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Denniston v. Berryhill

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

January 9, 2018

BRADLEY DENNISTON, 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 Bradley Denniston brings this case challenging the Social Security Administration's denial of his applications for period of disability, Disability Insurance Benefits, and Supplemental Security Income. He applied for benefits on May 14, 2014, asserting that he could no longer work a substantial paid job. Administrative Law Judge (ALJ) Paul R. Armstrong concluded that he was not eligible for benefits because he is not under a “disability” as defined in the Social Security Act.

         The case is before the Court upon Plaintiff's Statement of Errors (Doc. #6), the Commissioner's Memorandum in Opposition (Doc. #7), Plaintiff's Reply (Doc. #8), and the administrative record (Doc. #5).

         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 Armstrong's non-disability decision.

         II. Background

         Plaintiff asserts that he has been under a “disability” since February 2, 2014. He was forty-seven years old at that time and was therefore considered a “younger person” under Social Security Regulations. See 20 C.F.R. §§ 404.1563(c), 416.963(c). He has a high school education and according to ALJ Armstrong, “a wonderful work history.” (Doc. #5, PageID #109); see 20 C.F.R. §§ 404.1564(b)(4), 416.964(b)(4).[2]

         A. Plaintiff's Testimony

         Plaintiff testified at the hearing before ALJ Armstrong if he could work today, he “definitely” would. (Doc. #5, PageID #103). He explained that he enjoyed working and when he was able to work, did not miss a day. Id. When ALJ Armstrong asked, “All the stuff you did was really heavy work. You're lifting 50 pounds and stuff. Why couldn't you do a light job? Plaintiff responded, “That's all I've done my whole life. That's all I know. That's all I know how to do. I don't know nothing else.” Id. at 103.

         Plaintiff further explained, “I try to work and do things that I was able to do in the past[, ] … my breathing won't let me. I'm not able to continue to go like I was before. I get out of breath every time I try to do something.” Id. at 110-11. Plaintiff smokes cigarettes but has significantly reduced the number he smokes per day: At the beginning of 2015, he smoked two packs a day and by the time of the hearing in December 2015, he was smoking three to six cigarettes per day. Id. at 86. Since cutting back, he has not noticed a difference in his breathing. Id. at 98-99. He has difficulty breathing in dusty environments and when the temperature is very hot or very cold. Id. at 99.

         In 1990, Plaintiff fell approximately sixty feet and hurt his right ankle and back. Id. at 91, 108. At first, the doctors were unable to find anything wrong with his ankle. Id. at 91. However, a year and a half later, another doctor found that it had broken and started to heal incorrectly. Id. As a result, Plaintiff underwent surgery. Id. His surgeon informed him that he had arthritis in his ankle and although the surgeon removed it, it was likely to return. Id. Plaintiff also has back pain “[e]veryday, all day” because of the fall. Id. at 96. He sees a pain management doctor once a month at Dayton Pain Center. Id.

         Plaintiff sees a psychiatrist at Darke County Mental Health. Id. at 101. He originally sought treatment “[f]or depression, more or less because I wasn't able to do the things I've been able to do in the past ….” Id. at 110-11. He used to see a case worker- Dick Baker-but Mr. Baker retired and Darke County has not been able to find Plaintiff a new case worker. Id. at 101-02. Plaintiff “had a couple of different periods during [the] hearing where [he's] been emotional and [he's] cried.” Id. at 111. This happens to him several times a week “because I got somebody else doing things for me and I usually do it myself. Never been dependent on nobody.” Id.

         Plaintiff falls asleep three to four times a day for fifteen to twenty minutes at a time. Id. at 99-100. When he was at work, he sometimes nodded off. Id. at 100.

         Plaintiff once fell asleep while driving to work and “hit a state trooper head on.” Id. at 92. He had a sleep study done and now uses a BiPAP machine. Id. at 92. Even with the machine, Plaintiff still nods off. Id. at 100.

