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Smith v. Berryhill

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

February 12, 2018

DONNEL SMITH, Plaintiff,

          Walter H. Rice District Judge


          Sharon L. Ovington United States Magistrate Judge

         I. Introduction

         Plaintiff Donnel Smith brings this case challenging the Social Security Administration's denial of his applications for benefits. He applied for Disability Insurance Benefits on October 24, 2013 and for Supplemental Security Income on September 16, 2014, asserting that he could no longer work a substantial paid job. Administrative Law Judge (ALJ) George D. McHugh 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. #7), the Commissioner's Memorandum in Opposition (Doc. #12), Plaintiff's Reply (Doc. #13), 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 McHugh's non-disability decision.

         II. Background

         Plaintiff asserts that he has been under a “disability” since January 2, 2013. He was thirty-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 at least a high school education. 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 McHugh that he had bariatric surgery in 2009. (Doc. #6, PageID #93). At his max, he weighed 433 pounds. Id. At the time of the hearing, he weighed 265 pounds. Id. at 89-90. “[T]he surgery initially went well but 1 started hemorrhaging in the recovery room.” Id. at 93. His doctors had to “take [him] back into surgery to see why [he was] vomiting blood. Id. A month after his surgery, he returned to the hospital “because the scar tissue had covered the new stomach and I was unable to eat.” Id.

         In August 2013, Plaintiff underwent surgery “to remove scar tissue in hopes that would reduce the pain. The scar tissue ended up coming back more aggressive.” Id. at 92. A month after surgery, he spoke to his surgeon, “and [the surgeon] basically busted out in tears because he couldn't help me. He did all he could …. [B]y that point I had four surgeries, including the gastric bypass till that surgery in August, and he had hoped that that would help me … as a last ditch effort and … it didn't, and he apologized because he's in a business of helping his patients and he couldn't help me.” Id. at 99.

         Plaintiff explained that he “never healed and the pain was worse than before than ever ….” Id. His pain is primarily located from his ribcage to the bottom of his stomach. Id. at 103. On a scale from one to ten, he estimated that pain level was typically seven. Id. A few times a week, Plaintiff cannot “move because the pain is so great.” Id. at 116. On average, this pain occurs twenty of thirty days in a month. Id. at 117.

         He takes several medications to reduce his pain: gabapentin (for nerve damage), six-hundred milligrams three times a day; oxycodone, thirty milligrams every four hours; and OxyContin, twenty milligrams every twelve hours. Id. at 103.

         In November 2013, Plaintiff was involved in a car accident with a tanker truck. Id. at 101. And, since the accident, he has not been able to “consistently walk on [his] own without [his] legs buckling. Id. He purchased a cane-at his doctor's suggestion- to help him keep his balance. Id. His doctor determined that he developed bursitis in his hips and arthritis in his lower back. Id. His treatment included both medication and injections-but they were unsuccessful. Id.

         Plaintiff suffers from depression and anxiety, and he has attempted suicide more than once. Id. at 105. “[W]hen the pain is at its highest level[, ] the depression gets worse, [he] feel[s] worthless, and [he] constantly think[s] about taking [his] own life because of it.” Id. He also was diagnosed with schizophrenia and bipolar disorder. Id. Further, “I hear voices that constantly tell me to do things to myself ….” Id. He has anxiety and/or panic attacks “sometimes once or twice a week.” Id. at 110. During an attack, he has shortness of breath, hears voices, feels like his head is cloudy, and feels like he cannot think straight. Id.

         At the time of the hearing, Plaintiff was seeing a therapist, Dr. Lana at the Wellness Center, once every week or two weeks. Id. at 106. His doctors have prescribed several medications, including Geodon, clonazepam, and buspar. Id. at 108, 110. “For the most part ..., ” his medication helps. Id. at 108.

         On a typical day, Plaintiff spends the “bulk” of his time in a recliner “trying to get comfortable. Id. at 112. He watches “a couple hours” of television. Id. He tries to read when his pain is not too bad. Id. When his pain is at its highest level, he does not do anything. Id. at 109. If he has to shower, he has a shower chair or his mother helps him. Id. at 112. He does not do any household chores. Id. He tries to go to church as much as he can. Id. at 113. He has visitors-his grandparents and some friends. Id. Plaintiff has difficulty sleeping because his pain wakes him up. Id. at 107. In an average night, he sleeps about three hours. Id. He has a driver's license but cannot “drive much because of the pain.” Id. at 90. He usually only drives a couple times a week. Id. at 91. Plaintiff estimated that he could walk “about a block if I'm lucky on a good day.” Id. at 104. He cannot lift more than ten pounds and “sometimes” has trouble lifting a gallon of milk. Id.

         B. Medical Opinions

         i. K. Kevin Moffa, M.D.

         In January 2014, Plaintiff's treating physician, Dr. Moffa, opined that Plaintiff “has difficulty doing most activities due to pain levels. Id. at 924. Further, he has severe limitations of functional capacity and is not capable of minimum (sedentary) activity. Id. Dr. Moffa completed interrogatories in November 2014. Id. at 625. He reported that he has been Plaintiff's primary care physician for ten years and has treated him for the following medical problems: chronic abdominal pain due to recurrent abdominal adhesions, recurrent depression, anxiety, bipolar I, left hip pain, and schizophrenia. Id. at 625-26. He opined that Plaintiff was not able to be prompt and regular in attendance because of “difficulty in getting ready due to pain limiting ability for movement.” Id. at 626. Further, due to his high pain level and mental stress, he is unable to withstand the pressure of meeting normal standards of work productivity and work accuracy. Id. at 627. He cannot demonstrate reliability “due to fluctuating pain levels [and] mood fluctuations.” Id.

         Dr. Moffa opined that, as a result of Plaintiff's impairments and/or treatment, he would be absent three times a month. Id. at 632. Additionally, he could lift/carry ten pounds occasionally and five pounds frequently. Id. at 628. He can stand/walk for ten minutes at a time for two hours total during an eight-hour workday. Id. He must use a cane. Id. He can sit for thirty minutes at a time for a total of four hours. Id. at 629. Plaintiff can never climb or kneel and can occasionally balance, stoop, crouch, and crawl. Id. He has abdominal pain with reaching, pushing, and pulling and speaking, and he has difficulty speaking when he has severe pain or depression. Id. at 630. Dr. Moffa concluded Plaintiff could not perform sedentary work. Id. at 632.

         ii. Esberdado Villanueva, M.D. & Michael Delphia, M.D.

         On January 9, 2014, Dr. Villanueva reviewed Plaintiff's records. Id. at 145-56. Dr. Villanueva opined that Plaintiff could occasionally lift/carry up to twenty pounds and frequently lift/carry up to ten pounds. Id. at 152. He could stand, walk and/or sit for six hours in an eight-hour workday. Id. He could never climb ladders, ropes, and scaffolds; could frequently balance and climb ramps/stairs; and could occasionally stoop, crouch, or crawl. Id. He should avoid concentrated exposure to hazards. Id. at 153. Dr. Villanueva concluded Plaintiff is not under a disability. Id. at 156.

         Dr. Delphia reviewed Plaintiff's records on March 20, 2014 and confirmed Dr. Villanueva's assessment. Id. at 159-74.

         iii. ...

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