United States District Court, D. Nebraska
ALLEN M. NOVOTNY, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security; Defendant.
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge
matter is before the court on the plaintiff, Allen M.
Novotny's, (“Novotny”) appeal of the denial,
initially and upon reconsideration, of his application for
disability benefits under Title II of the Social Security Act
(‘the Act”), 42 U.S.C. §§ 401-434.
See Filing No. 21 (Plaintiff's Motion to Reverse
the Commissioner's Decision) and Filing No. 23
(Defendant's Brief in Support of the Administrative
Decision). This is an action for judicial review of a final
decision of the Commissioner of the Social Security
Administration (“Commissioner”) that Novotny is
not disabled. This court has jurisdiction pursuant to 42
U.S.C. § 405(g).
administrative record (“Admin. R.”) has been
filed with the court. Filing No. 13, Filing No.
14, Filing No. 15, Filing No. 16,
Filing No. 17. Novotny applied for disability
benefits on January 28, 2015, and alleges his disabilities
include organic brain disorder, migraine headaches, mood
disorder, anxiety disorder, and degenerative joint disease of
both hips and the right shoulder. The alleged date of the
onset of Novotny's alleged disability is December 1,
2013. At that time Novotny was 31 years old. Novotny has an
associate's degree and served in the United States
Military as a marine from 2006 to March 30, 2015. The five
years preceding his time in the Marine Corps., Novotny worked
as a laborer for different construction companies.
Id. at 35.
application for disability was denied initially and on
reconsideration. Novotny appealed the determination and
requested a hearing before an administrative law judge
(“ALJ”). The ALJ held a hearing on April 20,
2016, finding that Novotny was not disabled and not entitled
to benefits. Admin. R. Attachment 2, Admin Process Docs,
Filing No. 13. On May 17, 2016, the Appeals Council
of the Social Security Administration (“SSA”)
denied his request for review. Id. Novotny seeks
review of the ALJ's decision as the final decision of the
Commissioner under 42 U.S.C. § 405(g).
transcript of the hearing is found in the record at Admin. R.
29-77. Novotny testified he had not worked for pay since
December 1, 2013. Id. at 33. Novotny stated that
while he was in the Marine Corps., a grenade exploded two
feet from him and that he was in the kill zone. Id.
at 64. Novotny was then medevacked out on a helicopter to Al
Assad Airbase where he received surgery to remove the
shrapnel from his leg. Id. at 66. The doctors wanted
to do further testing but he wanted to go back. Id.
Novotny stated that he flew back to the battalion location on
a helicopter and had to sit out for six days. Id. at
67-68. After a couple of weeks, Novotny was back to doing
everything again. Id. at 68.
testified that from April 2011 until November 2013, he was a
career counselor in the Marine Corps. Id. at 34. In
that position, Novotny was a liaison between headquarters,
the Marine Corps., and the command at the unit. Id.
at 39. Novotny said that he struggled with that job because
his migraines increased due to the computer usage.
Id. at 40. He joined the Marine Corps. in 2006 and
he was an infantry rifleman after he completed boot camp.
Id. at 36. In November 2010, after two deployments,
Novotny reenlisted in the Marines. Id. at 37. He
stated that he was hiding the extent of his injuries at that
time, which then consisted of chronic pain, as well as issues
with memory and concentration. Id. During
Novotny's second enlistment, the Marines began the
medical retirement process. Id. at 38. Novotny
testified that the Marine Corps. concluded, at that time,
that the amount of surgeries that he needed would extend his
active duty time in the Marine Corps. Id. at 38. The
Marine Corps. offered Novotny surgery at that time, but he
declined. Id. Novotny would have to stay longer if
he elected to have surgery, and just sitting around was too
demoralizing for him, and therefore preferred to leave and
attempt to heal himself at a slower pace. Id. at 62.
