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Pittman v. Berryhill

United States District Court, E.D. North Carolina, Southern Division

December 18, 2017

James Hicks Pittman, Jr., Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security,[1] Defendant.

          MEMORANDUM & ORDER

          Robert T. Numbers, II United States Magistrate Judge.

         Plaintiff James Hicks Pittman, Jr., instituted this action on October 20, 2016, to challenge the denial of his application for social security income. Pittman claims that Administrative Law Judge (“ALJ”) Carl B. Watson erred in (1) evaluating the medical opinion evidence, (2) failing to properly explain his rationale at each step of the sequential analysis, and (3) considering Pittman's diabetes. Both Pittman and Defendant Nancy A. Berryhill, the Acting Commissioner of Social Security, have filed motions seeking a judgment on the pleadings in their favor. D.E. 20, 32.

         After reviewing the parties' arguments, the court has determined that ALJ Watson reached the appropriate decision. Substantial evidence supports his evaluation of the medical opinion evidence and his consideration of Pittman's impairments, including his diabetes. The court also finds that ALJ Watson properly set forth his reasoning at each step of the sequential analysis. Therefore, the court denies Pittman's motion, grants Berryhill's motion, and affirms the Commissioner's decision.[2]

         I. Background

         On October 10, 2012, Pittman protectively filed an application for disability benefits alleging a disability that began on July 15, 2010.[3] After his claim was denied at the initial level and upon reconsideration, Pittman appeared before ALJ Watson via video conference for a hearing to determine whether he was entitled to benefits. ALJ Watson determined Pittman was not entitled to benefits because he was not disabled. Tr. at 14-23.

         ALJ Watson found that Pittman had the following severe impairments: diabetes with neuropathy, alcoholic liver disease, and pancreatic insufficiency. Id. at 16. ALJ Watson found that Pittman's impairments, either alone or in combination, did not meet or equal a Listing impairment. Id. at 18. ALJ Watson then determined that Pittman had the RFC to perform a range of light work with additional limitations. Id. He cannot climb ladders, ropes, or scaffolds but he can occasionally climb ramps and stairs. Id. He must also avoid working around unprotected heights or hazardous machinery. Id. ALJ Watson concluded that Pittman was capable of performing his past relevant work as chemist. Id. at 22. Thus, ALJ Watson found that Pittman was not disabled. Id.

         After unsuccessfully seeking review by the Appeals Council, Pittman commenced this action on October 20, 2016. D.E. 1.

         II. Analysis

         A. Standard for Review of the Acting Commissioner's Final Decision

         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 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). If the Commissioner's decision is supported by such evidence, it must be affirmed. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).

         B. Standard for Evaluating Disability

         In making a disability determination, the ALJ engages in a five step evaluation process. 20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.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.F.R. Part 404, Subpart P, App. 1. If the impairment is cited 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, the ALJ assesses the claimant's RFC to determine, at step four, whether he 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).

         C. Medical Background

         Pittman is a diabetic who has been insulin-dependent for approximately 20 years. Tr. at 44. Katy Robinette, PA-C, of Wilmington Gastroenterology saw Pittman in March 2012 for abdominal cramping and alcoholic hepatitis. Id. at 321. She noted mild hepatic encephalopathy with asterixis and mild jaundice, and she suspected pancreatic dysfunction. Id. at 322. Robinette advised Pittman to abstain from alcohol. Id. Testing the following month showed mild portal gastropathy, mild antritis, and internal hemorrhoids. Id. at 299. He returned to Wilmington Gastroenterology the following month for abdominal pain, diarrhea, and alcoholic liver disease. Id. at 317. Pittman reported that he had stopped drinking and that he walked for 40 minutes, four times per week. Id. at 318. An examination noted normal findings aside from mild jaundice and a slightly enlarged liver. Id. at 318-19.

         Dr. Peter Morris performed a consultative examination on March 30, 2013. Id. at 360-64. The examination yielded generally normal findings except for a slightly slow and antalgic gait, decreased sensation in the feet, and slight difficulties with the heel, toe, and tandem walking. Id. at 362-63. Dr. Morris's diagnoses included diabetes mellitus with diabetic neuropathy in both feet, abdominal complaints possibly related to alcoholic liver disease and pancreatic dysfunction, and a history of alcohol abuse. Id. He opined that Pittman could perform the exertional requirements associated with light work but that he should not work around heights. Id. at 363.

         The next month, Dr. Gregory Johnson performed a consultative vision examination. Id. at 367-68. He noted Pittman had corrected vision of 20/40 in the right eye and 20/30 in the left eye. Id. Dr. Johnson's assessment was very mild nonproliferative diabetic retinopathy in the left eye and mild cataracts in both eyes. Id.

         Later that month, Dr. Hari Kuncha, a state agency reviewer, opined that Pittman could perform light work with postural limitations to frequently climbing and balancing and an environmental limitation to avoid concentrated exposure to hazards. Id. at 67-68. Dr. Kuncha also noted that Pittman's visual impairments did not result in any significant visual limitations. Id. In May 2013, Dr. Robert Whittier reviewed Pittman's records and opined that he was capable of performing light work. Id. at 91-92. Like Dr. Kuncha, he found that Pittman would be limited to frequent climbing and frequent balancing and should avoid concentrated exposure to hazards. Id. He also concluded that Pittman's eye conditions did not result in any significant visual restrictions. Id.

