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Ohmer v. Berryhill

United States District Court, E.D. Kentucky, Southern Division, London

March 20, 2017

PHILLIP RICHARD OHMER, JR., Plaintiff,
v.
NANCY A. BERRYHILL, [*]Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          Danny C. Reeves, United States District Judge

         This matter is pending for consideration of cross-motions for summary judgment filed by Plaintiff Phillip Ohmer and Defendant Nancy A. Berryhill, Acting Commissioner of Social Security (“the Commissioner”). [Record Nos. 13, 15] Ohmer contends that the Administrative Law Judge (“ALJ”) assigned to his case erred by denying his claim for supplemental security income benefits (“SSI”). [Record No. 13] He requests that the decision be reversed and that a judgment be entered finding him disabled. [Record No. 13-1 at 14] Alternatively, Ohmer asks that his case be remanded for a new hearing before a different ALJ. [Id.] The Commissioner argues that the ALJ's decision is supported by substantial evidence and should be affirmed. [Record No. 15]

         For the reasons discussed below, the Commissioner's motion will be granted and the relief sought by Ohmer will be denied.

         I.

         On June 5, 2013, Ohmer filed an application for SSI under Title XVI of the Social Security Act (“the Act”) alleging a disability beginning December 31, 2007. [Administrative Transcript, “TR., ” at 153] The Social Security Administration (“SSA”) denied his application initially and upon reconsideration. [Tr. at 63, 76] Ohmer pursued and exhausted his administrative remedies with an administrative hearing before an ALJ [Tr. at 28], a written decision from the ALJ [Tr. at 11], and review by the Appeals Council [Tr. at 1]. His case is now ripe for review pursuant to 42 U.S.C. § 1383(c)(3).

         Ohmer was 50 years old at the time of his application for benefits and has a 9th grade education. [Tr. at 19, 23] He worked previously as a roofer, but stopped working in 1998 as the result of a motorcycle accident. [Tr. at 42] Ohmer resumed working for a few months in 2007 as a flagger. [Tr. at 41-42] At the time of the administrative hearing, Ohmer lived with his son and daughter-in-law. [Tr. at 35]

         Ohmer contends that he is unable to work as the result of low back pain, difficulty reading and comprehending, and depression. [Tr. at 33] According to his testimony, the claimant is unable to drive because he cannot sit in one spot for a prolonged period. [Tr. at 36] Ohmer claims that he can stand for only 30 minutes at a time, because he begins to suffer pain in both legs as a result of his “substituting the weight.” [Id.] Ohmer asserts that he can walk ten car lengths, but if he attempts to walk further, his entire leg become numbs. [Id.] He testified that his present symptoms stem from a 2010 back injury that occurred while he was changing a tire, but somewhat milder symptoms trace back to at least 2007. [Tr. at 37-40]

         Ohmer also alleges that he suffers from anxiety, that he is easily aggravated, and that he has trouble sleeping. [Tr. at 49] He claims that his grandchildren “make [him] a nervous wreck, ” and that he can do little more than help with the dishes. [Tr. at 50] Ohmer testified that he rarely leaves home, but will sometimes walk across the street to visit a neighbor, and occasionally visits the supermarket if he is able to use an electric scooter for assistance. [Tr. at 51]

         Medical records from the Kentucky Department of Corrections indicate that Ohmer was treated with medication for chronic low back pain with neuropathic pain as far back as 2012. [Tr. at 277] He was prescribed Neurontin and Ibuprofen for back and leg pain. [Tr. at 16, 256-280, 296-313] Treatment records also indicate medication for GERD, urinary flow problems, and depression. [Id.] In 2008 Ohmer discontinued treatment with Paxil which he was prescribed he was while going through a divorce. [Tr. at 305]

         On December 23, 2010, Ohmer was examined by consultative examiner G. Stephen Perry, ED.D., a licensed counseling psychologist. [Tr. at 248-55] Perry estimated Ohmer to be of below average to borderline cognitive ability and to have mild-to-moderate difficulties with concentration. [Tr. at 250] He found that Ohmer can communicate effectively, but has difficulty managing stress and getting along with others. [Tr. at 254] Perry diagnosed the claimant with depressive disorder, NOS; anxiety disorder, NOS with generalized anxiety and panic disorder symptoms; and personality disorder, NOS. [Id.] He assigned Ohmer a GAF score of 50 to 55. [Tr. at 255]

         A second psychological evaluation was performed in July 2013 by consultative examiner Christopher Catt, Psy.D. [Tr. at 282-86] Catt estimated Ohmer's IQ to be in the low average range. [Tr. at 284] He found a concrete ability for abstract thinking, but poor judgment and gaps in insight. [Id.] Catt diagnosed Ohmer with major depressive disorder recurrent-moderate, and assessed a GAF score of 56. [Tr. at 285] Ohmer's ability to understand, remember, and carry out instructions regarding simple tasks was found to be not affected. [Id.] His ability to tolerate stress and the pressures of day-to-day employment was determined to be affected by moderate limitations. [Id.] Sustaining attention and concentration towards performance of simple repetitive tasks was found to be unaffected. [Id.] Finally, Ohmer's capacity to respond appropriately to supervision, co-workers, and work pressures was found to be affected by moderate limitations. [Id.]

         Ohmer was examined by Dr. Naushad Haziq, M.D., an agency consultant in August 2013, for purposes of a physical evaluation. [Tr. 288-95] Haziq noted a dirt bike accident in 1998 as the source of the claimant's lower back pain, and a 2010 “snap in the back” while moving a heavy desk as an aggravating factor. [Tr. at 288] Ohmer described his pain as a continuous, dull, nagging, aching pain in the lumbar spine, which intermittently becomes sharp and radiates to his left lower extremities, leading to numbness and tingling. [Id.] Bending, stooping, sitting, lifting, carrying, standing, and walking aggravate the pain. [Id.] Haziq referenced a 2010 MRI, with the impression of “degenerative disc disease, primarily at L4-L5 and L5-S1. At L4-L5 there is narrowing of the left lateral recess with involvement of the left L5 nerve root and with left neural foraminal narrowing at L2-L3 and L5-S1.” [Id.] A 2010 CT scan identified no acute fracture, but concurred otherwise with the MRI. [Tr. at 289] A lower extremity radiological study of a single level, performed for an ankle brachial index assessment, was within normal limits. [Id.]

         Haziq characterized Ohmer as a normally-built male who appeared somewhat depressed. [Tr. at 290] He noted a slow cautious antalgic gait, and a mild limp while walking. [Id.] However, Ohmer did not need assistive devices or ambulatory aids, was able to sit and stand unassisted, rise from a step, and stepped up and down from the examination table. [Id.] Ohmer appeared comfortable while seated and supine, and was able to speak and follow instructions without difficulty. [Id.] Examination of the claimant's cervical spine revealed no spinous process or muscular tenderness, and there was no evidence of paravertebral muscle spasm. [Tr. at 291]

         Evaluation of his range of motion revealed no limitations. [Id.] The dorsolumbar spine revealed normal curvature, but Ohmer expressed pain and tenderness extending from T8 through S1, with mild limitation of movement. [Tr. at 292] Ohmer was able to stand on one leg at a time without difficulty, there was no leg length discrepancy, and the straight leg-raising test was 70 degrees bilaterally in supine and sitting positions. [Id.]

         Haziq concluded that Ohmer suffered from low back pain, post remote trauma, and possible degenerative disc disease. [Tr. at 292] He found bilateral leg pain with absence of dorsalis pedis and posterior tibial pulses, and ruled out peripheral vascular disease. [Id.] High cholesterol ...


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