Novotny declared his medical retirement was due to his mental
health issues. Id. at 39. In the fall of 2013, he
had an episode with another enlisted Marine, resulting in a
scuffle between the two of them, and Novotny “ended up
driving the k-bar off the wall.” Id. at 39-40.
Novotny testified that the Marine Corps. did not punish him
for this offense because the other Marine did not want to
press charges and instead recommended mental health
counseling. Id. at 40-41. Subsequently, Novotny was
transferred to the Wounded Warrior Battalion. Id. at
family moved to Nebraska in June 2015. He affirmed details
about his age, weight, living situation, and family.
Id. at 41-43. Novotny drives once or twice a day for
a total time of maybe an hour at the longest per day,
occasionally driving his kids to and from school on the days
that his physical and mental conditions allow him.
Id. at 43-44. He completed his Associate's
Degree in 2013, while he was still on active duty for the
Marine Corps. Id. at 44. Novotny testified that he
receives VA benefits and combat related special compensation
from the Department of Defense. Id. at 45. Novotny
mentioned his wife worked at times. Id. Novotny told
the ALJ that he has both mental and physical conditions that
prevent him from working and that the conditions affected him
before he stopped working. Id. at 45. The conditions
he had been hiding were: memory issues, concentration,
getting lost in familiar places, daily headaches, severe
migraines,  anxiety, depression, irritability, and
chronic pain. Id. at 46.
testified that the Marine Corps. addressed his mental health
by providing him with mental health counseling, psychiatric
care, cognitive based therapies, and groups. Id. at
46. At some point, he was diagnosed with post-traumatic
stress disorder (“PTSD”). Id. at 46-47.
His symptoms for PTSD include: paranoia, hypersensitivity,
trust issues, mood swings, mood lability, irritability,
anger, nightmares, flashbacks, and
disassociations. Id. at 47. Novotny has had
thoughts of suicide since 2011. He was treated in a hospital
setting for suicidal thoughts on December 30, 2015.
Id. at 47-48. At that time, the VA hospital in Omaha
treated him by putting him back on his medication, and
recommending inpatient treatment, which he declined.
Id. at 48.
stated that because he did not like inpatient treatment his
wife became his caregiver through the VA. Id. As his
caregiver, she helps him with medications and his medical
devices. Id. He testified that his medical devices
are for pain and consist of an alpha stim unit and a flex
unit. Id. at 48-49. Novotny stated that he uses
these devices daily and they provide him with temporary
relief. Id. at 49. His conditions give him pain in
his: neck,  shoulders,  thoracic spine,  lumber spine,
hips,  and knees. Id. at 49-50. He does
not have to be doing activity for the pain to begin but the
pain increases with activity where he uses the joint for more
than 10-15 minutes. Id. at 51. He stated that to
relieve the pain, he takes different kinds of
over-the-counter medications, such as Ibuprofen and Tylenol,
ices the joints several times a day, and uses his medical
devices. Id. He asserted that the discomfort from
the pain and insomnia affect his sleep, and limits his sleep
to 2-3 hours a night on average. Id. He wakes up
from pain and nightmares, often thinking doors are open and
feeling he needs to make sure everything is in place.
Id. at 52.
stated that he did not believe he could work an eight-hour
day due to an inability to stay on task, anxiety, feeling
overwhelmed and having panic attacks. Id. He has
panic attacks almost every time he goes out in public, unless
he has taken his medication. Id. at 52-53. He
testified that he can sit for 20-30 minutes, but starts
becoming uncomfortable after 15 minutes of sitting.
Id. at 53. Novotny can stand or walk for 10-15
minutes before he begins feeling fatigued and achy.
Id. He testified that the Wounded Warrior Battalion
prescribed him a cane for vestibular issues, sciatica,
balance issues and he still experiences those issues.
Id. at 53-54. Novotny testified that he could
probably lift a gallon of milk but it would be uncomfortable
in his shoulder. Id. at 54. He does not help with
the housework, except occasionally he goes with his wife to
the grocery store. Those outings generally do not go well
because he feels overwhelmed, has panic attacks, and snaps at
his kids, his wife, or strangers. Id. at 54-55.
