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Nakinishi v. Commissioner of Social Security

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

December 14, 2017





         Plaintiff, Katrina Nakanishi (“Plaintiff”), brings this action under 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her application for social security disability insurance benefits. This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 11), Defendant's Memorandum in Opposition (ECF No. 14), Plaintiff's Reply to Defendant's Memorandum in Opposition (ECF No. 15), and the administrative record (ECF No. 10). For the reasons that follow, it is RECOMMENDED that the Court OVERRULE the Plaintiff's Statement of Errors and AFFIRM the Commissioner's decision.

         I. BACKGROUND

         Plaintiff protectively filed her application for benefits on April 26, 2013, and alleges that she became disabled on March 30, 2007. Plaintiff's date last insured (“DLI”) was September 30, 2009. On August 18, 2015, following initial administrative denials of her claim, Plaintiff was given a hearing before Administrative Law Judge Irma J. Flottman (the “ALJ”) (ECF No. 10-2, at PAGEID# 82-110.) At the hearing, Plaintiff, represented by counsel, appeared and testified. On September 17, 2015, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (Id. at PAGEID# 67-74.)

         On August 27, 2016, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (Id. at PAGEID# 51-53.) Plaintiff then timely commenced the instant action. (ECF No. 1.)


         A. Plaintiff's Testimony

         Upon examination by the ALJ, Plaintiff testified that she had a high school education but no specialized vocational training. (ECF No. 10-2, at PAGEID# 87-88.) Plaintiff said she worked part-time job in 2011 and 2012, but she had stopped working at that job after she was no longer needed and had not tried to return to work since. (Id. at PAGEID# 88.) Plaintiff testified that prior to 2011, she had last worked in a doctor's office, first as a room assistant and then taking phone calls, but left that job in 2007 due to her back and mental health issues. (Id. at PAGEID# 89-90.) Before working in the doctor's office, Plaintiff had worked as an assistant to a physician for approximately eight months. (Id. at PAGEID# 90.)

         When asked about the problems that caused her to stop working, Plaintiff testified that she had “[a] lot of lower back pain, and some pain in both legs, not all the way down but just to my knees.” (Id. at PAGEID# 91.) She described the pain as [h]urting, burning, some … sharp pains, like muscle spasms.” (Id.) Initially, she experienced this pain “once in a while” but it “became more dominant as the day wore on.” (Id.) The pain occurred “maybe every other day” until it eventually became “more consistent” requiring Plaintiff to quit her job. (Id.). While she was still working, she received “several epidural shots” and pain medication and went to physical therapy. (Id. at PAGEID# 91-93.) She did not remember how frequently she attended physical therapy, why she stopped physical therapy, or the names of any pain medication she took. (Id.)

         Plaintiff also testified that she fell and injured her right knee, requiring several surgeries. (Id. at PAGEID# 93.) This injury caused a lot of pain and impacted her back because she walked unevenly. (Id. at PAGEID# 94.) She is not positive whether she attended physical therapy for this injury but believes that she did. (Id.) She did not wear a knee brace or use a cane for either her back or knee condition. (Id.) Instead, to eliminate the symptoms of these conditions, Plaintiff elevated her feet “pretty much every day, ” and used ice packs and a heating pad along with her medications. (Id.)

         Plaintiff also testified that she suffers from migraine headaches “pretty much on a regular basis.” (Id. at PAGEID# 95.) At one point, they became so severe that she would throw up and would have to go to the emergency room to get a pain shot. (Id.) Plaintiff's migraines occurred several times a month and could sometimes last two days. (Id.) She tried “multiple medications” and “it was a long time trying to figure out what [she] needed to do to help the migraines.” (Id.)

         Plaintiff further testified that she suffered from PTSD and is bipolar causing “a lot of anxiety and panic attacks.” (Id. at PAGEID# 96.) Plaintiff described her instances of panic attacks from 2007 through 2009 as “very minimal.” (Id.) She was hospitalized in March 2009 for two or three days and received treatment for depression after that. (Id. at PAGEID# 96-97.) Around this same time, Plaintiff went to the emergency department at Mount Carmel. (Id. at PAGEID# 96.) Plaintiff's treatment for depression included psychiatric counseling and “multiple different medications.” (Id. at PAGEID# 97.)

