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

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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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