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Shinaver v. Commissioner of Social Security

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

December 1, 2017

SARAH D. SHINAVER, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          JACK ZOUHARY JUDGE.

          REPORT AND RECOMMENDATION

          Thomas M. Parker United States Magistrate Judge.

         I. Introduction

         Plaintiff, Sarah D. Shinaver, seeks judicial review of the final decision of the Commissioner of Social Security denying her application for supplemental security income under Title XVI of the Social Security Act (“Act”). This matter is before the court pursuant to 42 U.S.C. §405(g), 42 U.S.C. §1383(c)(3) and Local Rule 72.2(b).

         Because the ALJ's decision was not supported by substantial evidence, I recommend that the final decision of the Commissioner be VACATED and the matter be REMANDED for further proceedings.

         II. Procedural History

         Shinaver protectively filed an application for supplemental security income on January 24, 2013. (Tr. 14) The claim was denied initially (Tr. 61-75) and on reconsideration. (Tr. 84-85) Shinaver filed a written request for a hearing on March 7, 2014. (Tr. 86)

         Administrative Law Judge (“ALJ”) Richard Horowitz heard the case on June 10, 2015. (Tr. 27-60) The ALJ issued a decision on July 8, 2015, finding that Shinaver was not disabled. (Tr. 11-26) Shinaver requested review of the hearing decision on September 3, 2015. (Tr. 10) On September 22, 2016, the Appeals Council denied review, rendering the ALJ's decision final. (Tr. 6-8) Shinaver instituted this action to challenge the Commissioner's final decision.

         III. Evidence

         A. Personal, Educational and Vocational Evidence

         Shinaver was born on November 4, 1962 and was 52 years old at the time of the hearing. (Tr. 33) She was living with her husband and 21 year-old son. (Tr. 33-34) She completed high school but did not have any past relevant work experience. (Tr. 35-37)

         B. Evidence Related to Shinaver's Physical Limitations

         Dr. Tanya R. Baldwin is Shinaver's family doctor and has treated her for hypertension, diabetes mellitus, chronic back pain, alleged spina bifida[1], dyslipidemia, gout, obesity and depression. (Tr. 258-259) On November 17, 2007, Dr. Baldwin noted that Shinaver has had back problems “for several years.” (Tr. 453)

         On January 31, 2013, Dr. Baldwin noted that Shinaver's compliance with treatment had been fair. Dr. Baldwin's exam was normal except that Shinaver was positive for arthralgia, back pain, myalgia, stiff joints, depression and obesity. Examination of Shinaver's back showed normal range of motion but left CVA tenderness. (Tr. 260) Shinaver received nutrition and exercise counseling. (Tr. 261)

         Dr. Baldwin's treatment notes from June 14, 2013 were similar. Shinaver was not exercising but was adhering to a low-salt diet. A review of Shinaver's systems was normal except for back pain, depression and obesity. Shinaver now had medical insurance and requested a prescription for depression and a renewal of gout medication. Dr. Baldwin prescribed Flexeril, Paxil for depression and Zyloprim for gout. (Tr. 379-384) Treatment notes from August 2013 show little change in Shinaver's physical condition. (Tr. 408-414)

         On November 20, 2013, Dr. Baldwin noted that Shinaver's compliance with treatment had been good. Shinaver's diabetes was “under adequate control.” Office notes from this visit are similar to prior visits but Shinaver also complained of numbness in her left arm. (Tr. 421-429)

         An X-ray taken of Shinaver's back on June 1, 2015 showed moderate to severe degenerative disc disease at the L5-S1 level, and moderate to severe facet arthrosis at ¶ 5-S1. Dr. Michael D. Wilson's impression was “Grade 2 anterolisthesis L5 on S1, with underlying lumbar degenerative changes . . . .” (Tr. 524) Dr. Baldwin's office notes reflect her continuing prescription of the narcotic pain medication Vicodin® (Hydrocodone-Acetaminophen). (See, e.g., Tr. 275, 291, 326, 336, 349 . . . 419, etc.) Some of Dr. Baldwin's medical records are not in chronological order in the administrative record.

         C. Evidence Related to Shinaver's Mental Impairments

         Shinaver has also been treated for psychological and/or mental health issues. She started treating with Chandani Lewis, M.D. on September 13, 2013. Shinaver was found to be depressed and tearful but her memory was intact and she could think abstractly. Dr. Lewis diagnosed depressive disorder, dysthymic disorder, and social phobia. She also noted that “[Shinaver]'s main issue is chronic back pain, and the pain is contributing to her depressive symptoms considerably.” (Tr. 304, 512) Dr. Lewis decreased Shinaver's Paxil and started her on Neurontin to target the pain on Shinaver's left side and to improve the quality of her sleep. (Tr. 513).

         On April 14, 2014, Shinaver was observed to be limping and in pain. She had fallen two weeks earlier. She complained of muscle spasms and difficulty sleeping. (Tr. 488).