         When asked by the ALJ about the impact of these conditions, Plaintiff stated that in 2009, she could walk, at most, 10 to 15 minutes. (Id.) Further, using television watching as an example, Plaintiff explained that she could probably sit for 20 minutes before she needed to get up and walk around for a few minutes. (Id. at PAGEID# 97-98.) Plaintiff believed she could lift about ten pounds but had “a lot or problems” going up and down a flight of stairs. (Id. at PAGEID# 98). She could not kneel or crouch. (Id. at PAGEID# 99.)

         Plaintiff testified that between March 2007 and September 2009, after she stopped working at the doctor's office, a typical day included “very basic” cleaning. (Id. at PAGEID# 99-100.) She did not run the sweeper or mop the floor, cooked minimally, and found bending over for the dishwasher to be “an ordeal.” (Id. at PAGEID# 100.) She did some shopping but usually took her husband with her and did not always finish a shopping trip. (Id.) She did laundry but her husband “helped a lot” because “[g]oing up and down the steps was an issue.” (Id.) She did not do any yard work or gardening. (Id.) She was able to drive but getting in and out of the car caused problems. (Id.)

         Plaintiff attended church every Sunday and usually Sunday night. (Id. at PAGEID# 100-101). Sometimes she helped at church by serving food but asked to sit while she served. (Id. at PAGEID# 101.) Beyond her church, Plaintiff was not involved in any other groups or organizations although she did socialize with friends. (Id.) She spent “several hours” a day in bed icing her back, applying a heating pad, and elevating her feet. (Id. at PAGEID# 102.)

         In response to questioning by her counsel, Plaintiff testified that around March 2009, she began seeing Dr. Mendola and Mr. Tom Butler for her mental health issues. (Id. at PAGEID# 103.) At the time of the hearing, she was still seeing Mr. Butler once every two weeks. (Id.) During the relevant time period in 2009, Plaintiff was seeing Mr. Butler weekly and sometimes twice a week “because of the severity of the PTSD and the bipolar.” (Id.) She explained that she could feel a panic attack coming on, that they could last for an up to an hour and once up to two hours, and that sometimes their severity had caused her to pass out. (Id. at PAGEID# 103-104.) With respect to her PTSD and bipolar conditions, Plaintiff stated that the PTSD “was very traumatic” and she had racing thoughts making it “very hard to keep [her] composure a lot of the times.” (Id. at PAGEID# 104.) In 2009, she “cut ties” with her family and friends because she felt safer in her own home. (Id. at PAGEID# 105.)

         B. Vocational Testimony

         Vocational expert Dr. Walter Walsh (the “VE”) also testified at the administrative hearing. (ECF No. 10-2, at PAGEID# 105-108.) The VE testified that Plaintiff's past jobs included the following: nurse assistant, medium strength, semi-skilled and medical receptionist, sedentary, semi-skilled. (Id. at PAGEID# 106.) The VE was provided the following hypothetical to consider:

I want you to first assume the claimant has the ability to lift or carry up to 50 pounds occasionally, 25 frequently, stand or walk up to six hours in an eight-hour work day, sit up to six hours in an eight-hour work day. No climbing ladders, ropes or scaffolds, occasional climbing ramps or stairs, occasional crouching, kneeling and crawling, just with those limitations, could she do the past work?

(Id.) In consideration of the hypothetical, the VE concluded that Plaintiff could do her past work. (Id.) The ALJ then modified the hypothetical as follows:

If I were to reduce the lifting and carrying to 20 pounds occasionally, ten pounds frequently, standing and walking and sitting would remain as I identified. And then the postural limitations I gave you would remain as identified with the first hypothetical, could she do the past work?

(Id. at PAGEID# 107.) The VE responded to this hypothetical by stating that Plaintiff could do her past sedentary work as a receptionist. The ALJ further modified the hypothetical as follows:

If I were to add limitations of simple, routine, repetitive task[s], with only occasional interaction with the public and only occasional interaction with coworkers to those first two hypotheticals, could she do the past work?

