United States District Court, S.D. Ohio, Western Division, Dayton
DECISION AND ENTRY
L. Ovington United States Magistrate Judge
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.
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.
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.
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
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
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.
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.
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.
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
January 2013 disability report, Plaintiff reported that her
pain and fatigue had worsened, and her anxiety and depression
had increased. Id. at 241.
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.
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.
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
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.
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.
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
“ability to do any work related activities is affected