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Blackburn v. Berryhill

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

October 18, 2018

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



         This matter is pending for consideration of Acting Commissioner of Social Security Nancy A. Berryhill's (“the Commissioner”) motion for summary judgment. [Record No. 18] Plaintiff Timothy Blackburn (“Blackburn” or “the Claimant”) did not file a motion for summary judgment and did not respond the to the Commissioner's motion.[1] Although the Court could grant the Commissioner's motion based solely on Blackburn's failure to respond, see Humphrey v. U.S. Attorney General's Office, No. 07-3740, 2008 WL 2080512, at *3 (6th Cir. May 15, 2008), the Court has examined the merits of the motion, and finds that the Commissioner's decision is supported by substantial evidence. Accordingly, the Commissioner's motion for summary judgment will be granted on the merits.

         I. Procedural History

         Blackburn 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 in July 2014. [See Administrative Transcript, “Tr., ” 233-241.] He alleged that he became unable to work on April 15, 2004, due to post-traumatic stress disorder, manic depression, anxiety, bipolar disorder, back pain, and knee pain. [Tr. 254] His claims were denied initially and upon reconsideration and, eventually, by ALJ Maria Hodges following an administrative hearing. [Tr. 119, 127, 7-20] Blackburn sought review by the Appeals Council, which was denied. [Tr. 1-3]

         Having exhausted his administrative remedies, Blackburn filed a Complaint in this Court in November 2017, alleging that the ALJ's decision was not supported by substantial evidence. [Record No. 1] The Commissioner filed a timely Answer and the Court entered General Order 13-7, which requires the plaintiff to move for summary judgment or judgment on the pleadings within 60 days. [Record No. 10] Blackburn failed to do so, but asked for an extension of time after the 60-day period had expired. [Record No. 11] The request for an extension of time was denied because Blackburn's attorney did not provide good reasons or excusable neglect for his failure to file a timely motion or ask for an extension within the period for doing so. [Record No. 12]

         The Court directed the Commissioner to file a motion for summary judgment within 30 days and Blackburn was given 15 days to respond. [Record No. 17] The Commissioner filed her motion for summary judgment on July 26, 2018. [Record No. 18] Blackburn's deadline for filing a response has now passed.

         II. Background

         Blackburn was 33-years-old at the time of the ALJ's decision and lived with his wife and 11-year-old daughter. [Tr. 18-20, 56, 255] He had an eighth-grade education and had worked as a cook in fast food restaurants, a telemarketer, and an inspector for an automotive company. [Tr. 45-48] He had a driver's license but lost it around 2004 due to non-payment of child support. [Tr. 43]

         Blackburn reported that he became unable to work due to back and neck pain and anxiety. [Tr. 49] He stated that he was receiving injections for his back, but the clinic was shut down. [Tr. 49-50] Blackburn also reported that his primary care provider, Melissa Frederick, prescribed medication that helped with the pain to some extent. [Tr. 52] However, he advised that he was unable to lift a gallon of milk, walk more than 50 to 100 feet, or sit for more than 20 to 30 minutes. [Tr. 53-55] Blackburn also reported using a cane that Frederick had prescribed after diagnosing him with two torn menisci. [Tr. 54]

         Blackburn received mental health counseling at Pathways, Inc., in Ashland, Kentucky from May 2011 through February 2012 and briefly in 2014. [Tr. 362-91; 419-25] He was diagnosed with major depressive order, anxiety disorder, and posttraumatic stress disorder (“PTSD”). [Tr. 362] Counselors assisted Blackburn in developing coping strategies to deal with feelings of depression and enhance self-confidence. [Tr. 363-64] Although he had attempted suicide at the age of 17, there were no current suicidal thoughts or plans, and no current thoughts of violence toward others. [Tr. 368] Norman Rubin, APRN, evaluated Blackburn and prescribed medications for mood disorder and anxiety during his initial visit in May 2011. [Tr. 375-76]

         Blackburn's primary care provider was Melissa Frederick, APRN, who began treating him in 2014. Frederick diagnosed Blackburn with low back pain, neck, and knee pain and prescribed anti-inflammatories and pain medication including ibuprofen, tramadol, baclofen, Norco, and Fioricet. [Tr. 403-07]

         Frederick ordered several diagnostic studies regarding Blackburn's neck, back, and knee in the summer of 2014. An MRI of the lumbar spine revealed mild degenerative joint disease (“DJD”) and “small disc herniations” at ¶ 4-L5 and L5-S1. [Tr. 431] X-rays of the left knee and thoracic spine were normal. [Tr. 432, 439] An MRI of the thoracic spine revealed DJD and small disc herniations at ¶ 7-T8 and T8-T9. [Tr. 436] An MRI of the left knee revealed mild DJD and “very small medial and lateral meniscal tears.” [Tr. 438] An MRI of the cervical spine revealed mild DJD and small herniations at ¶ 3-C4, C4-C5, and C5-C6. [Tr. 434]

         Frederick referred Blackburn to James Bean. M.D., a neurosurgeon, in October 2014. [Tr. 401-02] Bean noted that changes seen on cervical and lumbar MRIs were mild and reported that surgical intervention was not necessary. Id. He also indicated that Blackburn had no gait disturbance, weakness, tremor, or sensory loss. [Tr. 402]

         Frederick completed a medical source statement in September 2016. [Tr. 426-30] She reported that Blackburn could sit for only two hours and would need six hours of bedrest during an eight-hour workday. She also assigned Blackburn significant environmental limitations and reported that use of his arms and legs caused numbness and pain. [Tr. 427-28] She cited the MRI results in support of her ...

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