiff did
not have any severe impairments. ([14] at 7-15). Plaintiff argues that the
Commissioner failed to proceed to step three of the five-part analysis after finding
Plaintiff has no medically severe impairments. Further, Plaintiff relies on
Dr. Han’s finding that the motion in Plaintiff’s right shoulder was severely limited
due to pain. In addition to her shoulder, Plaintiff alleges severe impairments to her
lungs and heart, chest and back pain, anxiety disorders, and affective disorders. To
support her allegation that she suffers from anxiety and depressive disorders,
Plaintiff relies on the opinions of Dr. Moore, arguing that the ALJ erred in giving
lesser weight to Dr. Moore’s opinions. In response, the Commissioner argues
substantial evidence supports the ALJ’s finding that Plaintiff did not have a
medically determinable impairment. ([15]).
On January 18, 2018, the Magistrate Judge issued her Final R&R. The
Magistrate Judge determined that the ALJ did not err by finding that Plaintiff did
not have any medically determinable impairments because the ALJ’s decision
appears to be decided under the proper standards and supported by substantial

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evidence. The Magistrate Judge found that the ALJ properly discounted Plaintiff’s
credibility, properly discounted the opinions of Drs. Han and Moore, and properly
relied on objective evidence in the record and the opinions of several psychological
and medical examiners and consultants. The Magistrate Judge recommended that
the Court affirm the decision of the Commissioner and dismiss this action.
Plaintiff did not file any objections to the Final R&R and the Court reviews it for
plain error.
II.

DISCUSSION
A.

Legal Standards
1.

Review of a Magistrate Judge’s R&R

After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams
v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge
“shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). Where, as here, no party has objected to the report and
recommendation, the Court conducts only a plain error review of the record.
United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam).

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2.

Review of a Decision of the Commissioner of Social Security

A court must “review the Commissioner’s decision to determine if it is
supported by substantial evidence and based upon proper legal standards.” Lewis
v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997). “Substantial evidence is more
than a scintilla and is such relevant evidence as a reasonable person would accept
as adequate to support a conclusion.” Id. at 1440. “We may not decide the facts
anew, reweigh the evidence, or substitute our judgment for that of the
[Commissioner].” Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004).
3.

Standard for Determining Disability

An individual is considered to be disabled if she is unable “to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than 12 months[.]”
42 U.S.C. § 423(d)(1)(A). The impairments must result from anatomical,
psychological, or physiological abnormalities which are demonstrable by
medically acceptable clinical and laboratory diagnostic techniques and must be of
such severity that the claimant is not only unable to do her previous work but
cannot, considering age, education, and work experience, engage in any other kind

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of substantial gainful work which exists in the national economy. See 42 U.S.C.
§§ 423(d)(2)-(3).
“The burden is primarily on the claimant to prove that [s]he is disabled, and
therefore entitled to receive Social Security disability benefits.” Doughty v. Apfel,
245 F.3d 1274, 1278 (11th Cir. 2001) (citing 20 C.F.R. § 404.1512(a)). To
determine if an applicant suffers a disability under the Social Security Act, an ALJ
performs a five-step evaluation. See Id.; 20 C.F.R. §§ 404.1520, 416.920. The
five steps are: (1) the claimant must prove that she is not engaged in substantial
gainful activity; (2) the claimant must prove that she is suffering from a severe
impairment or combination of impairments; (3) the Commissioner will determine
if the claimant has shown that her impairment or combination of impairments
meets or medically equals the criteria of an impairment listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1; (4) if the claimant cannot prove the existence of a
listed impairment, she must prove that her impairment prevents her from
performing her past relevant work; (5) the Commissioner must consider the
claimant’s residual functional capacity, age, education, and past work experience
to determine whether the claimant can perform other work besides her past
relevant work. See Doughty, 245 F.3d at 1278; 20 C.F.R. §§ 404.1520, 416.920.
If, at any step of the sequence, the claimant can be found disabled or not disabled,

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the sequential evaluation ceases and further inquiry ends. See 20 C.F.R.
§§ 404.1520(a), 416.920(a).
B.

