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Gardner v. Commissioner of Social Security

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

September 7, 2017



          James R. Knepp II United States Magistrate Judge.


         Plaintiff Carmella Caterina Gardner (“Plaintiff”) filed a Complaint against the Commissioner of Social Security (“Commissioner”) seeking judicial review of the Commissioner's decision to deny disability insurance benefits (“DIB”). (Doc. 1). The district court has jurisdiction under 42 U.S.C. §§ 1383(c) and 405(g). The parties consented to the undersigned's exercise of jurisdiction in accordance with 28 U.S.C. § 636(c) and Civil Rule 73 (Doc. 14). For the reasons stated below, the undersigned reverses the Commissioner's decision and remands for further proceedings consistent with this opinion.

         Procedural Background

         Plaintiff filed for DIB in January 2013, alleging a disability onset date of June 1, 2009. (Tr. 224-25). Her claims were denied initially and upon reconsideration. (Tr. 136-42). Plaintiff then requested a hearing before an administrative law judge (“ALJ”). (Tr. 143). Plaintiff (represented by counsel), and a vocational expert (“VE”) testified at a hearing before the ALJ on February 11, 2015. (Tr. 68-107).[1] On March 24, 2015, the ALJ found Plaintiff not disabled in a written decision. (Tr. 38-46). The Appeals Council denied Plaintiff's request for review, making the hearing decision the final decision of the Commissioner. (Tr. 1-7); 20 C.F.R. §§ 404.955, 404.981. Plaintiff filed the instant action on July 21, 2016. (Doc. 1).

         Factual Background[2]

         Personal Background, Statements, and Testimony

         Plaintiff was born in February 1950 and was 59 years old at her alleged onset date. (Tr. 59). At the time of the hearing, Plaintiff lived alone, Tr. 76, in a two-story house, “but [her] living [was] on the first floor only”, Tr. 77-78. She did not go upstairs because it was “too much of a chore” and she had “fallen down those stairs too many times.” (Tr. 78). Plaintiff testified that after her hip replacement, she had “no balance anymore” and had “to hold onto something.” (Tr. 85). Last time she climbed the stairs in her house, when coming back down “it seemed like [she] went numb on one side and [she] ended up just rolling down the stairs.” (Tr. 86).

         Plaintiff's husband and son accompanied her to the hearing. (Tr. 78). Plaintiff saw her son approximately every other day, and her daughter once per week. (Tr. 79). Plaintiff testified her adult children helped with “the heavy stuff” like mopping and vacuuming. (Tr. 77). She was able to do her own laundry, wash dishes, and prepare simple meals for herself, primarily in the microwave. Id. Plaintiff testified she could do her own grocery shopping “and [her] kids pick[ed] up a lot of things for [her]” because if she walked around the grocery store, she could not “even get [her] groceries back into the house right away.” Id.

         Plaintiff was able to drive, but did not drive long distances. (Tr. 78). She liked to read, and watch television, but did not use a computer. (Tr. 80). Her pain would sometimes interfere with her reading: “if I sit there too long either one side gets stiff or I just need to un-stiff myself and change positions or put the book down and try to get up and move a little bit.” (Tr. 99). Plaintiff had friends with whom she tried to get together every couple of months for lunch or a visit. (Tr. 80). She would, however, frequently cancel outings, and her friends would come to her house instead. (Tr. 99).

         Plaintiff testified that on a typical day, she would sleep a lot (due to her medications and poor night sleep). (Tr. 81). She testified to difficulty sleeping at night, and would nap during the day to make up lost sleep. Id.; Tr. 96-97. Typically, she estimated, she would sleep for two to three hours during the day. (Tr. 97).

         Plaintiff testified she left her prior job as a realtor because “[i]t became too physical, too demanding and [she] just couldn't keep appointments that [she] had set because [she] was starting to feel really bad and it got in the way of losing [her] clients or having to give them to somebody and then it was just the patience it takes to deal with someone making a large purchase.” (Tr. 83). When she first left the work, “it was tiredness” and “aches and pains” that made her leave. (Tr. 84). Before she stopped working, Plaintiff would nap after work. (Tr. 98).

