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Novotny v. Berryhill

United States District Court, D. Nebraska

November 29, 2017

ALLEN M. NOVOTNY, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security; Defendant.


          Joseph F. Bataillon Senior United States District Judge

         This 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).


         A. Procedural History

         The 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.

         Novotny's 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).

         B. Facts

         A 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.

         Novotny 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.

         Additionally, 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 41.

         Novotny's 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, [1] anxiety, depression, irritability, and chronic pain. Id. at 46.

         Novotny 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.[2] 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.

         Novotny 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, [3] shoulders, [4] thoracic spine, [5] lumber spine, [6] hips, [7] and knees.[8] 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.

         Novotny 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, [9]and 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 61.

         A 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.

         The VE 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.

         Novotny's 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. Id.

         C. Medical Evidence

         As 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.

         In June 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.

         In 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.

         In 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[10] and Nucynta[11] 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.

         In 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[12] and fiurinol with codeine. Id.

         In 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.

         In 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[13] 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 ...

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