Novotny said that he has gone to a few movies with his
children, during the day when the theater is less crowded.
Id. at 55-56. He stated that he enjoys golf but
feels too much pain and discomfort after about 20-30 swings.
Id. at 56. Novotny said that he tried playing golf
two weeks before giving his testimony and that the prior
year, he built up to being able to get through a round of
golf “pretty good” using a cart. Id. at
58. Novotny testified that he would work if he were able to,
however he has not attempted to find a job outside of the
military. Id. at 57. He began a vocational
rehabilitative service with the military but never went to
the school due to anxiety, being overwhelmed, and no longer
being physically able to do the program. Id. at
57-58. Novotny testified that after moving to Nebraska, he
received treatment of yoga, acupuncture, psychotherapy, and a
variety of medications for his mental health conditions.
Id. at 59-60. The week prior to the hearing, he went
to the chiropractor three times and he had three appointments
scheduled the week of the hearing and that after that, the
appointments would begin to be spread out more. Id.
at 61. The chiropractor had been very helpful for loosening
the muscles and that his wife noticed a large difference
while giving him massages. Id. Novotny stated he
also had a Magnetic Resonance Imaging (“MRI”)
test the day before the hearing and was waiting to see if the
doctors suggest physical therapy or surgery. Id. at
vocational expert (“VE”) also testified at the
hearing. She was asked whether a hypothetical worker with
Novotny's past relevant work experience, as a laborer and
marine, with the same physical and mental limitations, being
limited to light work, was able to climb ladders, stoop,
kneel, crouch, and crawl occasionally. But, if the
hypothetical worker was limited to work that did not require
climbing ladders, exposure to hazards, sustained and
concentrated noise, or dust, was able to perform work that is
simple, respond appropriately to routine changes in the work
environment, was able to perform work that does not require
more than a brief interaction with public, or working in
close coordination with others would be able to find work in
the national economy. Id. at 69-70. The VE said the
hypothetical worker would be able to find work as a routing
clerk, folding machine operator, or housekeeping cleaner.
Id. at 70.
was then asked if the assumption of light work were changed
to sedentary work, whether there would be an occupational
base for the individual. Id. She said the
hypothetical individual would be able to be employed as a
final assembler, document preparer, or table worker.
Id. The ALJ then asked Novotny whether he believed
he could be a document preparer and described the duties.
Id. at 69-70. Novotny testified he believed it would
be a struggle because of his difficulty sitting for long
periods of time and because staring at a computer screen for
a long period would increase his migraines. Id. at
71. The ALJ then clarified that he did not believe there
would be any computer screen at that type of job and Novotny
said he would try it and if he could not do it, the reason
was likely his mental health, specially his fear of failure.
Id. at 71-72.
attorney then asked the VE to assume a hypothetical person
were limited in his ability to understand, remember, and
carry out detailed instructions 25% of the time, were limited
in his ability to maintain attention and concentration,
maintain regular attendance, be punctual, and complete a
normal work day 25% of the time, were limited in the ability
to interact appropriately with people 25% of the time and
were limited in the ability to respond appropriately to
change 25% of the time, and asked whether that person would
be able to do any work. Id. at 74. The VE responded
that a person not able to attend work as scheduled 25% of the
time would prevent them from succeeding at any job.
previously stated in the hearing testimony, a grenade
exploded near Novotny in November 2007 and he was flown to an
air base for care for the shrapnel in his right leg.
Id. at 587. In April 2013, Novotny sought treatment
for bilateral hip pain and received treatment of physical
therapy. Id. at 1477-1479. In May 2013, an MRI of
Novotny's hips revealed an anterior/superior labral tear.
Id. at 723-724. Also in May 2013, x-rays revealed
tiny shrapnel in the soft tissues of his calf. Id.
at 775-76. His treatment consisted of corticosteroid
injections and physical therapy, and he was referred to an
orthopedic surgeon for a consult. Id. at 1446-48. In
August 2013, Novotny saw Dr. Schauer at Camp LeJeune with his
chief complaint being lower back pain and she ordered an MRI.