         Pittman saw his treating physician, Dr. Scott Visser, for follow-up care for his diabetes in October 2013. Id. at 403-04. His examination recorded mostly normal findings aside from diminished sensation in the lower right extremity. Id. Dr. Visser made similar findings after examinations in January and April 2014 Id. at 397-98, 400-01.

         Two months later, Danielle Wright, Pharm.D., saw Pittman for follow-up diabetic care. Id. at 371-75. Pittman reported that he walked 30-60 minutes per day, four or five times every week. Id. at 372. He reported compliance with medication and only one hypoglycemic episode in the previous month. Id. at 371-72.

         Two months later, Pittman consulted with a dietician for his diabetes. Id. at 380. He stated that he did not care about the goal for his fasting blood sugar. Id. at 381. He reported that he experienced hypoglycemic episodes every one to two weeks but that they occurred less frequently than they had six months earlier. Id. at 382. The dietician opined that Pittman lacked understanding of his insulin regimen. Id.

         In July 2014, Pittman saw Rachel Thomas, Pharm.D., for management of his diabetes. Id. at 385. She remarked that he lacked motivation to manage his condition. Id. Specifically, she noted that he adjusted his insulin doses on his own and administered Humalog after meals, despite being advised to administer it before meals. Id. He reported that he decreased his walking due to foot pain but that he rode a stationary bike for 20 minutes, four times per week. Id. at 386.

         Pittman returned later that month for foot pain and hypertension. Dr. Visser noted a generally normal examination except for monofilament testing in the lower extremities. Id. at 393. He observed that Pittman's glucose was fairly well- controlled and he diagnosed plantar fasciitis as the cause of his foot pain. Id. at 393-94.

         Two months later, Dr. Visser issued a statement in which he concluded that Pittman could not lift ten pounds or occasionally lift and carry articles like small tools, he could not walk or stand for up to one third of an eight-hour work day, and he could not sit for about six hours in an eight-hour workday. Id. at 424. Dr. Visser listed Pittman's diagnoses of diabetes, neuropathy, and pancreatic insufficiency as the basis for the limitations he assessed. Id.

         When Pittman returned to Dr. Visser in January 2015 for an examination, Dr. Visser noted normal findings except for monofilament testing and absent light touch sensation in a “stocking” pattern in both legs. Id. at 437-38. Three months later, Tyler Whiteside, D.P.T., performed a Functional Capacity Evaluation (“FCE”). Id. at 442-46. Whiteside noted that Pittman was unable to perform the demand minimal functional capacity for standing, walking, balancing, or kneeling. Id. at 446. He also noted that Pittman could not perform the demand minimal functional capacity for stair climbing for five minutes, squatting for five minutes, or stooping for five minutes at ¶ 75- degree flexation. Id. These results were endorsed by Dr. Visser as indicative of Pittman's condition since March 2012. Id. at 440.

         D. Additional Evidence

         To support his claims, Pittman submitted additional evidence to the Appeals Council that was not before ALJ Watson. The Commissioner argues, and the court concludes, that the submitted evidence does not merit remand under sentence six.

         The Appeals Council must consider evidence submitted by a claimant with a request for review “if the additional evidence is (a) new, (b) material, and (c) relates to the period on or before the date of the ALJ's decision.” Wilkins v. Sec'y, Dep't of Health & Human Servs., 953 F.2d 93, 95-96 (4th Cir. 1991), superseded on other grounds by 20 C.F.R. § 404.1527; 20 C.F.R. § 404.976(b)(1) (effective to Feb. 4, 2016) (“The Appeals Council will consider all the evidence in the administrative law judge hearing record as well as any new and material evidence submitted to it which relates to the period on or before the date of the administrative law judge hearing decision.”). Evidence is new if it is not duplicative or cumulative, and it is material if there is a “reasonable possibility that the new evidence would have changed the outcome of the case.” Wilkins, 953 F.2d at 96. The Appeals Council need not review or consider new evidence that relates only to a time period after the ALJ issues the decision. See 20 C.F.R. § 404.976(b)(1).

         The Appeals Council need not explain its reason for denying review of an ALJ's decision. Meyer v. Astrue, 662 F.3d 700, 702 (4th Cir. 2011). It “must consider new and material evidence relating to that period prior to the ALJ decision in determining whether to grant review, even though it may ultimately decline review.” Wilkins, 953 F.2d at 95. When the Appeals Council incorporates additional evidence into the record, the reviewing court must “review the record as a whole, including the new evidence, in order to determine whether substantial evidence supports the Secretary's findings.” Gentry v. Colvin, No. 2:13-CV-66-FL, 2015 WL 1456131, at *3 (E.D. N.C. Mar. 30, 2015) (quoting Wilkins, 953 F.2d at 96).

         Here, Pittman submitted several pieces of evidence, [4] including Whiteside's FCE and Dr. Visser's endorsement of those findings (D.E. 22), Dr. Visser's office treatment notes from May 19, 2015, through August 7, 2015 (D.E. 23), records from Southeast Nephrology Associates from September 1, 2015, through May 23, 2016 (D.E. 24), and Pittman's blood sugar ...


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