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Mann v. Colvin

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

January 6, 2017

ERICA MANN, Plaintiff,
v.
CAROLYN W. COLVIN, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          Thomas M. Rose District Judge.

          REPORT AND RECOMMENDATIONS [1]

          Sharon L. Ovington United States Magistrate Judge.

         I. Introduction

         Plaintiff Erica Mann brings this case challenging the Social Security Administration's denial of her applications for a period of disability, Disability Insurance Benefits, and Supplemental Security Income. She applied for benefits on October 10, 2012, asserting that she could no longer work a substantial paid job due to chronic back pain, degenerative disc disease, protrusions of the left side of her neck, depression, hereditary foot condition, bipolar disorder, post-traumatic stress disorder, polycystic ovarian disease, chronic ankle pain, bunions, and asthma. Administrative Law Judge (ALJ) Gregory G. Kenyon concluded that she was not eligible for benefits because she is not under a “disability” as defined in the Social Security Act.

         The case is presently before the Court upon Plaintiff's Statement of Errors (Doc. #6), the Commissioner's Memorandum in Opposition (Doc. #11), Plaintiff Reply (Doc. #12), the administrative record (Doc. #5), and the record as a whole.

         II. Background

         Plaintiff asserts that she has been under a “disability” since August 1, 2011. At that time, she was thirty-one years old and was therefore considered a “younger person” under Social Security Regulations. See 20 C.F.R. §§ 404.1563(c), 416.963(c). She has a high school education, and past relevant work as a management trainee and gas station attendant. (Doc. #5, PageID #56).

         A. Plaintiff's Testimony

         At her administrative hearing on March 10, 2014, Plaintiff testified that she could not work a full-time job because she has problems dealing with people, she suffers from physical pain, and she is not able to stand for long periods of time. Id. at 78-79.

         Plaintiff has had back pain daily for several years. Id. at 71. She describes it as “[i]ntense at times. Tightening. It radiates from the middle of my back and wraps around my hips. Sometimes going down into my right leg.” Id. At the time of the hearing, she rated her pain severity at a level seven on a zero to ten scale and five on a day-to-day basis. Id. She takes Vicodin for pain but “[i]t barely takes the edge off.” Id. She has also tried physical therapy and chiropractic care. Id. Her doctors discussed surgery, but it “wasn't the avenue that they wanted to pursue.” Id. at 72.

         Plaintiff also has neck pain that she describes as “an aching pain, stiffness, lack of range of motion for either side all the way. If I look all the way to the left or look all the way to the right it's difficult for me to do. So my mobility is slightly limited.” Id. She takes medication for the pain. Id. at 73. Further, Plaintiff “severely” sprained her ankle two years prior to the hearing. Id. She has pain and swelling that flares up two to three times per month. Id. When her ankle swells, she needs to elevate her legs four times per day for approximately twenty minutes at a time. Id. at 75. In addition, Plaintiff has plantar fasciitis that “flares up” once every few months. Id. at 74. When it does, she uses a cane and orthotic boot. Id. She also has bunions on both feet that cause her pain. Id. at 85.

         Plaintiff testified that she suffers from bipolar disorder with mood swings. Id. at 76. Additionally, “on a day-to-day basis, I battle with depression and anger. I have bouts of rage, feelings of worthlessness and hopelessness.” Id. She is also irritable and has panic attacks and anxiety. Id. at 76, 81-84. Her panic attacks last between fifteen and forty-five minutes and occur a couple times per month. Id. at 81. She has post-traumatic stress disorder with flashbacks and nightmares. Id. at 83. She attends therapy, and she is on a list to see a psychiatrist. Id. Her primary-care physician prescribes Abilify and Xanax. Id. at 84.

         Plaintiff estimated that she could stand and walk for ten minutes or for approximately one to two blocks. Id. at 74. She can only sit for an hour “because [she starts] getting real tight in [her] back and [her] hips. And pain starts to shoot down [her] leg.” Id. at 75. She believes she can lift about ten pounds. Id. at 75-76.

         Plaintiff lives in an apartment with her son and a roommate. Id. at 70, 77. She takes care of her personal needs such as bathing and dressing. Id. at 77. She does not do many household chores. Id. Her roommate and son share most of the household responsibilities. Id. She spends most of her day sleeping because she has difficulty sleeping at night. Id. at 78. She has a driver's license but does not drive because she does not own a vehicle and driving makes her nervous. Id. at 70. In an average month, she only leaves the apartment three to four times per month. Id. at 82.

