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Kyle v. Berryhill

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

July 22, 2019

GREGORY ALLAN KYLE 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. The fact and law summaries of Plaintiff and Defendant are at Dockets # 25 and 30. 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 # 12.)

         Because Plaintiff's arguments are unpersuasive and the Administrative Law Judge's (ALJ's) decision is supported by substantial evidence, the Court will AFFIRM the Commissioner's final decision and DISMISS Plaintiff's complaint.

         The ALJ's findings

         The ALJ denied Plaintiff disability claim at the fifth and final step of the familiar five-step sequential evaluation process. First, the ALJ found that Plaintiff has not engaged in substantial gainful activity since February 28, 2009, when he alleges he became disabled. (Administrative Record (AR) at 16.) Second, the ALJ found that Plaintiff has the following severe, or vocationally significant, impairments: history of substance abuse; a seizure disorder; a cognitive disorder; alcohol-related neuropathy; a shoulder disorder; and depression. (Id.) Third, the ALJ found that Plaintiff does not suffer from any impairment satisfying the clinical criteria of any impairment listed in Appendix 1 of the regulations. (Id.)

         As required in any case that advanced beyond step 3, the ALJ determined Plaintiff's residual functional capacity (RFC). The ALJ found that Plaintiff's physical impairments allow him to perform a limited range of light work. (AR at 17.) He can “sit, stand, and walk up to six hours each in an eight-hour workday, with the ability to change positions without leaving the workstation, ” but he should “never be exposed to unprotected heights or dangerous machinery” and he should “avoid concentrated exposure to extreme heat.” (Id.) Plaintiff's mental impairments allow him to “perform entry level work with simple 1-2-3 step procedures, ” but he should avoid work requiring “fast-paced assembly lines or rigid production quotas” or more than “occasional and casual contact with the public.” (Id.)

         Fourth, the ALJ found that Plaintiff is unable to perform any past relevant work. (AR at 20.) Fifth, the ALJ found that Plaintiff has not been disabled through the December 4, 2017 decision date because he retains the ability to perform a significant number of light jobs in the national economy such as egg washing machine tender, agricultural produce sorter, and monogram machine tender. (AR at 21-22.)

         First argument

         Plaintiff makes four arguments. First, he argues that his seizure disorder meets or equals the clinical criteria of Listing 11.02, which addresses convulsive epilepsy. (Docket # 25 at 4.) The ALJ stated that she had “consulted appropriate listings in this case, including listings under section[] … 11.00” and found, regarding Plaintiff's seizure disorder, that “the medical evidence of record fails to show a listing level of severity … on a sustained basis.” (AR at 16.) For the reasons below, the ALJ's finding is supported by substantial evidence.

         Listing 11.02 requires that Plaintiff experience convulsive seizures more than once a month, despite prescribed treatment. The ALJ found that Plaintiff does not follow prescribed treatment:

[Plaintiff's] seizure activity [since May 9, 2009] has been sporadic, and seems to have reasonably been well controlled if [Plaintiff] is compliant with his medication. For instance, on March 7, 2012, [Plaintiff] reported that his last seizure occurred on November 21, 2011. At this time, he indicated that thought Keppra had contributed to him being fee from seizure activity. [AR at 1078.]
Unfortunately, the claimant has not always taken his Keppra as prescribed. On September 5, 2014, he was documented to be inconsistent in taking his doses of Keppra. [AR at 1221.] The evidence contains other examples of noncompliance. Notable, [Plaintiff] was reported to have left the hospital against medical advice on May 25, 2013, after presenting to the emergency room with seizure activity. [AR at 1335, 1338.]

(AR at 18-19.)

         Plaintiff admits that he has he “consistently struggles with taking medication due to his memory issues.” (Docket # 25 at 10.) “This is well documented as an ongoing issue.” (Id.) Plaintiff states that he has “rather profound memory loss and is quite dependent on his mother for ...


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