Napier v. SSA

Filing 13

MEMORANDUM OPINION AND ORDER: 1) The Commissioner's Motion for Summary Judgment [Record No. 12] is GRANTED; 2) The Plaintiff's Motion for Summary Judgment [Record No. 11] is DENIED; 3) ALJ Roger Lott's decision will be AFFIRMED by separate judgment issued this date. Signed by Judge Danny C. Reeves on 3/1/2017.(RC)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
(at London)
ARTHUR ALLEN NAPIER,

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Plaintiff,
V.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security1,
Defendant.
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Civil Action No. 6: 16-124-DCR

MEMORANDUM OPINION
AND ORDER

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This matter is pending for consideration of cross-motions for summary judgment filed
by Plaintiff Arthur Allen Napier (“Napier”) [Record No. 11] and Defendant Nancy A.
Berryhill, Acting Commissioner of the Social Security Administration (“the Commissioner”).
[Record No. 12] Napier alleges that the Administrative Law Judge (“ALJ”) erred by failing
to find that his obesity was a severe impairment and that the ALJ’s decision was not supported
by substantial evidence. Napier requests an award of benefits in his favor or, alternatively,
that the matter be remanded for further administrative proceedings.
In response, the Commissioner contends that the issue of whether Napier’s obesity was
severe is not legally relevant because the ALJ considered all impairments when evaluating his
residual functioning capacity (“RFC”). But, assuming that the issue is relevant, the
Commissioner asserts that the ALJ properly accounted for Napier’s obesity in his findings.
Additionally, the Commissioner argues that the ALJ’s decision is supported by substantial

1

Nance A. Berryhill is now the Acting Commissioner of Social Security and is
substituted in this action pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.
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evidence. For the reasons that follow, the Commissioner’s motion will be granted and the
relief that Napier seeks will be denied.
I.
On December 11, 2012, Napier filed applications for a period of disability insurance
benefits and for supplemental security income, alleging a disability beginning July 25, 2011.
[Administrative Transcript, “Tr.”, 233-36, 237-45] These applications were denied, initially
and upon reconsideration.

[Tr. 134-37, 146-48, 153-55]

Napier participated in an

administrative hearing before the ALJ during which he amended the alleged onset date of his
disability to July 25, 2012. [Tr. 33, 35] Thereafter, the ALJ issued a written opinion,
concluding that Napier was not disabled. [Tr. 11-25] Napier sought but was denied review
by the Appeals Council. [Tr. 1] The case is ripe for this Court’s review pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3).
Napier was 32 years’ old on the date of the alleged onset of his disability. [Tr. 38] At
the time of the administrative hearing, he lived in a second-floor apartment at his parents’
home. [Tr. 37]

Napier completed high school, but attended special education classes. [Tr.

38] He testified that he cannot read, write, or spell, and only passed classes because he was
good at football. [Tr. 39] However, Napier is able to count money and make change. [Tr. 40]
He was previously employed by a coal mine, where he worked a rail runner and watched a
head drive2, and by a saw mill, where he worked as a laborer. [Tr. 42-45] Napier was involved
in a car accident in July 2011 that caused a number of injuries. [Tr. 46-47] He contends that

2

This position involved watching coal moving on a conveyer belt and shoveling it back
onto the belt when it fell off. [Tr. 43]
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he is unable to work due to problems with his right knee, hip, and pelvis; chest injuries; vision
problems; mental issues; and seizures. [Tr. 45-46, 134]
Napier was treated at the Daniel Boone Clinic in May 2011. [Tr. 368] He reported
chest pain, midepigastric pain, and a sour taste in his mouth. [Id.] Napier was given Prilosec
and referred to cardiology for “possible stress test”. However, a treatment note indicated
“consider malingering.” [Id.] The physician described Napier as well-appearing and “wellnourished in no distress.” [Id.] During another visit in May, Napier complained of chest pain,
shortness of breath, and a non-productive cough. He informed the physician that he smoked
two packs of cigarettes per day. [Tr. 370] Napier was advised to continue Motrin and
discontinue smoking. [Id.] The physician’s notes reported likely musculoskeletal pain. [Id.]
Following the July 2011 car accident, Napier had a number of CT scans performed.
The CT scan of his chest with IV contrast showed suboptimal opacification of the aorta and
the supraaortic vessels. [Tr. 391-92] Additional observations included a small amount of leftsided effusion and a small amount of left anterior pneumothorax together with multiple
depressed fractures of the anterior ribs.

