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Ison v. Commissioner of Social Security

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

September 7, 2017

TODD ALBERT ISON, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Todd Albert Ison, filed this action seeking review of a decision of the Commissioner of Social Security (“Commissioner”) denying his application for Title II disability insurance benefits and Title XVI supplemental security income. For the reasons that follow, Plaintiff's Statement of Errors (Doc. 18) is OVERRULED, and judgment is entered in favor of Defendant.

         I. BACKGROUND

         A. Prior Proceedings

         Plaintiff Todd Albert Ison filed for disability insurance benefits (“DIB”) on September 26, 2013 and supplemental security income (“SSI”) on January 24, 2014, alleging a disability onset date of June 7, 2008. (See Doc. 12, Tr. 14, Tr. 70-71, PAGEID #: 79, 136-137). Earning records show that Plaintiff acquired sufficient quarters of coverage to remain insured through December 31, 2008. (Id., Tr.70, PAGEID #: 136). Plaintiff's applications were denied initially on November 19, 2013 (id., Tr. 77, PAGEID #: 143) and upon reconsideration on January 30, 2014 (id., Tr. 78, PAGEID #: 144). Administrative Law Judge Jason C. Earnhart (the “ALJ”) held a hearing on July 27, 2015 (Doc. 12, Tr. 29, PAGEID #: 94), after which he denied benefits in a written decision on September 21, 2015 (id., Tr. 11, PAGEID #: 76). That decision became final when the Appeals Council denied review on October 6, 2016. (Id., Tr. 1, PAGEID #: 66).

         Plaintiff filed this case on December 8, 2016 (Doc. 1). On February 10, 2017, however, Plaintiff's attorney filed a Statement Noting Todd Albert Ison's Death and informing the Court that he planned to substitute a successor-representative as soon as practicable. (Doc. 11) The Commissioner filed the administrative record on February 13, 2017 (Doc. 12), and Plaintiff filed a Statement of Specific Errors on April 7, 2017 (Doc. 18), along with an unopposed motion to substitute Robert Ison, father of Plaintiff-Decedent Todd Albert Ison, with respect to his claim for DIB (Doc. 17). The Court granted the Motion on April 11, 2017. (Doc. 19). The Commissioner responded to the Statement of Errors on May 22, 2017 (Doc. 23), and a Reply was filed on June 6, 2017 (Doc. 24).

         Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, and upon consent of the parties, this case was referred to the undersigned to conduct all proceedings and order the entry of final judgment. (Doc 22).

         B. Relevant Testimony at the Administrative Hearing

         At the hearing, Plaintiff's counsel explained that Plaintiff[1] suffered a workplace back injury that prevented him from engaging in substantial gainful activity. (Doc. 12, Tr. 32, PAGEID #: 97). Plaintiff later elaborated that he was splitting wood at work when he “felt like a bee sting in the back.” (Id., Tr. 41, PAGEID #: 106). Following his injury, Plaintiff underwent surgery and stated “[i]t seemed to work until the disc popped again. It was like a week after.” (Id., Tr. 45, PAGEID #: 110). Plaintiff described the second pop as feeling “like somebody stabbed me again in the back and twisting and fire on - going down my legs.” (Id.). Upon prompting by his attorney, Plaintiff rated his pain in the morning at “about a nine and three-quarters” out of ten. (Id., Tr. 55, PAGEID #: 120).

         Plaintiff testified that he didn't believe he could work because he couldn't sit “for as long as [he] used to;” he couldn't stand for very long; he couldn't lift more than a gallon of milk at a time; and his left leg had weakness with a tendency to give out. (Id., Tr. 49, PAGEID #: 114). In terms of daily activities, Plaintiff stated that he was able to prepare simple meals and cut his grass for ninety minutes at a time using his riding lawn mower, although he explained that it took him three to four days to cut less than a half-acre because of the amount of trees. (Id., Tr. 50-51, PAGEID #: 115-16). Plaintiff also stated that he was able to do laundry and sweep, and his only hobby was watching TV. (Id., Tr. 52-53, 60, PAGEID #: 117-18, 125). Finally, Plaintiff testified that he could walk 400 feet, stand for ten to fifteen minutes, and sit for thirty to forty-five minutes. (Id., Tr. 55, 57, PAGEID #: 120, 122). The ALJ sought to clarify this testimony, considering Plaintiff's previous testimony was that he could sit and ride his lawn mower for ninety minutes, and Plaintiff replied by stating that he rode his mower “on and off” for those ninety minutes. (Id., Tr. 57-58, PAGEID #: 122-23).

         At the beginning and end of the hearing, the ALJ noted that there was significant evidence that the State Agency did not see in their review that had since been added to the record. (Id., Tr. 33, 67, PAGEID #: 98, 132). Accordingly, the ALJ stated he was going to send the record out to a medical expert for an additional interrogatory with a specific focus on the date last insured. (Id., Tr. 34, 67, PAGEID #: 99, 132).

         C. Relevant Medical Background

         1. Prior to the Date Last Insured

         On December 28, 2007, while lifting a large piece of wood into a wood splitter at work, Plaintiff experienced the immediate onset of low back and left leg pain. (See e.g., Doc. 12, Tr. 309, PAGEID #: 379). It was determined that Plaintiff required surgical intervention for a herniated disc, and he met with Dr. Timothy Manuel for a preoperative physical on July 2, 2008. (Id., Tr. 217, PAGEID #: 287). At that time, Dr. Manuel noted that Plaintiff “continue[d] to be in fairly moderate pain, 4 to 5 on a scale of 10 in the low back area . . . with radiation into the left leg.” (Id.). One week later, Plaintiff underwent a L5-S1 left microlaminectomy, medial factectomy, and foraminotomy excision to repair his herniated disc. (Id., Tr. 273, PAGEID #: 343).

         Approximately four weeks after surgery, on August 11, 2008, Dr. Mavian saw Plaintiff for a follow-up. (Id., Tr. 224, PAGEID #: 294). At the appointment, Plaintiff reported that “overall he [was] 30% better.” (Id.). Dr. Mavian opined that Plaintiff's incision was well healed, he ambulated without difficulty, and an x-ray of the lumbar spine taken at the office was normal. (Id.). Dr. Mavian recommended that Plaintiff take two Aleve in both the morning and evening and prescribed physical therapy to work on range of motion strengthening and modalities. (Id., Tr. 225, PAGEID #: 295).

         Dr. Mavian saw Plaintiff for another follow-up on October 27, 2008, and reported that a left S1 transoarminal nerve block injection by Dr. Emily Yu about two weeks prior “did minimal to change any of his symptoms” and his “left leg radicular symptoms and backache [were] still consistent at approximately 5 out of 10.” (Id., Tr. 219, PAGEID #: 289). On physical exam, straight leg raising on the left was positive for left leg radicular symptoms as well as backache, and straight leg raising on the right was negative. (Id.). Dr. Mavian once again ...


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