United States District Court, S.D. Ohio, Western Division
DECISION AND ENTRY
L. OVINGTON UNITED STATES MAGISTRATE JUDGE.
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.
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).
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.
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. §§
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.
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.
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.
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.
some irritability and mood swings “all the time.”
Id. at 566. And, “the mood swings come when
somebody triggers my anger.” Id.
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.
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.
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.
Robert M. Margolis, M.D.
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. 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.
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.
Carole Foster, N.P., & Gail A. McNerney, LISW-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.
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; ...