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Burton v. Berryhill

United States District Court, E.D. Kentucky, Central Division, Lexington

April 19, 2017

HARRY BURTON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security [1], Defendant.


          Danny C. Reeves United States District Judge

         This matter is pending for consideration of cross-motions for summary judgment filed by Plaintiff Harry Burton (“Burton”) [Record No. 12] and Defendant Nancy A. Berryhill, Acting Commissioner of Social Security (“the Commissioner”). [Record No. 14] The Commissioner's motion will be granted and the relief that Burton seeks will be denied for the reasons that follow.


         Burton filed an application for disability insurance benefits (“DIB”) on August 20, 2013, alleging a disability onset date of February 8, 2009. [Tr. 303] Burton's claim was denied initially and on reconsideration. [Tr. 248, 256] He then requested an administrative hearing, which Administrative Law Judge (“ALJ”) Bonnie Kittinger held on April 23, 2015. [Tr. 155, 263] The ALJ ultimately determined that Burton was not disabled from the alleged onset date through the date that Burton was last insured (September 30, 2014). [Tr. 149] Burton's request for review by the decision from the Appeals Council was denied. [Tr. 1] The matter is ripe for review pursuant to 42 U.S.C. § 405(g).

         Burton was 50 years old on September 30, 2014, the date on which he last met the insured status requirements of the Social Security Act (“Act”). [Tr. 303, 317] He has a high school equivalent education and past employment experience as a parts deliverer, maintenance man, forklift operator, assembly worker, and construction worker. [Tr. 322, 323] Burton alleges that he is disabled due to diabetes, neuropathy, depression, high blood pressure, high cholesterol, and back injuries. [Tr. 321]

         Burton underwent lumbar fusion surgery in May 2012. He reported that he was doing well following the surgery during a post-operative visit with surgeon Dr. Steven Glassman in August 2012 and no longer had the significant back and leg pain that he had prior to the operation. [Tr. 547] Burton further indicated that he was “generally tolerating activities well.” [Id.] Although Burton did not feel that he would be able to return to construction work, he did anticipate being able to work at something “medium duty, ” which “ma[de] sense” to Dr. Glassman. [Id.] Dr. Glassman further reported that Burton had full strength in all muscle groups and normal reflexes. [Tr. 549] Dr. Glassman concluded that Burton could lift 40 pounds but that he should avoid repeated stooping and bending. [Id.]

         Dr. Joseph Lukins treated Burton for right shoulder pain in October 2013. [Tr. 744] Burton reported right shoulder pain and tingling and numbness in his hand. [Id.] Dr. Lukins noted Burton's previous “back fusion for which he is disabled.” [Tr. 744] In December 2013, following a carpal tunnel release procedure, Dr. Lukins reported that Burton's shoulder had significantly improved and that his range of motion had improved. However, Burton still reported pain. [Tr. 740] Dr. Lukins saw Burton again in January 2014 and indicated that Burton was “doing well after his carpal tunnel” and that his “shoulder symptoms [had] decreased.” [Tr. 737]

         In January 2014, Burton reportedly had “[e]xcellent shoulder strength” and, although he had limitation in range of motion in his spine, the physician found no weakness, sensory loss, or reflex asymmetry. [Tr. 914] In April 2014, Burton received treatment from the University of Kentucky Department of Orthopaedic Surgery and Sports Medicine Clinic. He complained at that time of shoulder pain and stiffness. [Tr. 1098] The physician reported that Burton demonstrated diffuse tenderness and decreased grip strength, but that x-rays of his right shoulder showed no acute fracture or dislocation. [Tr. 1099] The physician recommended physical therapy for his shoulder. [Id.]

         Burton has been diagnosed with diabetes and was found to have elevated blood sugar. [See, e.g., Tr. 561, 567] He saw Dr. Ayman Geneidy in October 2013 and reported bilateral lower extremity edema for approximately five years, recent excess proteinuria, and a renal cyst. [Tr. 676] Dr. Geneidy diagnosed chronic kidney disease and proteinuria, and suspected diabetic neuropathy. [Tr. 677] Burton received treatment for his diabetic conditions from an endocrinologist at University of Kentucky HealthCare in August 2014. [Tr. 833] The physician reported diminished sensation in both of Burton's feet. [Tr. 835] The physician continued Burton's current medications. [Tr. 844]

         In November 2012, Burton reported that he was back to work in construction and that he had only occasional mild pain and numbness. [Tr. 553] Otherwise, he had no substantial complaints. [Id.] Additionally, he had normal gait and station. [Tr. 555] Burton later reported that he was frustrated because no one would hire him, but indicated that he had been staying active and helping his friend with a new ceiling. [Tr. 589]

         The state agency physicians concluded that Burton was not disabled from the alleged onset date of February 8, 2009. [Tr. 248] They acknowledged that Burton's ability to lift and carry objects was decreased and that Burton's limitations prevented him from performing some tasks. They concluded, however, that these limitations did not prevent him from performing all work-related activities. [Id.] Additionally, they found no evidence of significant damage to Burton's eyes, heart, liver, or kidneys caused by his high blood pressure and cholesterol or his diabetes. [Id.] The agency physicians were unable to locate “evidence of any other severe impairment that would prevent [Burton] from performing basic work activities on a daily basis.” [Id.] They thus concluded that his condition was not severe enough to prevent him from working. [Tr. 249]

         Burton stated during the administrative hearing that he is unable to work due to the neuropathy in his legs, arms, and hands. [Tr. 164] He testified that he is able to stand for 30 minutes before having to sit and is limited to lifting 25 pounds. [Id.] Burton denied experiencing any side effects from his medications. [Id.] He also reported pain in his hands and feet. [Tr. 167]

         Burton testified that he had driven 75 miles in a day since the alleged onset date of disability. [Tr. 160] He reported that, two years ago, he had volunteered at his wife's grandparents' restaurant as a short-order cook for three to five hours per day for approximately four weeks. [Tr. 161-62] Burton testified that he had to stop volunteering because he could not stand for the time required. [Tr. 162] Burton further testified that, the day before the hearing, he spent the majority of the day preparing, sanding and spray-painting a mailbox. [Tr. 165] He testified that he performs some household chores, such as doing the dishes, and helping with dinner preparations. [Tr. 166] However, according to Burton, his back pain prevented him from vacuuming and doing yard work. [Id.] He also asserted that he requires some assistance with his personal hygiene. [Tr. 167]

         The Vocational Expert (“VE”) appearing at the administrative hearing testified that a hypothetical person of the claimant's age, education, and previous work experience would be able to perform light work with certain limitations and could perform work existing in the national economy. [Tr. 182] Specifically, such an individual ...

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