Id. at 1398-1400.
2013, Dr. Mobley prescribed Prozac for Novotny's mood and
Ambien for his insomnia. Id. at 1434-35. Novotny
reported he disliked his career planner position and was
having nightmares. Id. at 1435-36.
September 2013, Novotny had a pre-operation consult with Dr.
Castillo. After Dr. Castillo observed that Novotny was using
a cane due to lower back pain, Dr. Castillo recommended
waiting for hip surgery. Id. at 1392. Around that
same time, September 2013, Novotny reported to Dr. Mobley
that he had dropped out of his college courses due to feeling
overwhelmed by the medical issues. Id. at 1386.
October 2013, Novotny received counseling and discussed an
incident that occurred in 2009 in which three Marines were
killed by an IED. He expressed guilt associated with that
incident. Id. at 1378. Novotny also described a time
when lightning struck close to his car while he was driving
in Jacksonville, North Carolina with his wife and for a few
moments, Novotny felt like he was back in Iraq. Id.
In another counseling session in October, Novotny reported
feelings of guilt over a friend's death. Id. at
1360. Novotny reported his pain was the level of a 9, on a
scale from 1 to 10, to Dr. Scott Johnston M.D. in October
2013 and characterized the pain as aching and stabbing.
Id. at 462. Dr. Johnston recommended that Novotny
stop taking Oxycodone and Valium and start taking a Butrans
patch and Nucynta as well as enroll in pain
management treatment. Id. at 465. In October 2013,
Novotny also saw Dr. White who told him about Alpha Stim
technology and referred him for alpha stim therapy treatment.
Id. at 1333.
November 2013, Novotny received treatment at the Traumatic
Brain Injury Clinic. Id. at 1278. He reported to Dr.
Christina Fitzpatrick that his goals were to minimize the
numbers of headaches, stop his short-term memory loss, and
find out “what's going on upstairs.”
Id. at 2220. That same day, Dr. Joyce Wagner
prescribed him Topamax, fish oil, and magnesium oxide for his
headaches, referred him to an audiology consult for his
traumatic brain injury, ordered an antinuclear antibody
screen and rheumatoid factor test for his insomnia and
prescribed him a nicotine patch. Id. at 2218. She
also discontinued Amitriptyline and fiurinol with
December 2013, Novotny saw Dr. Fitzpatrick again.
Id. at 1265. She prescribed 8 sessions of physical
therapy and Novotny received a score of 28/30 on a functional
gait assessment when using his cane. Id. at 1266.
The next day, Dr. Nina Patelhinkle saw Novotny for neck pain.
Id. at 1254. Dr. Patelhinkle treated Novotny with
acupuncture, prescribed a TENS unit and stretches for Novotny
to perform at home, and ordered OMT (osteopathic manipulation
therapy). Id. at 1205.
January 2014, Novotny received trigger point injections.
Id. at 454. Dr. Chaney increased his dosage of
Nucynta and prescribed a fentanyl patch instead of Butrans.
Id. at 450. Also in January 2014, Dr. Wagner changed
Novotny's medication back to Topiramate from Neurontin
after Novotny reported better control of headaches with
Topiramate. Id. at 1200. Dr. Wagner also increased
the dosage of Prazosin and scheduled a sleep group after
Novotny reported his sleep was spotty. Id. Novotny
also met with Dr. Pollack and completed some psychological
tests. Id. at 1066-67. Dr. Pollack's test
indicated that Novotny had processing speed deficits on some
tasks and had weaknesses in verbal delayed memory for a
“complex narrative passage read to him approximately 20
to 30 minutes prior.” Id. at 1072. Dr. Pollack
recommended Novotny continue with psychotherapy treatments
and take his psychotropic medication to help with the
reduction, control or alleviation of ...