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Boyd v. Berryhill

United States District Court, E.D. Kentucky, Northern Division, Covington

September 26, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Joseph M. Hood Senior U.S. District Judge.

         Plaintiff Richard Dean Boyd (Plaintiff) seeks judicial review of the Commissioner's final decision denying his claim for both Disability Insurance Benefits (DIB) and supplemental security income (SSI) pursuant to Titles II and XVI of the Social Security Act (Tr. 174-78). See 42 U.S.C. §§ 401-33, 1381-1383c. The matter is before the Court on cross-motions for summary judgment (DEs 9 and 11).

         On November 14, 2013, Plaintiff filed his claims for DIB and SSI (Tr. 174-78). He pursued these claims to a de novo hearing before an ALJ in May 2016 at which Plaintiff-with the assistance of his attorney-and a vocational expert testified (Tr. 31-85). On May 31, 2016, the ALJ issued an unfavorable decision (Tr. 10-30). Plaintiff requested Appeals Council review of the ALJ's decision (Tr. 9, 328-32). The Appeals Council denied the request (Tr. 1- 5), making the ALJ's decision the Commissioner's final decision for purposes of judicial review. See 20 C.F.R. § 422.210(a).

         Plaintiff was 47 years old on the date of the ALJ's decision (Tr. 34, 174). He has a high school equivalent education (Tr. 39, 235) and past work experience as a customs and border patrol agent, mechanic, and tow truck driver (Tr. 72-73, 179-215, 235, 247-55, 327). He alleged disability since November 14, 2013 (Tr. 174) ostensibly due to high blood pressure, diabetes, low back strain, migraine headaches, a left shoulder impairment, high cholesterol, thyroid problems, posttraumatic stress disorder (PTSD), anxiety, and depression (Tr. 234, 276).


         The medical evidence showed that Plaintiff, who served in the Army during the Gulf War, underwent most of his treatment at Veterans Administration facilities. Prior to his alleged onset date, in March 2013, he underwent a “Fitness for Duty Evaluation” at the behest of Customs and Border Protection (Tr. 644). He had applied for disability retirement based on pain in his shoulder, knee, and back, high blood pressure, and PTSD (Tr. 644). Lynn Soffer, M.D., said that, “[b]ased on the information provided with respect to back pain, shoulder pain, and knee pain requiring narcotic medication and causing inability to perform many essential job duties, I recommend that [Plaintiff] is not fit for duty for the position of Customs and Border Protection Officer” (Tr. 645) (emphasis in original). In June 2013, the Department of Veterans Affairs issued a decision in which it found that Plaintiff had a 100 percent service-connected disability (Tr. 217-24). The following November, the Office of Personnel Management informed Plaintiff that it approved his application for disability retirement from his position as a Customs and Border Protection Officer due to anxiety (Tr. 226-29).

         In January 2014, after his alleged onset date, Plaintiff underwent an MRI study of his low back (Tr. 381), which showed a decrease in a previously identified disc protrusion, but otherwise no significant changes since May 2009 (Tr. 383). In February 2014, Geoff Schwerzler, Psy.D., examined Plaintiff at the request of the state agency (Tr. 373-78). Dr. Schwerzler diagnosed PTSD and said Plaintiff's prognosis was likely “guarded” at that time and his mental health conditions were quite serious, however they appeared to be treated consistently and over time, he might improve somewhat (Tr. 377). He said Plaintiff

has no significant difficulty understanding and remembering simple one or two step instructions. He has noticeable problems with concentration and his task completion is likely below average at this time. He has no major problems with his memory. His ability to interact with peers, coworkers or supervisors is likely seriously impaired at this time. His ability to adapt and respond to stress is likely moderately impaired as well. [Plaintiff] is able to read and write adequately at this time. His problem solving and judgment are adequate at this time and he does have some problems completing activities of daily living on his own.

(Tr. 377-78).

         In March 2014, Donna Sadler, M.D., a state agency physician, reviewed the evidence and assessed limitations consistent with a range of light work that did not require climbing of ladders, ropes, or scaffolds; more than four hours of standing and/or walking and about six hours of sitting each in an eight-hour workday; or more than occasional pushing or pulling with his left arm, climbing of ramps and stairs, balancing, stooping (i.e., bending at the waist), kneeling, crouching, crawling, reaching, and handling (Tr. 102-16). The following month, Jacob Forrester, M.D., a psychiatrist affiliated with the Veterans Administration, said Plaintiff had PTSD and persistent depressive disorder with anxious distress, late onset and intermittent depressive episodes (current episode severe) (Tr. 649). He said he was “separate from the disability process, and in fact ha[d] never been an evaluator for the process” (Tr. 649). Therefore, he was “unaware [of the] standard practice of the evaluations, and c[ould] only offer statements such as this to clarify [his] Clinic's evaluation and treatment process” (Tr. 649).

         In July 2015, Matthew DesJardins, M.D., a physician with the Veterans Administration, said Plaintiff had limited range of motion in his left shoulder as the residual effect of a prior open reduction and internal fixation (ORIF) and subsequent surgeries for clavicle fracture (Tr. 653). He diagnosed Plaintiff with chronic left shoulder pain (Tr. 654). He noted that Plaintiff sustained a left clavicle fracture while in the military in 1994, and, after nonunion of the fracture, underwent ORIF and developed an infection, which necessitated removal of the plate and debridement of the clavicle and rotator cuff (Tr. 654). He said Plaintiff had pain with range of motion and weight bearing in the left shoulder (Tr. 656). He said Plaintiff had muscle atrophy to the deltoid and biceps (Tr. 658). He said Plaintiff's left shoulder condition affected his ability to lift greater than five pounds occasionally, perform above the shoulder activities, and do any repetitive activities with the left upper extremity (Tr. 661).

         In January 2016, Michael Fletcher, M.D., a physician with Interventional Pain Specialists, said Plaintiff's prognosis was fair (Tr. 789). He said Plaintiff's pain would interfere with attention and concentration frequently (Tr. 790). He said he had a “marked” limitation on his ability to deal with work stress (Tr. 790). He said Plaintiff could sit for two hours and stand for 20 minutes each at one time (Tr. 790). He said Plaintiff could sit for about two hours and stand/walk for less than two hours each in an eight-hour day (Tr. 790). He also said he had to walk every 30 minutes for five minutes, could only occasionally lift less than 10 pounds, was limited in his ability to reach, could not bend and twist at the waist at all, and would be absent from work more than three times per month (Tr. 792).

         Later that month, Plaintiff underwent surgical implantation of a trial spinal cord stimulator (Tr. 867-70). In February 2016, Plaintiff underwent a mid-back MRI study (Tr. 894), which showed multilevel degenerative changes with moderate disc protrusions and subtle anterior kinking of the cord with questionable areas of increased signal and differential considerations including arachnoid synechia secondary to degenerative disc changes and less likely cord herniation or arachnoid cyst (Tr. 894-95). The following month, Plaintiff underwent thoracic laminectomy surgery and placement of a Medtronic permanent epidural paddle lead and subcutaneous pulse generator for spinal cord stimulation (Tr. 900-01).

         ALJ'S ...

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