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Cissner v. Berryhill

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

September 1, 2017



          Sharon L. Ovington United States Magistrate Judge


         Plaintiff Diana Cissner asserts here, as she did before the Social Security Administration, that she is eligible to receive Disability Insurance Benefits because she has been under one or more disabilities. Her asserted disabilities-fibromyalgia, depression, anxiety, chronic fatigue, chronic pain, and irritable bowel syndrome- began on March 30, 2012.

         She brings the present case challenging the decision issued by Administrative Law Judge (ALJ) Irma J. Flottman, who concluded that Plaintiff was not under a “disability” as defined by the Social Security Act. She asserts that ALJ Flottman erred in four ways:

1. by failing to place great weight on her treating physician, Dr. Vyas's opinions;
2. by failing to evaluate Plaintiff's fibromyalgia as required by Social Security Ruling 12-2p, 2012 WL 3104869 (July 25, 2012);
3. by improperly evaluating her credibility; and
4. by presenting inaccurate and unsupported hypothetical questions to the vocational expert.

         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.


         Plaintiff's age (fifty-one) at that time, placed her in the category of a person closely approaching advanced age under social security law. She has a high school education without specialized training. Over the years, she worked part time as a bank teller.

         Plaintiff testified that she stopped working in March 2012 due to “the stress and the pain. It just increasingly got worse ….” (Doc. #5, PageID #63). Later, she attempted to work at a veterinarian's office but lasted only two weeks due to stress and pain. She explained, “I get nervous. It makes my pain worse which in turn makes me more tired. I just can't breathe sometimes when I really get stressed. I just have a hard time breathing. Just…, I lose my breath.” Id. She further explained that it does not take much to trigger her stress.

         Plaintiff experiences “bad days” during which she lies on the couch with her feet elevated probably more than seventy-five percent of the day. On “really bad days” she is up-and-down frequently. Id. at 65, 69. She noted, “Just one hurts the other. Up hurts. I've got to sit down. If down hurts, I've got to get up.” Id. at 65. She estimated that she could either sit or stand for thirty to sixty minutes at a time. Her pain level is an eight and one-half on a one-to-ten pain scale. Id. at 69. She uses a heating pad for thirty to sixty minutes, on a good day, and for several hours (on and off) on a bad day. Id. at 70. She also experiences crying spells almost daily. Id. at 71.

         Plaintiff's mornings are always the same-she sits at the kitchen table for hours working “out the pain ….” Id. Once those hours pass, she can get moving. On a “decent” day she might be able to dust or do a load of laundry, but fatigue requires her to take rest breaks every hour. It takes her fifteen to twenty minutes of resting to build her energy back up. Id. at 66.

         The most Plaintiff can comfortably lift and carry is about five pounds. She is able to reach overhead but has limited ability to hold onto items or turn doorknobs. If she needs to hold onto anything for very long, her hands will cramp. When she drives, for instance, she can hold onto the steering wheel for five minutes. After this, she needs to open up her hands. Id. at 67. She can hold onto a gallon of milk, but sometimes her “hand will get stuck on it.” Id. She can pick up small objects and tie her shoes. She can kneel or crouch down but feels pain when doing so. She cooks only easy things and goes to the grocery store about once a week. She does not do yardwork. She can watch an hour-long TV show if she elevates her feet and if her “head is back and relaxed.” Id. at 69. She does not see any friends and is not involved in any clubs, other than a monthly fibromyalgia meeting. Id. at 68.

         In a May 2012 function report, Plaintiff reported, “With fibromyalgia, I am in pain every minute of every day….” Id. at 219. After she gets up in the morning, it takes her several hours to be able to walk and move around. The degree of her pain and fatigue on any particular day affects her ability to perform typical household chores. Id. at 220. Sometimes she stays in her house and does not go out or talk to anyone. Id. at 224. Other times she feels trapped and needs to get out of the house.

         In a January 2013 disability report, Plaintiff reported that her pain and fatigue had worsened, and her anxiety and depression had increased. Id. at 241.

         Plaintiff's medical records contain a treatment note in May 2008 indicating that she was feeling “quite tired and weak.” Id. at 275. She was prescribed Vicodin 500 mg four times daily as needed for pain, Alprazolam .25 mg daily, and Neurontin 300 mg three times daily. Id. at 274. Treatment notes beginning as early as May 2008 contain clinical findings including psychomotor slowing, depression, and anxiety. Id. at 357, 361, 370, 372, 390, 396, 398, 400, 406, 408, 410, 414. Plaintiff regularly complained of fatigue, malaise, weakness, anxiety, and panic attacks. See id.

         Plaintiff went to the emergency room in August 2011 for hyperventilation and nausea. She testified that increased stress precipitated this ER visit. Id. at 69-70.

         Treatment notes from Detmer Mental Health in 2010 and 2011 describe Plaintiff's mood as anxious and her affect as constricted. She was tearful and withdrawn. Id. at 328, 336-37.

         Plaintiff's long-term treating physician, Dr. Vyas, began treating Plaintiff in September 2004. In June 2012, he completed a questionnaire at the request of the state agency. Id. at 273-74. He reported Plaintiff's diagnoses as “fatigue malaise, ” insomnia, recurrent moderate major depression, general osteoarthrosis, abdominal pain, and fibromyalgia. He noted that Plaintiff had multiple joint pains, fatigue, and “tearful: depression.” She was taking Alprazolam, Neurontin, and Vicodin. Dr. Vyas noted that Plaintiff's response to therapy was “good.” When asked to describe her limitations, Dr. Vyas explained that “it's taxing effort…” for her to work a forty-hour week because it causes her “lots of stress, ” which she has difficulty coping with. Id.

         In October 2013, Dr. Vyas wrote a letter reporting that Plaintiff suffers from generalized anxiety and depression with poor quality of life. Id. at 436. Plaintiff was quite tearful when he last saw her, was reluctant to have epidural injections, and was not a candidate for surgery. Dr. Vyas opined, “this patient is totally disabled from any gainful job or occupation. She has emotional as well as physical shortcomings for any given job.” Id.

         Physician Dr. Danopulos examined Plaintiff in July 2012. Id. at 282-90. He identified Plaintiff's objective findings as “1) Aches and pains all over her joints of the upper and lower extremities which were documented only in the left shoulder which showed normal but painful motions. All other joints were normal and painless. 2) history of IBS [irritable bowel syndrome] mostly being constipation…, and 3) history of depression and anxiety….” Id. at 285-86. He also generally noted-without identifying any specific limitations in Plaintiff's abilities to sit, stand, lift, carry, walk, etc.-that her ÔÇťability to do any work related activities is affected ...

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