United States District Court, W.D. Kentucky, Louisville
DEXTER M. LEE PLAINTIFF
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT
CHARLES R. SIMPSON III, SENIOR JUDGE UNITED STATES DISTRICT
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.
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
DN 13-2, p. 36.
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.
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.
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.
“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.
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
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 ...