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Lowe v. Berryhill

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

September 29, 2017

THOMAS LOWE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.

          MEMORANDUM OPINION AND ORDER

          Joseph M. Hood, Senior U.S. District Judge.

         This matter is before the Court on the parties' cross-Motions for Summary Judgment (DE 9, 10) on Plaintiff's appeal of the Commissioner's denial of his application for disability insurance benefits.[1] The matter having been fully briefed by the parties is now ripe for this Court's review.

         I.

         In determining whether an individual is disabled, an Administrative Law Judge (“ALJ”) uses a five step analysis:

1. An individual who is working and engaging in substantial gainful activity is not disabled, regardless of the claimant's medical condition.
2. An individual who is working but does not have a “severe” impairment which significantly limits his physical or mental ability to do basic work activities is not disabled.
3. If an individual is not working and has a severe impairment which “meets the duration requirement and is listed in appendix 1 or equal to a listed impairment(s)”, then he is disabled regardless of other factors.
4. If a decision cannot be reached based on current work activity and medical facts alone, and the claimant has a severe impairment, then the Secretary reviews the claimant's residual functional capacity and the physical and mental demands of the claimant's previous work. If the claimant is able to continue to do this previous work, then he is not disabled.
5. If the claimant cannot do any work he did in the past because of a severe impairment, then the Secretary considers his residual functional capacity, age, education, and past work experience to see if he can do other work. If he cannot, the claimant is disabled.

Preslar v. Sec'y of Health & Hum. Servs., 14 F.3d 1107, 1110 (6th Cir. 1994) (citing 20 C.F.R. § 404.1520(1982)).

         II.

         Plaintiff filed an application for disability insurance benefits (DIB), alleging disability beginning in June 2014 (Tr. 173-74). His application was denied initially and on reconsideration (Tr. 79, 95). Thereafter, Plaintiff pursued and exhausted his administrative remedies before the Commissioner (Tr. 25-59 (hearing), 10-20 (administrative law judge (ALJ) decision), 1-4 (Appeals Council's denial of review of ALJ decision)). This case is ripe for review pursuant to 42 U.S.C. § 405(g).

         Plaintiff was 42 years old at the time he claims he became disabled (see Tr. 173). He obtained a GED and served in the Army and the Army National Guard since the mid-1990s (see Tr. 213). Plaintiff alleged disability due to a host of impairments, including post-traumatic stress disorder (PTSD), back problems, headaches, shoulder and elbow problems, and sleep apnea (Tr. 212). Plaintiff solely sought treatment from the Department of Veteran's Affairs (VA) during the relevant time period. The VA notes-which are lengthy and contain many duplicates-show he sought treatment for complaints including mid- and lower back pain, dizziness, hearing problems, a history of a traumatic brain injury, headaches, memory problems, and PTSD (see generally 319-433, 443-536, 548-758, 767-970). A 2014 neuropsychological assessment showed a history of blast exposure and some residual cognitive impairments, but that he had been to compensate throughout his military career and that he “remain[ed] fit for full duty and me[t] [] retention standards from a neurocognitive perspective” (Tr. 538). A 2014 MRI of his thoracic spine showed multilevel spondylosis (arthritis) (Tr. 745-46) and x-ray of his thoracic spine two months later showed age-related degenerative changes but was otherwise unremarkable (Tr. 313). 2015 x-rays of his spine showed early lower thoracic degenerative changes, a normal lumbar spine, and narrowing in one area of his cervical spine, but were otherwise normal (Tr. 760-62). Later 2015 MRIs of his spine showed a normal thoracic spine, mild disc protrusion in one area of his lumbar spine, and mild narrowing in one area of his cervical spine (Tr. 971-73). Diagnoses included a bulging disc in his thoracic spine, myofascial pain syndrome, PTSD, cognitive disorder, sleep disturbance, headaches, and a history of a traumatic brain injury (see, e.g., Tr. 538, 669). VA doctors gave him steroid injections in his back and medications for his pain (see, e.g., Tr. 728, 877).

         The VA assigned Plaintiff a 100% VA disability rating based on VA standards (Tr. 163-65), but no VA or other doctor opined that he had any mental or physical work-related limitations. Two state agency psychologists reviewed Plaintiff's medical records and opined that his mental impairments did not significantly affect his ability to perform work-related activities (Tr. 73-74, 87-88). State agency physician P. Saranga, M.D., reviewed Plaintiff's medical records and opined that he could lift and carry 20 pounds occasionally and 10 pounds frequently; sit and stand/walk six hours each in an eight-hour workday; frequently stoop, ...


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