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Herzog v. Commissioner of Social Security

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

May 31, 2017

ROBIN HERZOG, Plaintiff,

          James L. Graham Judge.



         Plaintiff, Robin Herzog, brings this action under 42 U.S.C. § 405(g) seeking review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her application for disability insurance benefits. For the reasons that follow, it is RECOMMENDED that the Court REVERSE the Commissioner's nondisability finding and REMAND this case to the Commissioner and the Administrative Law Judge (“ALJ”) under Sentence Four of § 405(g).

         I. BACKGROUND

         Plaintiff protectively applied for benefits on May 13, 2013, alleging disability since December 3, 2012, due to a number of ailments. (See generally Doc. 13, Tr. 182-88, 199, 214, 273). Plaintiff's last-insured date is December 31, 2017. (Id., Tr. 27).

         After initial administrative denials of Plaintiff's claims, an ALJ heard her case on April 23, 2014. (Id., Tr. 44-78). On August 1, 2014, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (Id., Tr. 23-42). On January 21, 2016, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (Id., Tr. 1-6).

         Plaintiff filed this case on March 18, 2016, and the Commissioner filed the administrative record on July 11, 2016. (Doc. 13). Plaintiff filed a Statement of Specific Errors on August 14, 2016 (Doc. 14), the Commissioner responded on October 14, 2016 (Doc. 17), and Plaintiff replied on November 3, 2016 (Doc. 18).

         A. Personal Background

         Plaintiff was born in April 1961 (Doc. 13, Tr. 182), and she was 50-years-old on the alleged onset date of disability. (Id., Tr. 37). She has a high school education and work experience with Honda as an associate, production staff member, and coordinator. (Id., Tr. 200).

         B. Testimony at the Administrative Hearing

         Plaintiff testified at the administrative hearing that she stopped working in December 2012, due to being “overwhelmed.” (Id., Tr. 49). Specifically, Plaintiff testified that she has migraines, insomnia, and hormone issues. All this caused her to miss “quite a bit of work, ” and she found it difficult to perform her supervisor position. (Id.). She testified she was also dealing with her son returning from military service with PTSD, and she has a vaginal mesh, which prolapsed in 2005, needed repair in 2008, and still causes her pain. (Id., Tr. 49-50). She additionally testified that she has all-over body pain that has been diagnosed as fibromyalgia or maybe rheumatoid arthritis. As to these two ailments, she testified that she was going to obtain a second opinion from Dr. Shereen Hashmi. (Id., Tr. 50). She described her pain as “so bad that I have to take Percocet every . . . six hours.” She also takes Lyrica but noted “it's not working at all.” (Id., Tr. 50, 68).

         Plaintiff had radial tunnel surgery in 2010. She testified that while the “nerve situation” from this surgery has improved, she still has weakness and difficulty performing tasks that require fine motor skills. (Id., Tr. 67). She wakes up with stiffness and pain in her fingers on a daily basis, and fibromyalgia causes pain in her wrists, fingers, elbow, lower back, knees, and ankles. (Id., Tr. 68). She noted, “I can't hardly do anything now. The pain is just too much.” (Id.).

         The vocational expert (“the VE”) testified that a hypothetical person of similar age and education as Plaintiff with a limitation of light exertional work could not perform Plaintiff's past job but could perform other jobs available in the national economy such as a mail clerk, laundry worker, and injection molding machine tender. (Id., Tr. 74-75). In addition, the VE testified that a hypothetical person of similar age and education as Plaintiff with an exertional level changed to sedentary work would have no transferable skills. (Id., Tr. 75-76). Additionally, the VE testified that if an employee were to miss three days per month or would be off task twenty percent of the time, no sustainable substantially gainful employment would be available. (Id., Tr. 76).

         C. Relevant Medical Evidence

         1. Primary Care Physician Delia J. Herzog, M.D.

         Plaintiff began treating with her primary care physician, Dr. Delia J. Herzog, in August 2006, with complaints of chronic neck pain, migraine headaches, stress, and anxiety. (Id., Tr. 366). Plaintiff continued to treat with Dr. Herzog past the administrative decision. (Id., Tr. 7, 12, 329-77, 552-74, 658, 719, 724-26). Plaintiff's complaints during her treatment included: body aching all over (id., Tr. 364, 556); “tired all the time, ” pain around her ankles and wrists (id., Tr. 362); hiatal hernia (id., Tr. 354); headaches/migraines (id., Tr. 12, 331, 335, 340, 348, 354, 458, 462); anxiety, increased due to her son serving in the military (id., Tr. 352); pain in her right arm despite having gone through therapy (id., Tr. 346); irregular menses (id., Tr. 342, 349); insomnia and sleep disturbances (id., Tr. 472); diarrhea, depression, and headaches (id., Tr. 464); neck pain (id., Tr. 456); pelvic pain (id., Tr. 567); low back pain and diarrhea (id., Tr. 558).