         B. Medical Evidence

         1. Rick Gebhart, D.O.[2]

         On February 26, 2014, Plaintiff's family-care physician, Dr. Gebhart, completed interrogatories related to her medical impairments. Id. at 681-88. He treated her for pain in her joint, ankle, and feet, anxiety, fatigue, and insomnia. Id. at 682. He opined that she is unable to withstand the pressures of meeting standards of work productivity and work accuracy without significant risk of physical or psychological decompensation or worsening of her physical and mental impairments; demonstrate reliability; and complete a normal workday or workweek without interruptions from psychologically and/or physically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods. Id. at 682-83. Dr. Gebhart explained that she has “increased levels of anxiety, mood swings that are often not managed by her medications, problems dealing with the public, problems with standing for long periods of time” and “has chronic back pain and ankle pain.” Id. at 683.

         Further, Dr. Gebhart opined that Plaintiff could lift and/or carry no more than twenty pounds frequently and ten pounds occasionally; stand and/or walk no more than thirty minutes at one time for a total of one hour in an eight-hour workday; and sit no more than one hour at a time for a total of two hours in an eight-hour workday. Id. at 684-85. She can never climb or crawl, and she can occasionally stoop, crouch, and kneel. Id. at 685. She also needs to avoid exposure to noise because “noise tends to agitate her.” Id. at 686-87. Additionally, “she performs poorly with the public, she cannot stand, sit for long periods. Despite numerous medication adjustments she remains labile and unpredictable.” Id. at 687. Dr. Gebhart concluded that she was unable to perform sedentary work on a sustained basis. Id. at 688.

         2. Scott West, D.O.

         Plaintiff consulted with Dr. West, a neurosurgeon, in October 2010. Id. at 568-71. She reported “low back pain with radiation into her hips and buttocks regions bilaterally, right greater than left.” Id. at 570. Further, she experiences “constant posterior cervical pain with radiation into the intrascapular region.” Id. at 568. In November 2010, Dr. West noted that an MRI of her cervical spine revealed small disc protrusions but no significant neural compression. Id. at 567. He recommended physical therapy for one month. Id.

         On February 7, 2011, Dr. West noted that the previous MRI also revealed a small disc herniation at ¶ 4-5 left. Id. at 566. In March 2011, an MRI of Plaintiff's lumbar region revealed some mild degenerative changes at the L4-5 level. Id. at 565. Dr. West opined that it was not severe enough for surgical intervention, and he recommended conservative care and pain management. Id.

         On November 1, 2013, Dr. West noted that Plaintiff's most recent lumbar spine x-rays showed only very mild disc space narrowing. Id. at 661. On examination, Dr. West found tenderness to palpation in the lower lumbar region, decreased lumbar range of motion, and positive straight leg raising on the right. Id. On December 2, 2013, an MRI of her lumbar spine revealed some mild degenerative disc changes at the L4-5 level, and Dr. West recommended conservative care and pain management. Id. at 658-59.

         3. Michelle Achor, DPM

         Dr. Achor, a podiatrist, first examined Plaintiff on December 3, 2012. Id. at 472-75. Plaintiff exhibited pain upon palpation to her right ankle with focal edema, and her gait showed calcaneal eversion and severe STJ (subtalar joint) and MTJ (midtarsal joint) pronation. Id. at 475. X-rays revealed normal alignment of the right ankle joint with no loose bodies, significant talar declination, and decreased calcaneal inclination right. Id. Dr. Achor diagnosed chronic right ankle sprain, right peroneal tendonitis, excessive pronation, and hallux abducto valgus. Id. Plaintiff was casted for orthotics and referred to physical therapy. Id. Dr. Achor opined that she may have difficulty with prolonged standing and walking. Id. at 473.

         On October 3, 2013, Dr. Achor opined that Plaintiff experiences moderate to severe pain, can only stand for fifteen minutes at one time, and needs to elevate her legs at or above waist level occasionally during an eight-hour work day. Id. at 625, 627. On October 10, 2013, an MRI of Plaintiff's right ankle revealed attenuation of the right anterior talofibular ligament, consistent with a prior sprain, trace subcortical bone marrow edema, and mild right plantar fasciitis. Id. at 679. ...


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