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Jackson v. Commissioner of Social Security

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

April 24, 2018

JOSHUA JACKSON, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          DAN AARON POLSTER JUDGE.

          REPORT AND RECOMMENDATION

          Thomas M. Parker United States Magistrate Judge.

         I. Introduction

         Plaintiff, Joshua Jackson, seeks judicial review of the final decision of the Commissioner of Social Security denying his application for Supplemental Security Income Benefits under Title XVI of the Social Security Act (“Act”). This matter is before the court pursuant to 42 U.S.C. §405(g), 42 U.S.C. §1383(c)(3) and Local Rule 72.2(b).

         Because the ALJ's decision was not supported by substantial evidence, I recommend that the final decision of the Commissioner be VACATED and the matter be REMANDED for further proceedings.

         II. Procedural History

         Jackson applied for disability insurance benefits on May 23, 2014. (Tr. 14, 191-198) He alleged a disability onset date of February 1, 2011.[1] (Tr. 191) His application was denied initially on August 12, 2014 (Tr. 110-123) and after reconsideration on December 11, 2014. (Tr. 124) Jackson requested an administrative hearing (Tr.144), and Administrative Law Judge (“ALJ”) Joseph Vallowe heard the case on April 4, 2016. (Tr. 31-81) The ALJ found that Jackson was not disabled in a May 17, 2016 decision. (Tr. 11-26) Jackson requested review of the hearing decision on May 23, 2016. (Tr. 9-10) On April 27, 2017, the Appeals Council denied review, rendering the ALJ's conclusion the final decision of the Commissioner. (Tr. 1-6) On May 23, 2017, Jackson filed this action challenging the Commissioner's final decision. ECF Doc. 1.

         III. Evidence

         A. Personal, Educational and Vocational Evidence

         Jacskon was born on November 14, 1987 and was 28 years old when the ALJ's decision issued. (Tr. 191) He has a high school education. (Tr. 39) Jackson is married and lives with his wife and 4 year-old stepson. (Tr. 38) He worked in the past as a school custodian and groundskeeper. (Tr. 41)

         B. Medical Evidence

         Jackson was diagnosed with multiple sclerosis (“MS”) in 2011. (Tr. 327) An MRI study of Jackson's brain on June 6, 2011 showed multiple foci of hyperintensity in the white matter, consistent with the clinical diagnosis of MS. (Tr. 327) A CT scan of the cervical spine showed plaque formation on the cervical spinal cord, consistent with MS and also showed a small discosteophyte complex at ¶ 6-7 which contacted, but did not compress the spinal cord. (Tr. 327-328) The burden of the MS was noted as mild. (Tr. 329)

         Jackson was treated at MetroHealth Medical Center on November 18, 2012 after being hit by a car. (Tr. 268) Jackson suffered a fracture of the right medial malleolus. (Tr. 271) He also complained of low back pain and right hand numbness but these problems were not caused or worsened by the accident. (Tr. 268) A CT scan of Jackson's lumbar spine showed a chronic pars defect at ¶ 5 with a grade I spondylolisthesis of L5 on S1, with an L5-S1 disc herniation causing moderate-to-severe narrowing of the neural foramina on the left. (Tr. 262) An MRI showed that Jackson had congenital spina bifida at the L5-S1 level. (Tr. 262) The scan also showed a nodule in the right upper lobe of the lung, together with emphysematous changes, and hepatic steatosis (fatty liver disease.) (Tr. 256) A physician attempted to reduce Jackson's ankle fracture in the emergency room, but was unable to do so. Jackson's ankle was splinted and he was discharged with instructions to follow up for possible surgical correction of the fracture. He was also told to avoid bearing weight on his right leg. (Tr. 271)

         On May 20, 2014, Jackson started treating with Dr. Robert Fox, M.D., a neurologist at the Cleveland Clinic. Dr. Fox noted that Jackson had been diagnosed with MS in 2011 and was taking Avonex for that condition. Dr. Fox's note stated: “This appears to be his first relapse since 2011.” Jackson was experiencing numbness and paresthesia on the right side of his body, in his foot, leg, chest and arm - to just below the shoulder. Dr. Fox also noted weakness. (Tr. 322, 410) Jackson reported that his memory was a bit off and admitted to depression as well as anxiety. Dr. Fox noted that there was no suggestion of cognitive or memory disturbance and Jackson's affect was flat. (Tr. 323, 411) On examination, Dr. Fox found decreased vibratory sensation at the toes bilaterally and slowed fine finger movements on the right. (Tr. 324, 412) Motor function strength was 5/5 on the left and 4/5 on the right; fine finger movement was slowed on the right side; deep tendon reflexes were normal throughout; gait was normal; hopping and standing on a single foot was intact, and tandem walking was intact. (Tr. 323-324, 411-412) Dr. Fox prescribed medication and ordered a brain/cervical MRI. (Tr. 324, 413) The June 6, 2014 MRI was consistent with MS. (Tr. 328, 416)