Analysis

Plaintiff contends the ALJ erred in concluding that Plaintiff did not have a
medically determinable impairment. The Magistrate found that “the ALJ properly
considered the entire record before finding there were no medical signs or
laboratory findings to substantiate the existence of a medically determinable
impairment.” (Final R&R at 10). In order to be considered a medically
determinable impairment, an alleged condition or impairment must result from
anatomical, physiological, or psychological abnormalities that can be shown by
medically acceptable clinical and laboratory diagnostic techniques. SSR 96-4p,
1996 WL 374187, at 1 (July 2, 1996). Although the regulations provide that the
existence of a medically determinable impairment must be established by evidence
consisting of signs, symptoms, and laboratory findings, under no circumstances
may the existence of an impairment be established on the basis of reported
symptoms alone. See 20 C.F.R. §§ 404.1529, 416.929. No symptom or
combination of symptoms can be the basis for a finding of disability, no matter
how genuine the individual’s complaints may appear to be, unless there are
medical signs and laboratory findings demonstrating the existence of a medically

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determinable physical or mental impairment(s). SSR 96-4p, 1996 WL 374187,
at 1.
Regarding Plaintiff’s alleged mental impairments, the Magistrate Judge
reviewed the ALJ’s conclusion that “[b]ecause Plaintiff’s conditions were either
self-reported, based on her symptoms, or were not supported by medical signs or
laboratory findings or the objective medical evidence, . . . Plaintiff failed to
provide evidence of the existence of a medically determinable impairment.” (Final
R&R at 11). Regarding the opinion of Dr. Moore, on which Plaintiff relies, the
Magistrate Judge found that “although Plaintiff relies on the opinion of a
consultative examiner, Dr. Anne Moore, and two reviewing State agency
consultants, to support her argument that her anxiety and affective disorder are
severe mental, the ALJ properly considered and weighed the opinions and
provided reasons why the opinions were discounted. Substantial evidence supports
the ALJ’s decision to do so.” (Id. at 14). The Magistrate Judge concluded that
“the ALJ provided substantial evidence to support her finding that Plaintiff does
not have a medically determinable (mental) impairment.” (Id. at 21).
Regarding Plaintiff’s alleged physical impairments, the Magistrate Judge
considered Plaintiff’s contention that the ALJ erred by failing to find her right
shoulder severely limited due to pain, and failed to properly consider the pain in

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her chest, lower back, and hip, as well as lung and heart conditions. (Id. at 22).
The Magistrate Judge found that “[c]ontrary to Plaintiff’s contention, the ALJ
provided a number of reasons for discounting Plaintiffs allegations of disabling
pain and other severe physical impairments and substantial evidence supports the
ALJ’s decision to do so.” (Id.). The Magistrate Judge noted that the ALJ properly
relied on evidence of the evaluation of Dr. Crocker, who observed that Plaintiff
had a normal physical examination without evidence of any physical impairment.
(Final R&R at 23-24). The Magistrate Judge further considered that evidence of
Plaintiff’s exercise routine as noted by Dr. Han was inconsistent with Dr. Han’s
opinion that Plaintiff’s range of motion in her shoulder was limited. The
Magistrate Judge found that the ALJ did not err in discounting Dr. Han’s dire
opinion of Plaintiff’s functional limitations as it was inconsistent with and
contradicted by the objective medical evidence, Dr. Han’s own treatment notes,
Plaintiff’s testimony, and the opinions of State Agency medical consultants. (Id. at
27). The Court finds no plain error in these findings and recommendation. See
Slay, 714 F.2d at 1095.

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III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Linda T. Walker’s Final

Report and Recommendation [17] is ADOPTED.
IT IS FURTHER ORDERED that this action is DISMISSED.

SO ORDERED this 8th day of February, 2018.

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