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Lee v. Berryhill

United States District Court, W.D. Kentucky, Louisville

November 29, 2017

DEXTER M. LEE PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT

          MEMORANDUM OPINION

          CHARLES R. SIMPSON III, SENIOR JUDGE UNITED STATES DISTRICT COURT

         This matter is before the court for consideration of the Findings of Fact, Conclusions of Law, and Recommendation of the United States Magistrate Judge in this action seeking judicial review pursuant to 42 U.S.C. § 405(g) of the denial by the Commissioner of Social Security (“Commissioner”) of plaintiff Dexter M. Lee's claim for disability insurance benefits (“DIB”) and for supplemental security income (“SSI”). The magistrate judge conducted a review of the findings set forth in the final decision of the Commissioner, concluding that substantial evidence supported the findings and recommended that the decision be affirmed. Lee has filed objections to the magistrate judge's report which we address below.

         By way of background, Lee was 48 years old when he allegedly became disabled on July 17, 2014. Lee filed for DIB and SSI in December 2014. Lee's initial claims for benefits were denied and were denied on reconsideration. Lee requested and was given a hearing before the administrative law judge (“ALJ”) on October 15, 2015 at which time Lee appeared, represented by counsel, and gave testimony. Testimony was also taken from an impartial vocational expert who participated via telephone. On December 1, 2015, the ALJ issued a written opinion evaluating the evidence under the required 5-step process and concluding that

Based on the application for a period of disability and disability insurance benefits protectively filed on December 5, 2014, the claimant is not disabled under sections 216(i) and 223(d) of the Social Security Act.
Based on the application for supplemental security income protectively filed on December 5, 2014, the claimant is not disabled under section 1614(a)(3)(A) of the Social Security Act.

DN 13-2, p. 36.

         We need not recount the ALJ's entire analysis here, as it is described in detail in the magistrate judge's report. Instead, we focus on the two particular issues raised by Lee in objection to the magistrate judge's decision and recommendation to affirm the ALJ's decision. Lee first challenges the magistrate judge's conclusion that there was no reversible error by failing to include “Lee's status post lumbar fusion” as a severe impairment in Finding 3.

         The magistrate judge found no error in the ALJ's failure to include Lee's “status post lumbar fusion and laminectomy, foraminotomy/facetectomy at two levels with instrumentation and graft” in his Finding 3 of severe impairments. The magistrate judge's reasoning was two-fold. First, the ALJ acknowledged and described the condition in Finding 4. Second, he took the condition into account in formulating Lee's Residual Functional Capacity (“RFC”) in Finding 5.

         Further, the magistrate judge found that the failure to include Lee's post-surgery status in Finding 3 was not reversible error inasmuch as Finding 3, in essence, merely performs a gatekeeping function to screen out groundless claims. The magistrate judge correctly explained that the finding that a claimant has a severe impairment prompts the inquiry to continue with the remaining steps of the disability evaluation. Here, the ALJ correctly continued the 5-step process. Groundless claims are eliminated where no severe impairment is identified and the evaluation terminates at that step. Here, the ALJ found severe impairments and continued with the remaining steps in the evaluation process. Thus there was no reversible error in Finding 3.

         Lee's “objection” is that “the nature of the omitted impairment…brings into focus the necessity for a statement of the case and discussion of the evidence in understandable language giving the reason(s) for the decision.” DN 22, pp. 2-3. While Lee's meaning is not entirely clear, his objection to the omission of Lee's impairment from Finding 3 does not suggest that the omission constituted error, much less reversible error. That is, he does not argue that all severe impairments had to be included in an itemization in Finding 3. Rather Lee continues, in the remainder of the paragraph, to delve into his other objection that the ALJ improperly discounted Lee's self-reports of pain.

         As noted by the magistrate judge, the ALJ found that Lee's medically determinable impairments could be expected to cause the alleged symptoms, but that Lee's statements concerning the intensity persistence and limiting effects of these symptoms were not entirely credible. DN 21, p. 9.

The ALJ carefully evaluated the medical records and determined that
despite the claimant's testimony of debilitating pain and functional limitations, the undersigned notes that office treatment records from the claimant's treating spine surgeon (Exhibits 19F, 17F and 2F), pain management physician (Exhibit 9F) and primary care providers (Exhibits 8F and 3F) do not mention anywhere near the severity and frequency of alleged pain and functional limitations from ...

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