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Garrett v. Berryhill

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

March 28, 2018

NANCY A. BERRYHILL, Commissioner Of The Social Security Administration, Defendant.


          Sharon L. Ovington United States Magistrate Judge.

         I. Introduction

         Plaintiff Donald L. Garrett brings this case challenging the Social Security Administration's partial denial of his applications for disability-based benefits. He applied for benefits-Disability Insurance Benefits and Supplemental Security Income-in August 2013, asserting that as of October 10, 2007, he could no longer work due to his many health problems, including (in part) Crohn's disease, acid reflux, pain in his abdomen and lower back, and shortness of breath.

         The Social Security Administration, mainly through a decision by Administrative Law Judge (ALJ) Benjamin Chaykin, partially granted and partially denied Plaintiff's applications based on two conclusions: (1) he was not under a disability from October 10, 2007 to May 30, 2014; (2) he was under a disability starting on May 31, 2014. (Doc. #6, PageID #s 101-13).

         Plaintiff now contends that ALJ Chaykin erred by failing to properly evaluate the evidence concerning his physical impairments before May 31, 2014-particularly his Crohn's disease. He argues that the ALJ improperly attempted to explain away the severity of his Crohn's disease based on treatment notes showing the disease was “stable” before May 31, 2014. Plaintiff further argues that the ALJ improperly discredited his symptom severity because he was allegedly “noncompliant” with his treatment regimen.

         The Commissioner finds no error in the ALJ's decision and contends that even if some evidence of record could justify other findings, substantial evidence supports the ALJ's findings concerning the medical evidence predating May 31, 2014.

         II. Plaintiff and the Administrative Hearing

         Plaintiff was under fifty years old on his alleged disability onset date. He is thus a “younger person” under social security regulations. 20 C.F.R. §§ 404.1563(c).[1] He has a high-school education. His past jobs involved work as a janitor and a machine operator.

         At an administrative hearing in August 2015, Plaintiff testified that he is 5 feet 11 inches tall and weighs approximately 166 pounds. He was separated from his wife at that time. He lived with his sister, sleeping on her couch on the first level. (Doc. #6, PageID #126). He has to climb the stairs to the second level to find a bathroom with a shower. When he does this, he gets out of breath. Id. at 129. He explained, “My bones ache and…, I cramp a lot….” Id. He does not shower every day.

         Plaintiff indicated that he had to quit his last job (a part-time job) cleaning and performing maintenance because he kept getting sick and going to the emergency room. Id. at 131-32. He needed to empty his colostomy bag every 20 to 30 minutes, which made it difficult for him to even sleep. Id. at 133-34, 139. The insertion site of his colostomy bag would get infected a lot because it was hard for him to care for the site due to his “hands cramping all the time. Id. at 133. He was consequently in and out of the hospital for treatment.

         Plaintiff also has problems with his heart. When asked why he quit is part-time job, he testified:

The thing of it is I kept getting sick. Like … one time after shoveling snow I got sick and had to go to the hospital for three days because my heart was all out of synch. I can drink a glass of cold water and it just start[s] beating rapidly. And I think I got sick … in May. I don't know if it was my Crohn's.
I forgot. Either I was going to the hospital for that [Crohn's disease] or going to the hospital for my heart….

Id. at 134.

         Plaintiff also indicated that before he began to use a colostomy bag, he would “have accidents on [him]self.” Id. at 139. He explained, “So that was another concern about me really holding a job basically. I couldn't make it to the restroom in time. I could be riding down the street and I have to use the restroom.” Id.

         On a typical day, Plaintiff testified that his sister helped him fix something to eat. He takes his medications for his heart problem, Crohn's disease, anxiety, and depression. He also takes iron supplements. During a typical day, he lies down unless he has a doctor's appointment. Id. at 136.

         Plaintiff also has difficulty breathing, starting a year before the ALJ's hearing. Physical activity, even just talking, can affect his breathing. Id. at 139. He had to stop four times while he was walking the two and a half blocks to the administrative hearing. Id. at 140. He noted he gets dizzy when he bends over. He cannot tie his shoes, so he wears slip-on shoes or slippers. Id. He rarely left the house to do anything. Id.

         When questioned by his attorney, Plaintiff testified that he had lost at least 50 pounds from his highest weight between 220 and 230 pounds. He believes it is due to his Crohn's disease, and he was bleeding a lot before he began using a colostomy bag. He was hospitalized for blood loss. Id. at 141. He had been treated with Remicaid injections in 2004, which caused “a real bad infection in [his] leg… inside [his] bone.” Id. at 142. He reported, “I couldn't walk it was so painful.” Id. at 143. He had also been treated with Humira injections, but he believes that Humira caused him to need a colostomy bag. He was once rushed to the hospital with emergency surgery due to a hole in his intestine. Id. He explained that both the Remicaid and Humira made his Crohn's disease worse due to significant side effects. Id. at 143-44.

         The other witness during the administrative hearing was a vocational expert. He testified that a hypothetical person with Plaintiff's age, education, work experience, and residual functional capacity before May 31, 2014 could perform a significant number of jobs in the national economy such as a survey worker, production assembler, or a mail clerk. Id. at 146-47. The vocational expert also testified that if this hypothetical person would also be off task more that than 15% of the workday beyond normal breaks, he “would be subject to disciplinary action and subsequent termination.” Id. at 148.

         III. ...

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