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Bonette v. Commissioner of Social Security

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

March 29, 2017

Mathew J. Bonette, Plaintiff
Commissioner of Social Security[1], Defendant


          Jeffrey J. Helmick United States District Judge

         This matter is before me on Plaintiff's objections (Doc. No. 20) to the February 2, 2017 Report and Recommendation of the Magistrate Judge. (Doc. No. 19). Also before me is the Defendant's response to Plaintiff's objections. (Doc. No. 21).

         As there were no objections to the procedural and factual background of the Report, I will adopt it in its entirety:

         Procedural Background

         Plaintiff filed for DIB and SSI in January 2013, alleging a disability onset date of May 9, 2012. (Tr. 161-74). The Commissioner, through the state agency, denied his applications at the initial level of review. (Tr. 79-108). Plaintiff then requested a hearing before an administrative law judge (“ALJ”). See Tr. 121. Plaintiff (represented by counsel), and a vocational expert (“VE”) testified at a hearing before the ALJ on June 19, 2014. (Tr. 35-78). On September 29, 2014, the ALJ found Plaintiff not disabled in a written decision. (Tr. 13-29). The Appeals Council denied Plaintiff's request for review, making the hearing decision the final decision of the Commissioner. (Tr. 1-6); 20 C.F.R. §§ 404.955, 404.981. Plaintiff filed the instant action on February 2, 2016. (Doc. 1).

         Factual Background

         Personal Background and Testimony

         Plaintiff was 50 years old at the time of the ALJ hearing and had a high school education and some college classes. (Tr. 44-45, 46). He had a driver's license, and drives short distances, but a friend had driven him to the hearing. (Tr. 44-45, 59). He did not have a handicapped permit for his car. (Tr. 59). The drive to the hearing was about an hour and his lower back “got quite sore”. (Tr. 45).

         Plaintiff lived alone. (Tr. 44). Volunteers of America paid, a friend covered his utilities, and he had medical coverage through the VA. (Tr. 45-46). He relied on food stamps, which he had been receiving since February 2014. (Tr. 46).

         Plaintiff had previously worked as a paramedic, delivery driver, warehouse worker, and performed physicals on prospective plasma donors. (Tr. 47). As a delivery driver, he was on the road twelve hours per day five to six days per week. (Tr. 49). When he performed physicals, “[i]t was a lot of up and down work”. (Tr. 50). During late 2011 or early 2012, the “getting up and down and walking to the donor floor got to be difficult.” (Tr. 50-51). This was because he had “a lot of pain in the feet and legs” with “pins and needles, burning sometimes.” (Tr. 51). Then in May 2012, Plaintiff began having an “increase in near falls and falls” and an increase in pain in his legs and lower back. (Tr. 52). His physician advised him to stop working. Id.

         Plaintiff then began working again in September 2013 for a company that helps keep developmentally disabled people living independently. (Tr. 53). He worked a desk job remotely monitoring people in their individual homes. (Tr. 53-54). Before November he was in training, but in November 2013 he began working 32 hours per week. (Tr. 55). He experienced a lot of anxiety working that job. Id.

         Plaintiff testified the biggest issue preventing him from working is the pain in his legs and back. (Tr. 56). Plaintiff estimated he could sit for fifteen to twenty minutes comfortably before getting pain in his lower back that would travel to his hips. Id. Getting up and stretching helped for a few minutes. Id. Similarly, he estimated he could stand for ten to fifteen minutes at a time, and walk for about ten minutes. Id.

         Plaintiff does his own grocery shopping, but makes short (less than fifteen minute) trips. (Tr. 57). He does household chores, but breaks them up into increments, sitting down to rest at times. (Tr. 58). He usually has to take a ten to fifteen minute break (sitting with his legs elevated) after ten to fifteen minutes of work. (Tr. 64-65). This is because his lower body (legs, back, and feet) get sore and his ankles swell. Id. He sits down to elevate his legs above waist level four to five times per day for 15 to 25 minutes at a time. (Tr. 65). It helps “some” with the pain and burning sensation he gets in his feet. (Tr. 65-66).

         He is generally able to take care of personal grooming. (Tr. 60). He takes short showers, and has to sit down to get dressed so he does not fall. Id. He used to hike, hunt and fish, camp, make jewelry, and do wood carving. (Tr. 58). The only activity he can still do is the jewelry making, but “it's limited to how long I can actually work on a piece.” Id.

         Plaintiff does not sleep well at night, waking four to six times per night due to pain and disturbing dreams. (Tr. 68). He will “roll over, reposition, try to stretch out the area that's sore, and then try to get back to sleep.” Id. He also naps every afternoon. Id.

         Plaintiff uses a cane because he “had a number of near falls” and his right side is his weaker side. (Tr. 59). He uses the cane for support to take weight off his right leg. (Tr. 59-60). He testified that squatting aggravates his pain, kneeling is “next to impossible”, and “[b]ending down to pick something up is pretty difficult”. (Tr. 60).

