United States District Court, N.D. Ohio, Eastern Division
C. NUGENT JUDGE.
REPORT AND RECOMMENDATION OF MAGISTRATE
J. LIMBERT UNITED STATES MAGISTRATE JUDGE.
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
following reasons, the undersigned RECOMMENDS that the Court
AFFIRM the ALJ's decision and dismiss Plaintiff's
case in its entirety with prejudice.
filed applications for DIB and SSI in December 2013 alleging
disability beginning on November 24, 2011. ECF Dkt. #11
(“Tr.”) at 178, 180. 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
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.
RELEVANT MEDICAL AND TESTIMONIAL EVIDENCE
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.
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.
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.
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.
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.
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.
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, ...