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Cash v. Colvin

United States District Court, D. Nebraska

March 25, 2015

WILLIAM CASH, Plaintiff,
v.
CAROLYN COLVIN, Commissioner of the Social Security Administration, Defendant.

MEMORANDUM AND ORDER

F.A. GOSSETT, Magistrate Judge.

Plaintiff William Cash claims in this Social Security appeal that the Commissioner's decision to deny him benefits under Title II and Title XVI of the Social Security Act (the "Act") is contrary to law and not supported by substantial evidence. For the reasons explained below, the Commissioner's decision will be affirmed.

PROCEDURAL BACKGROUND

Plaintiff applied for benefits in August, 2012, alleging that since July 29, 2012, he has been unable to engage in any substantial and gainful work. Plaintiff's application was denied initially and on reconsideration. Plaintiff appealed the denial to an administrative law judge ("ALJ"). Following an administrative hearing, the ALJ issued an unfavorable decision on January 31, 2014, concluding that Plaintiff was not "disabled" within the meaning of the Act. (Tr. 7-28.)

In his decision, the ALJ evaluated Plaintiff's claim using the "five-step" sequential analysis prescribed by the Social Security Regulations.[1] See 20 C.F.R. ยงยง 404.1520 and 416.920. In doing so, the ALJ found that Plaintiff has the severe impairments of closed head injury with cerebral trauma, adjustment disorder with anxiety and depressed mood and right shoulder bursitis/arthritis and status post rotator cuff repair surgery. (Tr. 13.) The ALJ formulated Plaintiff's residual functional capacity ("RFC")[2] as follows:

[C]laimant retains the ability to lift or carry 10 pounds; stand or walk two hours in an eight-hour workday; sit six hours in an eight-hour workday; can push or pull within the limits given; no use of ladders, ropes or scaffolds; no work at unprotected heights or around dangerous machinery; no balancing; occasional overhead reaching with the right upper extremity; no overhead work as a primary job duty; occasional use of ramps and stairs; occasionally stoop, kneel, crouch and crawl; should avoid concentrated exposure to temperature extremes, humidity, noise, vibrations and inhaled pulmonary irritants such as fumes, odors, dust or gases; simple instructions and tasks; occasional contact with coworkers, supervisors and the general public; and, working with the general public should not be a primary job duty.

(Tr. 15.) The ALJ determined that, given Plaintiff's RFC, he was unable to perform his past relevant work as a farm worker, delivery truck driver, or feed truck driver, but that there was other work Plaintiff could perform, such as wire wrapper, printed circuit board inspector and production checker. (Tr. 21-22.) Therefore, the ALJ determined that Plaintiff was not entitled to benefits.

Plaintiff requested review of the ALJ's decision by the Appeals Council of the Social Security Administration. The Appeals Council denied Plaintiff's request for review. (Tr. 1-3.) Thus, the ALJ's decision stands as the final decision of the Commissioner of Social Security.

SUMMARY OF MEDICAL HISTORY[3]

On July 28, 2012, Plaintiff was involved in an all-terrain vehicle ("ATV") accident, in which he suffered a left subdural hematoma with some intraparenchymal hemorrhage. (Tr. 271.) A CT scan revealed evidence of petechial hemorrhages in the subfrontal region of the brain. (Tr. 278.) Plaintiff also had petechial hemorrhages and a contusion over the left temporal lobe. (Id. ) As a result, doctors performed a procedure to relieve pressure on Plaintiff's brain. (Tr. 279.) A subsequent CT scan revealed a remaining subdural hemorrhage in Plaintiff's brain. (Tr. 324-25.)

In October, 2012, Plaintiff was examined by Dr. Ronald Dobesh ("Dr. Dobesh"). (Tr. 562-63.) Dr. Dobesh found Plaintiff to be alert and oriented, but noted that Plaintiff was positive for memory impairment. (Tr. 563.) Plaintiff was examined by Dr. Dobesh again in November, 2012. (Tr. 611-614.) At that time, Dr. Dobesh noted that Plaintiff was oriented with intact memory. (Tr. 613.) Plaintiff returned to Dr. Dobesh in February, 2013, at which time Dr. Dobesh again noted that Plaintiff's memory was intact. (Tr. 601-603.)

In April, 2013, Plaintiff was examined by neurologist, Dr. Gizelle Spurgeon ("Dr. Spurgeon"). Dr. Spurgeon reported that Plaintiff had improved greatly since this accident. She noted Plaintiff's statement that he could "remember anything from 10 years ago, but he will not remember anything about the examiner in 2 hours." (Tr. 650.) Dr. Spurgeon opined that Plaintiff's reported memory trouble would likely made him disabled, but recommended that Plaintiff undergo more formal psychometric examination to document his limitations. (Tr. 651.)

In May, 2013, Plaintiff underwent a consultative mental examination with David Duke, Ph.D. ("Dr. Duke"). (Tr. 666-75.) During the examination, Dr. Duke conducted a psychological interview and administered the Wechsler Memory Scale ("WMS-IV"). Based on this testing, Dr. Duke found that Plaintiff's ability to listen to information and then recall the information twenty to thirty minutes later was in the extremely low range. (Tr. 674.) Dr. Duke observed that Plaintiff displayed a "notable amount of forgetting" between immediate and delayed tasks on the WMS-IV. (Id. ) Dr. Duke opined that Plaintiff could not sustain attention and concentration, but could understand, remember, and carry out short and simple instructions. (Tr. 673.) Dr. Duke also stated that compared to other individuals with a similar level of immediate memory capacity, Plaintiff's "delayed memory performance is in the Extremely Low range, indicating that his delayed memory is much lower than expected given his level of initial encoding." (Tr. 674.) Dr. Duke diagnosed Plaintiff with dementia due to head trauma, and noted that Plaintiff suffered mild symptoms of irritability and anxiety. (Id. )

On or about June 15, 2013, Dr. Glenda Cottam ("Dr. Cottam") reviewed Plaintiff's records and completed a mental residual functional capacity assessment. (Tr. 112-14.) Dr. Cottam opined that Plaintiff had understanding and memory limitations, but that they were moderate with respect to understanding and remembering detailed instructions, and not significant with respect to remembering locations, work-like procedures, and very simple instructions. (Tr. 110.) Dr. Cottam further found that Plaintiff was not significantly limited in his ability to make simple work-related decisions. (Tr. 111.) In reaching these conclusions, Dr. Cottam noted that Plaintiff's memory was adequate ...


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