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Allen v. Berryhill

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

December 20, 2017

TED ALLEN, Plaintiff,
v.
NANCY A. BERRYHILL, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          Walter H. Rice District Judge

          REPORT AND RECOMMENDATIONS [1]

          SHARON L. OVINGTON, UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff Ted Allen applied for Disability Insurance Benefits on August 5, 2013, asserting he could no longer work a substantial paid job due to his mental and physical impairments. The Social Security Administration denied Plaintiff's claims initially and upon reconsideration. Following an administrative hearing, Administrative Law Judge (ALJ) Eric Anschuetz concluded that Plaintiff was not eligible for benefits because he is not under a “disability” as defined in the Social Security Act. Plaintiff brings this case challenging the Social Security Administration's denial of his application for Social Security benefits.

         The case is before the Court upon Plaintiff's Statement of Errors (Doc. #7), the Commissioner's Memorandum in Opposition (Doc. #8), Plaintiff's Reply (Doc. #9), and the administrative record (Doc. #6).

         Plaintiff seeks a remand of this case for payment of benefits or, at a minimum, for further proceedings. The Commissioner asks the Court to affirm ALJ Anschuetz's non-disability decision.

         II. Background

         Plaintiff asserts that he has been under a “disability” since April 9, 2013. He was thirty-nine years old at that time and was therefore considered a “younger person” under Social Security Regulations. See 20 C.F.R. § 404.1563(c). He has a high school education. See 20 C.F.R. § 404.1564(b)(4).

         A. Plaintiff's Testimony

         Plaintiff testified at the hearing before ALJ Anschuetz that he cannot work because he has “left eye, vision issues, [is] numb below the waist down, unstable, [and] clumsy, [he has] head pain, hearing loss, [and] back pain, [his] hands don't work that much anymore, [he has problems with] grasping, [has] loss of strength, [has trouble] standing for a period of time[, ]” and experiences fatigue. (Doc. #6, PageID #76). “The biggest problem I've been having has been my waist down to my toes. It will get burning feelings and the next thing you know, I can see my legs, but I can't feel them at all.” Id. at 96.

         Plaintiff was first checked out for symptoms of multiple sclerosis (MS) in 2005, after he had Lasik eye surgery and they discovered optical neuritis in his left eye. Id. at 94-95. In 2010, when Plaintiff's father died, the severity of his MS increased and he began to have flare-ups more frequently. Id. at 95, 98.

         Plaintiff sees his primary-care physician, Dr. Moore, the most often. Id. at 77. In a six-month period, Plaintiff usually sees him three to four times for head pain and any smaller issues. Id. Plaintiff also sees a neurologist, Dr. Mankowski. Id. Plaintiff sees Dr. Mankowski's nurse once a month for Tysabri infusions. Id. Plaintiff spent the three days before the hearing at Dayton Center of Neurology Disorders getting steroid treatments “to help calm down the symptoms I've been having with the numbness going down my legs and my waist down and the head pain and things like that going on with my body.” Id. at 77-78.

         In the past, Plaintiff has taken prednisone to help with his symptoms as well as Avonex. Id. at 79. The medicine Plaintiff was using at the time of the hearing- Tysabri-“is actually a more potent medication for MS and they don't like to use steroids as much unless you're having a major flare-up.” Id. at 80. Plaintiff takes Lyrica for nerve pain. Id. at 84.

         To improve his condition, Plaintiff tries to “stay stress-free” and “not overheat.” Id. at 85. Overheating causes him to have MS flare-ups: “It will actually cause flare-ups actually in the brain to the point that my vision will go about 90% gone in my left eye, to the point I can barely walk, once that happens either you go for a steroid injection or you're going to be down for a good week or two.” Id. at 85-86. “A flare basically … you can actually start feeling - you kind of start sweating a little bit or you feel burning going through sections of your body. And the next thing you know, you can't feel parts of your body or your vision just totally leaves.” Id. at 96. Plaintiff has a minimum of five flares a week. Id. at 93. They can last anywhere between thirty minutes and an entire week. Id. They happen most often between 9:30 p.m. and 11:30 p.m. Id. at 97. While having a flare, he is not able to do any activities and has to lie in bed. Id. at 93. And, between flares, he struggles with fatigue. Id.

