Malloy v. Astrue

Filing 31

ORDER DENYING 22 Plaintiff's Motion for Judgment on the Pleadings, and GRANTING 23 Defendant's Motion for Judgment on the Pleadings. The decision of the Commissioner is AFFIRMED. Signed by US District Judge Terrence W. Boyle on 11/5/2013. Counsel is directed to read Order in its entirety for critical information. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:12-CV-255-BO
TIMOTHY E. MALLOY,

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Plaintiff,

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V.

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ORDER

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CAROLYNCOLVIN,
Acting Commissioner of Social Security,

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Defendant.

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This matter is before the Court on the parties' cross-motions for judgment on the
pleadings. [DE 22 & 23]. A hearing on this matter was held in Raleigh, North Carolina on
October 31, 2013 at 3:00 p.m. For the reasons discussed below, defendants motion

IS

GRANTED, plaintiffs motion is DENIED and the decision of the Commissioner 1s
AFFIRMED.

BACKGROUND
On September 15, 2009, plaintiff, Timothy Malloy filed applications for disability
insurance benefits ("DIB") and supplemental security income ("SSI"). Plaintiff alleged a
disability onset date of December 12, 2008. The earnings record indicates that Mr. Malloy has
acquired sufficient quarters of coverage to remain insured for DIB through March 31,2014. (Tr.
173-74). The claims were denied initially and on reconsideration and a request for hearing was
timely filed. (Tr. 121 ).
Administrative Law Judge ("ALJ") Robert J. Phares presided at a hearing on January 18,
2011. A Vocational Expert ("VE") testified at the hearing. The ALJ issued an unfavorable

decision on March 2, 20 II (Tr. I2-I8). Plaintiff subsequently filed a request for review with the
Appeals Council. (Tr. 7). The Appeals Council denied review of the hearing decision on August
30, 2012, (T. 1-3) making the ALJ's decision the final decision of the Commissioner. Plaintiff
subsequently filed a complaint in this Court pursuant to 42 U.S.C. § 405(g).
MEDICAL HISTORY

Plaintiff is currently 48 years old and was 44 years old at the time he alleges he became
disabled. Mr. Malloy suffers from malignant hypertension with congestive heart failure, acute
and chronic renal failure, diabetes mellitus type 2, and severe obstructive sleep apnea.
On December 24, 2008, plaintiff visited Berwick Medical Center in Laurinburg, North
Carolina to establish care. His chief complaint was uncontrolled hypertension. Mr. Malloy
indicated he had difficulty affording his medications and complained of headaches. The
assessment was malignant hypertension, and he was prescribed medication. (Tr. 252-54). During
a follow up visit on January 6, 2009, it was noted his blood pressure was still elevated and as of
January 12,2009, his hypertension was still uncontrolled. (Tr. 250-5I).
Mr. Malloy had a consultative evaluation with Dr. Samuel Wesonga on October 22,
2009. He complained of high blood pressure, fatigue, swollen feet, and breathing problems. Dr.
Wesonga noted that plaintiff was in respiratory distress and that his blood pressure was markedly
elevated. Mr. Malloy was immediately taken to the emergency care center of Nash General
Hospital for treatment. (Tr. 256). Upon arrival at the hospital, plaintiff was placed on oxygen due
to severe shortness of breath. An echocardiogram was performed which indicated congestive
heart failure. The test showed severely reduced left ventricular systolic function with ejection
fraction of 25%, severe global hypokinesis of the left ventricle, moderate concentric left
ventricular hypertrophy, moderately dilated left atrium, and trace aortic regurgitation. (Tr. 275).

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The admitting diagnoses were pneumonia, hypertensive emergency, congestive heart failure, and
acute respiratory failure. (Tr. 262). Mr. Malloy was released from the hospital on October 27,
2008. (Tr. 282).
On December 23, 2009, Mr. Malloy returned to the emergency care center of Nash
General Hospital, with uncontrolled hypertension. (Tr. 286). Chest x-rays showed congestive
heart failure pattern, his malignant hypertension was treated with clonidine and labetalol, and he
was diagnosed with diabetes mellitus type 2. (Tr. 286-90). He was released on December 25,
2009 with several medications. Jd
Plaintiff has also been treated by Dr. Ronald Hughes. He presented on January 28, 20 I 0
needing a refill of his medications and complaining of bilateral leg swelling. He indicated that he
still had shortness of breath with exertion and got tired after walking a couple of yards. Dr.
Hughes renewed his prescriptions and instructed Mr. Malloy to return for blood pressure checks.
(Tr. 308-10).

On April 26, 2010, plaintiff returned to Dr. Hughes for a follow up. His

prescription were refilled and he was told to start Metformin for his diabetes. (Tr. 292-95).
Plaintiff now receives his primary care at the Durham Veteran Affairs Medical Center.
He was diagnosed with severe obstructive sleep apnea and a CPAP machine was recommended.
Plaintiff continues to take multiple medications to control hypertension and diabetes mellitus.
(Tr. 406-07).
Mr. Malloy testified that he still has problems with high blood pressure and suffers from
fatigue and low energy due to his hypertension. (Tr. 30). His blood sugars fluctuate - when his
blood sugar is high he complains of drowsiness and when it is low, his hands shake. (Tr. 31).
Plaintiff also described numbness in his feet (Tr. 32). At the time of his hearing, he was being
treated at the VA Medical Center for high blood pressure, diabetes, and sleep apnea. (Tr. 34).