[Tr. 392]

Additionally, the scan revealed a

comminuted fracture of a right anterior rib and a nondisplaced fracture of the manubrium of
the sternum with a small amount of retrosternal bleeding. [Id.]
The CT scan of Napier’s knee reflected a mild comminuted fracture involving the
superior pole of the patella. [Tr. 398] Clinical impressions included contusion of the heart
and lung, open fracture of the patella, fracture of the left 2nd-6th ribs, fracture of the right 1st
rib, and obstruction of the right subclavical and pneumnothorax. [Tr. 405]
Napier was seen at the Appalachian Regional Healthcare center on May 15, 2011. He
complained of chest pain at that time.

[Tr. 420, 424]
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His physical exam generally

demonstrated normal results, but Napier was diagnosed with acute bronchitis. [Tr. 423] The
physician described him as being alert and oriented. [Id.]
Napier was treated at Holston Valley Hospital from July 25, 2011, through August 2,
2011. [Tr. 438] He was diagnosed with a right nondisplaced open superior pole of patellar
fracture, a right nondisplaced transverse acetabular fracture, cardiac contusion, multiple rib
fractures, and lung contusion. [Tr. 438] The physician noted at this hospital noted that Napier
was “alert and oriented and answering questions appropriately.” [Tr. 441] Following a
physical examination, the physician determined that his acetabular and patellar fractures
should be treated conservatively. [Id.]
On March 2, 2013, Philip Collis, M.D. examined Napier in connection with a disability
determination. [Tr. 485] Napier’s complained of bad eyesight, seizures, right knee and hip
pain, and mental issues. [Id.] He reported knee and hip pain following his car accident; mental
problems including panic attacks and violent ideation; and seizures that began after the
accident. [Id.] Napier stated that he had been seeing a psychiatrist monthly, and this helped
with his mental status. [Id.]
Naapier informed Dr. Collis that he: (i) could lift 20 to 25 pounds once, but not much
weight repetitively; (ii) could take care of his personal hygiene and did some cleaning, but did
not cook or shop for himself; (iii) drove and managed his own money; and (iv) could walk for
50 yards, stand for five minutes without having to sit, and sit for ten minutes without having
to move. [Tr. 485-86] The physician found slight decreased strength in Napier’s right lower
extremity and mild-to-moderate level of limitation in labor-intensive job-related activities due
to the conditions in his right knee. [Tr. 488] Otherwise, he did not find any abnormalities,
either physical or in Napier’s affect. [Id.]
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William R. Rigby, Ph.D evaluated Napier on March 12, 2013, for a disability
determination. [Tr. 490] Napier reported worsening anxiety and depression for which he was
taking Prozac and Klonopin. [Id.] Dr. Rigby noted that Napier “elaborate[ed] on his
limitations in a circumstantial manner and present[ed] a theatrical appearance of distress by
glancing around the clinic and blowing air.” [Tr. 491] Dr. Rigby ultimately concluded that
Napier appeared free of major mental illness. [Tr. 493] He found that Napier’s alleged anxiety
and depressive systems appeared “mild-to-moderate in degree.”

