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Owenby v. Berryhill

United States District Court, W.D. North Carolina, Asheville Division

August 28, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         THIS MATTER IS BEFORE THE COURT on cross-motions for summary judgment. (Docs. 14, 18). Plaintiff has filed a Response to Defendant's Motion for Summary Judgment. (Doc. 20), as well as an Amended Memorandum in support of his motion for summary judgment (Doc. 26). Defendant has filed a notice in response to Plaintiff's Amended Memorandum indicating that Defendant stands by her Memorandum in support of her Motion for Summary Judgement and will not be submitting an amended memorandum. (Doc. 27). Accordingly, the cross-motions for summary judgment are ripe for disposition. For the reasons that follow, Plaintiff's Motion for Summary Judgment (Doc. 14) is DENIED, Defendant's Motion for Summary Judgment (Doc. 18) is GRANTED, and the decision of the Commissioner is AFFIRMED.

         I. BACKGROUND

         In 2012, Plaintiff Stewart Wayne Owenby filed an application for disability insurance benefits under Title II of the Social Security Act, alleging an inability to work due to a disabling condition commencing on August 28, 2010. (Tr. 35, 186-89). The Commissioner of Social Security (“Commissioner” or “Defendant”) initially denied Plaintiff's applications on May 1, 2012 and, upon reconsideration, again denied the application on January 18, 2013. (Tr. 35, 131-34, 138-45). Plaintiff requested a hearing and, on August 11, 2014, appeared by video conference before Administrative Law Judge Alice Jordan (“ALJ Jordan”).[1] (Tr. 35, 54-106, 146-47). At the hearing, Plaintiff was represented by an attorney. (Tr. 56).

         Through a written decision, ALJ Jordan concluded that Plaintiff was not disabled. (Tr. 35-46). At Step One, ALJ Jordan found that Plaintiff had not engaged in substantial gainful activity since his alleged disability onset date. (Tr. 37). At Step Two, ALJ Jordan concluded that Plaintiff's right ankle and foot disorder with plantar fasciitis, right shoulder disorder, history of pulmonary embolism, and obesity all qualified as severe impairments. (Tr. 37). ALJ Jordan, however, concluded that Plaintiff's leg spasms, shortness of breath, right foot edema, hypertension, hiatal hernia, asthma and allergies, and adjustment disorder with symptoms of anxiety and depression did not qualify as severe impairments. (Tr. 38-40).

         Specific to Plaintiff's adjustment disorder with symptoms of anxiety and depression, ALJ Jordan noted that Plaintiff's primary providers prescribed him medication for depression. (Tr. 39). ALJ Jordan further noted that Plaintiff reported an improved mental state once on medication, Plaintiff never underwent any formal mental health treatment, Plaintiff's mental status exams were “essentially benign, ” and Plaintiff was able to handle his own affairs, communicate with others and act in his own interest. Id. (citing Tr. 443-554, 674-780). Based on this review of the record, ALJ Jordan stated the temporary conclusion that Plaintiff's “alleged mental impairment does not cause more than minimal limitation in [Plaintiff's] ability to perform basic mental work activities and is therefore nonsevere.” Id. ALJ Jordan also evaluated Plaintiff's alleged mental impairment using the Psychiatric Review Technique. (Tr. 39-40); see also 20 C.F.R. § 404.1520a. As to daily living, ALJ Jordan, relying on Plaintiff's ability to care for himself, read, help his daughter with homework, prepare his own meals, do laundry, drive, shop, use a computer, and make his bed, found Plaintiff experienced only mild limitations. (Tr. 39). As to social functioning, ALJ Jordan found that Plaintiff experienced no limitations, as evident by his frequent visits to his uncle's pawn shop to socialize with friends and by the lack of any self-reports of issues getting along with others. Id. (citing Tr. 241-48, 259-65). Turning to concentration, pace, and persistence, ALJ Jordan, relying on Plaintiff's reports that he did not experience issues with attention and could finish projects, follow instructions, and handle stress, found that Plaintiff experienced no limitations. (Tr. 40 (citing Tr. 241-48, 259-65)). Finally, ALJ Jordan found that Plaintiff did not experience any episodes of decompensation. Id. Based on the lack of any marked limitations and no episodes of decompensation, ALJ Jordan concluded that the psychiatric review technique also established that Plaintiff's alleged mental impairment was nonsevere.[2] Id.

         At Step Three, ALJ Jordan concluded that Plaintiff did not meet any of the Listings in 20 CFR Part 404, specifically noting that she considered Listings in Sections 1.00 and 4.00. Id. ALJ Jordan proceeded to form Plaintiff's residual functional capacity, first summarizing Plaintiff's hearing testimony and then discussing Plaintiff's medical records. (Tr. 40-45). ALJ Jordan found Plaintiff's “statements concerning the intensity, persistence, and limiting effects of [his] symptoms are not entirely credible” in light of the medical record, including Plaintiff's self-reports and the evaluation notes of his treating physicians.

