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Shteiwi v. Berryhill

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

August 25, 2017

JAMIL SHTEIWI, Plaintiff,
v.
NANCY A. BERRYHILL, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          DECISION AND ENTRY

          Sharon L. Ovington, United States Magistrate Judge.

         I.

         Plaintiff Jamil Shteiwi began working when he was a teenager. He eventually owned, together with other family members, several chili restaurants. His work over the years required him to engage in frequent physical labor such as lifting, sweeping, mopping, and cooking. As he aged, his work took a toll on his physical health, as it inevitably tends to do. He developed ever-increasing back pain along with pain in his neck, shoulders, arms, elbows, and right wrist. He also suffers from depression, anxiety, and panic attacks due (at least in part) to financial problems with the family-owned restaurants. See Doc. #6, PageID #s 72-73.

         Plaintiff eventually found that at age fifty three, after twenty-eight years of employment, his health problems had deteriorated to the point he could no longer work. He consequently applied to the Social Security Administration for Disability Insurance Benefits. He asserted that he was eligible to receive benefits because, starting on September 1, 2012, he had been under one or more disabilities.

         The gateway to Plaintiff's eligibility for benefits hinged on whether he was under a “disability” as defined by the Social Security Act. See Rabbers v. Commissioner Social Sec. Admin., 582 F.3d 647, 651 (6th Cir. 2009); see also 42 U.S.C. § 423(a)(1)(E). The term “disability” refers to “any medically determinable physical or mental impairment” that precludes a social security applicant from performing a significant paid job-i.e., “substantial gainful activity.” 42 U.S.C. § 423(d)(1)(A); see Bowen v. City of New York, 476 U.S. 467, 469-70 (1986). A person is under a disability only when their physical or mental impairments are of such severity that they (1) cannot do their previous work, and (2) cannot, “considering their age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy ….” 42 U.S.C. § 423(d)(2)(A).

         The Social Security Administration-mainly through the decision of Administrative Law Judge (ALJ) Gregory G. Kenyon-determined that Plaintiff was not under a disability and, consequently, was not eligible to receive Disability Insurance Benefits.

         Plaintiff brings the present case challenging ALJ Kenyon's non-disability decision on the ground that he committed reversible error by failing to properly evaluate the opinions of Plaintiff's very long-term treating physician, Dr. Edward Kinkopf. Plaintiff seeks a remand of this case for payment of benefits or, at a minimum, for further proceedings. The Commissioner finds no error in the ALJ's decision and contends that substantial evidence supports it. The Commissioner therefore asks the Court to affirm the ALJ's non-disability decision.

         II.

         Before ALJ Kenyon issued his decision, he held a hearing during which Plaintiff testified. At that point in time, Plaintiff was fifty-three years old. He had been married for twenty-seven years. They have three adult-age children.

         Plaintiff testified that he has suffered back pain since age seventeen. As he got older, his back pain increased. His worst pain is in his lower and upper back, his shoulders, and his elbows. His back pain feels sharp and is at its worst, it is an eight on a ten-point scale (ten representing the most intense pain). Treatment of his back pain has included prescribed medications and injections-up to eighteen injections from various treatment providers. His pain medications (Percocet and Ibuprofen) cause him to feel “[d]rowsy, sleepy…, lightheaded.” (Doc. #6, PageID #91). He also has pain in both legs and knees. His knee pain is a nine on the ten-point scale. And, he has numbness in his fingers. Id. at 95.

         Plaintiff has neck pain that feels sharp. He sometimes has trouble turning his head and usually has trouble looking up and down (75% of the time). His neck pain is an eight on the pain scale. He's also had tendonitis in his right elbow for a long time. There is swelling in his elbow joint and it is painful, making it very difficult and painful for him to lift anything. Injections have “helped for a limited time only.” Id. at 85.

         Plaintiff testified that he could barely walk due to his sharp, stabbing knee pain. In addition to injections, treatment of his knee pain has included physical therapy. He has swelling in his knees, and it feels to him “like water is in there.” Id. at 80. He elevates his knees three to four hours a day. This also helps with his back problems.

         Plaintiff has shoulder pain that extends into his arms. He has difficulty raising his arms above his head. The pain is sharp and will occur, he says, “when I'm just sitting down.” Id. at 81. He's received injections that helped for about a year. He estimated his shoulder-pain level at about a six.

         As to his mental health, Plaintiff has depression. He acknowledged that he had been hospitalized for suicidal thoughts. He still has suicidal thoughts about three times a week. Describing his depression, he testified, “I don't like to leave my room. I don't like to socialize with my friends. I don't like to go out with family, with the kids, with my friends. I wanted to be alone ….” Id. at 82. His depression symptoms also include crying three or four times every day. And, he has difficulty concentrating. He recounted, “I cannot focus-if you tell me something, I just kind of drift away. My kids will ask me things. I say, well, you know I told you that. Then they say no. Then I say yes, I did say that ….” Id. at 83. He always thinks about the past, his family members who are gone.

         Plaintiff also has anxiety and panic attacks. When he has a panic attack, his heart rate “goes real fast. I start going back and forth in the room. I feel like I'm choked. I can't … breathe. And very upset, very angry.” Id. at 84. His panic attacks are brought on by his past experiences with “the family, the business, … [his] physical pain.” Id. He treats panic attacks with medication (Ambien) to help him calm down.

         Plaintiff told the ALJ that he is limited to lifting seven or eight pounds because of his shoulder and right-hand pain. His low-back pain limits him to sitting for about twenty minutes before he needs to stand. He can stand or walk for a total of twenty minutes before needing to sit.

         Plaintiff testified that he has difficulties with personal care that requires him to bend over, such as putting on his socks. He has difficulty washing his back because he cannot reach it. He cannot do household chores; his wife does them. He used to have hobbies but has “no desire” to do them. Id. at 87. He no longer exercises. He spends an ordinary day in bed with his “leg elevated, knees elevated.” Id. He spends about four to five hours a day in bed.

         Plaintiff reported that Dr. Kinkopf has been his treating family doctor since he was seventeen years old. This is confirmed by a form Dr. Kinkopf filled out in October 2013. Id. at 488. Dr. Kinkopf listed Plaintiff's diagnoses as major depression and anxiety; lumbago and thoracic pain; degenerative joint disease of the right elbow, shoulder, and wrist; and, left-leg numbness. Id. He found Plaintiff's lumbar and thoracic pain was “worse with movement, ...


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