[Id.] Rigby further

determined that Napier did not have difficulty in understanding, retaining, and following
simple instructions and that he had no impairment which prevented him from sustaining
concentration and completing tasks. [Tr. 494] Dr. Rigby also found moderate impairment in
social interactions and in adapting and responding to the pressures of normal day-to-day work
activities. [Id.]
On June 25, 2014, Napier saw Dr. Jose Echeverria. [Tr. 576] At that time, he was
diagnosed with anxiety, depression, and lower back pain, and prescribed Xanax and Ultracet.
[Id.]
On July 18, 2014, Dr. Nagabhushanam Bollavaram examined Napier for complaints of
a cough associated with sputum production for two months. [Tr. 572] He also reported
shortness of breath due to exertion, chest tightness, and wheezing. [Id.] Dr. Bollavaram
suspected asthma or chronic obstructive pulmonary disease (COPD). [Tr. 574]
Napier was also seen and treated at the Harlan Appalachian Region Healthservices
Emergency Room in September 19-20, 2014, for complaints of chest pain radiating to his neck
as well as shortness of breath. [Tr. 592] His diagnosis was otherwise normal. [Tr. 593] Napier
was alert and oriented, during his physical exam and demonstrated normal strength and range
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of motion. [Tr. 626] At the time of this visit, Napier was diagnosed with retrosternal pain and
chest pain. [Id.]
Napier underwent counseling on September 26, 2014, at the Cumberland River
Comprehensive Care Center. [Tr. 583] He reported depression, loss of appetite, trouble
sleeping, decrease in physical activity, fatigue, feeling worthless, impaired concentration, and
elevated or irritable mood. [Id.] He was found to be suffering from depression, anxiety, grief,
and PTSD. [Tr. 586].
From October 29, 2013, through March 27, 2014, Napier was seen at the UK Digestive
Health/Kentucky Clinic where he was treated for Hepatitis C. [Tr. 636-50] On January 30,
2014, Napier’s BMI was 33.51. As a result, he was assessed as being obese. [Tr. 643] On
March 27, 2014, Napier was described as having no adverse cardiovascular, respiratory, or
musculoskeletal conditions. [Tr. 646] However, he claimed abdominal pain and vomiting
blood. [Id.] Medical observations and conclusions included Hepatitis C, drug dependence,
chronic pain syndrome, and obesity. [Tr. 648]
The ALJ determined that Napier had severe impairments of: status post right hip
transverse acetabular fracture, status post right patellar fracture, COPD, Hepatitis C with
gastritis, anxiety disorder, affective disorder, and polysubstance addiction disorders of
cannabis, opiates, and Xanax. [Tr. 13] He noted that Napier was obese, based on the report
of his BMI in January 2014, but concluded that his obesity was not a severe impairment
because Napier had “not alleged symptoms related to obesity.” [Tr. 19] He then concluded
that Napier did not have an impairment or combination of impairments that met or medically
equaled the severity of a listed impairment in 20 CFR §§ 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925, and 419.926. [Tr. 19]
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After considering the evidence of record, the ALJ determined that Napier had the RFC
to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b). [Tr. 21]
Although Napier could not perform any past relevant work, the ALJ found that there were jobs
existing in significant numbers in the national economy that he could perform. Thus, the ALJ
concluded that Napier was not disabled from the alleged onset date through the date of his
decision. [Tr. 24-25]
II.
Under the Social Security Act, a “disability” is defined as “the inability to engage in
‘substantial gainful activity’ because of a medically determinable physical or mental
impairment of at least one year’s expected duration.” Cruse v. Comm’r of Soc. Sec., 502 F.3d
532, 539 (6th Cir. 2007) (citing 42 U.S.C. § 423(d)(1)(A)). A claimant’s Social Security
disability determination is made by an ALJ in accordance with “a five-step ‘sequential
evaluation process.’” Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 642 (6th Cir. 2006) (en
banc) (quoting 20 C.F.R. § 404.1520(a)(4)). If the claimant satisfies the requirements of the
first four steps of the process, the burden shifts to the Commissioner with respect to the fifth
step. See Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003).
A claimant must first demonstrate that he is not engaged in substantial gainful
employment at the time of the disability application. 20 C.F.R. §§ 404.1520(b), 416.920(b).
Second, the claimant must show that he suffers from a severe impairment or a combination of
impairments. 20 C.F.R. §§ 404.1520(c), 416.920(c). Third, if the claimant is not engaged in
substantial gainful employment and has a severe impairment that is expected to last for at least
twelve months and that meets or equals a listed impairment, he will be considered disabled
without regard to age, education, and work experience. 20 C.F.R. §§ 404.1520(d), 416.920(d).
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Fourth, if the claimant has a severe impairment but the Commissioner cannot make a
determination of the disability based on medical evaluations and current work activity, the
Commissioner will review the claimant’s RFC and relevant past work to determine whether
he can perform his past work. If he can, he is not disabled. 20 C.F.R. §§ 404.1520(f),
416.920(f).
