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Ebert v. Colvin

United States District Court, D. Nebraska

January 15, 2016

CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.



This matter is before the Court on the denial, initially and upon reconsideration, of the plaintiff Christopher Nicholas Ebert's application for supplemental social security income benefits under Title XVI of the Act, 42 § 1381, et seq. The Court has considered the parties' filings and the administrative record. For the reasons discussed below, the Commissioner's decision is affirmed.


Ebert applied for supplemental social security income benefits on January 14, 2011. T100.[1] His claim was denied initially on May 18, 2011, T104-07, and upon reconsideration on August 12, 2011, T116-19. Ebert appealed and requested a hearing from an administrative law judge (ALJ). T125. The ALJ held three hearings on the matter. T31, 41, 66. The first hearing took place on November 27, 2012. T31. It was continued to provide the medical expert with an additional exhibit. T37. The second hearing took place on December 4, 2012. T41. That hearing was continued to obtain a statement from Ebert's treating cardiologist as to whether he was a candidate for heart transplant. T65. The third hearing took place on March 20, 2013. T66. The medical expert from the prior two hearings was unavailable, so a different medical expert testified at the third hearing. T68. In a decision dated April 9, 2013, the ALJ found that Ebert was not disabled as defined under 42 U.S.C. § 1382c, and therefore not entitled to benefits. T25.

1. Sequential Analysiss

Disability, for purposes of the Social Security Act, is defined as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 1382c(3)(A). To determine whether a claimant is entitled to disability benefits, the ALJ performs a five-step sequential analysis. 20 C.F.R. § 404.1520(a)(4). At step one, the claimant has the burden to establish that he has not engaged in substantial gainful activity since his alleged disability onset date. Cuthrell v. Astrue, 702 F.3d 1114, 1116 (8th Cir. 2013). If the claimant has engaged in substantial gainful activity, he will be found not to be disabled; otherwise, at step two, he has the burden to prove he has a medically determinable physical or mental impairment or combination of impairments that significantly limits his physical or mental ability to perform basic work activities. Id.

At step three, if the claimant shows that his impairment meets or equals a presumptively disabling impairment listed in the regulations, he is automatically found disabled and is entitled to benefits. Id. Otherwise, the analysis proceeds to step four. But first, the ALJ must determine the claimant's residual functional capacity (RFC), which is used at steps four and five. 20 C.F.R. § 404.1520(a)(4). A claimant's RFC is what he can do despite the limitations caused by any mental or physical impairments. Toland v. Colvin, 761 F.3d 931, 935 (8th Cir. 2014). At step four, the claimant has the burden to prove he lacks the RFC to perform his past relevant work. Cuthrell, 702 F.3d at 1116. If the claimant can still do his past relevant work, he will be found not to be disabled; otherwise, at step five, the burden shifts to the Commissioner to prove, considering the claimant's RFC, age, education, and work experience, that there are other jobs in the national economy the claimant can perform. Id.; Jones v. Astrue, 619 F.3d 963, 971 (8th Cir. 2010).

2. The ALJ's Findings

Ebert alleges disability primarily as a result of cardiomyopathy. T378. He initially alleged an onset date of November 1, 2010, but later amended it to January 14, 2011. T362, 44. At that time, Ebert was 28. See T362.

At step one, the ALJ found that Ebert had not engaged in substantial gainful activity following his alleged onset date. T16. Next, at step two, the ALJ found that Ebert's dilated cardiomyopathy and congestive heart failure were severe impairments. T16. At step three, the ALJ found that Ebert had no impairment that met or medically equaled a listed impairment. T17. The ALJ then determined that Ebert had the RFC to perform sedentary work as defined in 20 C.F.R. § 416.967(a), i.e., lifting and carrying 10 pounds occasionally and less than 10 pounds frequently, sitting 1 hour at a time for a total of 6 hours in an 8-hour workday followed by a break of 2 to 4 minutes standing, standing 1 hour at a time for a total of 2 hours in an 8-hour workday, and walking 2 hours at a time for a total of 4 hours in an 8-hour workday. T17. Further, the ALJ found that the claimant could less than occasionally balance, stoop, kneel, crouch, and crawl; occasionally climb stairs and ramps, work in extreme cold and heat, and work with exposure to dust, odors, fumes, and pulmonary irritants; he could never climb ladders, ropes, and scaffolds, work at unprotected heights, work around moving mechanical parts, or drive commercially; and he would have no problem with vibrations. T17.

