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Clem v. Berryhill

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

January 24, 2018

JEREMIAH WILLIAMS CLEM, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          Danny C. Reeves United States District Judge

         Plaintiff Jeremiah Williams Clem ("Clem" or "the Claimant") and Defendant Nancy A. Berryhill, Acting Commissioner of Social Security ("the Commissioner") have filed cross motions for summary judgment. [Record Nos. 1');">1');">1');">11');">1');">1');">1, 1');">1');">1');">13] Clem contends that the administrative law judge ("ALJ") assigned to his case erred by denying claims for disability income benefits ("DIB") and supplemental security income ("SSI"). He requests that the Court direct a finding of disability or that the matter be remanded for further administrative proceedings. The Commissioner contends that the ALJ's decision is supported by substantial evidence and should be affirmed. For the reasons discussed below, the Court will grant the Commissioner's motion and deny the relief Clem seeks.

         I. Procedural History

         Clem filed concurrent applications for a period of disability and DIB under Title II of the Social Security Act ("the Act") and SSI under Title XVI of the Act on June 6, 201');">1');">1');">14. [Administrative Transcript, "Tr., " 1');">1');">1');">188-1');">1');">1');">191');">1');">1');">1] He alleged that he became unable to work on May 31');">1');">1');">1, 201');">1');">1');">14, due to issues associated with bacterial meningitis. [Tr. 21');">1');">1');">18] His claims were denied initially and upon reconsideration and, eventually, by ALJ Dennis Hansen following a hearing. [Tr. 1');">1');">1');">10-23] Clem sought review by the Appeals Council, but relief was denied at that level of review as well. [Tr. 1');">1');">1');">1-3] Accordingly, the Claimant has exhausted his administrative remedies and this matter is ripe for review under 42 U.S.C. §§ 405(g), 1');">1');">1');">1383(c)(3).

         II. Background

         Clem completed high school and one year of college. [Tr. 31');">1');">1');">1] He worked in a number of different coal mining positions over a period of 1');">1');">1');">12 years. [Tr. 32, 274] This included working underground as a foreman, a roof bolter, and a “belt man, ” where he lifted up to 90 pounds. [Tr. 32-33] Clem reported in his application for benefits that he was laid off due to a downturn in the economy in June 201');">1');">1');">13. [Tr. 21');">1');">1');">18] However, he testified during his hearing before the ALJ that he quit his job because of low back pain. [Tr. 35]

         Clem lives with his parents and his two children. [Tr. 35-36] Besides low back pain, Clem reports that he has diabetes and gets sick frequently following removal of his spleen. [Tr. 39] He reports that he suffered a bout of bacterial meningitis in 201');">1');">1');">14 and, since then, he has difficulty with comprehension. Id. Clem also has a history of alcoholism, but reports having been sober since 201');">1');">1');">14. [Tr. 42]

         The Claimant's pertinent medical history is summarized as follows: Clem was taken to his local emergency department in May 201');">1');">1');">14 after he became disoriented and agitated. [Tr. 283] He was stabilized and transferred to the University of Kentucky Medical Center, where he eventually was diagnosed with meningitis. [Tr. 370-402] Initial scans of his brain appeared normal, but an MRI later revealed that he had suffered multiple small strokes. [Tr. 471');">1');">1');">1] Following hospitalization of approximately twenty days, Clem participated in outpatient physical therapy. [Tr. 460] During that time, he worked to address strength and balance deficits. By August 201');">1');">1');">14, Clem's neurologist reported that he did not have any residual deficits from the strokes and that his muscle strength was five-out-of-five. [Tr. 471');">1');">1');">1-72] The doctor noted, however, the Clem gave poor effort during muscle testing. [Tr. 472]

         Clem saw Dr. Greg Dye for treatment of low back pain in October 201');">1');">1');">14. Diagnostic imaging revealed mild degenerative changes of the lumbar spine. [Tr. 61');">1');">1');">19] Dye diagnosed Clem with lumbosacral spondylosis without myelopathy and prescribed Mobic, which helped improve his symptoms. [Tr. 61');">1');">1');">19, 628, 638] Dye referred Clem for an evaluation with Dr. Sidhu in January 201');">1');">1');">16. [Tr. 649] Sidhu noted that Clem had decreased lumbar range of motion, but no gross neurological deficits and no signs of sciatic tension. [Tr. 649] Dr. Sidhu recommended that Clem use heat, perform exercises, and continue with the anti-inflammatory medication, as prescribed. Id.

         Dr. Abdul Dahhan was the Claimant's primary care provider. [Tr. 477] Clem saw Dahhan for bilateral foot swelling and leg numbness. Dahhan performed a monofilament test and noted that sensation was intact. [Tr. 479, 483, 490] Dahhan also treated Clem for low back pain in May 201');">1');">1');">15. Dahhan reported that Clem had pain with lumbar flexion beyond thirty degrees, but his straight leg raise was negative and there was no tenderness of the paraspinous muscles. Ultimately, Dahhan diagnosed a lumbar sprain or strain and did not provide any intervention. [Tr. 586. 593, 602]

         State agency physician Alex Guerrero, M.D., reviewed the Claimant's file in April 201');">1');">1');">15. [Tr. 88] After reviewing all of the medical evidence up to that point, Guerrero determined that Clem's allegations regarding his physical limitations were partially credible. Id. Ultimately, however, he concluded that Clem had no physical impairments which greatly reduced his ability to perform one or more basic work activities. Id.

         Emily Skaggs, Psy.D., performed a consultative psychological examination in December 201');">1');">1');">14. [Tr. 501');">1');">1');">1] Clem reported to Skaggs that, after contracting meningitis, it took two months to regain the ability to walk and that he had gained a significant amount of weight. [Tr. 501');">1');">1');">1] He advised Skaggs that he had problems with depression because he was unable to do the things he used to do, such as play with his children. [Tr. 502] Skaggs observed that Clem's posture and gait were normal and that his motor activity was unremarkable. [Tr. 503]

         Skaggs administered several tests to Clem, including the Wechsler Adult Intelligence Scale-IV (“WAIS-IV”) and the Wechsler Memory Scale-IV. [Tr. 504-05] His full-scale IQ was 71');">1');">1');">1, which falls within the borderline range. [Tr. 504] Skaggs determined that Clem's capacity to understand, remember, and carry out instructions toward the performance of simple, repetitive tasks was affected by his symptoms to a slight degree. [Tr. 507] However, she believed that his ability to tolerate the stress of day-to-day employment and to respond appropriately to supervisors and co-workers was affected to a marked degree. Id. Further, his ability to sustain attention and concentration was affected to a moderate degree. Id.

         Jane Brake, Ph.D., reviewed Clem's file on behalf of the state in December 201');">1');">1');">14. [Tr. 61');">1');">1');">1] Brake found Clem's allegations regarding his psychological limitations partially credible. [Tr. 64] She noted that Clem had never been referred for psychiatric treatment in the past. Id. Further, he reported that he helped his children get ready for school, managed bills, attended outpatient physical therapy, and watched television. Id. Brake opined that the low test scores produced during the evaluation with Skaggs were not consistent with the preponderance of the evidence. She concluded ...


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