United States District Court, S.D. Ohio, Eastern Division
DAVID M. WEBER, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
A. SARGUS, JR. CHIEF JUDGE.
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.
David M. Weber, filed this action seeking review of a
decision of the Commissioner of Social Security
(“Commissioner”) denying his application for both
disability insurance benefits and supplemental security
income. For the reasons that follow, it is RECOMMENDED that
Plaintiff's Statement of Errors (Doc. 17) be OVERRULED,
and that judgment be entered in favor of Defendant.
filed for disability insurance benefits (“DIB”)
and supplemental security income (“SSI”) on March
7, 2012. (Doc. 10-3, Tr. 84, 105, PAGEID #: 119, 140). In
both applications, Plaintiff alleged a disability onset date
of February 15, 2010. (Id.). His claims were denied
initially on March 5, 2013 (id.), and upon
reconsideration on June 1, 2013 (id., Tr. 92, PAGEID
#: 133). Administrative Law Judge John Robert Montgomery (the
“ALJ”) held a hearing on October 30, 2014 (Doc.
10-2, Tr. 49, PAGEID #: 83), after which he denied benefits
in a written decision on May 26, 2015 (id., Tr. 28,
PAGEID #: 58). That decision became final when the Appeals
Council denied review on May 27, 2016. (Id., Tr. 1,
PAGEID #: 35).
filed this case on July 28, 2016 (Doc. 1), and the
Commissioner filed the administrative record on October 24,
2016 (Doc. 10). Plaintiff filed a Statement of Specific
Errors on February 22, 2017 (Doc. 17), the Commissioner
responded on April 10, 2017 (Doc. 18), and no Reply was
Relevant Testimony at the Administrative Hearing
testified that he lives at home with his fiancée and
two of his young children. (Doc. 10-2, Tr. 53, PAGEID #: 87).
When the ALJ asked what Plaintiff felt was the major thing
that would keep him from working on a full-time basis, he
responded that he doesn't have strength. (Id.,
Tr. 60, PAGEID #: 94). For example, Plaintiff stated he
struggles to hold his 17-pound son. (Id., Tr. 60-61,
PAGEID #: 94-95). However, when asked by the ALJ how much he
could lift with his non-dominant extremity, Plaintiff stated
15 to 20 pounds. (Id., Tr. 66, PAGEID #: 100).
issues with alcohol were also discussed. Plaintiff admitted
he used to “self-medicate” with alcohol.
(Id., Tr. 64, PAGEID #: 98). Plaintiff testified
that when he “started losing everything” he
started drinking heavily and engaging in cocaine use,
although he stated he no longer is using those substances.
(Id., Tr. 70, PAGEID #: 104). Specifically,
Plaintiff stated the last time he drank heavily was
“[t]he last time I found myself in a mental
institution.” (Id., Tr. 71, PAGEID #: 105).
Plaintiff admitted he suffered a major depression after he
lost the ability to provide for his seven children. He takes
Prozac but does not receive any type of mental health
counseling. (Id., Tr. 71-73, PAGEID #: 105-07).
terms of daily activities, Plaintiff reported that he helps
his two-year old child get dressed, dresses himself, showers,
cooks occasionally, does some housework, and attends church.
(Id., Tr. 68, 74-75, PAGEID #: 102, 108-09). He
testified that he wasn't “an invalid or
anything” he “[j]ust can't do the activities
[he] used to.” (Id., Tr. 68, PAGEID #: 102).
Plaintiff stated his condition “changed [his] whole
life” and that he used to play the drums but hasn't
been able to hold onto the drumsticks for three years.
the Vocational Expert (“VE”) testified that with
limitations that the ALJ posed, Plaintiff would be unable to
perform any of his previous jobs. (Id., Tr. 77,
PAGEID #: 111). However, the VE testified that Plaintiff
could work as a mail clerk, office helper, or an order
caller, all of which would not involve more than frequent
handling, grasping or fingering. (Id., Tr. 78,
PAGEID #: 112).
Relevant Medical Background
March 30, 2010, Plaintiff was treated at Riverside Methodist
Hospital for right shoulder plan after slipping on ice and
falling down a flight of stairs one month prior. (Doc. 10-7,
Tr. 392, PAGEID #: 432). Treatment notes stated that after
his fall, Plaintiff had persistent pain in his right shoulder
and complains of “bilateral and numbness and tingling
as well as neck pain[.]” (Id.). On April 7,
2010, Plaintiff saw Dr. Jonathan Forquer for, inter
alia, his right shoulder pain and neck pain.