         Dr. Fox ordered a series of three Depo-Medrol intravenous infusions beginning on May 21, 2014 and on the following two days. (Tr. 375, 379-382)

         Dr. Fox also referred Jackson to a psychologist for evaluation of his depression. On June 4, 2014, Psychologist Matthew Sacco, Ph.D., performed a psychological evaluation of Jackson. (Tr. 331) Jackson reported using marijuana daily for headaches. (Tr. 332) Dr. Sacco found that Jackson's cognitive functioning was normal. (Tr. 333) Mental status examination showed that Jackson was alert, fully oriented, adequately groomed and had normal speech. His thoughts were logical, coherent and goal-directed. Insight and judgment were good and cognition was grossly intact. (Tr. 333-334, 422) Dr. Sacco diagnosed a “substance-induced mood disorder” likely due in part to methylprednisolone treatment. He also noted that several other diagnoses needed to be ruled out including a mood disorder due to the MS itself, as well as possible diagnoses of major depression, grief reaction, and PTSD. Dr. Sacco assigned a Global Assessment of Functioning (“GAF”) score of 55. He prescribed a trial of Wellbutrin and recommended proper nutrition, exercise, sleep hygiene and that Jackson engage in free exercise, especially yoga and water aerobics. (Tr. 334-335, 422)

         Margaret Henning, CNP, showed Jackson a video entitled “Taking Control of Your MS” on June 9, 2014 at the Mellen Center. Jackson told Ms. Henning that he had been having daily migraine headaches for the past year. He also reported right hand numbness. (Tr. 337) Jackson was alert, cooperative, oriented, and in no emotional distress. Shoulder shrug strength and muscle strength in both lower and upper extremities was normal except for slight weakness in the left hand. Sensory perception was intact and gait was normal. (Tr. 339, 427) Jackson was referred to the headache clinic. (Tr. 342)

         Jackson met with Dr. Sacco on June 17, 2014 complaining of migraine headaches which began when Jackson started taking Avonex. (Tr. 351) Dr. Sacco recommended a consultation with neurology team for migraines, sleep study, and antidepressant medication. (Tr. 351) Dr. Sacco observed that Jackson had a depressed mood with a flat affect; he was passive and withdrawn, with psychomotor slowing. (Tr. 351) Dr. Sacco diagnosed mood disorder depressive disorder, NOS, and continued to note the need to rule out various other possible diagnoses. (Tr. 352) He recommended that Jackson continue psychoeducation and cognitive behavioral therapy to cope with depression. (Tr. 352)

         Jackson followed up with Dr. Sacco on July 31, 2014. Jackson reported that he had stopped taking his Wellbutrin after he was prescribed an antibiotic a few weeks earlier for bronchitis. (Tr. 445) Jackson reported that his mood had improved and his stress levels were the same. Jackson had gotten married that week but stated that it was “not a stressor.” (Tr. 445) Examination showed that Jackson was pleasant and interactive; had flat affect; normal orientation, intact and linear associations, no hallucinations or delusions; and fair insight and judgment. (Tr. 446) Dr. Sacco diagnosed mood disorder depressive disorder, NOS, MS, problems with primary support group and social environment, and assigned a GAF of 55. (Tr. 446) Jackson missed a subsequent appointment with Dr. Sacco. (Tr. 449)

         Jackson met with Daneen Abston, CNP, in the neurology department of the Cleveland Clinic on September 30, 2014. (Tr. 451) Ms. Abston noted that Jackson had stopped Avonex injections claiming that they gave him “flu-like” symptoms. He wanted to switch to oral medications. Jackson complained of right knee pain from walking. (Tr. 451) He also reported needing help with zippers and buttons due to the numbness in his right hand. Ms. Abston observed that Jackson was slightly unsteady with tandem walking. She also noted that he did not appear to be depressed and had a normal affect. (Tr. 452) She recommended that he start the oral medication, Tecfidera. Dr. Fox also discussed this medication with him. (Tr. 453)

         On December 29, 2014, Dr. Martene Binstock at Healthspan performed an annual physical exam. (Tr. 471) Dr. Binstock noted that Jackson had not been to see her for a year but was treating at the Cleveland Clinic. He had been off of his MS medication for about three months. He had decreased sensation on his right side and continued to have headaches. He continued to have lower back pain but was not taking any medication for it. (Tr. 477) Physical therapy had not helped. He continued to smoke electronic cigarettes and marijuana. (Tr. 478) Jackson was instructed to follow-up with neurology as needed for MS. (Tr. 480)

