United States District Court, N.D. Ohio, Eastern Division
AARON POLSTER JUDGE.
REPORT AND RECOMMENDATION
M. Parker United States Magistrate Judge.
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
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
applied for disability insurance benefits on May 23, 2014.
(Tr. 14, 191-198) He alleged a disability onset date of
February 1, 2011. (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.
Personal, Educational and Vocational Evidence
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)
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)
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)
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)
ordered a series of three Depo-Medrol intravenous infusions
beginning on May 21, 2014 and on the following two days. (Tr.
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.
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.
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)
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)
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)
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)
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)
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.
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.
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)
February 19, 2016, Jackson met with Ronald Adams,
(Tr. 555) Dr. Adams prescribed Naprosyn for Jackson's
back pain. (Tr. 561)
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)
Treating Physician - Karla Madalin - July 2015
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.
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)
State Agency Consulting Psychologist - Dr. Michael ...