Under the fifth step of the analysis, if the claimant’s impairments prevent him from
doing past work, the Commissioner will consider his RFC, age, education, and past work
experience to determine whether he can perform other work. If he cannot perform other work,
the Commissioner will find the claimant disabled. 20 C.F.R. §§ 404.1520(g), 416.920(g).
“The Commissioner has the burden of proof only on ‘the fifth step, proving that there is work
available in the economy that the claimant can perform.’” White v. Comm’r of Soc. Sec., 312
F. App’x 779, 785 (6th Cir. 2009) (quoting Her v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th
Cir. 1999)).
This Court’s review is limited to determining whether the ALJ’s findings are supported
by substantial evidence and whether the ALJ employed the proper legal standards in reaching
his decision. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). Substantial
evidence is such relevant evidence as reasonable minds might accept as sufficient to support
the conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Bass v. McMahon, 499 F.3d
506, 509 (6th Cir. 2007). The Commissioner’s findings are conclusive if they are supported
by substantial evidence. 42 U.S.C. § 405(g).
III.
Napier first contends that the ALJ erred at the second step of the analysis by failing to
conclude that Napier’s obesity was a severe impairment. Napier’s January 30, 2014, records
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report a BMI of 33.51, which places him in the least severe category of obesity (Level 1) under
Social Security Ruling 02-1p. [Tr. 643]; [Doc. 11-1, p. 11] Napier then discusses his other
diagnoses, including chest pain, COPD, and various fractures. He asserts that these are
“precisely the kind of impairments” that are complicated by obesity. [Doc. 11-1, p. 14]
Specifically, counsel argues that obesity “undoubtedly” exacerbates Napier’s hip and knee
pain, COPD, and inability to sleep. [Id.]
Napier relies exclusively on Social Security Ruling 02-1p in making this argument.
After defining the levels of obesity, the ruling describes obesity as a “risk factor that increases
an individual’s chances of developing impairments in most body systems” and “commonly
leads to, and often complicates, chronic diseases of the cardiovascular, respiratory, and
musculoskeletal body systems.” Social Security Ruling 02-1p, 2002 WL 3486281. It states
that obesity will qualify as a severe impairment “when, alone or in combination with another
medically determinable physical or mental impairment(s), it significantly limits an individual’s
physical or mental ability to do basic work activities.” Id.
In Nejat v. Comm’r, 359 Fed. Appx. 574 (6th Cir. 2009), the Plaintiff argued that the
ALJ had erred by failing to find that his obesity was a severe impairment. The Sixth Circuit
first noted that “‘Social Security Ruling 02-1p does not mandate a particular mode of analysis’
but merely directs an ALJ to consider the claimant’s obesity, in combination with other
impairments, at all stages of the sequential evaluation.” Id. at 577 (quoting Bledsoe v.
Barnhart, 165 Fed. Appx. 408, 411-12 (6th Cir. 2006)). The Plaintiff’s argument that his
obesity was a severe impairment was based “entirely on the ‘Class 1 obesity’ diagnosis” of
one of the doctors. And that was the only obesity diagnosis in the record. Id. The ALJ
acknowledged the obesity diagnosis, but ultimately concluded that the impairment was not
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severe. Id. Based on the Plaintiff’s “failure to list obesity in his application and the scant
evidence of obesity,” the court concluded that the ALJ had properly declined to classify the
Plaintiff’s obesity as a severe impairment. Id.
Here, the ALJ correctly declined to classify Napier’s obesity as a severe impairment.
The ALJ specifically references obesity, indicating that he considered it as required by Social
Security Ruling 02-1p. However, he observes that “[Napier] has not alleged symptoms related
to obesity. I find his obesity non-severe.” [Tr. 19] Likewise, the record does not indicate that
Napier argued that he was disabled due to his obesity. During the administrative hearing, the
ALJ listed the bases for Napier’s alleged disability as: “a right knee fracture, right hip fracture,
pelvis problems, . . . chest injuries, . . . vision problems, . . . seizures, . . . and mental issues . .
.” as well as some problems hearing. [Tr. 45-46] He then asked Napier if he had any other
conditions. Napier responded that he suffered from Hepatitis C and had been coughing up
blood. [Tr. 46] However, he did not mention obesity when given the opportunity to assert
other medical problems or physical conditions that prevented him from working.
Additionally, the record does not reflect symptoms resulting from obesity and Napier
does not explain what effect, if any, his obesity has had on his other conditions. While Napier
cites the January 2014 obesity diagnosis and lists his other conditions, he does not reference
any evidence demonstrating that his obesity has had any impact on the other conditions.
Instead, he merely claims that obesity exacerbates his other conditions in conclusory terms.
As a result of the lack of evidence regarding obesity and the claimant’s failure to argue it before
the ALJ, the ALJ did not err in declining to classify obesity as a severe impairment.
But even if the ALJ did err by not classifying Napier’s obesity as a severe impairment,
