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Grabowski v. Berryhill

United States District Court, D. Nebraska

December 5, 2017

NANCY A. BERRYHILL, acting Commissioner of Social Security; Defendant.


          Cheryl R. Zwart, United States Magistrate Judge.

         Plaintiff Leanne Grabowski (“Grabowski”), seeks review of the decision by the defendant, Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, denying the application for claimant John Ronald Martin (“Martin”) for Social Security disability insurance and benefits under Title II of the Act. See 42 U.S.C. § 1381. After carefully reviewing the record, the Commissioner's decision is affirmed.


         Martin applied for Title II disability insurance benefits on June 1, 2013, claiming disability due to post traumatic stress disorder (“PTSD”), attention deficit hyperactivity disorder (“ADHD”), anxiety, depression, spinal disorders, insomnia, migraines, arthritis, and glioma. (Filing No. 12-3 at CM/ECF pp. 2-3, 12, 24). Martin's claim was denied initially on May 23, 2014. (Id. at CM/ECF p. 11), and again upon reconsideration on August 6, 2014. (Id. at CM/ECF p. 20). Martin submitted a written request for a hearing. (Id. at CM/ECF p. 24). ALJ H. Scott Williams was assigned to Martin's case and held a hearing on July 17, 2015. (Filing No. 12-2 at CM/ECF pp. 44-58). Martin was represented by Jeffrey Smith, a non-attorney representative. (Filing No. 12-3 at CM/ECF p. 24). On July 31, 2015, the ALJ issued his written decision stating Martin was not disabled. (Id. at CM/ECF pp. 24-33). On October 30, 2015, the Appeals Council remanded Martin's case for further evaluation. (Id. at CM/ECF p. 39-42).

         On April 25, 2016, Plaintiff Grabowski, claimant Martin's mother, filed a notice of substitution following the death of Martin on February 17, 2016. (Filing No. 12-5 at CM/ECF p. 29). A second hearing was held on July 14, 2016. (Filing No. 12-2 at CM/ECF p. 32-43). On July 27, 2016, the ALJ issued another decision denying Martin's claim of disability. (Id. at CM/ECF pp. 14-26). Grabowski requested review of the ALJ's decision to the Appeals Council. (Id. at CM/ECF p. 2). The Appeals Council denied Grabowski's request on March 3, 2017. (Id. at CM/ECF pp. 2-5). Grabowski timely appealed the Commissioner's final decision on May 26, 2017. (Filing No. 1).


         The ALJ evaluated Martin's claim through the five-step sequential evaluation process to determine whether Johnson was disabled. As reflected in his decision, the ALJ made the following findings:

1. The claimant met the insured status requirements of the Social Security Act through December 31, 2018.
2. The claimant engaged in substantial gainful activity (“SGA”) during the following periods: from December 2009 through May 2013 (20 CFR 404.1520(b) and 404.1571 et seq.).
3. The claimant had the following severe impairments: residuals of infarction; restrictive lung disease; degenerative disc disease; glioma; posttraumatic stress disorder; depression; anxiety; and history of substance abuse (20 CFR 404.1520(c)).
4. The claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. The claimant had the residual functional capacity (“RFC”) to perform light work as defined in 20 CFR 404.1567(b) except that he was limited to occasional climbing of ladders, ropes, and scaffolds; occasional stooping, kneeling, crouching, and crawling; frequent climbing of ramps and stairs and balancing; occasional exposure to unprotected heights; and continuous exposure to moving mechanical parts, operation of a motor vehicle, wetness, humidity, pulmonary irritants, extreme heat and cold. Additionally, he required a quiet environment such as an office-type setting. Mentally, the claimant was limited to simple and low-level detailed tasks. He could respond appropriately to and interact with supervisors and coworkers on an occasional basis but never with the general public. He could adapt to usual work situations and to occasional changes in the work setting.
6. The claimant was unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on April 23, 1966, and was 43 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. The claimant subsequently changed age category to closely approaching advanced age (20 CFR 404.1563).
8. The claimant had at least a high school education and was able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant was "not disabled, " whether or not the claimant had transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569(a)).

(Filing No. 12-2 at CM/ECF pp. 16-25).


         Grabowski requests judicial review of the ALJ's decision, asserting the following arguments support the claim for reversal:

1. The ALJ erred by failing to develop the record regarding Claimant's work activity before determining he engaged in substantial gainful activity (“SGA”).
2. The Residual Functional Capacity (“RFC”) determination is not supported by substantial evidence because it is not supported by any opinion evidence and the ALJ mischaracterized the opinion of Claimant's treating psychologist.
3. The ALJ's Step 5 determination is not supported by substantial evidence because the jobs are not consistent with the RFC determination.

         (Filing No. 15-1 at CM/ECF p. 1).


         Martin was 47-years-old when he submitted his application for benefits and was 49-years-old on the date of his death. He had completed high school and had obtained a bachelor's degree. Martin had past work experience in the Army performing logistics. Martin worked as a support services specialist for an Army recruitment command center from December 21, 2009, through May 10, 2013. (Filing No. 12-2 at CM/ECF P. 17).

         In February of 2009, Martin presented at a sleep lab for evaluation of insomnia. After a sleep study in March of 2009, Martin was diagnosed with obstructive sleep apnea and was provided a CPAP machine for treatment. (Filing No. 13-2 at CM/ECF pp. 17, 38-39).

         In March of 2010, Martin was admitted to Skyline Medical Center with a headache and vision changes in his right eye. (Filing No. 13-1 at CM/ECF p. 6). Martin underwent several tests and scans to include an MRI, echocardiogram, and a pulmonary function test. When he was released, Martin was listed as having a right occipital lobe infarct, hypertension, post-traumatic stress disorder (“PTSD”), accelerated dyspnea, coronary artery disease, diastolic dysfunction, obstructive sleep apnea, chronic headaches, alcohol abuse, insomnia, depression, and night terrors. (Id. at CM/ECF p. 6).

         In July of 2010, Martin was treated by Charles Clarke, M.D. for complaints of daily headaches. (Filing No. 13-3 at CM/ECF p. 17). He informed Dr. Clarke that his vision problems had resolved three weeks earlier. Dr. Clarke ordered an MRI which showed ...

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