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Sizemore v. Berryhill

United States Court of Appeals, Fourth Circuit

December 1, 2017

DAVID RICHARD SIZEMORE, Plaintiff - Appellant,
v.
NANCY A. BERRYHILL, Defendant-Appellee.

          Argued: September 15, 2017

         Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Max O. Cogburn, Jr., District Judge. (5:15-cv-00053-MOC)

         ARGUED:

          Samuel F. Furgiuele, Jr., Boone, North Carolina, for Appellant.

          Leo Rufino Montenegro, SOCIAL SECURITY ADMINISTRATION, Baltimore, Maryland, for Appellee.

         ON BRIEF:

          John Stuart Bruce, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

          Before NIEMEYER, KING, and HARRIS, Circuit Judges.

         Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge King and Judge Harris joined.

          NIEMEYER, CIRCUIT JUDGE.

         David Sizemore applied for disability benefits from the Social Security Administration in July 2011, claiming that he was disabled due to diabetes and bipolar disorder. After his application was denied by an administrative law judge ("ALJ"), who found that Sizemore was not disabled, and review was denied by the Appeals Council, he commenced this action in the district court. The district court affirmed the ALJ, and Sizemore filed this appeal, contending that the ALJ's analysis was flawed. He argues: (1) that when assessing his residual functioning capacity, the ALJ failed to assess properly Sizemore's mental abilities - particularly his deficiencies in concentration, persistence, and pace - and improperly ignored certain limitations recognized by the State agency psychologist, despite purporting to give that psychologist's report "significant weight"; (2) that the ALJ erred by failing to treat as opinion evidence the "Global Assessments of Functioning" scores given by doctors and other professionals and by "cherry-picking" higher scores, thereby presenting a distorted view of Sizemore's level of functioning; and (3) that "the ALJ misinterpreted evidence, mischaracterized testimony, and 'cherry-picked' facts, " particularly in assessing Sizemore's credibility.

         After reviewing the record and considering the arguments of counsel on appeal, we affirm. In addition to rejecting Sizemore's arguments claiming deficiencies in the ALJ's opinion, we note that, even though the ALJ found no need to make such a finding, the record indicates, with strong evidence, that Sizemore would have much increased functioning were he to stop abusing alcohol and follow the treatment prescribed for his diabetes.

          I

         David Sizemore was born in 1977 and attended a couple of years of high school before leaving school. He obtained his commercial driver's license and worked for about 10 years as a truck driver. He stopped working, however, on December 27, 2010, when he was 33 years old because, as he later claimed, he was suffering from worsening diabetes, depression, and anxiety.

         Sizemore's medical records from the period when he was still working showed that he was admitted to the hospital for two days in early March 2008 for his third episode of acute pancreatitis. He admitted to binge drinking on the weekends, and a physician diagnosed him with "alcohol induced pancreatitis" and hyperglycemia, noting that "[h]e may be developing diabetes from his pancreatitis." During a psychiatric consultation, Sizemore reported a history of anxiety attacks, depression, and insomnia but denied any current problems with depression or anxiety. Sizemore was readmitted to the hospital later the same month and was diagnosed with new onset diabetes. After his discharge, he received treatment for hyperglycemia and diabetes from Steven Chapman, a family nurse practitioner ("NP") and Sizemore's primary care provider.

         On December 27, 2010 - the date Sizemore stopped working and the date he claims to have become disabled - NP Chapman treated Sizemore for lower back pain and a urinary tract infection. Chapman's notes from that visit indicate that Sizemore had been prescribed with insulin and other medications for his diabetes.

         A few weeks later, on January 17, 2011, Sizemore was involuntarily hospitalized for alcohol dependence, reporting that he had been drinking a "half gallon [of] Vodka per day since Christmas" and had been hearing murmuring voices inside his head when he tried to sleep. After Sizemore's discharge a week later, he visited NP Chapman, who noted that Sizemore's "[e]levated blood sugar [was] difficult to control due to likely continued drinking, although he states little to none." Chapman recommended an eye exam based on Sizemore's report of blurred vision, but Sizemore indicated that he could not afford the exam.

         In February 2011, Sizemore underwent a mental health assessment during which he reported feeling paranoid, depressed, and anxious "about everything and everybody." He also reported difficulty sleeping and experiencing panic attacks up to two times per week that lasted 15-20 minutes. A licensed professional counselor diagnosed him with alcohol dependence (primary); major depressive disorder (recurrent, moderate); and panic disorder without agoraphobia, indicating that Sizemore's current Global Assessment of Functioning ("GAF") score was 45. When he was evaluated by a psychiatrist later that month, she indicated that Sizemore's GAF score was 55 and similarly diagnosed alcohol dependence in brief remission, panic disorder, attention-deficit hyperactivity disorder, possible bipolar disorder, ...


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