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Leflouria v. Berryhill

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

January 16, 2018

CURTIS LEFLOURIA, Plaintiff,
v.
NANCY A. BERRYHILL[1], ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          SARA LIOI JUDGE

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          GEORGE J. LIMBERT, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Curtis Leflouria (“Plaintiff”) requests judicial review of the final decision of the Commissioner of Social Security Administration (“Defendant”) denying his application for Disability Insurance Benefits (“DIB”). ECF Dkt. #1. In his brief on the merits, filed on May 25, 2017, Plaintiff asserts that the administrative law judge (“ALJ”): (1) issued a decision that is not supported by substantial evidence; and (2) failed to call a medical expert to testify or order a consultative examination. ECF Dkt. #15. Defendant filed a response brief on July 25, 2017. ECF Dkt. #18. Plaintiff filed a reply brief on July 31, 2017. ECF Dkt. #19.

         For the following reasons, the undersigned RECOMMENDS that the Court AFFIRM the ALJ's decision and dismiss Plaintiff's case in its entirety with prejudice.

         I. PROCEDURAL HISTORY

         On March 24, 2014, Plaintiff protectively filed an application for DIB. ECF Dkt. #12 (“Tr.”) at 139.[2] The application was denied and Plaintiff requested a hearing. Id. at 82, 86. The hearing was held on September 16, 2015. Id. at 32. On October 6, 2015, the ALJ issued a decision denying Plaintiff's claim. Id. at 15. Subsequently the Appeals Council denied Plaintiff's request for review. Id. at 3. Accordingly, the October 6, 2015, decision issued by the ALJ stands as the final decision.

         Plaintiff filed the instant suit seeking review of the ALJ's October 6, 2015, decision on January 23, 2017. ECF Dkt. #1. On May 25, 2017, Plaintiff filed a brief on the merits. ECF Dkt. #15. Defendant filed a response brief on July 25, 2017. ECF Dkt. #18. Plaintiff filed a reply brief on July 31, 2017. ECF Dkt. #19.

         II. RELEVANT MEDICAL AND TESTIMONIAL EVIDENCE

         A. Medical Evidence

         On April 25, 2005, Plaintiff was diagnosed with polysubstance dependency in remission and indicated that he was celebrating three years of sobriety from drugs and alcohol on this date. Tr. at 1130. In May 2005, Plaintiff was treated for his Hepatitis C and it was noted that his liver function remained stable. Id. at 1127. On July 6, 2005, it was noted that Plaintiff had a history of ulcerative colitis and that he reported he had been sober for four years. Id. at 1122.

         In August 2005, Plaintiff reported increasing pain in his hips. Tr. at 1120. X-rays taken in September 2005 showed minimal arthritic change and evidence of osteoporosis. Id. at 508. A bone density study also performed in September 2005 showed no signs of osteoporosis. Id. at 507-508. Plaintiff received treatment for sore hips on October 11, 2005. Id. at 610. On examination, Plaintiff displayed good hip range of motion with mild soreness, good curvature and range of motion of his spine, and a normal gait. Id.

         On October 19, 2006, Plaintiff sought treatment for a sore right hip after he slipped on some wires on the floor at work and landed on his right hip. Tr. at 231. Plaintiff stated that he also landed on his right wrist, but that his wrist and hand were not bothersome. Id. On examination, Plaintiff exhibited tenderness and swelling in his right hip, pain on rotation, and some pain on flexion of the hip. Id. X-rays of Plaintiff's right hip showed a “tiny” osteophyte that could have been “the earliest findings in degenerative hip disease.” Id. at 232. On August 23, 2006, Plaintiff reported “level 10" pain at times in his right hip. Id. at 230. On examination, Plaintiff had positive straight leg raises on his right and was assessed as having a right hip contusion with radiculopathy. Id.

         Plaintiff was hospitalized for substance abuse treatment from March 30, 2007 through May 9, 2007. Tr. at 256, 259. During this time, Plaintiff reported that he was suicidal, and that he had lost everything and was thinking about hanging himself. Id. at 260. In June 2007, it was noted that Plaintiff's cocaine, alcohol, and marijuana dependence were in remission. ID. at 284.

