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Overbay v. Saul

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

January 16, 2020

JAMIE EDWARD OVERBAY, Plaintiff,
v.
ANDREW SAUL, Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION & ORDER

          Hanly A. Ingram United States Magistrate Judge.

         On June 24, 2016, Plaintiff Jamie Edward Overbay protectively filed a Title II application for a period of disability and disability insurance benefits. D.E. 8-1 at 46, 61.[1] He dated the beginning of his disability period to June 8, 2016. Id. at 152. Overbay claimed in his initial application disability due to degenerative disc disease, herniated disc, bilateral hip avascular necrosis, and arthritis. Id. at 46. The Social Security Administration denied Overbay's claims initially on November 23, 2016, and upon reconsideration on January 18, 2017. Id. at 61.

         After Overbay filed his Title II application, in July 2016 and then in December 2016, he underwent two surgeries related to bilateral hip avascular necrosis. Id. at 315-16, 380. Both surgeries were core decompressions with bone grafting: the first being of the left hip and the second being of the right hip. Id. On November 21, 2017, upon Overbay's request, Administrative Law Judge (“ALJ”) Joyce Francis conducted an administrative hearing. Id. at 61. The ALJ heard testimony from an impartial vocational expert (“VE”), Jane Hall, and from Overbay, who was represented by counsel. Id.

         Overbay was 42 years old on the alleged onset date. D.E. 8-1 at 70. He has a high school education and has never received vocational or any other training. Id. at 14. His past relevant work experience includes heavy machine operator, [2] having worked in that capacity for various companies since 1996. Id. at 222. The ALJ found that Overbay had certain severe impairments, but that they did not meet the severity of the “listed impairments in 20 CFR Part 404, Subpart P, Appendix 1, ” and that Overbay “has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a), ” with certain limitations. Id. at 63-64. Because there were adequate available jobs he could perform, the ALJ found Overbay was “not disabled.” Id. at 71.

         Overbay now brings this action under 42 U.S.C. §§ 405(g) and 1383(c) to obtain judicial review of the ALJ's decision denying his application for disability insurance benefits. D.E. 1. He argues that the ALJ erred in failing to find that Overbay's right hip condition constitutes a severe impairment and that the ALJ ascribed insufficient weight to the opinion of a treating physician. D.E. 14. Specifically, he argues that the ALJ erroneously found that Dr. Carter was not a treating physician and that Overbay was actually treated by Dr. Carter's physician's assistant. Id. Both parties consented to the referral of this matter to a magistrate judge. D.E. 11; 12. Accordingly, and in conformity with the Order at Docket Entry 10, this matter was referred to the undersigned to conduct all proceedings and order the entry of a final judgment in accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. See D.E. 10. The Court, having reviewed the record and for the reasons stated herein, DENIES Plaintiff's motion for summary judgment (D.E. 14) and GRANTS the Commissioner's motion for summary judgment (D.E. 16).

         I. The ALJ's Findings

         Under 20 C.F.R. §§ 404.1520 and 416.920, the ALJ conducts a five-step analysis to evaluate a disability claim.[3] The ALJ followed these procedures in this case. See D.E. 8-1 at 58-76. At the first step, if a claimant is working at a substantial gainful activity, he is not disabled. 20 C.F.R. § 404.1520(b). In this case, the ALJ found that Overbay “has not engaged in substantial gainful activity since June 8, 2016, the alleged onset date.” D.E. 8-1 at 63. The ALJ thus proceeded to the next step.

         At the second step, if a claimant does not have any impairment or combination of impairments which significantly limit his physical or mental ability to do basic work activities, then the claimant does not have a severe impairment and is not disabled. 20 C.F.R. § 404.1520(c). The ALJ found that Overbay did suffer the following significant impairments: “status post left hip core decompression for avascular necrosis and degenerative disc disease of the lumbar spine.” D.E. 8-1 at 63. The ALJ determined that Overbay's tobacco abuse, gastroesophageal reflux disease, and status post right inguinal hernia repair were “non-severe, ” as they did not result in “more than minimal work-related limitations.” Id. Overbay now takes issue with the ALJ's assessment that his “right hip condition” is not a severe impairment. D.E. 8-1 at 63-64.

         At the third step, if a claimant's impairments meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, then the claimant is disabled. 20 C.F.R. § 404.1520(d). The ALJ found Overbay failed to meet this standard. D.E. 14 at 5-6.

         If, as here, a claimant is found to be not disabled at step three, the ALJ must determine the claimant's residual functional capacity (“RFC”), which is the claimant's ability to do physical and mental work activities on a sustained basis despite limitations from the impairments. 20 C.F.R. 404.1520(e). The ALJ determined that Overbay has the RFC to perform sedentary work as defined in 20 C.F.R. 404.1567(a), except:

he can only occasionally climb ramps and stairs; can never climb ladders, ropes, or scaffolds; can occasionally stoop, kneel, crouch, and crawl; can frequently be exposed to extreme cold and vibration; and can never be exposed to unprotected heights or dangerous moving machinery.

         D.E. 8-1 at 64. In making this determination, the ALJ stated she considered Overbay's underlying physical or mental impairments and whether they could reasonably cause Overbay's pain or symptoms and she determined that Overbay's “medically determinable impairments could reasonably be expected to cause the alleged symptoms.” Id. But, the ALJ also found that “the claimant's statements concerning the intensity, persistence, and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” Id. Overbay argues that the ALJ erred in evaluating the medical opinions on the record. D.E. 14.

         The ALJ noted in her opinion the great weight she gave to the state agency examiners' opinions and the little weight she afforded to treating physician Dr. Richard Carter's opinion because “he did not actually treat the claimant, rather the claimant was treated by his physician's assistant.” Id. at 70. Moreover, the ALJ pointed out that the limitations Dr. Carter indicated were “set forth in a checkbox format with no supporting evidence for the degree of limitations imposed.” Id.

         At the fourth step, if a claimant's impairments do not prevent him from doing past relevant work (given the ALJ's assessment of his RFC), he is not disabled. 20 C.F.R. § 404.1520(f). Here, the ALJ determined that Overbay “has past relevant work as a document preparer, addressing clerk, and information clerk.” Id. She found that Overbay is unable to perform any past relevant work “as actually or generally performed.” Id.

         At the fifth step, if a claimant's impairments (considering his RFC, age, education, and past work) do not prevent him from doing other work that exists in the national economy, he is not disabled. 20 C.F.R. § 404.1520(g). Overbay, at the time of the opinion, was 42 years old with at least a high school education. Id. The ALJ found that Overbay “is capable of making a successful adjustment to other work, ” namely, the occupations the VE testified that Overbay could perform the requirements of, which were “cleaner, ” “mail sorter, ” and “merchandise marker.” Id.

         Accordingly, on April 12, 2018, the ALJ issued an unfavorable decision, finding that Overbay was not disabled, and thus was ineligible for a period of disability and disability insurance benefits. D.E. 8-1 at 71. Overbay requested review of the ALJ decision by the Appeals Council on May 9, 2018. D.E. 8-1 at 145-46. The Appeals Council issued its decision finding that Overbay “is not entitled to a period of disability or disability insurance benefits” on February 4, 2019. D.E. 8-1 at 6. The Appeals Council agreed with the ALJ with regard to steps one, two, three, and four, but disagreed with the ALJ's analysis at step five finding that Overbay could work as a cleaner, mail sorter, and merchandise marker. Id. at 4-5. The Appeals Council found that these jobs are “light exertional ...


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