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Weber v. Commissioner of Social Security

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

June 1, 2017

DAVID M. WEBER, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          EDMUND A. SARGUS, JR. CHIEF JUDGE.

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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.

         I. BACKGROUND

         A. Prior Proceedings

         Plaintiff 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.[1] (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).

         Plaintiff 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 filed.

         B. Relevant Testimony at the Administrative Hearing

         Plaintiff 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).

         Plaintiff's 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).

         In 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. (Id.).

         Finally, 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).

         C. Relevant Medical Background

         1. Physical Impairments

         On 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.).

         As a 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 surgery. (Id.).

         Several 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 incision. (Id.).

         On July 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 concluded:

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).

         Plaintiff 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 #: 1124).

         On 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 as follows:

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 ...

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