         X-rays of Plaintiff's hips taken on August 9, 2007 were normal, and x-rays of his right ankle showed calcaneal enthesopathy. Id. at 312, 505-506. Additional x-rays showed arthritic changes in the left acromioclavicular (“AC”) joint. Id. at 312. The following day, Plaintiff sought treatment for left shoulder pain and reported a rotator cuff flare when he was lifting weights at a gym. Id. at 265. Plaintiff displayed a smooth, steady gait, localized left shoulder pain, full range of motion of the cervical spine, and normal hand strength. Id. at 265-66. Additionally, Plaintiff was able to raise his arm over his head with some discomfort. Id. at 266. That same day, Plaintiff had an appointment regarding his Hepatitis C and denied any abdominal pain, nausea, or vomiting. Id. at 812. In September 2007, Plaintiff displayed nearly full range of motion in his left shoulder and normal strength. Id. at 590. X-rays showed degenerative disc disease in the AC joint. Id. Plaintiff received an injection in his shoulder. Id. at 803.

         On February 8, 2008, Plaintiff again complained of left shoulder pain. Tr. at 788. X-rays of the shoulder showed minimal degenerative changes in the AC joint. Id. at 501-502. That same day, Plaintiff sought treatment for blood in his stool due to ulcerative colitis. Id. at 791. On February 29, 2008, Plaintiff exhibited normal shoulder range of motion, normal strength, and no AC tenderness, and received another injection in his left shoulder. Id. at 782-83. Further, Plaintiff stated that he was able to perform his activities of daily living, but experienced some pain. Id. at 579. Plaintiff also reported that he was still passing blood at times, but his symptoms had improved, and denied any urinary or bowel problems. Id. at 776.

         On March 3, 2008, Plaintiff reported that he was enrolled in school and was working towards a nursing degree. Tr. at 783. Plaintiff stated that he was maintaining A grades in nearly all of his classes, with a B in a single course. Id. Additionally, Plaintiff indicated that he was brainstorming recreational activities for his church and wanted to contact Veterans Affairs (“VA”) regarding fishing trips. Id.

         In June 2008, Plaintiff complained of bilateral sacroiliac joint pain with intermittent buttock pain with no known injury. Tr. at 501. X-rays showed normal sacroiliac joints. Id. Additional x-rays of Plaintiff's lumbar spine showed multilevel degenerative disc disease. Id. at 500. It was noted that a small caliber bullet was “probably in the far left flank.” Id. In July 2008, it was reported that Plaintiff was following through with his substance abuse groups and taking classes to help improve his life. Id. at 750.

         Plaintiff reported back pain in May 2009 and was prescribed medication. Tr. at 735-36. On June 10, 2009, Plaintiff reported pain in his left heel and was assessed as having bursitis, abnormal gait, and plantarflexed metatarsals. Id. at 566-67. Later that month, Plaintiff complained of stiffness in his back in the mornings, but indicated that it resolved by the afternoon. Id. at 569. It was also noted that Plaintiff was seen previously for shoulder problems, which had been resolved. Id. at 726. Plaintiff had pain and tenderness in his right sacroiliac joint with full flexion of the lumbar spine, mild scoliosis, full straight leg raise tests, normal lower extremity strength, normal sensation, and minimal leg discrepancy. Id. at 569, 726. Based on this diagnosis, Plaintiff was given materials for a home exercise program. Id.

         In August 2009, Plaintiff was issued orthotics that supported the arch in a subtailor joint neutral position and raised the heel. Tr. at 561-62. Plaintiff also received another injection in his left shoulder for the pain. Id. at 718-19. On October 27, 2009, Plaintiff underwent an examination of his spine in connection to VA disability benefits. Id. at 707. On examination, Plaintiff's pelvis was tilted to the right and he displayed an antalgic gait. Id. at 709-10. Plaintiff had muscle spasms in his back and lower extremity weakness in his left leg, but full motor strength in his extremities other than slightly reduced left hip and knee flexion. Id. at 711-12. It was stated that Plaintiff had leg length discrepancy and degenerative disc disease in his back, and that his back condition was secondary to his hip injury. Id. at 636, 717.

         In February 2010, Plaintiff complained of continued pain in his lower back, left leg, and left hip, and was prescribed medications. Tr. at 699. Plaintiff stated that he experienced left shoulder pain in March 2010 and received another injection. Id. at 693-94. On April 5, 2010, a CT of Plaintiff's lumbar spine showed moderate multilevel degenerative disc disease. Id. at 498-99. In July 2010, Plaintiff participated in physical therapy for lower back pain and displayed normal lower extremity strength, normal straight leg raise testing, and a posture that shifted to the left. Id. at 541-42. A home exercise plan was developed and Plaintiff was seen for additional physical therapy sessions through July 2010 and August 2010, which he tolerated well. Id. at 542-43, 663-74. Plaintiff ...


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