this alone would not constitute reversible error. Nejat, 359 Fed. Appx. at 577 (6th Cir. 2009)
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(quoting Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987)). At
step two, the ALJ is required to assess whether the claimant has a severe impairment, which is
a “de minimis hurdle” that is “intended to screen out totally groundless claims.” Id. at 576
(citations omitted). After determining whether the claimant has any severe impairments at
step two, the ALJ must ultimately consider all of the claimant’s impairments during the
remaining steps of the disability determination. Id. (citing Soc. Sec. Rul. 96-8p, 1996 WL
374184, at *5)). As long as the ALJ considered the appropriate impairments when determining
the claimant’s RFC, it is irrelevant whether he categorized a particular impairment as “severe.”
See Maziarz, 837 F.2d at 244 (concluding that any step two error was harmless because the
agency completed the remaining steps of the disability determination and considered the
claimant’s impairments in determining his residual functioning capacity); Fisk v. Astrue, 253
Fed. Appx. 580, 584 (6th Cir. 2007) (finding it “unnecessary to decide whether the ALJ erred
in classifying the impairments as non-severe at step two” because the ALJ accounted for the
claimant’s impairments in determining his residual functioning capacity).
In the present case, any error in determining whether Napier’s obesity was a severe
impairment was harmless. At the second step, the ALJ discussed Napier’s impairments at
length, and mentioned obesity directly. He went on to conduct a thorough analysis in the
remaining steps, including a detailed discussion of Napier’s RFC in which he considered
Napier’s impairments, including his mobility, hip and knee pain, and chest problems. The ALJ
thus considered the relevant impairments in his RFC findings and these findings encompassed
any limitations that Napier’s obesity may have imposed. Accordingly, the ALJ sufficiently
addressed Napier’s impairments at the RFC step and any error relating to his evaluation of
obesity at the second step was harmless.
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Napier also argues that the ALJ’s determination that he is not disabled is not supported
by substantial evidence. The basis for this contention is unclear because Napier makes this
argument only in a skeletal, conclusory fashion. He merely recites the standard of review
regarding substantial evidence and reiterates the conditions from which he suffers without
attempting to explain how these conditions render him disabled. Accordingly, this issue is
waived. See McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (“[I]ssues adverted
to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are
deemed waived. It is not sufficient for a party to mention a possible argument in the most
skeletal way, leaving the court to . . . put flesh on its bones.”).
In addition to not being raised properly, Napier’s argument lacks merit because there
is substantial evidence to support the ALJ’s decision. The ALJ concluded that Napier was not
disabled because he had the residual functioning capacity to perform light work with stated
limitations and could perform jobs existing in the national economy. While there is evidence
relating to Napier’s conditions, the record lacks evidence showing that these conditions impair
him so severely as to render him disabled.
Napier testified that he is generally able to take care of himself without assistance, and
able to go to and from his second floor apartment as needed. [Tr. 37, 62] He informed Dr.
Collis that he is able to life objects, walk, and sit for periods of time, with certain limitations.
[Tr. 485-86] Additionally, Dr. Collis found that Napier generally had full range of motion,
with some limitations in his knee. [Tr. 488] Dr. Collis ultimately concluded that Napier had
“mild-to-moderate level of limitation in labor-intensive job-related activities due to his injury
to his right knee and a mild level of limitation in ADLs relating to his right knee.” [Id.]

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There is also substantial evidence supporting the ALJ’s findings regarding Napier’s
mental capacity. Multiple physicians reported that Napier was mentally functional during his
examinations, describing him as well-appearing, alert, oriented, and able to answer questions.
[Tr. 368, 441] Dr. Collis acknowledged that Napier was slightly anxious, but stated that he
had “normal speech and affect” and that “[h]is thought process [was] clear.” [Tr. 487]
Additionally, although Napier cannot read or write, he testified that he is able to count money.
[Tr. 40] While Napier has been diagnosed with anxiety and depression, Dr. Rigby found that
he did not have any difficulty in understanding, retaining, and following simple instructions
and that he had no impairment preventing him from sustaining concentration and completing
tasks. [Tr. 494] This evidence is sufficient to support a conclusion that Napier is not disabled.
IV.
For the reasons outlined abovve, it is hereby
ORDERED as follows:
1.

The Commissioner’s Motion for Summary Judgment [Record No. 12] is

GRANTED.
2.

The Plaintiff’s Motion for Summary Judgment [Record No. 11] is DENIED.

3.

ALJ Roger Lott’s decision will be AFFIRMED by separate judgment issued

this date.
This 1st day of March, 2017.

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