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Marks v. Commissioner of Social Security

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

January 12, 2018




          David A. Ruiz United States Magistrate Judge.

         Plaintiff Kimberly R. Marks[1] challenges the final decision of Defendant Commissioner of Social Security (“Commissioner”), denying her application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381 et seq. (“Act”). This court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned United States Magistrate Judge pursuant to an automatic referral under Local Rule 72.2(b) for a Report and Recommendation.

         The issue before the court is whether the final decision of the Commissioner is supported by substantial evidence and, therefore, conclusive. For the reasons set forth below, the Magistrate Judge recommends that the Commissioner's final decision be affirmed.


         On August 5, 2013, Marks filed an application for SSI benefits, alleging disability beginning May 28, 2013. (R.7, PageID #: 54, 188-191, 221-233.) Marks's application was denied initially and upon reconsideration. (R.7, PageID #: 54, 113-128, 129, 130-142, 143.) Thereafter, Marks filed a request for a hearing before an administrative law judge (“ALJ”). (R.7, PageID #: 159-160.) The ALJ held a hearing on October 30, 2015. (R.7, PageID #: 69-112.) Marks appeared at the hearing, was represented by counsel, and testified. (Id. at 71-72, 76-103.) A vocational expert (“VE”) also attended the hearing and provided testimony. (Id. at 72, 104-111.) On January 28, 2016, the ALJ issued the decision, applying the standard five-step sequential analysis to determine whether Marks was disabled. (R.7, PageID #: 51-63; see generally 20 C.F.R. § 416.920(a).) The ALJ concluded Marks was not disabled. (R.7, PageID #: 54, 63.) The Appeals Council denied Marks's request for review, thus rendering the ALJ's decision the final decision of the Commissioner. (R.7, PageID #: 43-45.)

         Marks now seeks judicial review of the Commissioner's final decision pursuant to 42 U.S.C. § 405(g). The parties have completed briefing in this case. Marks presents the following legal issues for the court's review: (1) the ALJ erred when weighing the medical opinion evidence and (2) the ALJ erred when evaluating Marks's credibility. (R. 8, PageID #: 1017.)


         Marks was born on December 4, 1973, and was 39 years old, which is defined a younger individual age 18-49, on the application date. (R.7, PageID #: 62, 188, 207.) She has a college education, and is able to communicate in English. (R.7, PageID #: 62, 221, 223.) Marks had past work as a bookkeeper, and in counter sales (R.7, PageID #: 104-105.)


         Disputed issues will be discussed as they arise in Marks's brief alleging error by the ALJ. As noted earlier, Marks applied for SSI on August 5, 2013. (R.7, PageID #: 54, 188-191.) Marks listed her physical or mental conditions that limit her ability to work as: “fibromyalgia, anxiety, migraines, insomnia, tremors, chronic fatigue, neuropathy, temporomandibular joint disorder (TMJ), autoimmune system problems.” (R.7, PageID #: 222.)

         On May 2, 2013, Marks was seen by Nicholas J. Ksenich, M.D., following up from an E.R. visit for a fall several days earlier. (R. 7, PageID #: 594, see also PageID #: 605 (fall at home, sprained knee).) Marks complained of hip, back and knee pain. Id. She also reported weakness in her arms and legs, pain in her thighs, and insomnia. Id. Dr. Ksenich's assessment noted migraine headache, neuropathy, left arm pain, chronic pain, TMJ (dislocation of temporomandibular joint), insomnia, anxiety, and right knee pain. Id. at 596.

         On May 13, 2013, Marks presented to Heather Scullin, D.O., for an evaluation of anxiety. (R. 7, PageID #: 597-598.) Dr. Scullin reported that Marks had the following anxiety symptoms: “chest pain, difficulty concentrating, dizziness, fatigue, feelings of losing control, insomnia, irritable, palpitations, paresthesias, psychomotor agitation, [and] racing thoughts.” Id. at 598. Marks reported chronic back pain for more than a year and moderate pain in the lumbar spine and thoracic spine, which radiates from her thighs into her groin. Id. Dr. Scullin reported that Marks's vital signs were normal, that she did not appear ill, or have a “sickly appearance, ” and that Marks was in no distress. Id. at 601. On examination, Marks's neck was supple, with a normal range of motion. Id. Marks exhibited some decreased range of motion in her left shoulder, with tenderness there, and in both knees. Id. at 602. She also exhibited a decreased range of motion, tenderness and pain, in her cervical back and lumbar back. Id. Her arms, wrists, elbows, hands, hips, legs, and ankles were normal. Id. at 602-603.