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Mr. Malloy also described his problems with shortness of breath. (Tr. 35). He testified that he
gets short of breath with daily activities and has difficulty conducting household chores and takes
frequent breaks. (Tr. 3 7). He testified that he can only stand for 25-30 minutes at a time and is
unable to be in the grocery store for more than 15 minutes. (Tr. 38-39).

DISCUSSION
When a social security claimant appeals a final decision of the Commissioner, the district
court's review is limited to the determination of whether, based on the entire administrative
record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g);

Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as "evidence
which a reasoning mind would accept as sufficient to support a particular conclusion." Shively v.

Heckler, 739 P.2d 987, 989 (4th Cir. 1984)(quoting Laws v. Celebrezze, 368 P.2d 640, 642 (4th
Cir. 1966)). If the Commissioner's decision is supported by such evidence, it must be affirmed.

Smith v. Chater, 99 P.3d 635, 638 (4th Cir. 1996).
In making a disability determination, the ALJ engages in a five-step evaluation process.
20 C.P.R. § 404.1520; see Johnson v. Barnhart, 434 P.3d 650 (4th Cir. 2005). The analysis
requires the ALJ to consider the following enumerated factors sequentially. At step one, if the
claimant is currently engaged in substantial gainful activity, the claim is denied. At step two, the
claim is denied if the claimant does not have a severe impairment or combination of impairments
significantly limiting him or her from performing basic work activities. At step three, the
claimant's impairment is compared to those in the Listing of Impairments. See 20 C.P.R. Part
404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it is
equivalent to a listed impairment, disability is conclusively presumed. However, if the claimant's
impairment does not meet or equal a listed impairment then, at step four, the claimant's residual

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functional capacity ("RFC") is assessed to determine whether plaintiff can perform his past work
despite his impairments. If the claimant cannot perform past relevant work, the analysis moves
on to step five: establishing whether the claimant, based on his age, work experience, and RFC
can perform other substantial gainful work. The burden of proof is on the claimant for the first
four steps of this inquiry, but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d
1200, 1203 (4th Cir. 1995).
Here, plaintiff argues that the ALJ erred by in finding Mr. Malloy had the RFC to
perform sedentary work, and in his credibility determination of Mr. Malloy's testimony.
Regarding his testimony, plaintiff specifically alleges that the ALJ erred by finding plaintiffs
statements concerning the intensity, persistence, and limiting effects of his symptoms not
credible. He argues that his testimony is consistent with the evidence and therefore entitled to
great weight. This Court disagrees. The ALJ adequately discussed plaintiffs testimony and noted
various reasons as to why he did not find plaintiffs testimony to be entirely credible.
The ALJ noted that on more than one occasion, plaintiffs elevated blood pressure was
linked to running out of medication, and that with treatment, his pressure returned to normal. (Tr.
16, 286, 31 0). Once the plaintiff began receiving regular treatment, he demonstrated significant
improvement. (Tr. 16). Symptoms that are controlled by medication or treatment are not
disabling. Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986). Although plaintiffs difficulty
in complying with his treatment was linked to financial constraints, he was referred to a medical
clinic offering free care for chronic conditions, as well as free prescription assistance. (Tr. 286).
Further, plaintiff receives treatment from the VA Medical Center in Durham, and his records
there generally show that his condition is being controlled by his treatment. (Tr. 16, 38, 318, 328,
344, 376, 402, 413, 421, 425, 438, 517, 566). Plaintiff failed to cite any evidentiary support for

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his allegations. The ALJ' s credibility determination is supported by substantial evidence in the
record and must be affirmed.
Plaintiff relies entirely on his subjective testimony to support his argument that the ALJ
erred in finding him capable of performing sedentary work. Plaintiff alleges that he would fall
asleep and therefore cannot perform sedentary work, but the record contradicts this. (Tr. 16, 29293,306,308-09,319,328,403,413,421,425-26,437, 517, 566). Plaintiff also alleges that he
has breathing issues and cites his statement about cleaning his bathroom as evidence of this.
However, plaintiff specifically testified about the odor of the breathing supplies making him
want to vomit. (Tr. 37). Additionally, the physical examinations general showed clear lungs with
no breathing difficulty. (Tr. 15-17, 253, 284, 287, 293). The ALl's finding is once again
supported by substantial evidence in the record.

Accordingly, this Court affirms the

Commissioner's decision.
CONCLUSION

For the foregoing reasons, the plaintiffs motion for judgment on the pleadings is
DENIED, the defendant's motion is GRANTED, and the final decision of the Commissioner is
AFFIRMED.

SO ORDERED.

_,
This_!__ day ofNovember, 2013.

T~y(}7t

UNITED STATES DISTRICT JUDGE

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