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Gowdy v. Berryhill

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

February 22, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT


          Lanny King, Magistrate Judge United States District Court.

         This matter is before the Court on Plaintiff's Complaint seeking judicial review, pursuant to 42 U.S.C. § 405(g), of the final decision of the Commissioner denying his claim for Social Security disability benefits. The fact and law summaries of Plaintiff and Defendant are at Docket # 15 and Docket # 18, respectively, and the case is ripe for determination. The parties have 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 # 13).

         Plaintiff, a former combat veteran, applied for disability benefits through the Veterans Administration (VA). The VA adjudicated him to be 50-percent disabled due to service-connected post- traumatic stress disorder (PTSD) and, effective November 19, 2010, increased his disability rating to 100 percent. (Administrative Record (AR), pp. 416 and 951). In May 2013, apparently as part of an ongoing VA review of his disability status, Plaintiff was examined by clinical psychologist John Lacy, Ph.D.[1] Dr. Lacy completed the PTSD Questionnaire. (AR, pp. 875-86).

         20 C.F.R. § 404.1527(c) requires that “[r]egardless of its source [e.g., the VA], we [i.e., the Social Security Administration] will evaluate every medical opinion we receive.” The Administrative Law Judge's (ALJ's) mental residual functional capacity (RFC) finding did not accord with applicable legal standards because the ALJ's decision did not “evaluate” (or even mention) Dr. Lacy's assessment.

         Accordingly, the Court will REMAND this matter to the Commissioner for a new decision evaluating Dr. Lacy's findings and opinions.

         In considering Plaintiff's third argument, the Court considered Dr. Lacy's assessment.

         Plaintiff presents three arguments. (Docket # 15, p. 2). First, “the ALJ erred in finding [Plaintiff] to have no severe physical impairment, especially with regard to the right knee and lumbar spine.” (Id.). Second, “the ALJ failed to consider Listing 12.02 regarding [Plaintiff's] neurocognitive impairment.” (Id.). Third, “the ALJ failed to properly consider the evidence underlying the VA's determination that the claimant is 100% service-connected disabled due to PTSD.” (Id.).

         The Court will consider Plaintiff's third argument first. While Plaintiff did not specifically mention Dr. Lacy by name, the Court will exercise its discretion to consider Dr. Lacy's findings and opinions contained in his completion of the PTSD Questionnaire. (AR, pp. 875-86).

         The ALJ erred in not evaluating the weight given to Dr. Lacy's assessment.

         Plaintiff is a veteran of the Gulf War Era, who served in the Army and was deployed to Iraq on four occasions from May 2002 through November 2009. (AR, p. 416). Plaintiff was hit on multiple occasions by improvised explosive devices (IEDs) while in his vehicle and witnessed the deaths of two particularly close friends. One died in an explosion right beside Plaintiff and the other was hit, removed from the vehicle (dead or dying), and left on the roadside to be airlifted out (AR, pp. 44-52; 718-19; 952; 982). Plaintiff experiences flashbacks and panic attacks, gets triggered by flashing lights, loud noises, and gas/diesel odors, acts hypervigilant in vehicles, plays an MP3 player at low volume with headphones when in a vehicle or in public to counteract intrusive recollections, and suffers insomnia and reluctance to sleep due to intrusive nightmares. (Id.). Upon return from service, Plaintiff initially self-medicated with alcohol (as much as a pint of whiskey and a 12-pack per day), but he reports having stopped or considerably reduced his consumption. (AR, p. 39). Plaintiff's wife and two children initially separated from him until he was willing to work on his PTSD issues. (AR, p. 884). Plaintiff is currently enrolled in the PTSD clinical teams (PCT) program, attends biweekly telemental health sessions, and engages in individual therapy through the VA Mental Health Clinic (MHC). (AR, p. 880).

         According to Dr. Lacy, Plaintiff's symptoms include: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; impairment of short- and long-term memory; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; and suicidal ideation. (AR, pp. 882-83).

         Dr. Lacy's PTSD Questionnaire tracks Criteria A through F of the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition. (DSM-4). According to Dr. Lacy, Plaintiff's A through F Criteria are as follows (AR, pp. 881-82):

         Criterion A

         The Veteran has been exposed to a traumatic event where both of the following were present:

• The Veteran experienced, witnessed or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others.
• The Veteran's response involved intense fear, ...

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