         Specific to Plaintiff's right ankle and foot disorder, ALJ Jordan noted that Plaintiff sustained an injury in 2009 and originally received conservative treatment. (Tr. 42). Although conservative treatment result in Plaintiff regaining “excellent” range of motion and being released to do normal activities, Plaintiff experienced continued instability in early 2010 and a second medical opinion resulted in the diagnosis of a “nonunion of an anterior calcaneus process fracture.” Id. Plaintiff underwent a series of surgeries, a lidocaine injection, and a platelet rich plasma injection between May 2010 and November 2011. Id. In July 2011, Plaintiff reported that his ankle was doing better but that his plantar fascia pain remained. Id. In January 2012, a functional evaluation concluded that Plaintiff could perform medium physical work with restrictions for no climbing ladders, infrequent crouching, infrequent to occasional walking, occasional dynamic standing, and an option to alternate between sitting and standing. Id. In February 2012, Plaintiff declined surgery to address his plantar fasciitis condition and his treating physician determined that he had reached maximum medical improvement, did not suffer from any gross instability, and that the alignment of his ankle and foot were “satisfactory, ” but that he continued to experience “mild” swelling and “moderate” tenderness in his right ankle and foot. Id. Subsequent to October 2012, Plaintiff did not visit a specialist for his right ankle and foot disorder, only pursuing pain management treatment. Id. Based on her review of the medical records, ALJ Jordan concluded that (1) no evidence showed a need for Plaintiff to use an assistive device, (2) Plaintiff only experienced mild side effects from the pain medication he was taking and that the side effects would not interfere with his ability to work, (3) Plaintiff could stand and move about in a satisfactory manner, and (4) Plaintiff was not credible with respect to the extent of his limitations from his right ankle and foot disorder. (Tr. 42-43).

         Specific to Plaintiff's right shoulder disorder, ALJ Jordan noted that Plaintiff underwent surgery in 2007 and reached maximum medical improvement thereafter. (Tr. 43). In 2008, Plaintiff's treating physician assigned him a permanent partial impairment rating of ten percent with a limitation for no climbing ladders crawling, or lifting more than thirty pounds. Id. However, the same physician noted that a physical exam of Plaintiff's right shoulder was “unimpressive” and that Plaintiff had “full range of motion and no crepitence.” Id. Five years later, in 2013 and 2014, Plaintiff made occasional complaints of right shoulder pain but did not undergo any treatment for his right shoulder. Id. Based on her review of the medical record, ALJ Jordan concluded that Plaintiff was not credible with respect to the extent of the limitations caused by his right shoulder disorder and that his right shoulder disorder did not cause a disabling limitation.[3]

         Based on her review of the medical records, Plaintiff's hearing testimony, and the physician opinions, ALJ Jordan established the following residual functional capacity for Plaintiff: light work defined to include the capacity to lift ten to twenty pounds, sit up to six to eight hours a day and stand or walk up to six of eight hours a day with restrictions for (1) a sit/stand option every one to one and a half hours; (2) only occasional pushing and pulling with right lower extremity; (3) only occasional overhead reaching with right upper extremity; (4) only occasional climbing, crouching, crawling, and kneeling; (5) never use ladders, ropes, or scaffolds; (6) only frequent balancing and stooping; and (7) avoid exposure to cold, wetness, and hazards. (Tr. 40). At Step Four, and relying on a vocational expert to determine Plaintiff's past relevant work, ALJ Jordan concluded that Plaintiff could not perform his past relevant work as a HVAC service technician or as a material handler because both occupations were rated as heavy work. (Tr. 45; see also Tr. 101). At Step Five, relying on the vocation expert, ALJ Jordan concluded that Plaintiff's residual functional capacity permitted him to perform the duties of a packager, DICOT § 753.687-038, Inspector, DICOT 741.687-010, and Sorter, DICOT § 789.687-146. (Tr. 45-46; see also Tr. 103). Accordingly, ALJ Jordan concluded that Plaintiff “has not been under a disability . . . from August 28, 2010, through the date of [her] decision, ” namely October 31, 2014. (Tr. 46).

         Plaintiff requested that the Appeals Council review ALJ Jordan's adverse decision. (Tr. 29). As part of his request for review, Plaintiff provided the Appeals Council with a psychological assessment performed by Deborah Barnett, Ph. D. on January 22, 2015. (Tr. 6-22). The Appeals Council denied Plaintiff's request for review, in part noting that the psychological assessment completed by Barnett pertained to a period of time subsequent to the date of ALJ Jordan's decision.[4] (Tr. 1-2). Plaintiff instituted this action seeking judicial review of the denial of benefits. On January 12, 2017, Plaintiff initially filed a motion to accept pleadings and a motion for summary judgment and supporting memorandum. (Docs. 13-15). After this Court denied Plaintiff's motion to accept pleadings because the supporting memorandum did not comply with the requirements of this Court's Social Security Briefing Order (Case No. 3:13-mc-198-FDW; Doc. 1), (Doc. 22), Plaintiff filed an amended supporting memorandum (Doc. 26). The Commissioner has indicated her intent to stand on her motion for summary judgment and supporting memorandum rather than file any response to Plaintiff's amended supporting memorandum. (Doc. 27). In his amended supporting memorandum, Plaintiff raises two assignments of error: (1) ALJ Jordan erred in assessing Plaintiff's non-exertional limitations resulting from his adjustment disorder with symptoms of depression and anxiety and (2) ALJ Jordan failed to perform a function-by-function analysis in her decision and did not account for all of Plaintiff's functional limitations. (Doc. 26 at 9-18; see also Doc. 20 at 1-4). Specific to his first argument, Plaintiff contends that his adjustment disorder with symptoms of depression and anxiety constituted a severe impairment for purposes of Step Two of the sequential analysis and that Barnett's psychological assessment provides the necessary evidence in support of this conclusion. (Doc. 26 at 9-13, see also Doc. 20 at 1-4).


         A. Standard of Review

         Pursuant to the Social Security Act, 42 U.S.C. § 405(g) and § 1383(c)(3), this Court's review of a final decision of the Commissioner is limited to: (1) whether substantial evidence supports the Commissioner's decision, Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); and (2) whether the Commissioner applied the correct legal standards. 42 U.S.C. § 405(g); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). “The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g). Thus, if this Court finds ...

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