         Dr. Herzog diagnosed insomnia, depression, and situational anxiety (id., Tr. 333-34); epigastric pain, insomnia, depression, situational anxiety, and migraine (id., Tr. 329-30); cervical radiculopathy (id., Tr. 457); and fibromyalgia (id., Tr. 12, 556-57). She prescribed medications such as Wellbutrin for Plaintiff's depression, Amerge for migraines (id., Tr. 335); melatonin for sleep issues (id., Tr. 473); Percocet (id., Tr. 457, 567); and medication for diarrhea (id., Tr. 558).

         On April 27, 2014, Dr. Herzog opined that Plaintiff could work no hours in a day and would likely be absent due to medical impairments or treatment 31 days per month. (Id., Tr. 679). Plaintiff could walk 2 hours during an 8-hour day, for 20 minutes at a time, secondary to pelvic pain, fibromyalgia, and osteoarthritis. (Id.). Plaintiff could sit for 45 minutes at a time, up to 3 hours total in a workday, secondary to pelvic pain. (Id., Tr. 680). Plaintiff could carry one to two pounds frequently and eight pounds occasionally, secondary to radial tunnel disease and osteoarthritis. (Id.). Plaintiff could occasionally balance, stoop, and kneel, but never climb, crouch, or crawl, secondary to pelvic pain, low back pain, and osteoarthritis. (Id., Tr. 680). Dr. Herzog reported that Plaintiff also suffers from fatigue and depression due to fibromyalgia and being diagnosed with major depressive disorder. (Id., Tr. 682).

         2. Innovative Therapy: Jennifer Errington, L.I.S.W.

         Plaintiff sought mental health counseling with social worker, Jennifer Errington, a licensed independent social worker, on December 11, 2012. Plaintiff reported symptoms of depression, PTSD, and acute stress disorder, and reported a multitude of physical health issues. (Id., Tr. 668). Ms. Errington diagnosed Acute Stress Disorder and Major Depressive Disorder (with anxious distress). (Id., Tr. 668).

         Ms. Errington completed a Mental Status Questionnaire in August 2013, where she reported that she had seen Plaintiff for 12 sessions, from December 2012 through August 2013. She found that Plaintiff was generally anxious and depressed, with rapid conversation and pressured speech. Plaintiff was hypervigilant, perseverated on physical disorders and issues, and was easily overwhelmed and prone to tangents. Plaintiff's judgment was generally good when expectations were low to moderate; and her ability to remember, understand, and follow directions was generally good unless she was overwhelmed. Ms. Errington thought Plaintiff would do best in a simple, supportive environment. (Id., Tr. 502-03).

         On November 7, 2013, Ms. Errington completed a Mental Residual Functional Capacity assessment in which she listed Plaintiff's diagnoses as PTSD and major depression. Ms. Errington opined that Plaintiff would have moderate to extreme limitations in understanding, memory, and sustained concentration and persistence; and mild to extreme limitations in social interaction and adaptation; and she would be unable to work on a sustained basis due to anxiety. (Id., Tr. 671-74).

         3. Smitha Patel, M.D.

         Psychiatrist Smitha Patel evaluated Plaintiff on March 13, 2013. (Id., Tr. 482-84). During the evaluation, Plaintiff complained of depression and anxiety for the past few months, noting that she had been off work since December due to depression, insomnia, and stress. Plaintiff claimed she was forgetful and no longer able to do simple tasks. Plaintiff said her problems began in the middle of 2012, when she experienced two family deaths, was caring for her sick mother, had a stressful new job, and was worried about her son's safety. (Id., Tr. 482). Dr. Patel found Plaintiff exhibited a depressed mood, intact thought processes, and fair judgment and insight. Dr. Patel diagnosed major depressive disorder and panic disorder with agoraphobia. Dr. Patel assigned a Global Assessment of Functioning (GAF) score of 30 upon evaluation. He continued Plaintiff's medications, prescribed Viibryd for depression, and recommended counseling. (Id., Tr. 483).

         Plaintiff continued to see Dr. Patel monthly until November 2013 for medication management. (Id., Tr. 479-81, 576-78). Her mental status examination generally revealed a depressed mood, with coherent speech, logical thought processes, average attention and concentration and good memory. (See id., Tr. 479, 480, 576). Plaintiff told Dr. Patel on July 24, 2013, that she resigned from work the day before, after Cigna denied her disability claim. Plaintiff complained of daily headaches, memory problems, and racing thoughts. On examination, Dr. ...

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