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Iser v. Commissioner of Social Security

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

June 13, 2017

MARY LOU ISER, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          George C. Smith Judge.

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Mary Lou Iser, filed this action seeking review of a decision of the Commissioner of Social Security (“Commissioner”) denying her Title II Disability Insurance Benefits application. For the reasons that follow, it is RECOMMENDED that Plaintiff's Statement of Errors be OVERRULED, and that judgment be entered in favor of Defendant.

         I. BACKGROUND

         A. Prior Proceedings

         Plaintiff filed for disability insurance benefits (“DIB”) on March 25, 2013, alleging a disability onset date of September 24, 2010, with a date last insured of September 30, 2010. Doc. 10, Tr. 123-25, PAGEID #: 190-92). Her application was denied initially on June 26, 2013 (Id., Tr. 141, PAGEID #: 208), and upon reconsideration on September 9, 2013 (id., Tr. 145, PAGEID #: 212). Administrative Law Judge Jeffrey Hartranft (the “ALJ”) held a hearing on March 27, 2015 (id., Tr. 45, PAGEID #: 112), after which he denied benefits in a written decision on July 15, 2015 (id., Tr. 10, PAGEID #: 77). That decision became final when the Appeals Council denied review on June 10, 2016. (Id., Tr. 1, PAGEID #: 68).

         Plaintiff filed this case on August 8, 2016 (Doc. 1), and the Commissioner filed the administrative record on October 14, 2016 (Doc. 10). Plaintiff filed a Statement of Specific Errors on December 28, 2016 (Doc. 14), the Commissioner responded on February 13, 2017, (Doc. 15), and Plaintiff replied on February 27, 2017 (Doc. 16).

         B. Relevant Testimony at the Administrative Hearing

         Plaintiff's counsel began the hearing by explaining that Plaintiff was involved in a motor vehicle accident on September 24, 2010, her alleged date of disability. (Doc. 10, Tr. 54, PAGEID #: 121). He explained further that in the accident she sustained several injuries, but most significantly, she sustained a traumatic brain injury. (Id.).

         Before Plaintiff began her testimony, the ALJ noted this was an “unusual case” because there were only six days between the alleged onset date and the date last insured (“DLI”). (Doc. 10, Tr. 58, PAGEID #: 125). The ALJ also stated that he would “obviously” consider evidence after Plaintiff's DLI, but he was concerned how that evidence would “relate back” to Plaintiff's conditions on the DLI. (Doc. 10, Tr. 59-60, PAGEID #: 126-27).

         Plaintiff testified that she completed school through ninth grade and can read and write. (Doc. 10, Tr. 67-69, PAGEID #: 134-36). She also stated that she has never had a driver's license so she relies on her husband and daughter for transportation. (Doc. 10, Tr. 67, PAGEID #: 134). In terms of daily activities, Plaintiff testified that she wakes up at 4:30 a.m., packs her husband's lunch, takes her dog outside to the bathroom, sometimes takes him on walks, makes breakfast, and sometimes does laundry, the dishes, or vacuums, although if she is doing chores she often needs a break for 15 or 20 minutes. (Doc. 10, Tr. 81-86, PAGEID #: 148-53). In the summer, Plaintiff likes to plant flowers and cuts the grass with her push mower. (Doc. 10, Tr. 83-84, PAGEID #: 150-51). Finally, Plaintiff stated that on Fridays, she typically grocery shops. (Doc. 10, Tr. 84, PAGEID #: 151).

         When asked what problems she was having after the accident, Plaintiff stated that sometimes she doesn't remember things. (Doc. 10, Tr. 75, PAGEID #: 142). Further, she explained that she had to go through vestibular, speech, and physical therapy. (Doc. 10, Tr. 88- 89, PAGEID #: 155-56). Specifically, Plaintiff explained that she had to attend speech therapy because she couldn't think or say a lot of words. (Doc. 10, Tr. 93, PAGEID #: 160) (“My brain - sometimes like it'd move-it would move either too fast and I know - like I'm talking now-I would talk and then I'd get cut off. It's like it just shuts totally off[.]”). Plaintiff also testified that she sometimes forgets to tell her husband someone called for him, she forgets birthdays, and she forgets doctor's appointments. (Doc. 10, Tr. 96, PAGEID #: 163). Further, Plaintiff stated that as a result of the accident, she no longer can movies or read because of lack of concentration. (Doc. 10, Tr. 94-95, PAGEID #: 163).

         Finally, Plaintiff testified that she used to run an in-home daycare, but after the accident, she “lost all of [her] kids . . . because the daycare kids had to go to other daycares” and by the time she was recovered, “they were already settled in new places.” (Doc. 10, Tr. 100, PAGEID #: 167).

         C. Relevant Medical Background

         As a result of the automobile accident on September 24, 2010, Plaintiff suffered a concussion, left retroperitoneal and adrenal stranding, left upper extremity laceration, left facial laceration, left chest wall contusion, and left temporal bone fracture. (Doc. 10, Tr. 275, PAGEID #: 342).

         Plaintiff had a positive loss of consciousness at the scene of the accident but was conscious upon arrival at the hospital. (See id., Tr. 275, PAGEID #: 342) (“Plaintiff had a GCS [Glasgow Coma Scale] ¶ 15 upon arrival”). At the hospital, a CT of the brain revealed the ventricular and cisternal spaces were within normal limits for Plaintiff's age and there was no acute intracranial abnormality. (Id., Tr. 296, PAGEID #: 363). During her hospital stay, Plaintiff underwent both physical and occupational therapy, and it was noted that she “did well with no complication.” (Id., Tr. 275, PAGEID #: 342). All of Plaintiff's injuries were treated non-surgically and her discharge notes on September 29, 2010, indicate that she was “doing well” and was “discharged home with self-care in no acute distress with a good prognosis.” (Id., Tr. 275-76 PAGEID #: 342-43). At the time of discharge, Plaintiff was given additional information regarding outpatient speech therapy. (Id., Tr. 276, PAGEID #: 343).

         Plaintiff was seen by Ms. Devereaux at the Fairfield Medical Center Speech Therapy Department on October 4, 2010, for an initial consultation. (Id., Tr. 314, PAGEID #: 381). At that time, it was noted that Plaintiff had mild to moderate difficulty with adequate speed of auditory processing as evidenced in slow response to questions and test stimuli; mild decrease in retention of new and recent information; mild decrease in high thought processing and organization; and mild to moderate word retrieval difficulty. (Id.). Thus, Plaintiff was diagnosed with “cognitive dysfunction” and was recommended to undergo therapy for sixty minutes, once per week. (Id.).

         After four therapy sessions, treatment notes on November 22, 2010, indicate that Plaintiff had 100% accuracy in appropriate speed for a trailing/tracking exercise indicating adequate attention and processing speed; she performed short-term memory exercises with 90% accuracy; completed deduction puzzles with minimal assistance and 90% accuracy; provided logical solutions to functional problem scenarios with 90% accuracy; and demonstrated adequate word retrieval in explaining function of objections, explaining idioms, and naming items of a category. (Id., Tr. 318, PAGEID #: 385). Overall, Plaintiff demonstrated “adequate cognitive skills for performing activities of daily living that she [was] used to performing, ” however it was noted that she did not exhibit or report to have the stamina, energy, strength, or coordination to return to her previous employment. (Id., Tr. ...


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