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Case v. Berryhill

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

March 6, 2017

EUGENIA CASE Plaintiff,
v.
NANCY A. BERRYHILL[1], ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          SARA LIOI, JUDGE

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          GEORGE J. LIMBERT, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Eugenia Case (“Plaintiff”) requests judicial review of the final decision of the Commissioner of Social Security Administration (“Defendant”) denying her application for Disability Insurance Benefits (“DIB”). ECF Dkt. #1. In her brief on the merits, filed on September 14, 2016, Plaintiff asserts that the administrative law judge's (“ALJ”) decision that Plaintiff was not disabled was not supported by substantial evidence. ECF Dkt. #18 at 6-14. Defendant filed a response brief on November 14, 2016. ECF Dkt. #20. Plaintiff did not file a reply brief.

         For the following reasons, the undersigned RECOMMENDS that the Court AFFIRM the ALJ's decision and dismiss Plaintiff's case in its entirety with prejudice.

         I. FACTUAL AND PROCEDURAL HISTORY

         On February 2, 2012, Plaintiff filed an application for DIB, alleging disability beginning February 10, 2011. ECF Dkt. #12 (“Tr.”) at 20.[2] Plaintiff's claim was denied initially and upon reconsideration. Id. Plaintiff then requested a hearing, which was held on November 18, 2013. ECF Dkt. #16 at 3. A supplemental hearing was held on March 3, 2014. Tr. at 34. On August 14, 2014, the ALJ issued a decision denying Plaintiff's DIB claim. Id. at 17. Subsequently, the Appeals Council denied Plaintiff's request for review. Id. at 5. Accordingly, the August 14, 2014, decision issued by the ALJ stands as the final decision.

         Plaintiff filed the instant suit seeking review of the ALJ's August 14, 2014, decision on March 10, 2016. ECF Dkt. #1. On September 14, 2016, Plaintiff filed a brief on the merits. ECF Dkt. #18. Defendant filed a response brief on November 14, 2016. ECF Dkt. #20. Plaintiff did not file a reply brief.

         II. RELEVANT MEDICAL AND TESTIMONIAL EVIDENCE

         A. Medical Evidence

         Plaintiff began treating with William J. Petersilge, M.D., in October 2010. Tr. at 369. Dr. Petersilge indicated that Plaintiff was involved in a motor vehicle accident in 2005 during which she sustained a femoral shaft fracture and “apparently a sacral and pelvic fracture.” Id. at 370. Continuing, Dr. Petersilge noted that following the motor vehicle accident, Plaintiff experienced persistent buttocks, lower back, and leg pain. Id. It was further noted by Dr. Petersilge that Plaintiff's femur fracture healed “uneventfully.” Id.

         In February 2011, Plaintiff visited Megan Brady, M.D., for numbness and pain in her left leg, and complaints of occasional hip and groin pain. Tr. at 466. Plaintiff informed Dr. Brady that she had been seen by multiple doctors in the past and had been told that she should not enroll in physical therapy. Id. Continuing, Plaintiff indicated that she had not participated in physical therapy since 2005 and that she was not interested in physical therapy. Id. Additionally, Plaintiff stated that she had participated in pain management in the past, but did not wish to return to pain management. Id. Plaintiff also indicated that she was able to walk and care for her children. Id.

         On June 10, 2011, Plaintiff visited Dr. Petersilge for a follow-up appointment. Tr. at 303. Plaintiff complained of persistent pain following her pelvic and femoral fractures, and indicated that she was taking Tramadol, Flexeril, and Neurotin to help with her pain. Id. Additionally, Plaintiff stated that she was not interest in injections because of a bad reaction to an injection in the past. Id.

         In January 2012, Plaintiff presented to an emergency room with complaints of increased pain in her neck, lower back, and left hip after a single-car accident that occurred when Plaintiff hit a patch of ice while traveling at approximately twenty-five miles per hour. Tr. at 348. Plaintiff was discharged in stable condition that same day, and prescribed medication for pain and muscle relaxation. Id. at 348-49.

         Plaintiff visited Dr. Petersilge again on March 14, 2012. Tr. at 374. Dr. Petersilge noted that “[i]t appears at this point that [Plaintiff] seems to be using [him] as her pain management advice person, ” and that there was not much that he could offer to Plaintiff. Id. Dr. Petersilge indicated that Plaintiff stated that she received relief from the use of ibuprofen, as well as intermittent Flexeril and Gabapentin for her recurrent leg pain. Id. Further, Dr. Petersilge noted that Plaintiff “apparently never did go through with the aquatic therapy” that he had prescribed, so a new prescription for aquatic therapy was issued to Plaintiff. Id. Dr. Petersilge also issued a prescription for a lumbosacral corset. Id.

