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