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Trobaugh v. Berryhill

United States District Court, D. Nebraska

July 23, 2018

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.


          John M. Gerrard United States District Judge

         This matter is before the Court on the denial, initially and upon reconsideration, of plaintiff Steven Trobaugh's disability insurance benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et seq. and § 1381 et seq. The Court has considered the parties' filings and the administrative record, and affirms the Commissioner's decision to deny benefits.


         Trobaugh filed applications for disability insurance benefits and supplemental security income in February 2014. Trobaugh's claims were denied initially (T101-104) and on reconsideration (T113-115). Following a hearing, an administrative law judge (ALJ) determined that Trobaugh was not disabled under the Social Security Act, and therefore not entitled to disability benefits. T21. The ALJ determined that, although Trobaugh suffers from severe impairments, he has the residual functional capacity to perform other jobs that exist in significant numbers in the national economy. T11-T21. The Appeals Council of the Social Security Administration (SSA) denied Trobaugh's request for review of the ALJ's decision. T1-5. Trobaugh's complaint seeks review of the ALJ's decision as the final decision of the Commissioner under sentence four of 42 U.S.C. § 405(g). Filing 1.


         1. Medical History

         Trobaugh's medical records reflect a history of physical impairments and, to a lesser extent, psychological limitations. For the purposes of this appeal, that history began in 2013, when Trobaugh visited Dr. Chris Wilkinson, an orthopedic specialist, with complaints of "bilateral shoulder pain from a motor vehicle accident in 2011." T267. Based on those complaints, and Trobaugh's medical history more generally, Wilkinson scheduled an arthroscopy of Trobaugh's right shoulder "with an open repair of the greater tuberosity[.]" T263.

         Notes from that procedure reflect Trobaugh's relative good health: one practitioner described him as a "well-developed, well-nourished 43-year-old male in no acute distress." T329. But the notes also describe Trobaugh's persistent shoulder pain, which "limit[s his] range of motion." T328. That pain, the arthroscopy revealed, was due in part to a superior labral tear, which doctors presumably repaired during the procedure. See T308.

         Trobaugh filed his claim for benefits immediately following the arthroscopy, listing "Left and Right shoulders broken" as a disabling condition. T74. Trobaugh also listed: chronic obstructive pulmonary disease (COPD), lung disease, depression, bipolar disorder, and "Neck and back problems." T189. The SSA, however, determined that Trobaugh's medical records were insufficient to support a decision on his claim. T77. So, Trobaugh was required to undergo additional consultative examinations with Tamara Johnson, M.D., and Rebecca Schroeder, Ph.D. T270; T279.

         Johnson's examination focused primarily on Trobaugh's physical capabilities. She observed that Trobaugh could "sit, stand and walk unassisted" and could "handle objects with both gross and fine manual motor dexterity." T277. But she also noted "definite weak[ness]" in Trobaugh's upper extremities and "extremely limited" range of motion in his shoulders. T277. As to his psychological condition, Johnson described Trobaugh as both "alert and oriented" and "depressed [and] lethargic." See T272; T277.

         Schroeder performed a psychological evaluation of Trobaugh. T279. Results from that evaluation are, for the most part, consistent with Johnson's observations: that Trobaugh suffers from depression, is often "low energy," and rarely leaves his home. T281-282. Schroeder opined that Trobaugh's depression and overall affect may result in "mild limitations" in his day, including "issues relating to coworkers and supervisors." T283. But, she noted, Trobaugh is "capable of sustaining concentration and attention needed for at least a short task." T284. Schroeder assigned Trobaugh a global assessment of functioning (GAF) score of 60.[1]

         The record contains other medical records, too, that are relevant to Trobaugh's claim. For example, two state agency medical consultants-Jerry Reed, M.D., and Steve Higgins, M.D.-reviewed Trobaugh's medical records. See T74; T87. Reed determined that Trobaugh's conditions do, in some respects, limit his ability to work. But overall, he said, "[w]e have determined that your condition is not severe enough to keep you from working." T85. Higgins reached the same result on reconsideration. See T97.

