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Swogger v. Berryhill

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

March 2, 2018

CHRISTOPHER PAUL SWOGGER, Plaintiff,
v.
NANCY A. BERRYHILL[1], ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          DONALD C. NUGENT JUDGE.

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          GEORGE J. LIMBERT UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Christopher Paul Swogger (“Plaintiff”) requests judicial review of the final decision of the Commissioner of Social Security Administration (“Defendant”) denying his applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). ECF Dkt. #1. In his brief on the merits, filed on July 10, 2017, Plaintiff asserts that the administrative law judge's (“ALJ”) decision is not supported by substantial evidence. ECF Dkt. #15. Defendant filed a response brief on August 9, 2017. ECF Dkt. #16. Plaintiff filed a reply brief on August 21, 2017. ECF Dkt. #17.

         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

         Plaintiff filed applications for DIB and SSI in December 2013 alleging disability beginning on November 24, 2011. ECF Dkt. #11 (“Tr.”) at 178, 180.[2] The applications were denied initially and upon reconsideration, and Plaintiff requested a hearing before an ALJ. Id. at 111, 118, 127, 134. The hearing in this matter was held on September 25, 2015. Id. at 29. On November 2, 2015, the ALJ issued a decision denying Plaintiff's claims. Id. at 9. Subsequently, the Appeals Council denied Plaintiff's request for review. Id. at 1. Accordingly, the November 2, 2015, decision issued by the ALJ stands as the final decision.

         The instant suit was filed by Plaintiff on February 21, 2017. ECF Dkt. #1. On July 10, 2017, Plaintiff filed a brief on the merits. ECF Dkt. #15. Defendant filed a response brief on August 9, 2017. ECF Dkt. #16. Plaintiff filed a reply brief on August 21, 2017. ECF Dkt. #17.

         II. RELEVANT MEDICAL AND TESTIMONIAL EVIDENCE

         A. Medical Evidence

         In August 2011, Plaintiff was diagnosed with a visually significant cataract in his left eye and a mild cataract in his right eye. Tr. at 341. The following month, Plaintiff reported blurry vision in the left eye that had worsened over the prior two to three years. Id. at 327. The impression was a history of remote trauma with a visually significant dense brunescent cataract in the left eye. Id. at 329. Also in September 2011, Plaintiff was seen for a psychiatric assessment, and was diagnosed with depression and anxiety. Id. at 336. In October 2011, Plaintiff was seen for medication reconciliation. Id. at 428. Plaintiff's symptoms included rapid thoughts and difficulty focusing, and he reported that he felt that he was less moody and irritable when he reduced his coffee intake from ten cups daily to one to three cups per day. Id. On December 1, 2011, Plaintiff underwent left eye surgery for his cataract and his sutures were removed approximately one week later. Id. at 397, 407, 463. On December 9, 2011, Plaintiff reported depression at ¶ 7/10 rating and anxiety at ¶ 5/10 rating. Id. at 393. Plaintiff reported improved mood in July 2012. Id. at 385.

         On July 13, 2012, an x-ray of Plaintiff's spine showed spondylolysis and anterolistesis at ¶ 5-S1. Tr. at 270. Plaintiff attended seven physical therapy appointments from July 23, 2012, to August 16, 2016, and reported a seventy-five percent improvement in his muscle pain, but no improvement regarding his spinal pain. Id. at 259. On August 30, 2012, Plaintiff reported a stabbing pain in the back of his left eye. Id. at 381. Plaintiff was seen over the course of the next several months for iritis examinations. Id. at 361, 369, 375. The impression was: resolving/resolved low-grade iritis with macular thickening; status post cataract extraction with posterior intraocular lens in the left eye with good results; and a mild cataract in the right eye. Id. at 363, 369, 377, 380. On October 29, 2013, Plaintiff indicated that he was doing “okay” mentally. Tr. at 348. Plaintiff reported a loss of vision in his left eye in November 2013 after a hard sneeze, but his vision was stable at the time of the appointment. Id. at 345. It was also noted that Plaintiff had a longstanding history of floaters and a history of low-grade iritis in his left eye. Id.

         State agency medical consultant Gary Hinzman, M.D., issued an opinion on February 13, 2014, stating that Plaintiff could: occasionally lift/carry up to twenty pounds; frequently lift/carry ten pounds; stand/walk about six hours in an eight-hour workday; sit more than six hours in an eight-hour workday; perform unlimited pushing/pulling except as limited by the lift/carry restrictions; frequently climb ramps/stairs; never climb ladders, ropes, or scaffolds; frequently stoop; and perform unlimited balancing, kneeling, crouching, and crawling. Tr. at 67-68. Dr. Hinzman's opinion was affirmed by Derald Klyop, M.D., on May 23, 2014. Id. at 90.

         On April 7, 2014, Plaintiff reported having difficulty with his back and hands during a behavior and therapy session. Id. at 480. Plaintiff was hospitalized from July 3, 2014, through July 6, 2014 following a motorcycle accident that resulted in a pelvic fracture. Tr. at 492. X-rays showed multilevel degenerative disc disease with spinal canal narrowing and slight cord compression. Id. at 499. On July 17, 2014, follow-up x-rays confirmed a non-displaced pelvic fracture. Id. at 523. Plaintiff was seen at the end of July 2014 for an additional follow-up appointment and he exhibited generalized joint pain, discomfort when moving his extremities, and ambulation with a cane. Id. at 528. In September 2014, Plaintiff reported numbness in his left arm and hand, and neck stiffness. Id. at 526. Also in September 2014, Plaintiff reported sharp pelvic pains, but x-rays showed that his pelvic fracture was completely healed and in a good position. Id. at 520. On October 21, 2014, Plaintiff reported continued stabbing pain in his lumbar spine that was aggravated by walking. Id. at 547. An examination showed tenderness and loss of range of motion in the lumbar region. Id. On January 22, 2015, Plaintiff was seen for a follow-up appointment, and it was noted that he was stable and his symptoms were the same as before the motorcycle accident. Id. at 545.

         In a mental health treatment session in August 2015, Plaintiff reported that the injuries from his motorcycle accident were so severe that he was applying for Social Security benefits to help with his finances. Tr. at 578. Plaintiff declined any additional mental health services against the recommendation of the service provider. Id. On August 19, 2015, Plaintiff underwent a pain consultation and reported: chronic pain in his right hand since the motorcycle accident that he attempted to manage by smoking marijuana; that he was no longer using cocaine; and a history of degenerative disc disease. Id. at 576.

         B. Testimonial Evidence

         The ALJ held a hearing on September 25, 2015. Tr. at 29. At the hearing, Plaintiff testified that he had a valid driver's license and had been living alone before moving in with his father a few weeks prior. Id. at 36. Plaintiff stated that he served three years in the military and had been honorably discharged. Id. at 37. Continuing, Plaintiff testified that he had not worked since he was laid off in 2009. Id. Plaintiff indicated that in 2008 he suffered a work-place injury resulting in the fingers in his right hand being broken in thirty-six places. Id. at 50. When asked more about the accident, Plaintiff stated that he was right hand dominant and that he “can't open a lot of jars anymore” due to loss of strength. Id. at 51-52.

         Next, Plaintiff testified that he had tried to work at other jobs, but had not been hired. Tr. at 45. Plaintiff stated that he believed he had not been hired at these jobs due to his age. Id. When asked why he was unable to work, Plaintiff cited pain in his back and hand. Id. Plaintiff testified that he volunteered at his church “once in a while” and that he had not performed any side jobs since 2009. Id. at 37-38. Continuing, ...


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