Newsome v. SSA
MEMORANDUM OPINION & ORDER: (1) Plaintiff's Motion for Summary Judgment (DE 32 ) is DENIED; (2) Commissioner's Motion for Summary Judgment (DE 33 ) is GRANTED. Signed by Judge Joseph M. Hood on 3/17/2017. (TDA) cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at PIKEVILLE
NANCY A. BERRYHILL, Acting
Commissioner of Social
Civil Case No. 16-cv-107JMH
MEMORANDUM OPINION & ORDER
This matter is before the Court upon the cross-motions for
summary judgment of the parties with respect to the decision of
benefits [DE 32, 33; Responses at DE 34, 35.]
In addition to
briefing on these motions, the Court has had the benefit of oral
argument by the parties during a telephonic hearing on February
Thus, these motions are ripe for decision.
When reviewing a decision made by the ALJ, the Court may
not “‘try the case de novo, resolve conflicts in evidence, or
decide questions of credibility.’” Ulman v. Comm’r of Soc. Sec.,
693 F.3d 709, 713 (6th Cir. 2012) (quoting Bass v. McMahon, 499
evidence.” 42 U.S.C. § 405(g); Foster v. Halter, 279 F.3d 348,
353 (6th Cir. 2001) (citations omitted).
accept.” Id. at 353 (quoting Kirk v Sec’y of Health & Human
Servs., 667 F.2d 524, 535 (6th Cir. 1981)).
The parties agree that when Newsome last worked in October
depression and anxiety worsened.
The parties also agree that
the relevant time period, as determined by the ALJ, extended
from October 3, 2005, through July 12, 2007.
Based on the
evidence of those conditions in the record, the ALJ concluded
that, “[d]uring the relevant period, the beneficiary had the
depressed mood and a panic disorder.”
[AR at 14.]
She testified during her hearing before the ALJ that she
experienced soreness and numbness in her dominant right hand
during the relevant period under reconsideration [DE 40-41], and
she argues that the ALJ erred when he did not conclude that her
hand pain was a severe impairment because his decision was not
supported by substantial evidence.
An Adult Medical Report for
Kentucky Bone & Joint Surgery, P.S.C., documented her complaint
of right forearm pain on August 8, 2006, and an x-ray performed
in April 2006.
[AR at 339-44.]
Nonetheless, she testified that
period, which indicated that the condition did not limit her
activities [AR at 14, 47.]
The x-ray in question showed normal
results and, while her physician, Dr. Shockey, recommended that
she do exercises for any symptoms that resulted from overuse of
the muscles [AR at 344], an agency examining physician reported
[AR at 657]; see also [AR at 713 (report of state agency
physician Sudhideb Mukherjee, M.D., concluding that Plaintiff
did not have a severe physical impairment)].
In other words,
there is substantial evidence to support the ALJ’s conclusion
See Foster v. Bowen, 853 F.2d 483, 489 (6th
Cir. 1988) (the mere diagnosis of an impairment is not enough to
show disability; a claimant must also prove its severity and
The same is true of the ALJ’s decision that her kidney
surgeries were short-term, acute conditions that did not meet
rectocele repair in January 2006); 523 (temporary restriction
hysterectomy); 238, 361 (treatment for kidney stones in May and
While a reasonable mind could infer that she
had recuperative periods following each of these procedures, she
cites no medical or other evidence in the record that supports a
argument that the ALJ’s decision was unsupported by substantial
evidence on this ground.
Finally, she argues that the ALJ erroneously concluded that
she did not have an impairment or combination of impairments
that met or medically equaled the severity of one Listing 12.04
(affective disorders) in 20 CFR Part 404, subpt. P, app. 1.
techniques, Land v. Sec’y of Health and Human Servs., 814 F.2d
241, 245 (6th Cir. 1986), which “show[s] that [s]he suffers from
one of these impairments or that [s]he suffers from one or more
medical equivalent of a listed impairment.” Dorton v. Heckler,
concluded that the evidence upon which she now relies did not
activities of daily living and that it showed that she had only
maintaining concentration, persistence, or pace, and that she
had not had repeated episodes of decompensation [AR 15-16].
argues that his conclusion is not supported by the evidence that
she had a two-year history of panic disorder which covered the
She relies, as well, on her testimony that she
needed her husband’s help for chores at home, for driving, and
for accomplishing tasks such as leaving the house and shopping.
She argues that this evidence establishes that she meets Listing
12.04 when coupled with the report from consulting psychologist
Timothy J. Carbary, Ph.D., in which he sets forth his opinion
that she would have difficulty sustaining attention to tasks if
pressured and experienced nervousness and a tendency to freeze
under certain conditions, a propensity for panic, and that work
related stress could lead to decompensation [AR at 733-41].
At best, however, the evidence could also support both the
conclusion that her condition met the Listings and that it did
not to reasonable but differing minds, but that is not enough.
substantial evidence supports the decision of the ALJ to deny
benefits on this ground.
Ultimately, none of her diagnoses
alone nor in when considered in combination with her subjective
substantial evidence of record to support the ALJ’s conclusion.
See 20 C.F.R. p.t 404, subpt. P, app. 1 § 12.00(C)(1) (defining
activities of daily living), [AR at 46-47 (testimony concerning
housework), AR at 169 and 172-73 (response to questionnaire in
which husband reported that Plaintiff did household chores, went
(Plaintiff reported to consultative physician that she could use
public transportation and make a budget)]; 20 C.F.R. p.t 404,
subpt. P, app. 1 § 12.00(C)(2) (defining social functioning),
[AR at 43, 169 (Plaintiff does not like being around crowds and
liked to stay home), AR at 73, 632, 737 (Plaintiff went to
lability during visit with physician); 20 C.F.R. pt. 404, subpt.
P, app. 1 § 12.00(C)(3) (defining concentration, persistence, or
pace), AR at 723, 727-30 (Plaintiff’s therapist’s notes indicate
Plaintiff was alert and attentive with unimpaired cognition), AR
at 733 (Dr. Carbary concluded Plaintiff could deploy and sustain
emotionality prompted a pause); 20 C.F.R. p.t 404, subpt. P,
increases in symptoms or signs accompanied by a loss of adaptive
functioning); AR at 15 (concluding that there was no evidence
that Plaintiff experienced any episodes of decompensation); see
also AR at 639-49, 669-79 (agency medical consultants’ opinions
that Plaintiff did not meet or equal the listings).]
It follows that, despite her arguments to the contrary,
that the ALJ’s decision at the second step of the five step
supported by substantial evidence.
See Preslar v. Sec’y of
Health & Hum. Servs., 14 F.3d 1107, 1110 (6th Cir. 1994) (citing
20 C.F.R. § 404.1520 (1982)) (“At the second step, we consider
the medical severity of your impairment(s). If you do not have a
severe medically determinable physical or mental impairment that
meets the duration requirement in § 404.1509, or a combination
requirement, we will find that you are not disabled.”).
follows that, in the absence of other arguments with respect to
error at the subsequent steps in the sequential analysis, the
decision of the ALJ and, in turn, the Acting Commissioner should
Transcript, the Court concludes that the decision of the Acting
Plaintiff’s motion for summary judgment will be denied, and that
Defendant’s motion for summary judgment will be granted.
Accordingly, IT IS ORDERED:
That Plaintiff’s Motion for Summary Judgment [DE 32]
Judgment [DE 33] is GRANTED.
This the 17th day of March, 2017.
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