         In May 2012, Plaintiff underwent a mental consultative evaluation. Tr. at 363-68. It was noted that Plaintiff presented with a constricted affect and depressed mood. The consultative examiner concluded that Plaintiff was experiencing depression due to her physical problems and the resulting financial problems. Id. at 366-67. Plaintiff was diagnosed with mood disorder due to her injuries sustained in the 2005 car accident, pain and numbness in her pelvis, leg, back, wrist, and neck, and depression. Id. at 366. Plaintiff visited Dr. Petersilge for a follow-up appointment in June 2012. Tr. at 375. Dr. Petersilge noted that Plaintiff's primary care physician did not feel comfortable prescribing medications for discomfort, and indicated that he would prefer that the primary care physician accept responsibility for handling Plaintiff's medications. Id.

         Also in June 2012, state agency physician Leon D. Hughes, M.D., completed a physical residual functional capacity (“RFC”) assessment. Tr. at 76-86. Dr. Hughes opined that Plaintiff was capable of performing a range of light work including: occasionally climbing ramps/stairs; never climbing ladders, ropes, or scaffolds; and occasionally balancing, stooping, kneeling, crouching, and crawling. Id. State agency physician Diane Manos, M.D., affirmed Dr. Hughes' findings on October 30, 2012. Id. at 88-100.

         On November 17, 2012, Plaintiff reported to an emergency room with complaints of pelvic pain and a potential syncopal episode. Tr. at 388. Plaintiff indicated that she experienced chronic left leg pain and chronic lower back pain from pelvic and femoral fractures sustained in 2005. Id. That same day, Plaintiff was discharged in stable condition and given a prescription for Vicodin for her pain. Id. at 389. In March 2013, Plaintiff reported to an emergency room complaining of right-sided and upper abdominal pain. Tr. at 526. Plaintiff was discharged in stable condition with a diagnosis of “undifferentiated abdominal pain, likely gastritis.” Id. at 531.

         In June 2013, Plaintiff visited Dr. Petersilge's office and was seen by Jessica Rahrig, PA-C. Tr. at 385. It was noted that Plaintiff continued to experience pain throughout her left leg, and that Plaintiff reported that her pain was well controlled with her medications. Id. Plaintiff's medications were refilled and she was given a packet of exercises that she could try to help relieve her hip pain. Id. Plaintiff was told to see her primary care physician and advised the he may be more adept to manage her long-term medication requirements. Id. X-rays of Plaintiff's left femur showed an “old healed fracture of the midshaft of the femur with [an] intramedullary rod bridging the old fracture site, ” and that the femur had healed in good position and alignment. Tr. at 425. The x-rays also showed mild degenerative osteoarthritis of the symphysis pubis. Id.

         Plaintiff underwent a Functional Capacity Evaluation (“FCE”) on November 15, 2013. Tr. at 412. It is noted in the FCE that Plaintiff reported continuous positional tolerance for standing for one hour, walking for thirty minutes, and sitting for one hour. Id. Plaintiff also reported the ability to stand for a total five hours in an eight-hour workday, walk for a total of two-hours in an eight-hour workday, and sit for six hours total in and eight-hour workday. Id. The FCE indicated that Plaintiff ambulated without assistive devices, and that her gait pattern displayed major deviations of decreased: left stance time; left heel strike; left knee and hip flexion in swing; lateral deviation of the pelvis; and counter-rotation of trunk. Id. at 414. Richard Wallis, the physical therapist performing the FCE, concluded that it was “clear” that Plaintiff did not have the physical ability to perform the requirements of her past employment due to pain, weakness, range of motion deficits, and decreased positional tolerances. Id. at 415. Mr. Wallis opined that Plaintiff's performance in lifting tasks would place her in the physical demands classification of less than sedentary, and that Plaintiff should be considered to be disabled. Id.

         In November 2013, Andrei Brateanu, M.D., opined that Plaintiff's physical capabilities were consistent with an ability to work at a less than sedentary level. Tr. at 930. Specifically, Dr. Brateanu opined that Plaintiff retained the ability to lift and/or carry less than ten pounds on an occasional basis, and sit, stand, or walk for less than two hours in an eight-hour workday. Id. Further, Dr. Brateanu opined that Plaintiff was disabled and unable to work. Id. at 930-31.

         Plaintiff was evaluated by Kermit Fox, M.D., in December 2013 for lower back pain radiating into the lateral left lower limb and numbness throughout the lower limb. Tr. at 894. On examination, Plaintiff displayed weakness with dorsiflexion, plantar flexion, great toe extension on the left, decreased ankle range of motion, decreased sensation throughout the left lower limb distal to the knee, and positive neural ...


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