         Plaintiff lives in a split-level house with his wife and five children-ages 15, 12, 9, 6, and 5. Id. at 82. He does not regularly exercise but he will walk around his front yard when his children are out playing. Id. at 81. He walks between fifty and sixty feet. Id. He has a driver's license and usually drives two to three times a week to Kroger's or Walgreens. Id. at 81-82.

         On school days, Plaintiff usually wakes up around 6:30 a.m. to help his kids get ready for school. Id. at 89. After they leave, he usually lies back down or watches the news. Id. During the day, he does little things around the house. Id. at 90. He sometimes starts laundry, cleans up small messes, and runs quick errands. Id. He watches television for up to two and a half hours a day. Id. During daytime hours, even when he is not experiencing a flare, he spends approximately sixty percent of his time lying in bed, trying to relax. Id. at 94.

         Plaintiff last worked at his wife's HVAC company in July 2013. Id. at 67. She operated the business out of their house, and he helped her find contractors. Id. She did not pay him. Id. at 69-70. He estimated that he worked twenty to twenty-five hours per week and if she had paid him, he would likely have made twenty-five dollars an hour. Id. at 70. The ALJ asked what happened on the date Plaintiff alleges his disability began- April 9, 2013-and Plaintiff explained, “my wife's company pretty [much] crashed and no income's really coming in and we both decided, … we're going to have to make adjustments and you need to file for disability.” Id. at 72.

         B. Medical Opinions

         i. Matthew Moore, M.D.

         On June 25, 2013, Plaintiff's treating physician, Dr. Moore, provided a brief statement. Id. at 362. He indicated that he had treated Plaintiff for over thirty years and opined, “He has multiple sclerosis. It is progressively getting worse to the point that he is now on [IV] therapy. [Plaintiff] has also been seen for depression/anger issues and has been referred to a therapist. [Plaintiff] is considering disability and I am supporting him in this matter.” Id.

         Dr. Moore also completed a questionnaire regarding Plaintiff's MS on July 17, 2014. Id. at 420-21, 431-32. He identified an abundance of problems applicable to Plaintiff: MRI showing plaques characteristic of MS; CSF abnormalities; ataxia; numbness; weakness; double vision or other visual disturbances; vertigo; paresthesias; other emotional disturbances; sustained disturbance of gait and station; and significant, reproductive fatigue of motor function with substantial muscle weakness on repetitive activity, demonstrated on examination. Id. at 420. Dr. Moore opined Plaintiff could not work at all. Id. Plaintiff could, however, stand for thirty minutes at one time, lift five pounds on an occasional basis, and use his arms to work occasionally. Id. Further, Plaintiff would be off task twenty percent or more of the day. Id. at 421. Dr. Moore opined Plaintiff has a significant problem with anxiety and/or depression that would markedly limit his ability to withstand the stresses and pressures of ordinary work activity. Id.

         ii. Kenneth Mankowski, D.O.

         Dr. Mankowski, Plaintiff's treating neurologist, also completed a questionnaire on multiple sclerosis. Id. at 422-23. He recognized the following as applicable to Plaintiff: MRI showing plaques characteristic of MS; positive Babinski; CSF abnormalities; ataxia; numbness; weakness; stiffness; paresthesias; sustained disturbance of gross and dexterous movements; sustained disturbance of gait and station; significant, reproductive fatigue of motor function with substantial muscle weakness on repetitive activity, demonstrated on examination; and inability to ambulate effectively. Id. at 422. Dr. Mankowski opined Plaintiff could work for two hours in one day, stand for fifteen minutes at one time; stand for a total of one hour in a workday, lift five pounds on a frequent basis, and use his arms to work occasionally. Id. Additionally, Plaintiff would be off task twenty percent or more of the day. Id. at 423. Dr. Mankowski noted, “active multiple sclerosis requiring monthly Tysabri-Severe gait dysfunction, fatigue, etc.” Id.

         iii. Steve McKee, M.D., & ...


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