         On January 25, 2015, Dr. Josephine Fernando, an orthopedic physician, examined Jackson's lower back. Jackson reported that he had experienced back pain for six years. (Tr. 495) Dr. Fernando observed normal range of motion and normal gait. There was no tenderness. Jackson had equal strength and was negative for straight leg raise testing. Dr. Fernando recommended physical therapy, weight loss, a home exercise program and that Jackson stop using cannabis. (Tr. 496) An x-ray of the lumbar spine showed spina bifida at ¶ 5-S1 with disc space narrowing at that level and a mild anterolisthesis. (Tr. 544)

         Jackson followed-up with Karla Madalin, M.D., on February 24, 2015 for his MS. Dr. Madalin noted that Jackson had not been taking Tecfidera as prescribed by Dr. Fox because it was not authorized by his insurance. Dr. Madalin noted that Jackson had difficulty grasping objects with his right upper extremity. He was having difficulty walking due to his right lower extremity “giving out.” (Tr. 512) Jackson complained that his whole body was sore. (Tr. 516) Examination showed that recent and remote memory were intact, attention span, concentration and speech were normal. Muscle bulk and tone were normal but there was “give way” weakness over the entire right upper and lower extremity. (Tr. 517) Strength was intact on the left. Dr. Madalin prescribed medication for fatigue and a recommended authorization for a different MS medication, Gilenya. (Tr. 518)

         On June 29, 2015, Jackson went to the emergency department for a flare-up of his MS. He complained of numbness and tingling in the right leg from the hip down. He had not taken his MS medications for six months and requested IV steroids. Neurological examination showed that Jackson was alert and oriented with normal speech, no focal findings or movement disorder, normal mental status, intact cranial nerves, but he had numbness/tingling in the right lower extremity. The physician prescribed another course of steroid infusions. (Tr. 534)

         Jackson met with Dr. Madalin again on July 14, 2015 and reported that he had lost his insurance for two months. He had not started Gilenya yet. He reported little improvement of his recent MS flare up but slight improvement of strength and sensation in his right upper and lower extremities. Jackson reported some recent memory problems and that he had had L'Hermitte's sign since his MS diagnosis. Jackson continued to complain of fatigue but had not started taking the medication Dr. Madalin prescribed at his last appointment. (Tr. 535) Jackson had decreased toe and heel walking and muscle bulk and tone were normal. He had mild muscle weakness in his right extremities. Sensory testing showed a decreased sensation to touch in both the right arm and leg. Jackson did not use an assistive device but was using a TENS unit to alleviate some of his lower back pain. Range of motion in his back was intact with moderate lumbosacral tenderness. (Tr. 538) Dr. Madalin prescribed Amantadine for fatigue and resubmitted the paperwork for Gilenya to Jackson's insurer. (Tr. 540) She ordered a cervical MRI, which showed a slight increase in abnormal signal in the cervical cord when compared to images from November 2013. (Tr. 548) An MRI of the brain taken on August 18, 2015 showed a slight increase in foci, particularly in the right parietal lobe, when compared with the November 2013 study. (Tr. 546)

         On February 19, 2016, Jackson met with Ronald Adams, M.D.[2] (Tr. 555) Dr. Adams prescribed Naprosyn for Jackson's back pain. (Tr. 561)

         On March 8, 2016, Jackson saw Dr. Madalin again. (Tr. 566) She noted that his MS was stable on Gilenya. (Tr. 582, 585) Amantadine was helping with his fatigue. (Tr. 585) He was still experiencing daily headaches in the right hemicranial. (Tr. 582) She noted no change in the weakness in his right arm and leg and no new MS symptoms. (Tr. 583)

         C. Opinion Evidence

         1. Treating Physician - Karla Madalin - July 2015

         Following his appointment on July 14, 2015, Dr. Madalin completed a medical source statement. (Tr. 466-467) Dr. Madalin opined that Jackson would not be able to lift more than ten pounds due to weakness in his right upper and lower extremities caused by MS. She opined that he could stand and walk for less than one hour a day because of right upper and lower extremity weakness and also due to back pain. However, she felt that he was unlimited in his ability to sit. (Tr. 466) She wrote that he would be unable to perform any postural or manipulative activities. (Tr. 466-467) Dr. Madalin felt that Jackson would need to alternate positions between sitting, standing and walking at will. She further thought that pain would likely interfere with Jackson's concentration and would cause absenteeism. She also felt that environmental restrictions such as heights, moving machinery and temperature extremes would affect Jackson's impairments. (Tr. 467)

         Dr. Madalin also completed a medical source statement regarding Jackson's mental capacity. She limited most of his work related mental functions to occasionally. She opined that he could constantly follow work rules, frequently relate to coworkers and supervisors, and frequently socialize, behave in an emotionally stable manner and relate predictably in social situations. (Tr. 468-469)

         2. State Agency Consulting Psychologist - Dr. Michael ...


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