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Senters v. Berryhill

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

October 20, 2017

SHELBY DON SENTERS, 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 the cross-motions for summary judgment filed by Plaintiff Shelby Don Senters and Defendant Nancy A. Berryhill, Acting Commissioner of Social Security. [Record Nos. 9');">9, 11] For the reasons discussed below, the Court will grant the Commissioner9');">9;s motion and deny the relief sought by the plaintiff.

         I.

         Senters filed an application for a period of disability and DIB under Title II of the Social Security Act on March 19');">9, 2013. He alleged a disability onset date of February 27, 2012. [See Administrative Transcript (“Tr.”), 187-88.] The Social Security Administration (“SSA”) denied his application initially and upon reconsideration. [Tr. 119');">9-22, 124-26] Thereafter, an administrative hearing was held before ALJ Jonathan Sprague who subsequently determined that benefits should not be awarded. [Tr. 20-39');">9] Senters then sought review by the Appeals Council, which was denied. [Tr. 1-6]. Senters has exhausted his administrative remedies and his case is ripe for review under 42 U.S.C. § 405(g).

         Senters was sixty-seven years old at the time of the administrative hearing and sixty-three years old when his disability allegedly began. [Tr. 46] He has a high school education and past relevant work in the coal mining industry as a utility man and hoist engineer. [Tr. 47] He stopped working in February 2012 after being laid off when his employer shut down the mine where he was working.[1] [Tr. 47, 72]

         Senters testified that he suffers from seizures and hip pain and sometimes experiences shortness of breath due to black lung. [Tr. 51-54, 61] He testified during the administrative hearing that has not had any seizures since being seen by a doctor. [Tr. 51] His seizures seem to be controlled with medication and he believed the last seizure occurred during 2009');">9. [Tr. 51-52]

         Senters9');">9; hip pain has bothered him for a couple of years, but he has not visited a doctor for the condition because, in his words, he does not want anybody “messing with it.” [Tr. 52-54] He stated that the pain is aggravated if he does too much lifting, sits the wrong way, or walks too much. [Tr. 52-55] However, he stated that he is able to go grocery shopping, mow the lawn with a self-propelled walking mower (although he is stiff and tired afterward). He also helps out at his church on a volunteer basis (around four to five hours a day). [Tr. 57-61] Senters does not take any medication to manage the hip pain other than over the counter medications like Tylenol. [Tr. 53] He also testified that he sometimes experiences shortness of breath when he walks due to conditions associated with black lung disease. [Tr. 61]

         Senters was treated for seizures by Alam Khan, M.D., and other doctors at the Neurology Clinic of London. [Tr. 689');">9-720, 9');">985-1002] He was seen approximately every six months and, after 2009');">9, examination notes generally indicate normal results. [Tr. 689');">9-720, 9');">985-1002] Senters was oriented in all spheres and had a normal range of motion in his extremities. [See, e.g., Tr. 69');">90-9');">92] He did not appear to have issues with joint swelling, numbness, sleep disturbance, or depression. [See, e.g., Tr. 69');">93] Overall, his physical examination was within normal limits. [See, e.g., Tr. 69');">98]

         Dr. Khan9');">9;s treatment notes indicate that Senters had a seizure on March 17, 2009');">9, and then another on July 13, 2009');">9, when he was not taking his medications. [Tr. 69');">90, 69');">95] However, there is no record of any seizure occurring after that date. Treatment notes from February 28, 2012, state “no seizures in 3.5 years now, ” and notes from a follow up visit on September 4, 2012, state “no seizures in 4 years now.” [Tr. 707, 709');">9] Later records from the Neurology Clinic of London also reveal no seizures after 2009');">9. Treatment notes from September 29');">9, 2014, state “unsure when last seizure was greater than 3 years since seizure.” [Tr. 9');">99');">94] Apparently interpreting this to mean that Senters9');">9; last seizure was three years prior to that visit, records from 2015 state that the last seizure was “4 years ago” and “4 ½ years ago.” [Tr. 9');">988, 9');">99');">91]

         Contrary to the above records, Dr. Khan submitted a Residual Functional Capacity (“RFC”) form indicating that Senters9');">9; last three seizures were in 2009');">9, November 2013, and January 2014. [Tr. 9');">949');">9] He indicated that Senters would sometimes need to take unscheduled breaks during an eight hour working day, when he has seizures, and expressed an opinion that Senters was incapable of even low stress jobs because “stress can bring on a seizure.” [Tr. 9');">952]

         Consultative examiner Mary Allen Genthner, M.S., performed a psychometric battery test which indicated that Senters has below average intelligence but no functional impairment. [T. 9');">904-09');">9] According to Genthner, Senters can retain and follow simple instructions, perform simple repetitive tasks without special supervision, and recognize normal hazards and take appropriate precautions, with mild to moderate limitations. [Tr. 9');">908-09');">9] State agency medical consultants Michelle Butler Psy.D., and H. Thompson Prout, Ph.D., similarly stated that Senters can understand and remember routine simple to detailed tasks, sustain attention and effort on tasks that require minimal judgment for extended periods of two-hour segments, and relate adequately in object-focused settings. [Tr. 86-89');">9, 106-08]

         B.T. Westerfield, M.D., examined Senters and concluded that he suffers from simple coal workers9');">9; pneumoconiosis. [Tr. 9');">958-9');">973] However, Senters has no pulmonary impairment and no respiratory disability in Dr. Westerfield9');">9;s opinion. [Tr. 9');">958] Instead, he has normal pulmonary function, and maintains the breathing capacity to return to his previous coal mine employment, or could enjoy other work with equal energy requirements. [Tr. 9');">958]

         Consultative examiner David Winkle, M.D., examined Senters on September 9');">9, 2013. He noted that Senters had a history of two seizures, which occurred in 2009');">9, and that he complained of pain in his hip and knee, which bothers him when he squats or crawls. [Tr. 9');">920] Dr. Winkle observed Senters moving around the examination room without using any assistive device and with no apparent gait disturbance. [Tr. 9');">922] Senters was able to get up and down from the exam table and in and out of his chair without difficulty or assistance. [Tr. 9');">922] Dr. Winkle noted that, due to his back problems, Senters may be impaired with such things as heavy lifting and bending and stooping, although he should be able to lift and handle fifty pounds occasionally and twenty-five pounds frequently. [Tr. 9');">922] He also expressed an opinion that, although prolonged walking may aggravate Senters9');">9; lower extremities, he “should be able to walk and stand at least four hours out of an eight-hour day.” [Tr. 9');">922]

         State agency medical consultant Alex Guerrero, M.D., reviewed the record and gave great weight to Dr. Winkle&#39');">9;s opinion that, based on his back impairment, Senters should be able to lift and handle fifty pounds occasionally and twenty-five pounds more frequently. [Tr. 109');">9] However, he gave little weight to Dr. Winkle&#39');">9;s opinion that Senters should be able to walk and stand at least four hours out of an eight hour day, ...


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