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Alston v. Berryhill

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

June 19, 2017

KIMBERLY ALSTON, 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 Kimberly Alston brings this case challenging the Social Security Administration's denial of her application for period of disability and Disability Insurance Benefits. She applied for benefits on August 6, 2013, asserting that she could no longer work a substantial paid job. Administrative Law Judge (ALJ) Robert M. Senander concluded that she was not eligible for benefits because she 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. #8), the Commissioner's Memorandum in Opposition (Doc. #11), Plaintiff's Reply (Doc. #12), the administrative record (Doc. #6), 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 Senander's non-disability decision.

         II. Background

         Plaintiff asserts that she has been under a “disability” since August 1, 2012.[2] She was forty-eight years old at that time and was therefore considered a “younger person” under Social Security Regulations. See 20 C.F.R. § 404.1563(c). On September 5, 2013, Plaintiff turned fifty years old and was then considered a person “closely approaching advanced age.” See Id. at § 404.1563(d). She has a limited education. See 20 C.F.R. § 404.1564(b)(3)

         A. Plaintiff's Testimony

         Plaintiff testified at the hearing before ALJ Senander that since her last hearing, her neck has gotten worse. (Doc. #6, PageID #108). She cannot turn her head as much as she used to, and if she looks down for over three to four minutes, her head starts hurting and her vision gets blurry. Id. As a result, she is no longer able to read the bible like she used to. Id. Additionally, if she turns her head, she has increased pain in the back of her head, shoulders, and down her back. Id. at 109. Plaintiff's pain is the worst when she gets up in the morning. Id.

         Plaintiff's attorney stated in response to the ALJ's asking what had changed since Plaintiff's last application, “due to chronic pain and cervical spine problems primarily, she's now likely limited to sedentary work instead of a reduced range of light work ….” Id. at 103. He also pointed out that the previous ALJ did not find that degenerative disc disease was one of Plaintiff's severe impairments. Id. at 106.

         Plaintiff testified that her carpal tunnel has also gotten worse, and when she walks, she has increased pain in her legs and back. Id. at 111. Her pain from fibromyalgia is also more severe. Id. at 112. As a result, she cannot do activities that she used to do. Id. at 113. She experiences migraines once or twice a week. Id. at 114. If she has medication, they last a day and a half. Id. at 114-15. But if she runs out of medication, they can last two to three days. Id. at 114.

         Plaintiff has both a CPAP machine and an oxygen machine for sleep apnea. Id. at 110. She needs oxygen because after her sleep study, “they said I stop breathing 58 times out of a minute, three seconds at a time ….” Id. She also experiences breathing problems when she walks up the stairs or performs other similar activities. Id.

         Plaintiff also struggles with depression. Id. at 114. It causes her to not want to be around anyone. Id.

         Plaintiff lives in a house with her daughter and grandchildren. Id. at 99. She sometimes tries to take care of her grandchildren but cannot because she cannot stay awake. Id. at 114. She used to drive but stopped after getting into a car accident in June 2015. Id. at 99-100. The left side of her face was bruised and swollen in the accident and she still had a knot. Id. at 100. Plaintiff estimated that she can stand for five to six minutes at a time. Id. at 113. She does not believe that she could sit in a chair all day because it would hurt her back and legs. Id. She also did not think she could lift twenty pounds because of the pain. Id.

         B. Medical Opinions

         i. Donald J. Kramer, Ph.D.

         Dr. Kramer evaluated Plaintiff on January 3, 2014. Id. at 450. He diagnosed depressive disorder, anxiety disorder, and borderline intellectual functioning. Id. at 454. Dr. Kramer opined that Plaintiff's prognosis appeared “somewhat guarded.” Id. He noted, “she displayed some very significant psychomotor retardation …. She was very unspontaneous, mumbled, and was soft spoken and difficult to understand.” Id. Additionally, she had “some difficulty understanding simple questions ….” Id. at 455.

         Dr. Kramer opined that Plaintiff “appears to have the intellectual ability to perform simple tasks, although her attention and concentration and persistence and pace were somewhat weak ….” Id. He also noted that her eye contact was poor and she looked uncomfortable. Id. He indicated that her limitations may be due to the fact that Plaintiff reported experiencing a migraine at the examination. Id.

         ii. Paul Tangeman, Ph.D., & Carl Tishler, Ph.D.

         Dr. Tangeman reviewed Plaintiff's records on January 28, 2014. Id. at 163-75. He diagnosed seven severe impairments: fibromyalgia, migraine, inflammatory bowel disease, obesity, affective disorders, anxiety disorders, and borderline intellectual functioning. Id. at 169. He opined that Plaintiff had moderate restrictions of activities of daily living; moderate difficulties in maintaining social functioning; and moderate difficulties in maintaining concentration, persistence, or pace. Id. Dr. Tangeman found that Plaintiff was markedly impaired in her ability to understand, remember, and carry out detailed instructions. Id. at 172. She was moderately impaired in her ability to understand, remember, and carry out very short and simple instructions. Id. He concluded, Plaintiff “is able to perform simple 1-2 step tasks in a static environment. Limited to occasional contact with the public.” Id. at 173.

         On May 13, 2014, Dr. Tishler reviewed Plaintiff records and agreed with Dr. Tangeman's conclusions. Id. at 163-75.

         iii. Gary Hinzman, M.D. & Eli Perencevich, D.O.

         Dr. Hinzman reviewed Plaintiff's records on December 12, 2013. Id. at 163-75. He adopted the previous ALJ's residual functional capacity under Acquiescence Ruling 98-4. Id. at 171. On May 13, 2014, Dr. Perencevich ...


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