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Joseph v. Berryhill

United States District Court, N.D. Ohio, Western Division

August 30, 2017

Eric L. Joseph, Plaintiff,
Nancy C. Berryhill, [1] Commissioner of Social Security, Defendant.


          James G. Carr, Sr. U.S. District Judge.

         This is a Social Security case in which the plaintiff, Eric Joseph, appeals the Commissioner's decision denying his application for disability insurance benefits (DIB).

         An administrative law judge (ALJ) found Joseph was not under a disability and, as a result, denied plaintiff's claim for benefits. In the present case, plaintiff challenges the ALJ's decision.

         Pending is the Magistrate Judge's Report and Recommendation (R&R), which recommends affirming the ALJ's decision denying benefits and dismissing plaintiff's case with prejudice. (Doc. 20).

         Plaintiff objects to the R&R and asks that I overrule the R&R and reverse the ALJ's decision. (Doc. 21).

         For the following reasons, I adopt in full the R&R, and I affirm the ALJ's decision.


         Plaintiff served in the United States Army from 2001 to 2005. During his active military service, plaintiff suffered an injury in an Iraq combat zone when a vehicle in which he was a passenger crashed into a bus, causing plaintiff's body to bounce severely.

         After plaintiff's active-duty military service, the United States Department of Veterans Affairs (VA) found him eligible to receive veterans' benefits due to his service-related injuries. Specifically, plaintiff testified that he received a 90% service disability.

         Plaintiff received the majority of his medical treatment through the VA for the following diagnoses: depressive disorder, ankle instability, morbid obesity, tobacco dependence, hyperlipidemia, post-traumatic stress disorder (PTSD), gastroesophagael reflux disorder, neck pain, migraines, alcohol abuse, and cannabis abuse. During that time, plaintiff's medical treatment included: medications; counseling; psychiatric care; anger management therapy; alcohol and drug therapy; couples therapy; residential PTSD rehabilitation program; physical therapy; and hospitalization.

         Plaintiff's post-military work included employment with a private defense contractor as an aviation mechanic/aircraft electrician. Plaintiff testified he was let go from that job in August, 2009, because of his PTSD symptoms.

         On May 8, 2015, plaintiff applied for DIB with the Social Security Administration (Administration).[3] Plaintiff asserted he had been under a “disability, ” as defined by the Social Security Act (SSA), beginning June 25, 2013. Specifically, plaintiff claimed a traumatic brain injury caused memory loss, bad knees and ankles, degenerative disc disease in his back, neck pain, tinnitus, nerve damage and numbness in his hands and legs, anxiety, depression, panic attacks, mood disorder, and breathing difficulties.

         The Administration denied plaintiff's application initially and upon reconsideration. Plaintiff then requested and received an administrative hearing on February 11, 2016. An ALJ conducted the hearing and questioned plaintiff and a vocational expert.

         Plaintiff testified he injured his cervical spine in an accident while in the service.[4] According to plaintiff, his spinal injury caused several physical impairments, including migraine headaches, numbness in his hands, light sensitivity, vertigo, ankle and knee instability, tinnitus in both ears, and difficulty with walking, standing, lifting, and gripping. Plaintiff also testified about the effect of his PTSD, describing anxiety attacks, sweating, heart palpitations, nightmares, and unpredictable changes in his emotions and behavior.

         With respect to plaintiff's testimony about his physical and mental impairments, the ALJ made a credibility determination, stating:

After careful consideration of the evidence, I find that the claimant's medically determinable impairments could reasonably be expected to cause some of the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision. The claimant's testimony and the medical evidence of record does suggest he retains the ability for performing work-related activities within the limitations set forth in the residual functional capacity assessment of the prior Administrative Law Judge.

(Tr. 21).

         In October, 2013, the VA assessed plaintiff's disability rating as follows: 10% for limited motion of the ankle; 10% for inflammation of sciatic nerve; 20% for degenerative arthritis of the spine; 10% for limited flexion of the knee; 10% for lumbosacral or cervical strain; 10% for tinnitus; 30% for migraine headaches; 20% for inflammation of lower radicular nerves; and 30% for PTSD.

