Newsome v. SSA
Filing
41
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
RUTH NEWSOME,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social
Security,
Civil Case No. 16-cv-107JMH
MEMORANDUM OPINION & ORDER
Defendant.
***
This matter is before the Court upon the cross-motions for
summary judgment of the parties with respect to the decision of
the
ALJ
on
reconsideration
of
Plaintiff’s
application
benefits [DE 32, 33; Responses at DE 34, 35.]
for
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
21, 2017.
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
F.3d
506,
conclusive
509
(6th
Cir.
as
long
as
2007)).
they
are
“The
ALJ’s
supported
by
findings
are
substantial
evidence.” 42 U.S.C. § 405(g); Foster v. Halter, 279 F.3d 348,
353 (6th Cir. 2001) (citations omitted).
“means
such
relevant
evidence
as
a
Substantial evidence
reasonable
mind
might
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
2005,
she
had
depression
and
anxiety
depression and anxiety worsened.
and
that,
then,
her
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
following
severe
impairments:
an
adjustment
depressed mood and a panic disorder.”
disorder
with
[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.
Social
Security
Disability
and
An Adult Medical Report for
associated
records
from
East
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.
she
did
not
[AR at 339-44.]
receive
any
Nonetheless, she testified that
treatment
2
for
symptoms
during
the
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
an
“entirely
later.
normal”
physical
examination
only
four
months
[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
that
she
did
not
relevant period.
have
a
severe
arm
impairment
during
the
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
functional impact).
The same is true of the ALJ’s decision that her kidney
stones
and
issues
surrounding
Plaintiff’s
gynecological
surgeries were short-term, acute conditions that did not meet
the
durational
requirements.
[See
AR
at
224-26
(surgical
rectocele repair in January 2006); 523 (temporary restriction
from
heavy
lifting
and
driving
for
two
weeks
following
hysterectomy); 238, 361 (treatment for kidney stones in May and
August, 2006).]
While a reasonable mind could infer that she
had recuperative periods following each of these procedures, she
3
cites no medical or other evidence in the record that supports a
conclusion
signal
a
of
long-term
severe
functional
impairment.
restrictions
Thus,
the
Court
that
would
rejects
her
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.
However,
she
evidence
not
borne
under
impairment
has
the
listing
supported
by
her
burden
through
acceptable
of
demonstrating
citation
clinical
to
and
an
medical
diagnostic
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
unlisted
impairments
that
singly
or
in
combination
are
the
medical equivalent of a listed impairment.” Dorton v. Heckler,
789
F.2d
respect
363,
to
365–66
Listing
(6th
12.04
Cir.
1986).
(affective
Specifically,
disorders),
with
the
ALJ
concluded that the evidence upon which she now relies did not
support
the
conclusion
that
she
had
marked
limitations
in
activities of daily living and that it showed that she had only
moderate
limitations
in
maintaining
social
functioning
and
maintaining concentration, persistence, or pace, and that she
4
had not had repeated episodes of decompensation [AR 15-16].
She
argues that his conclusion is not supported by the evidence that
she had a two-year history of panic disorder which covered the
relevant period.
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.
If
reasonable
minds
could
differ
on
the
question,
then
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
complaints
Plaintiff
would
met
or
require
equaled
a
reasonable
Listing
mind
12.04.
to
conclude
Rather,
that
there
is
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
5
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
grocery
shopping,
and
could
handle
money),
AR
at
635-36
(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
church
twice
interpersonal
a
week),
demeanor
AR
even
at
733
while
(Plaintiff
exhibiting
showed
some
good
emotional
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
attention
to
tasks
and
interview
questions
even
when
emotionality prompted a pause); 20 C.F.R. p.t 404, subpt. P,
app.
1
§
12.00(C)(4)
(defining
decompensation
as
temporary
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).]
6
It follows that, despite her arguments to the contrary,
that the ALJ’s decision at the second step of the five step
sequential
analysis
under
which
claims
supported by substantial evidence.
are
considered
was
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
of
impairments
that
is
severe
and
meets
the
duration
requirement, we will find that you are not disabled.”).
It
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
be
affirmed.
arguments
of
Having
counsel
carefully
and
having
considered
reviewed
the
the
briefing
and
Administrative
Transcript, the Court concludes that the decision of the Acting
Commissioner
is
supported
by
substantial
evidence,
that
Plaintiff’s motion for summary judgment will be denied, and that
Defendant’s motion for summary judgment will be granted.
Accordingly, IT IS ORDERED:
(1)
That Plaintiff’s Motion for Summary Judgment [DE 32]
is DENIED;
7
(2)
That
the
Acting
Commissioner’s
Judgment [DE 33] is GRANTED.
This the 17th day of March, 2017.
8
Motion
for
Summary
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