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Alloway v. Commissioner of Social Security

United States District Court, S.D. Ohio, Eastern Division

September 1, 2017


          Michael H. Watson Judge.



         Plaintiff, Teresa Darlene Alloway, brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her application for social security disability insurance benefits (“DIB”). Plaintiff alleges disability beginning September 14, 2012. (See Doc. 10 at 2). For the reasons that follow, it is RECOMMENDED that the Court OVERRULE Plaintiff's Statement of Errors and AFFIRM the Commissioner's decision.


         Plaintiff filed this case on October 10, 2016 (Doc. 1), and the Commissioner filed the administrative record on December 20, 2016 (Doc. 9). Plaintiff filed a Statement of Errors on February 3, 2017, 2016 (Doc. 10), the Commissioner responded on March 16, 2017 (Doc. 11), and Plaintiff filed a Reply Brief on March 30, 2017 (Doc. 12).

         A. Personal Background

         Plaintiff was born in 1954. (Doc. 9, Tr. 119). She graduated high school in 1972 and took two years of business management courses in the 1990s, but did not earn a degree. (Id., Tr. 143). She worked full-time from 1993 until 2002 as a manager of a Dollar General store, earning $11.45 per hour. (Id., Tr. 144). From 2004 through 2012, she worked 32 hours per week as a clerk at a gas station, earning $7.70 per hour. (Id.). Plaintiff alleged in her application that she became disabled on September 15, 2012, the day her employer “closed down.” (Id., Tr. 143).

         B. Relevant Medical Evidence

         1.Phillip Short, M.D. (Treating Physician)

         Dr. Short is Plaintiff's primary-care physician. Dr. Short's records that are part of this case begin in 2011, and most of them pertain to Plaintiff's hyperlipidemia, diabetes, and hypertension, as well as her vitamin B12 deficiency. (See, e.g., Doc. 9, Tr. 324-72, 387-99). For example, a record from May 2012 notes that Plaintiff was seen “for follow up for diabetes”-Plaintiff had gained 16 pounds since her last visit, but the exam was otherwise unremarkable. (Id., Tr. 271-72). Likewise, an illustrative record from 2013 notes that Plaintiff's “sugars doing fairly well, ” and her neuropathy was “well-controlled” with medication. The records from 2014 and 2015 address these same issues. During a visit in February 2014, for example, Plaintiff reported that Lyrica was helping her neuropathy; her exam was “unremarkable”; her blood pressure was “good”; and Dr. Short “stressed importance of weight reduction diet compliance and exercise.” (Id., Tr. 341-42). On this last point, Dr. Short's notes continually report Plaintiff's failure to comply with diet, weight loss, and exercise recommendations. (See, e.g., id., 328, 387, 392).

         During the middle of 2014, Plaintiff's complaints to Dr. Short shifted and began to note other ailments in addition to those explained above. Specifically, on May 21, 2014, Plaintiff reported “some discomfort” in the joint of both thumbs. (Id., Tr. 345). During this visit, Dr. Short examined Plaintiff and noted no evidence of synovitis, swelling or tenderness in her thumb joints, and a good range of motion, and found that Plaintiff had “good grip strength bilaterally.” (Id., Tr. 347). To further investigate Plaintiff's complaints, Dr. Short ordered X-rays. The X-rays showed “[n]o fracture, ” “[n]o dislocation, ” and “[j]oint spaces are generally maintained.” Overall, “the impression was negative.” (Id., Tr. 357, 360).

         Plaintiff continued to see Dr. Short, and, in January 2015, he completed a medical-source statement. (Id., Tr. 400). He wrote that Plaintiff's diagnoses include diabetic neuropathy, hypertension, hyperlipidemia, and diabetes. (Id.). He categorized her prognosis as “fair.” He also noted “persistent leg pain, ” which was “moderately severe” as her only symptom. (Id.). When asked about the frequency and length of the treatment relationship, Dr. Short did not respond. (See id.).

         In the medical-source statement, Dr. Short additionally stated that Plaintiff is functionally limited in a number of ways-limited to walking less than one block without rest or severe pain; limited to sitting for 20 minutes at one time; unable to stand for any significant length of time without requiring position change; and unable to sit and stand/walk for more than 2 hours each in an 8-hour workday. (Id.). Dr. Short also found that Plaintiff was likely to take 2 to 3 unscheduled breaks during the workday due to pain/paresthesia and adverse effects of medication. (Id.). He estimated that each of these unscheduled breaks would average 15 minutes. (Id.). He also found that Plaintiff could only lift less than 10 lbs. occasionally; 10 lbs. rarely; and never lift 20 lbs. or more. (Id., Tr. 402). She could rarely twist, stoop, crouch, or squat; never climb stairs and ladders, and reach overhead bilaterally no more than 50% of the time. (Id.). Plaintiff would not have any difficulty with reaching, handling, or fingering. (Id.). Dr. Short stated that Plaintiff was likely to experience symptoms severe enough to interfere with attention and concentration needed to perform even simple work tasks 5% of the day but did not explain why. (Id.). She was also likely to miss about 2 days per month as a result of her impairments/treatment. (Id.). Dr. Short noted that these limitations started before 2011. (Id.).

         In March 2015, Plaintiff again saw Dr. Short. He noted that Plaintiff was “not following her diet” and not “losing weight.” (Id., Tr. 387). She complained of some paresthesia in her hands and feet that the doctor believed was diabetic neuropathy, but no muscle weakness, chest pain, or vision trouble. (Id., Tr. 387, 389). In June 2015, Plaintiff reported similar problems but reported that Lyrica was helping with the diabetic neuropathy. (Id., Tr. 392).

         On July 20, 2015, an EMG was performed on Plaintiff's bilateral upper and lower extremities. (Id., Tr. 404). The testing revealed severe left median nerve carpal tunnel syndrome; moderate right median nerve carpal tunnel syndrome; and active left cervical and lumbosacral motor radiculopathy. (Id., Tr. 406).

         In August 2015, an MRI of Plaintiff's neck revealed moderate central disc protrusion, mild to moderate central canal stenosis, medium broad-based disc bulge, mild to moderate foraminal stenosis, and mild facet arthropathy. (Id., Tr. 423). The impression was “[m]ultilevel degenerative disc disease as detailed above most pronounced at ¶ 4-C5 where there is a central disc protrusion with impingement of the ventral spinal cord.” (Id., Tr. 424). An MRI of the lumbar spine showed “[n]o evidence of nerve impingement, [n]o significant degenerative disc disease, [and only] mild L4-L5 and L5-S1 facet arthropathy.” (Id., Tr. 458-59). Examination for bilateral carpal tunnel in August 2015, revealed some diminished grip strength, weak Tinel's and Phalen's test, and normal wrists. (Id., Tr. 432-35). It was noted that splints worn on the wrists helped with pain somewhat. (Id., Tr. 436). Surgery was recommended, but not scheduled. (Id.).

         2. Bradley Arndt, ...

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