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Stone v. Berryhill

United States District Court, N.D. Georgia, Atlanta Division

February 8, 2018

ZACHERY STONE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR., UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Magistrate Judge Linda T. Walker's Final Report and Recommendation [17] (“Final R&R”). The Final R&R recommends the Court affirm the decision of the Commissioner of Social Security (“Commissioner”) to deny Plaintiff Zachery Stone's (“Plaintiff”) application for a period of disability, disability insurance benefits, and supplemental security income under the Social Security Act. Plaintiff did not file objections to the Final R&R.

         I. BACKGROUND[1]

         On November 5, 2012, Plaintiff filed applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) alleging disability beginning on September 1, 2005. (Transcript [9] (“Tr.”) at 16, 198-208). Plaintiff's claims were denied initially, and on reconsideration on July 31, 2013. (Tr. 16, 107-08, 137-38). Plaintiff appealed the denial to an Administrative Law Judge (“ALJ”) and an administrative hearing was held on February 6, 2015. (Tr. 28-77). At the hearing, Plaintiff amended her alleged onset date to November 5, 2012, which was after the expiration of the date she was last insured, June 30, 2010. (Tr. 16). In effect, Plaintiff withdrew her request for a hearing with respect to her application for DIB under Title II of the Act, as amended. (Id.). The ALJ noted there was little treatment and no real evidence of a disabling impairment prior to the expiration of Plaintiff's insured status on November 5, 2012, and dismissed Plaintiff's request for hearing on DIB. (Id.).

         On June 10, 2015, the ALJ issued an unfavorable decision on Plaintiff's SSI claim finding that she was not disabled. (Tr. 13-22). On August 5, 2015, Plaintiff filed a request for review of the ALJ's Decision. (Tr. 8-12). The Appeals Council denied Plaintiff's request for review on July 21, 2016. (Tr. 1-7). Plaintiff, having exhausted all administrative remedies, filed this action on September 22, 2016. ([3]).

         A. Facts and ALJ's Findings

         Plaintiff, who was fifty-six to fifty-eight years old during the relevant period, alleges a disability due to arthritis and panic attacks. (Tr. 37, 198-208, 417). Plaintiff has an eleventh grade education and past relevant work as a cafeteria food service worker and kitchen helper. (Tr. 37, 67-68). Plaintiff last worked in 2005 and initially alleged she became disabled on September 1, 2005, due to arthritis and panic attacks. (Tr. 16, 198-208). According to the ALJ, Plaintiff last met the insured status requirements of the Social Security Act on June 30, 2010. (Tr. 18). The ALJ found that Plaintiff has not engaged is substantial gainful activity since November 5, 2012. (Id.). The ALJ found further that there are no medical signs or laboratory findings to substantiate the existence of a medically determinable impairment. (Id.). Finally, the ALJ found that Plaintiff has not been under a disability, as defined in the Social Security Act, from November 5, 2012, through the date of its decision. (Tr. 22).

         In so finding, the ALJ noted that at the hearing on February 6, 2015, Plaintiff presented with a one-prong cane. (Tr. 19). She testified that she could stand for one hour and walk two blocks, but would experience pain thereafter. (Id.). Plaintiff stated that she can stand or walk for two hours total and sit for a total of two hours or four hours “off and on.” (Id.). She testified that she could lift two pounds with one or both arms, but to do so was painful. (Id.). Plaintiff further testified that she could not bend and can only reach down to her thighs while standing. (Id.). She alleged that pain affects her ability to focus. (Id.). Plaintiff also stated that she has problems with anxiety and depression. (Id.).

         The ALJ also noted that Plaintiff did not provide any medical evidence to support her allegations of mental disability during the period at issue. (Id.). The ALJ observed that Plaintiff only takes Valerian, an herbal preparation, for her alleged mental health conditions and that the record reflects no mental health treatment or counseling even though Plaintiff has access to free or low cost healthcare through the Grady Health System. (Id.).

         The ALJ gave “lesser weight” to the opinion of Anne Moore, PsyD, rendered at a January 19, 2013, consultative psychological evaluation. (Tr. 20). Dr. Moore concluded that Plaintiff's ability to interact appropriately with co-workers, supervisors, and the general public was “moderately compromised, ” and her ability to sustain attention, persistence, and pack was moderately to markedly compromised as “she seemed to become preoccupied with internal distress and was unable to [deescalate].” (Id.). Dr. Moore noted that Plaintiff was unaccompanied and took public transportation to the appointment, had full orientation and knew the interviewer's purpose, and had average short-term memory. The ALJ gave lesser weight to Dr. Moore's opinions because they appeared to endorse Plaintiff's subjective recitation of her alleged mental health concerns and were “out of line with and unsupported by the remainder of the objective medical evidence of record.” (Id.).

         The ALJ gave substantial weight to the opinion of Bobby A. Crocker, M.D., who reported that Plaintiff had a normal physical examination without evidence of any physical impairment. The ALJ also assessed treatment notes from Erica J. Han, M.D. at Grady Memorial Hospital, which reveal that Plaintiff exercises regularly, engaging in yoga and squats. The ALJ found Plaintiff's testimony less credible because no one prescribed her cane, and “there is no objective indicia that would support her allegations of pain and functional limitation.” (Tr. 20). The ALJ further noted that there is no credible treating physician of record. The ALJ concluded that there are no medical signs or laboratory findings to substantiate the existence of a medically determinable impairment and Plaintiff has not been under a disability as defined in the Social Security Act.

         B. Final R&R

         Plaintiff contends that the Commissioner erred in finding that Plaintiff did not have any severe impairments. ([14] at 7-15). Plaintiff argues that the Commissioner failed to proceed to step three of the five-part analysis after finding Plaintiff has no medically severe impairments. Further, Plaintiff relies on Dr. Han's finding that the motion in Plaintiff's right shoulder was severely limited due to pain. In addition to her shoulder, Plaintiff alleges severe impairments to her lungs and heart, chest and back pain, anxiety disorders, and affective disorders. To support her allegation that she suffers from anxiety and depressive disorders, Plaintiff relies on the opinions of Dr. Moore, arguing that the ALJ erred in giving lesser weight to Dr. Moore's opinions. In response, the Commissioner argues substantial evidence supports the ALJ's finding that Plaintiff did not have a medically determinable impairment. ([15]).

         On January 18, 2018, the Magistrate Judge issued her Final R&R. The Magistrate Judge determined that the ALJ did not err by finding that Plaintiff did not have any medically determinable impairments because the ALJ's decision appears to be decided under the proper standards and supported by substantial evidence. The Magistrate Judge found that the ALJ properly discounted Plaintiff's credibility, properly discounted the opinions of Drs. Han and Moore, and properly relied on objective evidence in the record and the opinions of several psychological and medical examiners and consultants. The Magistrate Judge recommended that ...


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