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Brown v. Berryhill

United States District Court, W.D. Kentucky, Bowling Green Division

October 23, 2017

LACI NICOLE BROWN PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT

          MEMORANDUM OPINION AND ORDER

          Lanny King, Magistrate Judge United States District Court.

         This matter is before the Court on Plaintiff's fact and law summary in support of complaint seeking judicial review, pursuant to the fourth sentence of 42 U.S.C. § 405(g), of the final decision of the Commissioner denying her claim for Social Security disability benefits. Fact and law summary, Docket 15. Additionally, Plaintiff filed a motion to remand to the Commissioner for consideration of new and material evidence pursuant to the sixth sentence of Section 405(g). Motion, Docket 16. The Commissioner filed a responsive fact and law summary in opposition to both the complaint and the motion. Fact and law summary, Docket 19.

         The parties consented to the jurisdiction of the undersigned Magistrate Judge to determine this case, with any appeal lying before the Sixth Circuit Court of Appeals. Docket 12.

         For the reasons below, Plaintiff failed to prove materiality of the allegedly new and material evidence, and the administrative law judge's (ALJ's) decision was supported by substantial evidence. Therefore, the Court will DENY Plaintiff's motion to remand (Docket 16), AFFIRM the Commissioner's final decision, and DISMISS Plaintiff's complaint.

         Background facts and procedural history

         Plaintiff alleges that she became disabled on March 11, 2014 after she fell and hurt herself. Administrative record (AR), p. 555.

         In June 2014, Plaintiff began treatment with neurosurgeon William A. Schwank. AR, p. 649. At approximately the same time in June 2014, she applied for Supplemental Security Income benefits pursuant to Title XVI of the Social Security Act.

         In August 2014 and February 2015, Dr. Schwank performed lumbar surgeries. AR, pp. 645-646, 720-721.

         In August 2015, Plaintiff became a full-time student at a technical college.

         In October 2015, Plaintiff told treating advanced practice registered nurse (APRN) Angela Jessie that “she has seen her neurosurgeon [Dr. Schwank] and advised him she is getting better and would like to work a part time job as well as attend school.” AR, p. 885.

         In October 2015, Dr. Schwank completed a Medical Source Statement opining disabling limitations. For example, Dr. Schwank found that Plaintiff: 1) Can sit for a total (in an 8 hour working day, with normal breaks) of less than 2 hours and can stand/walk for a total of less than 2 hours (which does not allow for full-time work); 2) Would need to take unscheduled breaks every 2 hours to lie down for 30 minutes at a time; 3) Would be off task due (due to severe symptoms interfering with attention / concentration needed to perform even simple tasks) 25% of the time or more; and 4) Would be absent from work as a result of impairments / treatment more than 4 days per month. See Dr. Schwank's findings at AR, pp. 881-883 and vocational expert's (VE's) testimony based on those findings at AR, pp. 68-70.

         The ALJ's decision

         In December 2015, the ALJ issued his decision, finding that Plaintiff was not disabled from June 2014 (the application ...


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