         Dr. Scullin assessed Marks with acute low back pain, radiating to both legs, and noted that x-ray of the lumbar spine was negative. (R. 7, PageID #: 604.) She also assessed left shoulder pain, leg pain, right knee pain, and chronic pain of her whole body, but the doctor noted that all x-rays were normal. Id. Dr. Scullin identified a high risk of medication use, anxiety, migraine headaches, and active neuropathy of her hand. Id. Marks reported that she had been diagnosed with fibromyalgia, but the record notes that Marks suspected multiple sclerosis because of numbness. Id.

         On May 13, 2013, Dr. Scullin reviewed stretching and relaxation techniques, and recommended that Marks quit smoking, and exercise three times per week, for thirty minutes at a time. (R. 7, PageID #: 606.) Dr. Scullin also reviewed Marks's medications. Id. at 605-606.

         Marks presented to Dr. Ksenich for a follow-up visit on June 25, 2013, complaining of migraines and pain in many areas. (R. 7, PageID #: 607.) Dr. Ksenich referred her for a pain management evaluation with rheumatology. Id. at 610-611. Marks had a follow-up visits with Dr. Ksenich on July 26, 2013 and August 20, 2013, at which she complained of insomnia, temporomandibular joint pain, and migraines. Id. at 611, 615. Her medications were discussed, and Marks requested a doctor's excuse for additional time off work. Id. at 611. She had multiple tender spots, and at the August exam, Savella was prescribed (for fibromyalgia). Id. at 618-619. In August, Dr. Ksenich again advised Marks to keep the appointment for pain management evaluation and a specialist evaluation. Id. at 615, 619.

         Marks returned to Dr. Scullin on December 5, 2013, complaining of shoulder pain, worse in the left shoulder, worsening knee pain, and right hip pain. (R. 7, PageID #: 642; 824.) Dr. Scullin reported that Marks's vital signs were normal, that she did not appear ill, or have a sickly appearance, and that she was in no distress, although she appeared anxious. Id. at 644. On examination, her neck was supple, with a normal range of motion. Id. Marks exhibited tenderness in both shoulders and in both knees. Id. at 645. She also exhibited a decreased range of motion in her left elbow. Id. Marks exhibited a decreased range of motion in her lumbar back, and tenderness there as well as in her cervical back and thoracic back. Id. She had some decreased sensation in her hands. Id. at 646. Her arms, wrists, hips, legs, feet, and ankles were normal. Id. at 645-646.

         Dr. Scullin assessed Marks with active TMJ (temporomandibular joint disorder), chronic pain, left arm pain, migraine headaches, neuropathy, and active back, neck, shoulder and knee pain. (R. 7, PageID #: 647.) Dr. Scullin also noted anxiety, vitamin D deficiency and active fibromyalgia muscle pain. Id. Dr. Scullin again reviewed stretching and relaxation techniques, and repeated her recommendation that Marks quit smoking, and exercise three times per week, for thirty minutes at a time. Id. at 650. The treatment plan included follow-up with her primary care physician, and, after OT, to discuss medicine and injection options. Id.

         Marks returned to Dr. Ksenich and Estacia Cooper, N.P., on January 30, 2014, for an annual exam. (R. 7, PageID #: 826-827.) Marks reported no complaints to NP Cooper that day. Id. at 826. Marks denied regular exercise, and reported smoking. Id. To Dr. Ksenich, however, Marks reported back pain in the mid- to low spine, which was worse with activity, and better with lying down. Id. at 827. Marks reported less migraines, but no improvement from fibromyalgia medications. Id.

         Dr. Ksenich noted she was “alert, well appearing and in no distress, ” and she had multiple tender spots. (R. 7, PageID #: 830.) The doctor referred Marks to neurosurgery for chronic pain, neuropathy, tremors of the nervous system, and back pain. Id. at 830-831. Dr. Ksenich's assessment also noted insomnia, TMJ, left arm pain, migraines, anxiety, and vitamin D deficiency. Id.

         On January 29, 2015, Marks presented to Bharat Shah, M.D., of the Comprehensive Pain Center, for evaluation of joint and muscle pain, on referral from Dr. Ksenich. (R. 7, PageID #: 873-877.) Marks reported to Dr. Shah that she had been in a car accident in 2001. Id. at 873. She reported problems with pain since 2012, which included symptoms in her neck, back, and almost all the joints of her body. Id. Marks specifically reported “arthritis, back pain, joint pain, joint stiffness, joint swelling, limitations in ROM, muscle cramps, muscle pain, muscle weakness, neck pain, pain between the shoulders, difficulty walking and leg pain.” Id. at 875. Dr. Shah noted that Marks appeared in no acute distress, with mild pain. Id.