(Id., Tr. 521, PAGEID #: 561). Dr. Forquer noted
Plaintiff “[c]ontinues to have radicular symptoms,
numbness, tremor, and weakness of bilateral [upper
extremities].” (Id.). An MRI showed cervical
stenosis at the C6-C7 and facet arthropathy. (Id.).
result of this numbness, Plaintiff saw Dr. Girish Hiremath on
February 22, 2012. (Id., Tr. 540, PAGEID #: 580).
Because of the “severe stenosis at ¶ 6-C7, ”
Dr. Hiremath recommended an anterior cervical discectomy with
fusion and plate fixation. (Id., Tr. 541, PAGEID #:
581). Plaintiff agreed and underwent surgery on March 15,
2012. (Id., Tr. 711, PAGEID #: 751). In a follow-up
with Dr. Hiremath on March 28, 2012, it was noted that
Plaintiff's preoperative symptoms of significant shoulder
pain had resolved almost completely, his complaint of right
upper extremity numbness had improved significantly, and
there was only minimal numbness in the fingertips of his
right hand. (Doc. 10-8, Tr. 1097, PAGEID #: 1138). However,
Plaintiff reported migraine headaches that began after his
weeks later, on April 9, 2012, Plaintiff saw Dr. Forquer for
these headaches. (Doc. 10-7, Tr. 432, PAGEID #: 472). The
following month, Dr. Forquer recommended that Plaintiff see a
neurologist. (Id., Tr. 429, PAGEID #: 469). Despite
his complaints to Dr. Forquer of continuing headaches, at a
follow-up appointment with Dr. Hiremath on May 29, 2012,
Plaintiff reported that his migraine headaches and neck pain
had significantly improved. (Doc. 10-8, Tr. 1091, PAGEID #:
1132). At that same appointment, it was noted that Plaintiff
had 5/5 strength in grip and a well-healed anterior cervical
16, 2012, Plaintiff saw Dr. Herbert A. Grodner for a Social
Security Disability physical examination. (Doc. 10-7, Tr.
741, PAGEID #: 781). Upon examination, Dr. Groder noted that
Plaintiff had “decreased range of motion of the
cervical spine, ” but strength was 5/5 in all muscle
groups and that his grip strength was 12 PSI on the right and
8 PSI on the left with the dynamometer. (Id., Tr.
743, PAGEID #: 783). Further, “[g]rasp and manipulation
[were] normal.” (Id.). Ultimately, Dr. Grodner
Plaintiff “would have difficulty with activities that
require significant physical exertion which would include
repetitive lifting more than 20 or 25 pounds, climbing such
as ladders or scaffolding or stairs repetitively . . .
[Plaintiff] would have difficulty with activities that
require using his upper extremity repetitively and turning
his head repetitively. I do feel however, that he could at
least attempt some type of sedentary activity.”
(Id., Tr. 744, PAGEID #: 784).
saw neurologist, Dr. William Mayr, for his migraines.
(See Doc. 10-8, Tr. 1086, PAGEID #: 1127). At an
appointment on November 27, 2012, Dr. Mayr noted that
Plaintiff's “[h]eadaches continued unabated”
yet he “is still drinking caffeine daily, and he is
still smoking.” (Id., Tr. 1083, PAGEID #:
1124). Dr. Mayr opined though that he was “reassured by
his MRI and blood work” since they were normal.
(Id.). Dr. Mayr also noted that Plaintiff complained
of upper extremity tremors since 2006-2007, but since
“this is not a major issue, we will not focus on
this[.]” (Id., Tr. 1084, PAGEID #: 1125).
Ultimately, Dr. Mayr diagnosed new onset intermittent
migraine without aura as well as mild chronic daily headache,
and recommended lifestyle modifications to include no
caffeine, tobacco cessation, monitoring anxiety/depression
with a regular doctor, sleep hygiene techniques, and
instituting regular exercise. (Id., Tr. 1083, PAGEID
December 18, 2012, Plaintiff saw Dr. Hiremath for a
postoperative follow up. (Id., Tr. 1082, PAGEID #:
1123). At that time, Dr. Hiremath noted that Plaintiff had
“a mild resting tremor in the left hand, but no
significant rigidity, ” as well as 5/5 strength in
grip. (Id.). A year and a half later, at another
follow-up appointment on March 18, 2014, Dr. Hiremath opined
Postoperatively, he did well with significant improvement in
his symptoms suggestive of mylopathy as well as radicular arm
pain. However, two months ago, he was working on a ladder and
was lifting an object above his head when he had the sudden
onset of right-sided radicular arm pain that follows in
general C7 and possible the C8 distribution. Over the last
two months, the symptoms have not improved. He notices
subjective sensation of weakness into the right upper
extremity as well as some ...