         Plaintiff estimated he can comfortably lift between ten and twenty pounds but “anything over 20 gets quite painful” in his knees and lower back. (Tr. 61). He has difficulty reaching for things over his head and drops things often because he “can't feel them in [his] hands.” Id.

         Plaintiff testified that during his 2012 treatment at the Sparrow Pain Center he had steroidal injections, which helped for a week to two weeks. (Tr. 67). The injection did not eliminate the pain, “but it would ease it enough so that [he] could function a little better.” Id. He also had an ablation on the right side which only lasted a day or two. Id.

         At the time of the hearing, Plaintiff was taking “Neurontin which is Gabapen, ” Effexor, Mobic, Prazosin, and aspirin. (Tr. 63).

         Relevant Medical Evidence[2]

         Prior to Alleged Onset Date

         Beginning in January 2011, Plaintiff saw Shannon Wiggins, D.O., complaining of “chronic lower back pain and decreased mobility.” (Tr. 378). Dr. Wiggins diagnosed disc disorder (not otherwise specified) and radiculitis (not otherwise specified). (Tr. 379). In early 2011, Dr. Wiggins also diagnosed joint pain (unspecified) (Tr. 372, 374), lumbago (Tr. 372, 374, 377), muscle spasms (Tr. 374), and arthralgia (Tr. 374).

         In March 2011, Plaintiff saw neurologist Jayne Ward, D.O., for “paresthesias, gait difficulties and possible MS.” (Tr. 322). She noted these problems had begun March 2010, and that Plaintiff started using a cane in December 2010. Id. Dr. Ward noted a decreased Achilles reflex bilaterally, 5/5 strength proximally and distally in all 4 limbs, no atrophy or fasciculations, and an antalgic gate with cane. (Tr. 324). Dr. Ward's impression was paresthesias “with some suggestion of peripheral neuropathy on exam”, fatigue, and diffuse pain. (Tr. 325).

         In April 2011, Plaintiff underwent a cervical spine MRI and brain MRI. (Tr. 253, 255). The cervical spine MRI showed “left-sided disc extrusion perhaps in conjunction with spurring at the C2-C3 level causing asymmetric narrowing of the left foramen and lateral recess but no frank cord compression” and “spondylotic changes demonstrated throughout the cervical spine with associated facet arthropathy causing narrowing of foramina at multiple levels.” (Tr. 254). The brain MRI showed an “atypical area of periventricular signal involving the right lateral ventricle anteriorly.” (Tr. 255).

         In June 2011, Plaintiff underwent an electrodiagnostic evaluation with M. Andary, M.D. (Tr. 257). Dr. Andary noted Plaintiff complained of “progressively worsening paresthesias in the fingertips and in the toes”, “generalized achy pain as well as weakness in the legs” and “progressively worsening unsteady gait.” Id. Dr. Andary noted motor strength of “4 to 5/5” with “giveway weakness”. Id. He noted muscle stretch reflexes were absent in the bilateral patellar tendons, and bilateral calf tenderness to palpation. Id. Dr. Andary also noted no muscle atrophy and negative bilateral straight leg raising. Id. Dr. Andary noted Plaintiff's symptoms were “difficult to pull together under one diagnosis” but were most consistent with “a non length dependent, primarily axonal, primarily motor, polyradiculoneuropathy.” (Tr. 258).

         Plaintiff saw Dr. Ward again in the second half of 2011 and reported numbness in his hands and feet as well as joint and muscle pain. (Tr. 317-20, 312-15). Dr. Ward noted decreased strength of 4/5 in leg muscles, but no atrophy or fasciculations, and physiologic tone in upper and lower extremities. (Tr. 319). She also noted unsteady heel, toe, and tandem walking. (Tr. 314, 319). Dr. Ward also observed a decreased Achilles reflex bilaterally and decreased sensation in a distal to proximal pattern to pin prick, temperature, and vibration. Id. Dr. Ward's impression remained neuropathy, fatigue and diffuse pain. (Tr. 315, 319).

         Plaintiff also continued to see Dr. Wiggins, who diagnosed neuropathy and prescribed medication. (Tr. 360-64).

         Plaintiff had a repeat electrodiagnostic evaluation with Dr. Andary in December 2011. He noted Plaintiff reported more fatigue, but his weakness and function were about the same, and he had stopped walking with a cane. (Tr. 302). He again noted mild giveway weakness in the quadriceps, anterior tibiols and extension hallucis longus. Id. Dr. Andary again noted “diffuse electrodiagnostic abnormalities that appear to be most consistent with a non length dependent, primarily axonal, primarily motor polyradiculoneuropathy.” Id. He noted that “[i]it is possible it is slowly improving” but that he was “not able to absolutely prove that.” Id.

         Plaintiff again saw Dr. Ward in January 2012. (Tr. 307). He reported worsening gait, a burning sensation in his hands, and leg weakness after standing or sitting too long. Id. Dr. Ward noted similar physical findings as in previous visits, and ...

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