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Brunkel v. Berryhill

United States District Court, S.D. Ohio, Western Division, At Dayton

June 5, 2017

JOSEPH BRUNKEL, Plaintiff,
v.
NANCY A. BERRYHILL, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          Walter H. Rice District Judge.

          REPORT AND RECOMMENDATIONS [1]

          Sharon L. Ovington United States Magistrate Judge.

         I. Introduction

         Plaintiff Joseph Brunkel brings this case challenging the Social Security Administration's denial of his application for period of disability and Disability Insurance Benefits. He applied for benefits on October 10, 2012, asserting that he could no longer work a substantial paid job. Administrative Law Judge (ALJ) George D. McHugh concluded that he was not eligible for benefits because he is not under a “disability” as defined in the Social Security Act.

         The case is before the Court upon Plaintiff's Statement of Errors (Doc. #6), the Commissioner's Memorandum in Opposition (Doc. #9), Plaintiff's Reply (Doc. #10), the administrative record (Doc. #5), and the record as a whole.

         Plaintiff seeks a remand of this case for payment of benefits or, at a minimum, for further proceedings. The Commissioner asks the Court to affirm ALJ McHugh's non-disability decision.

         II. Background

         Plaintiff asserts that he has been under a “disability” since April 1, 2011. He was forty-four years old at that time and was therefore considered a “younger person” under Social Security Regulations. 20 C.F.R. § 404.1563(c). He has a limited education. 20 C.F.R. § 404.1564(b)(3).

         A. Plaintiff's Testimony

         Plaintiff testified at the hearing before ALJ McHugh that he cannot work because of the severe pain in his back and neck. (Doc. #5, PageID #s 87, 103). His back pain started in 2003 or 2004, and he underwent a lumbar fusion surgery in 2006. Id. at 85-86. In the two years before the hearing, his pain has gotten worse. Id. at 90. It starts in his lower back and goes down his legs. Id. at 90-91. When he is in one position (standing, sitting, laying, etc.) for too long, his back pain increases. Id. at 91. On a scale from one to ten, his pain on an average day is a nine. Id. at 91. When he took medication regularly, his pain was at a four or five. Id. at 104.

         Plaintiff also has severe neck pain. In April 2011, his doctor, Dr. Taha, “put [him] on permanent disability and did surgery on [his] neck.” Id. at 84-85. Additionally, Plaintiff's arms and fingers go numb. Id. at 87. His hands bother him every other day, and his left hand is worse than his right hand. Id. at 89-90. He also has muscle weakness and “can barely pick up a gallon of milk.” Id. at 87. He has difficulty reaching overhead and twisting from side to side. Id. at 90-91. He “can probably touch [his] toes, but it would kill [him].” Id. at 91.

         Plaintiff had medical insurance through Humana and had difficulty finding doctors. Id. at 88. He switched to CareSource and at the time of the hearing, his doctors were “starting to see [him] more.” Id. At the time of the hearing, he was not receiving any treatment, but he has gone to the emergency room for pain medication. Id. at 92-93. Additionally, he indicated that he had a pain management appointment scheduled for the next Thursday. Id. at 88, 92.

         Plaintiff also suffers from depression. Id. at 93. It began in 2011 when his father got sick. Id. His father passed away in 2012 and then his mother passed away in May 2015. Id. When asked what his symptoms are, he reported that he gets really nervous, jumps at loud noises, and gets aggravated with his roommate's children. Id. at 94. (Plaintiff lives with a friend and the friend's two children. Id. at 82.). He sometimes has suicidal thoughts but “won't act on it because [he thinks] that's a terrible way to go out.” Id. He has crying spells approximately twice per week. Id. He has mood swings and trouble sleeping at night. Id. He hears his mother and father talking approximately twice per week. Id. at 95. He also has difficulty with concentration. Id.

         He does not have a driver's license. Id. at 83. He estimated that he could walk less than a quarter of a mile and stand for ten to fifteen minutes at a time. Id. at 89. On a typical day, Plaintiff walks “[t]wo doors down” to his friend's house to watch television, sit on the porch, drink tea, and talk to him. Id. at 96, 102. He is able to shower and dress himself. Id. at 101. He washes dishes, vacuums, and does his own laundry with assistance from his roommate's children. Id. He is not able to do any outside work such as mowing the lawn. Id. at 101-02.

         Plaintiff attended school through eleventh grade. Id. at 83. He is not very good at reading or writing. Id. From 1995 through 2011, he worked as a certified electrician. Id. at 97. To be certified, he was required to attend an eight-hour class every Saturday for two years. Id. at 84.

         B. Medical Evidence

         In June 2006, Plaintiff presented to Jamal Taha, M.D., and reported severe pain in his back and legs. Id. at 568. An MRI revealed displacement of the lumbar intervertebral disc without myelopathy and spinal stenosis of the lumbar region. Id. at 569, 611. Plaintiff underwent a laminectomy on the left at ¶ 4-L5 and posterior stabilization. Id. at 609. Although he recovered as expected, he continued to have back pain and began having numbness in his arms. Id. at 560-67.

         In August 2007, a CT scan revealed severe foraminal stenosis, and Plaintiff underwent a right C3-4 and C4-5 posterior cervical foraminotomy. Id. at 557-59. Unfortunately, Plaintiff's pain quickly returned. Id. at 549-53.

         In May 2010, Plaintiff began treatment with Mervet K. Saleh, M.D., at the Ohio Institute for Comprehensive Pain Management. Id. at 484. Dr. Saleh tried a lumbar selective nerve root block several times to help alleviate Plaintiff's pain. Id. at 484-85, 712-16. He also prescribed pain medication and muscle relaxers. Id. at 705, 709.

         In April 2011, after Plaintiff's condition had not improved with conservative treatment, Dr. Taha performed an anterior cervical C5-6 discectomy with decompression of neural tissue; anterior cervical C5-6 interbody fusion; and anterior cervical plating at ¶ 5-6. Id. at 475-77.

         Plaintiff has since been evaluated by one consulting physician, Phillip Swedberg, M.D., and two consulting psychologists, Mary Ann Jones, Ph.D., and David Chiappone, Ph.D. Id. at 528-34, 753-70. Additionally, Plaintiff's records have been reviewed by eight State agency doctors, Steve E. McKee, M.D., Olga V. Pylaeva, M.D., Gary Hinzman, M.D., Anne Prosperi, D.O., Karen Terry, Ph.D., Robelyn Marlow, Ph.D., Irma Johnston, Psy.D., and David Demuth, M.D. Id. at 116-28, 143-83.

         III. Standard of Review

         The Social Security Administration provides Disability Insurance Benefits to individuals who are under a “disability, ” among other eligibility requirements. Bowen v. City of New York,476 U.S. 467, 470 (1986); see 42 U.S.C. § 423(a)(1). The term “disability”-as defined by the Social Security Act-has specialized meaning of limited scope. It encompasses “any medically determinable physical or mental impairment” that precludes an applicant from performing a significant paid ...


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