         Upon examination, Dr. Shah noted that head and neck flexion and rotation were painful. (R. 7, PageID #: 876.) There was diffuse tenderness over the cervical spine, and multiple tender points over both trapezius muscles and the upper part of the cervical spine. Id. There was diffuse tenderness in the spine, with no reduction of range of movement. Id. Straight leg raising was painful bilaterally. Id. Range of motion was normal for both knees and both hips. Id. Strength, sensation, and reflexes of the arms and legs were within normal limits. Id. All muscle testing was also within normal limits. Id.

         Dr. Shah diagnosed Marks with cervicalgia, lumbago, and rheumatoid arthritis. (R. 7, PageID #: 877.) The doctor adjusted her medications, discontinuing the narcotic Narco, and several other drugs, but continuing her Klonopin and Elavil, and starting Savella. Id. Dr. Shah also ordered an x-ray of the lumbar spine. Id.

         At a March 3, 2015, follow-up appointment with Osma Malak, M.D., of the Comprehensive Pain Center, Marks reported that “she has been feeling significant improvement in the pain of her whole body.” (R. 7, PageID #: 877.) However, Marks still complained of diffuse body pain, mainly in the neck, upper and lower back, and hips. Id. at 880. The treatment plan was to start an aquatherapy program. Id. at 881. At an April 1, 2015, appointment with Dr. Malak, Marks reported her fibromyalgia was continuing to be painful, and that her pain had actually worsened. Id. at 881, 884. Dr. Malak adjusted her medications. Id. at 884.

         In addition to the home exercise program advised by Dr. Scullin, above, treatment plans were recommended by Sameh R. Yonan, M.D., of the Comprehensive Pain Center, and rheumatologist Margaret Tsai, M.D., for decreasing Marks's pain in the cervical spine and lumbar spine. (R. 7, PageID #: 890, 918, 940-941.) On January 15, 2014, Dr. Tsai recommended that Marks exercise for thirty minutes, three times a week, suggesting “weight-bearing aerobic exercises such as walking, dancing, low impact aerobics, elliptical machine, stair climbing, gardening, flexibility exercises and strength training exercises.” (R. 7, PageID #: 940, see also 935, 941-942.) On June 3, 2015, Dr. Yonan recommended that Marks “undergo stretching, strengthening, and resistance exercises for the back and abdominal muscles.” Id. at PageID #: 915, 918; see also 890 (same). In addition, a home exercise program including “walking for 30 minutes twice daily followed by walking stairs for 10 minutes” was recommended. Id. at PageID #: 918.

         The parties have also identified the below medical opinions. State agency reviewing physician, Maureen Gallagher, D.O., completed a Physical Residual Functional Capacity (“RFC”) Assessment on October 24, 2013. (R. 7, PageID #: 124-126.) Dr. Gallagher stated that Marks had exertional limitations due to fibromyalgia, but assessed she could lift or carry up to twenty pounds occasionally, and ten pounds frequently. Id. at 124-125. Marks could stand or walk for about six hours of an 8-hour workday, and sit for six hours. Id. at 125. Concerning postural limitations, the doctor opined that Marks could climb ramps or stairs occasionally; could frequently balance, stoop, kneel, crouch, or crawl; and could never climb ladders, ropes or scaffolds. Id. Dr. Gallagher further opined that Marks should avoid all exposure to hazardous machinery and heights. Id. at 126. Dr. Gallagher noted that claimant reported ongoing pain throughout her joints, but that her x-rays and exams have been normal. Id.

         On reconsideration, Diane Manos, M.D., completed a Physical RFC Assessment on June 7, 2014. (R. 7, PageID #: 138-139.) Dr. Manos assessed the identical limitations as had Dr. Gallagher. Id. Dr. Manos indicated “no worsening alleged on reconsideration” and review of the medical evidence of record does not support any material functional changes. Id. at 139.

         Dr. Ksenich completed a form entitled “Multiple Impairment Questionnaire” (“questionnaire”) on July 1, 2014, indicating he began treating Marks in November 2012. (R. 7, PageID #: 892-899.) Dr. Ksenich responded to the second question in the questionnaire, “What is your diagnosis of your patient's condition?” by simply stating “See note.” Id. It is unclear what “note” the doctor is referring to, because there is no note attached to the questionnaire, as submitted in the record. See generally R. 7, PageID #: 892-899. The doctor's entire description of the claimant's prognosis is “guarded.” Id. at 892. Moreover, the doctor responded “see note” to the next three questions:

4. Identify the positive clinical findings that demonstrate and/or support your diagnosis and indicate location where applicable.
5. Identify the laboratory and diagnostic test results which demonstrate and/or ...

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