United States District Court, N.D. Ohio, Western Division
Mathew J. Bonette, Plaintiff
Commissioner of Social Security, Defendant
Jeffrey J. Helmick United States District Judge
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.
there were no objections to the procedural and factual
background of the Report, I will adopt it in its entirety:
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).
Background and Testimony
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).
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).
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.
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.
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
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).
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
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.
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).
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.”
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.
time of the hearing, Plaintiff was taking “Neurontin
which is Gabapen, ” Effexor, Mobic, Prazosin, and
aspirin. (Tr. 63).
to Alleged Onset Date
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).
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.
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).
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.
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).
also continued to see Dr. Wiggins, who diagnosed neuropathy
and prescribed medication. (Tr. 360-64).
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.”
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,