(Id.) The VE responded to this further modified hypothetical by stating that Plaintiff could not do her past work. (Id.) Finally, the ALJ asked the following:

And then could you given a hypothetical individual the same education, work background as the claimant, with the RFC that I gave you, including the mental health limitations, could you identify any work for either of those hypotheticals? So the first one was the lifting and carrying up to 50 pounds, 25 pounds frequently with the postural limits.

(Id.) The VE testified that there would be unskilled work that the Plaintiff could perform. (Id.) For example, with respect to the first hypothetical consistent with medium strength, unskilled work, the VE stated that there would be available work as an order filler with about 3400 jobs available in the state and about 88, 00 jobs available nationally. (Id.) Further, there would be available work as a packager with 8500 jobs available in the state and about 156, 000 jobs available nationally. (Id.) Finally, there would be available jobs as a marker with about 2000 jobs in the state and about 70, 000 jobs available nationally. (Id. at PAGEID# 108.)

         With respect to the second hypothetical, the VE testified that such jobs would be light strength and unskilled and would include work as a packager with about 12, 000 jobs available in the state and 302, 000 jobs available nationally. (Id.) Further, there would be work as a marker with about 6000 jobs available in the state and about 175, 000 jobs available nationally. (Id.) Finally, there would be work as a stock person with about 9, 000 jobs available in the state and about 240, 000 jobs available nationally. (Id.)

         The VE testified that, if an individual were off-task more than ten percent of the time in addition to regularly scheduled breaks, such a scenario would constitute “accommodated work not competitive work.” (Id.) Finally, the VE testified that if an individual missed up to two days of work in a month, “that would not be consistent with competitive work on a sustained basis.” (Id.)


         The pertinent medical records for purposes of analyzing Plaintiff's contentions of error are the records relating to Plaintiff's alleged migraines, degenerative lumbar disc disease, and mental impairments.

         A. Migraine Headaches

         With respect to Plaintiff's migraine headaches, the records indicate that in December 2006, several months prior to her alleged onset date, Plaintiff was seen in the emergency room at Mt. Carmel East for a headache. (Id. at PAGEID# 409-410.) In May 2008, Plaintiff presented to the hospital with complaints of neck pain and headaches. (Id. at PAGEID# 388-403.)

         Seven months later, in December 2008, Plaintiff saw a nurse practitioner at Mt. Carmel Neurology Providers for migraine headaches. (Id. at PAGEID# 265-66.) The nurse practitioner noted that when Plaintiff had last reported in May, she “had been doing pretty well for the past couple of years” but that “several things happened in the last several weeks, ” including Plaintiff stopping her birth control and undergoing knee and bladder surgery. (Id.) Plaintiff reported that her headaches returned with an increase in intensity and frequency and that they were mostly associated with her menses.

         Plaintiff was seen again at Mt. Carmel Neurology Providers on February 2, 2009, for her first visit with Dr. Patrina Trakarnpan. (Id. at PAGEID# 263-264.) At that time, Plaintiff reported that she was having “frequent migraine headaches in the past” that “were quite severe” with one episode of decreased vision. (Id. at PAGEID# 263.) She had had a “severe increase in her headache frequency” in December 2008, but since then, her headaches significantly decreased in frequency, and she did not get headaches with her periods in January or February. (Id.) Dr. Trakarnpan noted that Plaintiff's MRI findings were normal. Dr. Trakarnpan performed a physical examination and observed only normal findings, including normal motor testing, reflexes, and gait. Dr. Trakarnpan noted that Plaintiff had a flare-up in December, but concluded that Plaintiff's “headaches are well-controlled at this time.” (Id. at PAGEID# 264.) She opined that Plaintiff's December 2008 flare-up was likely attributable to going off her birth control pills and undergoing two surgeries. (Id. at PAGEID# 263.) Plaintiff was advised to call if her migraines worsened.

         Plaintiff did not return to Mt. Carmel Neurology Providers again until April 2010, approximately fourteen months since her previous visit and more than six months after her DLI. At this April 2010 visit, the nurse practitioner noted that Plaintiff's “headaches are under better control” and ...

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