         After the hearing, the ALJ issued her decision, concluding that plaintiff was not under a disability and, therefore, not entitled to DIB. To reach that conclusion, the ALJ followed the SSA's five-step evaluation with respect to plaintiff and his impairments. See 20 C.F.R. § 404.1520(a)(4).

         First, the ALJ found that plaintiff last met the insured status requirements of the Social Security Act on December 31, 2015.

         The ALJ then found that plaintiff did not engage in substantial gainful activity from June 25, 2013-the alleged onset date-through December 31, 2015-the date last insured.

         The ALJ's more significant findings began with her conclusion that through the date last insured, plaintiff suffered from the following severe impairments: history of cervical spondylosis/cervical degenerative disc disease; chronic back pain due to degenerative arthritis with radiculopathy; history of right ankle fracture, currently stable; reported knee and ankle pain; migraine headaches; tinnitus; episodic mood disorder/depression; PTSD; anxiety; history of alcohol dependence with episodic abuse pattern; cannabis abuse currently in remission; obesity; mild thoracic degenerative changes; and severe opioid use disorder, currently in remission.

         However, plaintiff's impairments, according to the ALJ, did not automatically constitute a disability.[5]

         The ALJ then assessed plaintiff's residual functional capacity (RFC). Doing so, the ALJ found that despite plaintiff's impairments, he could perform less than a full range of light work as defined in 20 C.F.R. § 404.1567(b). Specifically, the ALJ found that plaintiff could: lift, carry, push and pull up to 20 pounds occasionally and 10 pounds frequently; sit up to six hours in an eight-hour workday; and walk/stand, in combination, up to six hours in an eight-hour work day-with the following limitations:

The claimant requires a sit/stand option that allows for alternating between sitting and standing up to every 30 minutes if needed, but the positional change will not render the individual off task. The claimant can never climb ladders, ropes, or scaffolds and can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. The claimant cannot perform any forceful grasping or gripping with the hands. He requires the ability to avoid concentrated exposure to wetness and hazards (such as wet/slippery surfaces, dangerous moving machinery, and unprotected heights. He can have no concentrated exposure to bright/flashing lights and loud noise. Mentally, the claimant cannot understand, remember, or carry out detailed or complex job instructions but can perform simple, repetitive tasks on a sustained basis (meaning 8 hours a day, five days a week, or an equivalent work schedule) with no sudden or unpredictable workplace changes. The claimant cannot perform tasks requiring intense/focused attention for prolonged periods of time and must have work at a flexible pace (where the employee is allowed some independence in determining either the timing of different work activities or the pace of work). The claimant can have only casual/superficial interactions with others, including supervisors, coworkers, and the general public with no exposure to intense or critical supervision.

(Tr. 19).

         These limitations, according to the ALJ, prevented plaintiff from performing any past work but did not prevent him from performing a significant number of jobs available in the national economy. As a result, the ALJ concluded plaintiff was not under a disability.

The Appeals Council denied plaintiff's request for review, making the ALJ's decision final.
On September 9, 2016, plaintiff filed suit in this Court, seeking review of the ALJ's decision.
In the R&R, the Magistrate Judge recommends I affirm the ALJ's decision denying benefits.

         Plaintiff objects to the R&R based on three arguments-the ALJ erred by: 1) failing to give proper consideration to the VA's 90% disability rating; 2) failing to consider the effect of plaintiff's impairments in combination; and 3) failing to grant plaintiff credibility based on his military service.

         For the reasons that follow, I adopt the Magistrate Judge's R&R and affirm the ALJ's decision.

         Standard of Review

         When reviewing a Magistrate Judge's R&R, I make a de novo determination regarding the portions to which plaintiff objects. See 28 U.S.C. § 636(b)(1).

         In reviewing the Commissioner's decision, I must determine whether substantial evidence supports the ALJ's findings and whether the ALJ applied the proper legal standards. See 42 U.S.C. § 405(g); Brainard v. Sec'y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).

         I may not “try the case de novo, nor resolve conflicts in the evidence, nor decide questions of credibility.” Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994). If substantial evidence supports it, I must affirm the ALJ's decision, even if I would have decided the matter ...

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