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Tyrrell v. Berryhill

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

September 28, 2018

JOSEPH TYRRELL PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT

          MEMORANDUM OPINION AND ORDER

          Lanny King, Magistrate Judge.

         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. Plaintiff's fact and law summary is at Docket # 20, and Defendant's fact and law summary is at Docket # 27. The matter is ripe for determination. Plaintiff consented to the jurisdiction of Magistrate Judge Whalin to determine this case, with any appeal lying before the Sixth Circuit Court of Appeals. (Docket # 17). Following Magistrate Judge Whalin's retirement, the Court reassigned the matter to the undersigned Magistrate Judge for all further proceedings. (Docket # 26). Plaintiff has impliedly consented to the jurisdiction of the undersigned.[1]

         Plaintiff applied for Disability Insurance Benefits (DIB) pursuant to Title II of the Social Security Act, and he was last insured for Title II benefits on March 31, 2016. (Administrative Record (“AR”), p. 30). The administrative law judge (ALJ) found that Plaintiff suffers from a seizure disorder (AR, p. 3). Plaintiff argues that the ALJ erred in finding that (prior to his date last insured) because: 1) His epilepsy did not satisfy the medical criteria of Listing 11.02 (AR, pp. 35-36); and 2) He could perform a limited range of medium work (AR, p. 36).

         Because Plaintiff's arguments are unpersuasive, the Court will AFFIRM the Commissioner's final decision and DISMISS Plaintiff's Complaint.

         Plaintiff's first argument is unpersuasive.

         Regarding his first argument, Plaintiff carries the burden of proving that the medical criteria of the Listing are satisfied, and this burden is strictly construed because the Listing represents an automatic screening in of an impairment as per-se disabling (independently of any other medical or vocational consideration). See Sec'y of Health & Human Services v. Zebley, 493 U.S. 521, 530 (1990) (“An impairment that manifests only some of [a Listed impairment's] criteria, no matter how severely, does not qualify” as satisfying the Listing); Elam ex rel. Golay v. Comm'r of Soc. Sec., 348 F.3d 124, 125 (6th Cir. 2003) (“It is insufficient that a claimant comes close to meeting the requirements of a listed impairment” to satisfy the Listing).

         Listing 11.02 provides that the following medical impairment (epilepsy) is per-se disabling:

         11.02 Epilepsy, documented by a detailed description of a typical seizure and characterized by A, B, C, or D:

         A. Generalized tonic-clonic seizures (see 11.00H1a), occurring at least once a month for at least 3 consecutive months (see 11.00H4) despite adherence to prescribed treatment (see 11.00C); or

         B. Dyscognitive seizures (see 11.00H1b), occurring at least once a week for at least 3 consecutive months (see 11.00H4) despite adherence to prescribed treatment (see 11.00C); or

         C. Generalized tonic-clonic seizures (see 11.00H1a), occurring at least once every 2 months for at least 4 consecutive months (see 11.00H4) despite adherence to prescribed treatment (see 11.00C); and a marked limitation in one of the following:

1. Physical functioning (see 11.00G3a); or
2. Understanding, remembering, or applying information (see ...

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