At step four, the ALJ found, based upon the testimony of a vocational expert, that Ebert could not perform any past relevant work. T23. At step five the ALJ found that, based on the vocational expert's testimony, Ebert could perform jobs that existed in significant numbers in the national economy. T24. So, the ALJ found that Ebert was not disabled. T25.

On June 20, 2014, the Appeals Council of the Social Security Administration denied Ebert's request for review. T1. Ebert's complaint (filing 1) seeks review of the ALJ's decision as the final decision of the Commissioner under sentence four of 42 U.S.C. § 405(g).


On November 22, 2010, about 2 months before the alleged onset date, Ebert went to the emergency room at Immanuel Medical Center for abdominal pain, fever, chills, vomiting, diarrhea, and body aches. T502. He was diagnosed with pneumonia and probable gastritis. T503. His chest was x-rayed, and Barry L. Fanders, M.D. noted that "[t]he appearance of the chest suggests atypical pneumonia, or interstitial pulmonary edema." T504. Ebert notes that pulmonary edema is often caused by congestive heart failure, though he was not diagnosed with heart failure at that time. Filing 17 at 6.

On December 25, 2010, Ebert was hospitalized after reporting chest pressure, weight gain, orthopnea, and paroxysmal nocturnal dyspnea. T463. He had a syncopal episode while shoveling snow in the days before he went to the hospital. T463. He also reported that he had Burkitt's lymphoma as a child. T463. He had undergone chemotherapy for that condition, and was in remission. T463.

Ebert was found to have cardiomyopathy with an ejection fraction of less than 20% with moderate to severe mitral regurgitation and severe tricuspid regurgitation. T469. Jeffrey Mahoney, M.D. implanted a single- chamber implantable cardioverter defibrillator (ICD). T491. After the operation, Mahoney diagnosed Ebert with severe cardiomyopathy, with a left ventricular ejection fraction of less than 20%, baseline QRS duration of less than 120 msec., congestive heart failure New York Heart Classification III to V, and abrupt syncopal episode/probable aborted sudden cardiac death. T491. During his hospital stay, Ebert also underwent procedures to treat conditions unrelated to his cardiomyopathy: a laparoscopic cholecystectomy, a laparoscopic bilateral inguinal hernia repair, and the removal of a subcutaneous cyst. T469. Ebert was discharged from the hospital on January 4, 2011. T469.

About a week later, on January 10, 2011, Ebert had a follow-up appointment with Maman Ali, M.D. T458. Ali noted that Ebert was "doing well." T458. Ali prescribed carvedilol, spironolactone, enlapril maleate, digoxin, and oxycodone. T459. On January 17, Ebert had another follow-up appointment with his cardiologist, S. George Sojka, M.D. T528. Sojka noted that Ebert complained of some chest pain since the operation. T528. Ebert had gotten in an argument with a friend, and the friend had left him several miles outside of town, forcing Ebert to walk. T528. Afterward, Ebert said he had chest pressure persisting through the entire night. T528. Otherwise, however, he reported only occasional chest pain. T528. Sojka planned to have Ebert complete a stress echocardiogram in order to determine why he was continuing to experience chest pains, which Sojka thought were "somewhat atypical." T529. On January 21, Ebert had a follow-up appointment with Mahoney regarding his ICD. T530. Mahoney noted that at this appointment, Ebert reported "he ha[d] gotten along quite well." T530. Mahoney concluded Ebert was healing well after the operation. T530. On February 3, Ebert had another follow-up appointment at Douglas County Health Center. T612. He reported a "little" chest pain and palpitation, but otherwise voiced no complaints. T612.

On February 5, 2011, Ebert was hospitalized for 3 days after experiencing a hypovolemic syncopal episode secondary to dehydration. T552. Ebert reported nausea and dizziness, but no chest pain. T559. Shibu Phillip, M.D. conducted an interrogation of Ebert's ICD. T569. He found that Ebert had on the previous day had an episode of "SVT, " or supraventricular tachycardia, but did not believe that it contributed to the syncopal episode. T568. Instead, Phillip concluded that the episode was likely a result of Ebert's low blood pressure, possibly caused by one of his medications. T569. His medications were adjusted. T569. Ebert improved overnight, and "did very well" with cardiac rehab. T553. In addition, during Ebert's hospital stay his doctors obtained a psychiatric consult for him because he ...

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