United States District Court, S.D. Ohio, Eastern Division
L. Graham Judge.
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.
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).
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).
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).
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
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).
Testimony at the Administrative Hearing
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).
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.).
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).
Relevant Medical Evidence
Primary Care Physician Delia J. Herzog, M.D.
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).
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).
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).
Innovative Therapy: Jennifer Errington, L.I.S.W.
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.,
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.
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).
Smitha Patel, M.D.
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.
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. ...