         Plaintiff testified that she tried not to take any pain medication, but did use a muscle relaxer approximately once per month. (Tr. 93). She dealt with her pain by stretching, laying down, and avoiding activities that caused her pain. Id.

         Plaintiff estimated she could stand for 20 to 30 minutes before needing to sit down. (Tr. 93-94). Standing was worse on harder surfaces. (Tr. 94). Plaintiff also estimated she could sit for 30 to 45 minutes “depending on what [she was] sitting on.” (Tr. 95). Plaintiff generally sat in a recliner so she could elevate her legs. (Tr. 96); see also Tr. 99-100 (“Well I don't sit on the couch, I may lie on the couch but I'm always in my recliner.”). Standing was “harder” than sitting. (Tr. 99).

         In February 2013, Plaintiff completed a symptom report describing her symptoms as including pain, fatigue, agility, stamina, sleep problems, and stiffness. (Tr. 259). She reported the symptoms were “always there” but got worse when she walked, sat, slept, did daily tasks, or cleaned. Id. She indicated her pain and fatigue were nine out of ten on a good day, and ten out of ten on a bad day. (Tr. 260). She reported she had zero good days in a week; rather, she had all bad days. Id. Plaintiff also reported she could not bend, stoop, or walk for any length of time. (Tr. 261). Rest and warm or hot showers helped her pain. Id. She reported she was not taking any medication for her symptoms. Id.

         In a disability report dated April 2013, Plaintiff reported difficulty getting in and out of bed. (Tr. 278). She also reported her son helped her to shower, and she had dropped hot food when she tried to cook. Id. She reported “[n]eck and knee pain” and that she “ha[d] to be on anti-depressants (because of [her] depression [she was] unable to work)”. Id.

         Relevant Medical Evidence

         Treatment Evidence

         A December 2008 MRI of Plaintiff's cervical spine showed degenerative changes at the C4/5 and C5/6 levels. (Tr. 424).

         In February 2009, Plaintiff saw Shreeniwas Lele, M.D., with neck pain, going down her arm. (Tr. 386). Dr. Lele noted, among other things, “[n]eck pain, with radiculopathy”, referred her “for possible neck operation”, and suggested she try physical therapy. Id.

         X-Rays taken of Plaintiff's right knee in July 2010 due to “[t]rauma” showed “[s]mall spurring . . . at the insertion of the quadriceps tendon, but no joint effusion, fracture, or dislocation. (Tr. 419). An X-ray of Plaintiff's left hip the same day showed “advanced osteoarthritis” which was “stable from [the] prior study [in June 2010].” (Tr. 420).

         A few days later, also in July 2010, Plaintiff reported to the emergency room after a fall in which she fractured her hip. (Tr. 311, 314-16). She was admitted to the hospital for five days, during which time she underwent a “[c]losed reduction, cannulated hip screw fixation, right hip.” (Tr. 314). Subsequent x-rays in September and October 2010 showed a stable radiographic appearance of orthopedic screws without evidence of hardware failure. (Tr. 415-16).

         In April 2011, Plaintiff returned to Dr. Lele complaining of fatigue as well as “excruciating neck pain, going into arm and legs.” (Tr. 377). On examination, Dr. Lele found diffuse tenderness in Plaintiff's neck, as well as pain along the right arm. Id. She also noted “some arthritis and pain” in the right arm and leg, but normal sensory and motor functioning. Id. Dr. Lele assessed neck pain, radiculopathy and arthritis, prescribed Vimovo, and noted she would monitor Plaintiff. Id.

         In August 2011, Plaintiff returned to Dr. Lele, who noted “[o]verall, she is feeling well.” (Tr. 376). Her arthritis was “[s]omewhat . . . bothering her.” Id. She also reported her “[a]nxiety and stress” were “okay”. Id. On examination, Dr. Lele noted “[m]inimal swelling and tenderness present”. Id. She assessed osteoarthritis and advised Plaintiff to continue her current medications. Id.

         In September 2014 (three years later), Plaintiff returned to Dr. Lele with pain behind her right knee, with redness and swelling. (Tr. 453). She reported pain that was seven out of ten. Id. Plaintiff also reported feeling fatigued and weak. Id. On examination, Dr. Lele noted a red, inflamed area on Plaintiff's right thigh, which she opined ...

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