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Amburgey v. Berryhill

United States District Court, E.D. Kentucky, Southern Division, Pikeville

December 5, 2017

REGINA G. AMBURGEY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          Danny C. Reeves United States District Judge

         This matter is pending for consideration of cross-motions for summary judgment filed by Plaintiff G. Regina Amburgey (“Amburgey” or “the Claimant”) and Defendant Nancy A. Berryhill, Acting Commissioner of Social Security (“the Commissioner”). [Record Nos. 12');">2, 18] Amburgey has also filed a separate “motion to remand, ” which raises arguments similar to those made in her motion for summary judgment. [Record No. 11] She contends that the administrative law judge (“ALJ”) assigned to her case erred by denying her claims for disability income benefits (“DIB”) and supplemental security income (“SSI”). Amburgey requests that the Court direct a finding of disability [Record No. 12');">2-2');">2] or, alternatively, remand the matter for further administrative proceedings [Record No. 11]. The Commissioner contends that the ALJ's decision is supported by substantial evidence and should be affirmed. For the reasons discussed below, the Court will grant the Commissioner's motion and deny the relief sought by Amburgey.

         I. Procedural History

         Amburgey filed concurrent applications for a period of disability and DIB under Title II of the Social Security Act (“the Act”) and SSI under Title XVI of the Act on November 2');">28, 2');">2012');">2. [Administrative Transcript, “Tr., ” 146] She alleged that she became unable to work on December 31, 2');">2008, due to depression and anxiety, foot, knee, and shoulder pain, and poor vision. [Tr. 148-49] Her claims were denied initially and upon reconsideration and, eventually, by Administrative Law Judge (“ALJ”) Sheila Lowther following an administrative hearing. [Tr. 146-155] The Appeals Council denied Amburgey's request for review and it does not appear that she sought judicial review. [Tr. 160]

         Amburgey filed a second set of concurrent applications for SSI and DIB on November 3, 2');">2013. [Tr. 14] Again, she alleged that she had been unable to work since December 31, 2');">2008, based on similar problems. Id. Her claims were denied initially and upon reconsideration and by ALJ Lowther following two administrative hearings. [Tr. 14-30] Amburgey sought review by the Appeals Council, which was denied. [Tr. 1] Accordingly, the Claimant has exhausted her administrative remedies and this matter is ripe for review under 42');">2 U.S.C. §§ 405(g), 1383(c)(3).

         II. Background

         Amburgey is a high school graduate and has completed one year of college. [Tr. 90] She worked for five years in a factory that made seats for automobiles, but was laid off due to a downturn in the economy. [Tr. 91-92');">2] Amburgey has not applied for any jobs since moving to Kentucky in 2');">2009 because of her claimed health issues. [Tr. 93]

         ALJ Lowther denied Amburgey's first set of applications for benefits on August 2');">26, 2');">2013, having determined that she retained the capacity to perform sedentary work. [Tr. 150-51] When the Claimant's most recent applications came before ALJ Lowther, she concluded that the principle of res judicata applied. Therefore, the period under consideration began on August 2');">27, 2');">2013, the day following the prior decision. [Tr. 14]

         The ALJ considered the opinions of numerous treating and non-treating sources in rendering her decision. Morgan Eckard, M.D. examined Amburgey on December 2');">28, 2');">2013, and noted that she was able to stand on her toes and heels and was able to tandem walk without problems. She also was able to bend and squat with mild difficulty. [Tr. 786] Eckard believed that the Claimant was able to sit and/or stand (but not walk) for a full workday and lift/carry objections without limitation. [Tr. 787] He also remarked that she was able to carry on a conversation and carry out and remember instructions. [Tr. 787]

         Dustin Johnson, M.D., performed a consultative examination in May 2');">2015. [Record No. 1054] Johnson noted that Amburgey walked without an assistive device. [Tr. 1055] Although she had a slightly labored gait, Amburgey had normal posture and exhibited no difficulty getting on and off the examination table. She also had no difficulty with knee squatting, heel-to-toe, and tandem walking. [Tr. 1056] Amburgey's left shoulder could not be raised beyond 90 degrees.[1] Johnson opined that Amburgey had the ability to perform activities involving sitting, standing, walking, handling objects, lifting, carrying, hearing, and speaking. [Tr. 1057] He believed that the Claimant might have some difficulty moving objects overhead, but otherwise, her strength was five out of five throughout the upper and lower extremities. [Tr. 1057]

         Amburgey was treated by Chih Yen, D.P.M. It does not appear that Yen offered an opinion regarding Amburgey's ability to work, but a visit note from July 2');">2014 indicates that sensation was intact as to both feet and ankle strength was five out of five bilaterally. [Tr. 82');">22');">2] Although range of motion was limited in the right ankle, Dr. Yen indicated that it had improved by thirty percent. [Tr. 82');">22');">2] Yen encouraged Amburgey to continue wearing her orthotics and performing her home exercise program. [Tr. 82');">22');">2]

         Ira Potter, M.D., is the Claimant's primary care provider. He opined that Amburgey's ability to work was significantly limited. [Tr. 1036-37] Potter believed her ability to stand and walk was diminished and that she had decreased shoulder range of motion; foot pain with decreased motion of the great toe; and tenderness and a mild loss of flexion of the knee. [Tr. 873-74] Additionally, he stated that Amburgey had a depressed affected and decrease in short term memory, but her judgment and insight were intact. [Tr. 874]

         The ALJ concluded that the Claimant had the following severe impairments: depression; anxiety; history of foot pain (with a history of bunionectomy and excision of neuroma); knee pain; history of rotator cuff tear; obesity; cervical osteophyte complex; partial tear of left rotator cuff; and chondromalacia of left knee. [Tr. 17] After reviewing the medical record and conducting a two administrative hearings, the ALJ determined that Amburgey had the residual function capacity (“RFC”) to perform light work as defined in 2');">20 C.F.R. §§ 404.1567(b) and 416.967(b) except:

The claimant can lift and carry 2');">20 pounds occasionally and 10 pounds frequently; can stand and walk for 30 minutes at a time and for two hours in an eight hour workday; can sit for six hours in an eight hour workday; can push and pull occasionally with the right lower extremity and the right upper extremity; can reach frequently with the left upper extremity in all directions; should not climb ropes, ladders, or scaffolds; occasionally can climb ramps and stairs; can occasionally stoop, kneel, and crouch; should have no concentrated exposure to coldness, wetness, humidity, or vibration; is limited to performing simple, routine tasks in two hour increments over the course of a normal 40 hour work schedule; and the claimant can interact appropriately with co-workers, supervisors, and the general public.

[Tr. 19] Based on this RFC, the ALJ determined that Amburgey could perform her past relevant work in a factory performing small parts assembly. [Tr. 2');">28] Because there were jobs existing in significant numbers in the national economy that she could perform, Amburgey had not been under a disability from ...


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