         Also, in October 2014, Trobaugh visited Wilkinson (the doctor who arranged the initial arthroscopy) regarding continued pain in his left shoulder. T314. After examining the shoulder, and at Trobaugh's request, Wilkinson issued Trobaugh a note saying that he was "unable to work because of . . . chronic shoulder problems." T314. Trobaugh needed the note, he said, for a legal dispute regarding unpaid child support. T314.

         2. Hearing Testimony

         At the administrative hearing, Trobaugh testified to his medical condition and symptoms, which generally mirror the symptoms discussed above. He explained, for example, the pain he experiences in his shoulders and back, and the limitations associated with that pain. T46-47. He also described his diagnoses for COPD and emphysema, and past surgical operations on both lungs. T49-50. And he discussed his general battle with depression, saying that he feels depressed "[a]ll the time." T51. These conditions, Trobaugh testified, limit his ability to stand for long periods of time, lift heavy objects, and meaningfully interact with other people. T54-58.

         The ALJ then questioned Trobaugh about his physical capabilities and work history. Trobaugh responded with details of his past work experience as a construction worker and roofer-jobs which, Trobaugh said, he can no longer perform because of his shoulder pain. See T59-61.

         The ALJ presented the vocational expert (VE) with a hypothetical based on a worker "who has no past relevant work" and who

is able to perform work that does not require overhead reaching; [must] avoid extreme and concentrated temperatures, humidity, fumes and dust; able to perform work that is not exposed to hazards such as work at unprotected heights; able to perform work that is simple and to respond appropriately to routine changes in the work environment; able to perform work that does not require more than incidental and superficial contact with the public; and does not require working in tandem or close coordination with others.

T67. Such a person, the VE opined, could perform sedentary, unskilled work, such as a document preparer or eyeglass frame polisher. T68. The ALJ then asked the VE to assume, in addition to the conditions described above, that the individual was limited in his ability to reach "in other planes and other directions." T68. With that addition, the VE opined that the claimant would be unable to sustain work. T68.

         3. Sequential Analysis and ALJ Findings

         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).

         (a) Step One

         At the first step, the claimant has the burden to establish that he has not engaged in substantial gainful activity since his alleged disability onset date. Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006); 20 C.F.R. § 404.1520(a)(4)(i). If the claimant has engaged in substantial gainful activity, the claimant will be found not to be disabled; otherwise, the analysis proceeds to step two. Gonzales, 465 F.3d at 894; 20 C.F.R. § 404.1520(a)(4)(i).

         In this case, the ALJ found that Trobaugh had not engaged in substantial gainful activity since his alleged disability onset date, and that finding is not disputed on appeal. T13.

         (b) Steps Two and Three

         At the second step, the claimant has the burden to prove he has a "medically determinable physical or mental impairment" or combination of impairments that is "severe[, ]" 20 C.F.R. § 404.1520(a)(4)(ii), in that it "significantly limits his physical or mental ability to perform basic work activities." Gonzales, 465 F.3d at 894; see also Kirby v. Astrue, 500 F.3d 705, 707-08 (8th Cir. 2007). Next, "at the third step, [if] the claimant shows that his impairment meets or equals a presumptively disabling impairment listed in the regulations, the analysis stops and the claimant is automatically found disabled and is entitled to benefits." Gonzales, 465 F.3d at 894; 20 C.F.R. § 404.1520(a)(4)(iii). Otherwise, the analysis proceeds.

         In this case, at step 2, the ALJ found that Trobaugh had the following severe impairments: degenerative joint disease of the shoulders bilaterally with residuals of surgery; history of compression fracture in the spine; COPD with residuals of lung surgery; mood disorder; personality disorder; organic brain disorder; and degenerative joint disease of the left knee. T13. At step three, however, the ALJ found that Trobaugh did not have an impairment or combination ...

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