United States District Court, D. Nebraska
MEMORANDUM AND ORDER
R. Zwart, United States Magistrate Judge.
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.
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).
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
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
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
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
(Filing No. 12-2 at CM/ECF pp. 16-25).
ISSUES RAISED FOR JUDICIAL REVIEW
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
3. The ALJ's Step 5 determination is not supported by
substantial evidence because the jobs are not consistent with
the RFC determination.
No. 15-1 at CM/ECF p. 1).
RECORD AND PROCEEDINGS BEFORE THE ALJ
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).
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).
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).
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