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Burke v. Berryhill

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

February 20, 2018

CHRISTINE BURKE, Plaintiff,
v.
NANCY A. BERRYHILL, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          DECISION AND ENTRY

          SHARON L. OVINGTON UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Plaintiff Christine Burke brings this case challenging the Social Security Administration's denial of her applications for benefits. She applied for Supplemental Security Income on December 16, 2013 and for Disability Insurance Benefits on January 15, 2014, asserting that she could no longer work a substantial paid job. Administrative Law Judge (ALJ) Gregory G. Kenyon concluded that she was not eligible for benefits because she 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. #9), the Commissioner's Memorandum in Opposition (Doc. #12), Plaintiff's Reply (Doc. #13), and the administrative record (Doc. #8).

         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 Kenyon's non-disability decision.

         II. Background

         Plaintiff asserts that she has been under a “disability” since May 1, 2007. She was thirty-four 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). She has a high school education. See 20 C.F.R. §§ 404.1564(b)(4), 416.964(b)(4).[1]

         A. Plaintiff's Testimony

         Plaintiff testified at the hearing before ALJ Kenyon that her ongoing COPD (chronic obstructive pulmonary disease) has gotten worse in the past year. (Doc. #8, PageID #561). She is short of breath every day-“more times than [she] can count.” Id. She uses three different inhalers and between two and ten times a day. Id. And, she uses a breathing machine for twenty minutes, four times a day. Id. at 573. Cigarette smoke and temperature extremes aggravate her symptoms, causing her to cough and have trouble breathing. Id. at 562-63. When she climbs steps to her second-floor apartment, she has to stop after a couple minutes because she has trouble breathing. Id. at 564. When she cooks, she has to cook meals that do not require her to stand at the stove for long periods of time. Id.

         Plaintiff has diabetes. Id. She takes insulin and tests her blood glucose four times a day. Id. It ranges from 194 to over 400. Id. at 565. When her blood-glucose levels are high, she does not want to eat. Id. And, “I get migraines [as] another side effect.” Id. She has them twice a week and they last from thirty minutes to a couple hours. Id.

         Plaintiff has been diagnosed with an anxiety disorder, depression, and bipolar disorder. Id. at 565-66. She has thoughts of suicide once a week, crying spells once a week, and trouble concentrating and staying focused. Id. at 568. She explained, for instance, that she has a hard time focusing on what she has to do with her daughter. Id. at 569. Her mom helps her stay focused. Id.

         She does not like to leave her house and “just the thought of leaving the house freaks [her] out.” Id. at 567. She has panic attacks every time that she has to go to the store, when her neighbor demands a ride, and sometimes over what to have for dinner. Id. at 569. Although she has to leave every day to take her daughter to school and her boyfriend to work and later pick both up, she only goes other places once or twice a month. Id. at 568, 573. When she has a panic attack, she feels antsy, is not able to think straight, is short of breath and dizzy. Id. at 570. To calm down, she either sits and tries to breathe or talks to her boyfriend about it. Id.

         She has some irritability and mood swings “all the time.” Id. at 566. And, “the mood swings come when somebody triggers my anger.” Id.

         Plaintiff usually only sleeps for two hours at a time and then is awake for an hour before going back to sleep for two hours. Id. at 570-71. This has been her sleeping pattern for a couple years. Id. at 571. She takes naps every day. Id. at 574.

         Plaintiff estimated that she can lift five pounds at a time, stand for a couple minutes in one spot, and walk not even a quarter of a block before needing to stop. Id. at 571. She is able to sit for any period of time. Id. at 572. She is able to take care of her personal needs and household chores-but “[i]t takes time.” Id. For example, when she vacuums, she can only do it for a couple minutes at a time before taking a break. Id.

         Plaintiff has done some work for the Department of Job and Family Services to maintain her eligibility for benefits. Id. at 559. She has, for example, vacuumed in the Emergency Medical Association office and worked with dogs at the animal shelter. Id. at 560. She also worked at Neaton Automotive Services for a week opening boxes. Id. They fired her because she “was too slow for them.” Id.

         B. Medical Opinions

         i. Robert M. Margolis, M.D.

         Dr. Margolis, Plaintiff's treating pulmonologist, completed interrogatories in July 2015. Id. at 1108-14. He has treated Plaintiff for COPD, asthma, pulmonary nodules, and hemoptysis.[2] Id. at 1109. He opined that she could not withstand the pressure of meeting normal standards of work productivity and accuracy without significant risk of decompensation or worsening of her impairments because she “experiences severe dyspnea-on-exertion, [and is] unable to walk and carry boxes ….” Id. For the same reasons, she could not demonstrate reliability or complete a normal workday or workweek without interruption from symptoms, and she could not perform at a consistent pace without unreasonable numbers and lengths of rest periods. Id. at 1110.

         Dr. Margolis further opined that, because of Plaintiff's obesity and COPD, she could frequently lift and/or carry five pounds and could not stand or walk at all. Id. at 1111. She could frequently balance and could never climb, stoop, crouch, kneel, or crawl. Id. Her ability to reach, handle, or push/pull were affected by her impairments; and she was restricted from exposure to moving machinery, chemicals, temperature extremes, dust, fumes, and humidity. Id. at 1112. He noted that Plaintiff's asthma would be worsened by exposure to humidity, dust, or fumes. Id. at 1113. He estimated Plaintiff would be absent from work three or more days per month because of her impairments and treatment. Id. at 1114. Dr. Margolis concluded Plaintiff does not have the residual function ability to do sedentary work on a sustained basis. Id. at 1113.

         ii. Carole Foster, N.P., & Gail A. McNerney, LISW-S

         Plaintiff's treating mental health providers, Ms. Foster and Ms. McNerney, completed interrogatories and a mental impairment questionnaire in August 2015. Id. at 1115-27. They indicated they have treated Plaintiff for depression, anger, bipolar disorder, and post-traumatic stress disorder (PTSD). Id. at 1116. They opined that the combined effects of Plaintiff's physical and mental impairments are greater than the sum of her physical or mental impairments taken independently. Id. They explained, “Uncontrolled diabetes adds to increased mood lability.” Id. Further, increased depression leads to apathy, which leads to poor motivation, which leads to a greater lack of diabetic control and care. Id. Increased depression and anxiety lead to an increased pain perception, and increased pain leads to increased depression and anxiety. Id. at 1117.

         Plaintiff's treatment includes medication and psychotherapy, to which she has had a partial response. Id. at 1125. Her prognosis is fair but it is an “ongoing struggle to control symptoms.” Id. Her symptoms include, for example, poor memory; mood disturbances; difficulty thinking or concentrating; ...


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