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Earley v. Berryhill

United States District Court, S.D. Alabama, Southern Division

October 6, 2017

ADAM WL EARLEY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          P. BRADLEY MURRAY, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Adam WL Earley brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final decision of the Commissioner of Social Security (“the Commissioner”) denying his claim for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“the Act”) and for Supplemental Security Income (“SSI”), based on disability, under Title XVI of the Act. The parties have consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings in this Court. (Doc. 18 (“In accordance with the provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in this case consent to have a United States Magistrate Judge conduct any and all proceedings in this case, … order the entry of a final judgment, and conduct all post-judgment proceedings.”)). See also Doc. 20. Upon consideration of the administrative record, Earley's brief, the Commissioner's brief, and the arguments made at the hearing on September 14, 2017 before the undersigned Magistrate Judge, it is determined that the Commissioner's decision denying benefits should be affirmed.[1]

         I. PROCEDURAL HISTORY

         Earley applied for a period of disability and DIB, under Title II of the Act, 42 U.S.C. §§ 423 - 425, and for SSI, based on disability, under Title XVI of the Act, 42 U.S.C. §§ 1381-1383d, on August 7, 2015, alleging disability beginning on January 1, 2010. (Tr. 247-49, 259). He later amended his alleged onset date to July 6, 2015. (Tr. 42). His application was denied at the initial level of administrative review on October 22, 2015. (Tr. 132-36). On November 3, 2015, Earley requested a hearing by an Administrative Law Judge (ALJ). (Tr. 146-47). After hearings were held on January 14, 2016, April 14, 2016, and August 3, 2016, the ALJ issued an unfavorable decision finding that Earley was not under a disability from the date the application was filed through the date of the decision, August 25, 2016. (Tr. 37-48, 49-93, 94-105, 16-36). Earley appealed the ALJ's decision to the Appeals Council, and, on November 2, 2016, the Appeals Council denied his request for review of the ALJ's decision, thereby making the ALJ's decision the final decision of the Commissioner. (Tr. 1-5).

         After exhausting his administrative remedies, Earley sought judicial review in this Court, pursuant to 42 U.S.C. §§ 405(g) and 1383(c). (Doc. 1). The Commissioner filed an answer on March 13, 2017 and the social security transcript on March 14, 2017. (Docs. 12, 13). Both parties filed briefs setting forth their respective positions. (Docs. 14, 15). Oral argument was held on September 14, 2017. (Doc. 19). The case is now ripe for decision.

         II. CLAIM ON APPEAL

         Earley alleges that the ALJ's decision to deny him benefits is in error for the following reason:

         1. The ALJ erred in giving superior weight to a non-examining medical expert than to the opinion of Earley's long-standing treating psychiatrist. (Doc. 14 at p. 2).

         III. BACKGROUND FACTS

         Earley was born on March 1, 1990, and was 25 years old at the time he filed his claim for benefits. (Tr. 52). Earley alleged disability due to a variety of mental issues, including anxiety, a torn shoulder, and hearing loss. (Tr. 63). After serving two years in the Army and attending two years of junior college, he graduated from Huntington College with a degree in Business Management in May of 2015. (Tr. 54). While in the Army, he worked in Avionics Survivability Equipment Repair. (Tr. 55). He has worked as a fast food restaurant cook and cashier, on the recreational staff at The Grand Hotel, as a sales associate at several retailers, as a salesperson at a car dealership, as a supervisor at a grocery store, and as a bank teller. (Tr. 56-62). Earley engages in normal life activities; such as, handling his personal care, making easy meals, going out for walks, working out at the gym, taking out the garbage, grocery shopping, reading, watching TV, socializing with friends on occasion, and doing research and social media on the computer. (Tr. 81-85). He has a driver's license and is able to drive. (Tr. 53-54). After conducting several hearings, the ALJ made a determination that Earley had not been under a disability during the relevant time period, and thus, was not entitled to benefits. (Tr.19-31).

         IV. ALJ'S DECISION

         After considering all of the evidence, the ALJ made the following findings that are relevant to the issues presented in his March 23, 2015 decision:

In activities of daily living, the claimant has mild restriction. On October 21, 2015, Linda Duke, Ph.D. (DDS reviewing psychologist) completed and signed a Psychiatric Review Technique (Exhibit 1A). After reviewing the medical evidence of record, Dr. Duke stated that the claimant has mild restriction of activities of daily living (Exhibit 1A). On February 16, 2016, the claimant was examined by Kim Whitchard, Ph.D. in a mental consultative examination (Exhibit 9F). Dr. Whitchard stated that the claimant is 25 years old (Exhibit 9F). Dr. Whitchard stated that the claimant "goes to the gym and exercises every day. He then comes home, showers, and watches movies. He is able to perform ADL's." (Exhibit 9F). Additionally, Dr. Whitchard noted, “He does have a driver's license and is able to drive himself. He drove himself to the evaluation." (Exhibit 9F). After considering the overall record as to the claimant's abilities of daily living, the undersigned finds that he has mild limitation in this area of functioning.
In social functioning, the claimant has moderate difficulties. Dr. Duke stated that the claimant has moderate difficulties in maintaining social functioning (Exhibit 1A). Dr. Whitchard stated that the claimant "described his childhood as 'good, loving ... He has never been married and has no children. He currently lives with his maternal grandmother." (Exhibit 9F). After considering the overall record as to the claimant's abilities of social functioning, the undersigned finds that he has moderate limitation in this area of functioning.
With regard to concentration, persistence or pace, the claimant has moderate difficulties. Dr. Duke stated that the claimant has moderate difficulties in maintaining concentration, persistence or pace (Exhibit 1A). Dr. Whitchard stated that the claimant was in the U.S. Army for two years (Exhibit 9F). Dr. Whitchard stated that the claimant “obtained an AA from Faulkner in 2013. He received a BA in Business Management from Huntington College in 2015." (Exhibit 9F). Dr. Whitchard stated that the claimant “was able to perform serial 7's. He was able to perform serial 4's. He was able to calculate 3 of 3 multiplication questions. He was able to calculate 2 of 2 simple word problems."(Exhibit 9F). In the third hearing, the medical expert testified that the claimant would not meet listings 12.04 or 12.06 (Hearing Testimony). ...

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