United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION & ORDER
Joseph
M. Hood Senior U.S. District Judge.
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 for
benefits [DE 32, 33; Responses at ¶ 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 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, 509 (6th Cir. 2007)).
“The ALJ's findings are conclusive as long as they
are supported by substantial evidence.” 42 U.S.C.
§ 405(g); Foster v. Halter, 279 F.3d 348, 353
(6th Cir. 2001) (citations omitted). Substantial evidence
“means such relevant evidence as a 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 and that, then, her 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
following severe impairments: an adjustment disorder with
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 Social Security Disability and 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. [AR at 339-44.]
Nonetheless, she testified that she did not receive any
treatment 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 normal” physical examination only four
months later. [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 have a
severe arm impairment during the relevant period. 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 cites no medical or other evidence
in the record that supports a conclusion of long-term
functional restrictions that would signal a severe
impairment. Thus, the Court 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 has not borne her burden of demonstrating an
impairment under the listing through citation to medical
evidence supported by acceptable clinical and 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 363, 365-66 (6th Cir. 1986).
Specifically, with respect to Listing 12.04 (affective
disorders), 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 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 would require a reasonable mind to
conclude that Plaintiff met or equaled Listing 12.04. Rather,
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 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 a week), AR at 733 (Plaintiff showed good
interpersonal demeanor even while exhibiting some 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).]
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 are considered was
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 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. Having
carefully considered the briefing and arguments of counsel
and having reviewed the 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;
(2)
That the Acting Commissioner's Motion for Summary
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