United States District Court, S.D. Ohio, Western Division, Dayton
DECISION AND ENTRY
L. Ovington, United States Magistrate Judge.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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, ...