         Shinaver met with Dr. Lewis on January 21, 2015. She complained of multiple life stressors and was feeling sad and down. She was also having trouble sleeping due to chronic back pain. She reported numbness in her leg. Dr. Lewis adjusted Shinaver's medications and diagnosed major depressive disorder, recurrent episode, moderate degree. (Tr. 477-478) Shinaver continued to report sleep problems due to chronic back pain at her appointment on February 18, 2015. Dr. Lewis increased Shinaver's dosage of Neurontin, which was helping with anxiety but not with Shinaver's pain level. (Tr. 472-473) On May 15, 2015, Shinaver related that her medications and group therapy were helping. Dr. Lewis adjusted Shinaver's medications and continued her therapy. (Tr. 518) Dr. Lewis also completed a medical source statement for Shinaver at this appointment. (Tr. 521-523)

         D. Opinion Evidence

         1. Treating Doctor - Tanya Baldwin, M.D. - April 2011

         Dr. Baldwin completed a form for Job & Family Services on April 29, 2011, before Shinaver's alleged onset date. Dr. Baldwin checked boxes indicating that Shinaver's walking, sitting, and lifting/carrying were impacted by her medical conditions. She felt that Shinaver could stand or walk for two hours and could sit for four hours in a workday. She further opined that Shinaver could lift six to ten pounds. Dr. Baldwin's hand-written note states that Shinaver “could do a sedentary job.” (Tr. 291-292)

         2. Treating Psychologist - Chandani Lewis, M.D. - May 2015

         Dr. Lewis completed a medical source statement for Shinaver on May 15, 2015. (Tr. 521-523) Dr. Lewis had treated Shinaver once every three months since September 2013. Her diagnosis was major depression, recurrent moderate, and social phobia. Symptoms that Dr. Lewis had observed were: mood disturbance, anhedonia or pervasive loss of interests, difficulty thinking or concentrating, decreased energy and generalized persistent anxiety. (Tr. 521) Dr. Lewis stated that she was unable to predict how often Shinaver would miss work as a result of her impairments or treatment. She opined that Shinaver had a moderate loss of the ability to perform mental activities at work. (The questionnaire defined moderate loss as “some loss of ability in the named activity but still can sustain performance for at least one-half and up to 2/3 of an 8 hour workday.) (Tr. 522) Finally, in a check-the-box questionnaire, Dr. Lewis opined that Shinaver had a marked loss in her abilities to: complete a normal workday or workweek without interruptions from psychologically based symptoms; perform at a consistent pace without an unreasonable number and length of rest periods; adhere to basic standards of neatness and cleanliness; and to use public transportation. (Tr. 523)

         3. Consultative Examiner - Ryan Lakin, M.D. - December 2013

         Ryan Lakin, M.D., performed a consultative examination of Shinaver on December 19, 2013. (Tr. 463-466) Dr. Lakin diagnosed chronic low back pain, morbid obesity, hyperlipidemia, hypertension, diabetes, anxiety and depression. He observed that Shinaver's range of motion in her cervical spine was normal. She had mild tenderness to palpation along her lumbar spine. In both supine and seated positions, she tested positive for straight leg raise. She also had decreased grip strength on her left side. Dr. Lakin noted that Shinaver had normal range of motion in her hips, knees, and ankles. (Tr. 465) After completing this physical exam, Dr. Lakin opined that Shinaver would have some restrictions due to her chronic back pain. He believed that she could lift 10 to 20 pounds continuously, 20 to 40 pounds frequently, and 40 to 50 pounds occasionally. The amounts she could carry throughout the workday were estimated at slightly lower amounts. He further opined that she could sit continuously, i.e. more than six hours in an eight hour workday and could walk “two to six” hours in an eight hour workday with frequent or regular breaks. (Tr. 466)

         4. Consulting Psychologist - Mark Hammerly, Ph.D. - May 2013

         On May 9, 2013, Shinaver met with Mark Hammerly, Ph.D., for a psychological evaluation. (Tr. 293-302) Shinaver presented with a downcast mood and her affect was constricted. She reported feelings of helplessness, hopelessness, and worthlessness. Her speech was clear and her thought process was coherent, goal-oriented, and logical. She was alert and fully oriented. Dr. Hammerly noted that Shinaver's gait and posture were slow and stiff and that she needed to change positions frequently during the evaluation. He diagnosed major depression, single episode, moderate, and assigned a GAF score of 58. Dr. Hammerly opined that Shinaver's abilities to understand, remember and carry out instructions were grossly normal, as were her abilities to maintain attention, concentration, persistence and pace. (Tr. 300-301) He felt that Shinaver would have some difficulties re-adjusting to the workplace because her depression would possibly affect her relations with supervisors or co-workers. He also opined that she would respond with some “decreased effectiveness when subjected to ordinary workplace pressures.” (Tr. 301)

         5. Reviewing Physician - Dr. Olga Pylaeva - April 2013

         On April 1, 2013, state agency reviewing physician Olga V. Pylaeva, M.D., found that Shinaver could occasionally lift and/or carry up to 50 pounds; could frequently lift and/or carry up to 25 pounds; could sit, stand and/or walk about 6 hours in an 8 hour workday; could occasionally climb ladders/ropes/scaffolds, stoop, kneel, crouch and/or crawl; and was unlimited in her ability to climb ramps/stairs and balance. (Tr. 70-71)

         6. Reviewing Psychologist - Robyn Hoffman, Ph.D. - May 2013

         On May 27, 2013, state agency reviewing psychologist, Robyn Hoffman, Ph.D., reviewed Shinaver's file and opined that Shinaver was moderately limited in her ability to complete a normal workday and workweek without interruptions from her psychologically based symptoms, and in her ability to respond appropriately to changes in the work setting. Dr. Hoffman thought that Shinaver would be able to complete tasks that did not require a rapid pace or adaptation to rapid/frequent changes. (Tr. 72-73)

         E. Testimonial Evidence

         1. Shinaver's Testimony

         Shinaver testified at the administrative hearing as follows:

• Shinaver amended her claimed initial onset date to October 1, 2012. (Tr. 31)
• Shinaver 's date of birth was November 4, 1962 and she was 52 years old at the time of the hearing. (Tr. 33)
• She lived in a house in Toledo with her husband and her 21 year-old son. (Tr. 33-34)
• She was 5'5 and weighed 202 pounds at the time of the hearing. (Tr. 33)
• She had a driver's license and a vehicle and drove to stores twice a month. She also drove to the ...

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