         Plaintiff is not able to read. Id. at 88. When asked by the ALJ if he had ever learned to read at all, Plaintiff explained: “I've tried. I went to school everyday. … I gave my effort. When I was younger in [] Kindergarten, 1st, 2nd and 3rd grade they didn't know I had 5 percent hearing in both my ears. … So I wasn't able to hear. That's when you learn to read and write.” Id. The ALJ recommended he go to the public library so “older people” could help him learn to read. Id. at 89. Plaintiff related a troubling story: “My grandbaby comes home from 1st grade with a 1st grade book, and he asked me what these words are. And I tell him I can't read them, I try to read them, and I can't read them for him. You know how bad that feels[?]” Id. (The ALJ responded with an oddly irrelevant personal story.)

         Plaintiff last worked as a laborer at Fram Oil Filter Company. Id. at 86. After a machine assembled oil filters, he was supposed to sort the good parts from the bad. Id. at 87. He had “trouble keeping up with the assortment of stuff.” Id. The job also required Plaintiff to complete “a lot of paperwork” and he was not able to. Id. at 88. He was let go, after working 89 days, “for not being able to keep up with it.” Id. at 86.

         Plaintiff resides with his long-time girlfriend. Id. at 93. She has one daughter and grandchildren. Id. at 94. Plaintiff's girlfriend helps him put on and tie his shoes because he loses his breath when he bends over: “I stand up. I get dizzy. I've stood up before and fell over, passed out doing that. Id. at 96-97. Plaintiff has problems sitting for long periods of time. Id. at 97. He can only sit comfortably for about fifteen minutes. Id. at 98. If he does not stand up after that, his lower back and legs go numb and get tingly. Id.

         Plaintiff estimated that he can lift “[m]aybe 10 pounds” and can walk “[c]omfortably, maybe a block.” Id. at 94. He has a home exercise program where he “can use rubber bands and stuff like that to keep exercise movements and stuff like that in [his] legs and arms.” Id. at 94-95. He also tries to walk around his house. Id. at 95.

         Plaintiff has a driver's license. Id. at 88. When he obtained his license, the driving test was read to him. Id. Since his accident, he has obtained another vehicle from his brother. Id. at 93. He generally only drives two to three times a week. Id. at 98. Plaintiff used to ride motorcycles. Id. at 93. He had to get rid of his Harley Gold Wing-“a dynamite machine, ” according to the ALJ-because he was unable to hold it up. Id.

         B. Medical Opinions

         i. Sherry Adkins, M.D.

         On February 12, 2015, Dr. Adkins, Plaintiff's primary-care physician, indicated Plaintiff should be restricted from operating heaving machinery-including vehicles- due to a history of syncope. Id. at 768.

         ii. M. Robert Maher, D.P.M.

         Dr. Maher, Plaintiff's podiatrist, opined on May 8, 2012, that Plaintiff was limited to working eight hours a day, five days a week, for four weeks. Id. at 465.

         iii. Martti E. Kahkonen, M.D.

         On August 7, 2014, Dr. Kahkonen completed a consultative exam and documented largely normal findings. Id. at 477-82. He noted Plaintiff's teeth were in “poor repair” and his lungs revealed rhonchi. Id. at 479. Dr. Kahkonen assessed no functional or lifting/carrying restrictions. Id. at 481-82.

         iv. Damian M. Danopulos, M.D.

         Dr. Danopulos examined Plaintiff and reviewed some of his records on July 24, 2014. Id. at 932-48. His “objective findings were 1) right ankle arthralgias, if any, 2) cervical spine arthralgias, 3) lumbar spine minimal arthritic changes in the lower lumbosacral spine area and 4) history of depression, which was already evaluated by a Social Security psychologist.” Id. at 836. He concluded that Plaintiff's physical impairments-“except has mild emphysema”-do not interfere with his ability to complete work-related activities and “a semi-sedentary job would be fitting for him.” Id. at 837. He cautioned, ‚ÄúThis assessment was based on his complaints, ...


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