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Morris v. Commissioner of Social Security

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

April 25, 2018

GARTH MORRIS, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Michael H. Watson Judge

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE

         Plaintiff Garth Morris filed this action seeking review of a decision of the Commissioner of Social Security (“Commissioner”) denying his Title II Disability Insurance Benefits application. For the reasons that follow, it is RECOMMENDED that Plaintiff's Statement of Errors (Doc. 10) be OVERRULED, and that judgment be entered in favor of Defendant.

         I. BACKGROUND

         Plaintiff filed an application for Title II benefits, alleging disability onset on September 15, 2010. (Tr. 74, PAGEID #: 132; Tr. 206-07, PAGEID #: 264-65; Tr. 224, PAGEID #: 282) Plaintiff's last-insured date is December 31, 2013. (Tr. 74, PAGEID #: 132). The agency denied Plaintiff's claims initially and upon reconsideration (Tr. 143-45, PAGEID #: 201-03; Tr. 149- 55, PAGEID #: 207-13). Plaintiff filed a Request for Hearing (Tr. 162-63, PAGEID #: 220- 21), and an administrative hearing was held before Administrative Law Judge Michael Hellman (the “ALJ”). (Tr. 87-125, PAGEID #: 145-83). The ALJ denied Plaintiff's claim in a decision issued on March 2, 2016. (Tr. 74-83, PAGEID #: 132-41). The Appeals Council denied Plaintiff's request for review, adopting the ALJ's decision as the Commissioner's final decision. (Tr. 1-6, PAGEID #: 59-64).

         Plaintiff filed this case (Doc. 1), and the Commissioner filed the administrative record. (Doc. 9). Plaintiff filed a Statement of Specific Errors (Doc. 10), the Commissioner responded (Doc. 12), and Plaintiff filed a reply (Doc. 12).

         A. Relevant Hearing Testimony

         Plaintiff testified that he is claiming disability beginning on September 15, 2010, and his physical pain and depression began in 2008, the same year he was laid off. (Tr. 92-93, PAGEID #: 150-51). Before that, from 1998 until 2008, he worked as a semi-tractor and trailer driver, hauling glass tubes. (Tr. 93, PAGEID #: 151). After he lost his job, Plaintiff received unemployment benefits for a time and searched for employment as a truck driver. (Tr. 94, PAGEID #: 152). He did not seek out other types of work. (Tr. 95, PAGEID #: 153).

         Plaintiff testified that he began receiving treatment for the pain in his back and neck around 2009. (Id. (testifying that treatment began “[s]omewhere in that area”)). He had “severe” pain in his lower back that felt like “a big knot at the bottom of [his] spine, ” and a “grinding” in his neck. (Tr. 96, PAGEID #: 154). Plaintiff testified that in (or around) 2013, medical providers took x-rays of his neck, back, hips, and knees. (Id.). When asked why it took four years for x-rays to be taken, Plaintiff did not know. (Tr. 98-99, PAGEID #: 156-57). Plaintiff testified, however, that during that four-year period, medical providers prescribed pain medication. (Tr. 99, PAGEID #: 157). In 2014, Plaintiff was referred to a bone specialist and underwent testing. (Tr. 102, PAGEID #: 160). Plaintiff testified that “those tests really don't show much.” (Tr. 103, PAGEID #: 161).

         Regarding his asthma, Plaintiff testified that he was diagnosed at age 16. (Tr. 104, PAGEID #: 162). He has never gone to the emergency room with breathing complaints, and Plaintiff testified that his asthma medication regimen is the same now as when he was working. (Id.). He testified, however, that he now gets winded more easily than he used to. (Tr. 104-05, PAGEID #: 162-63).

         Plaintiff testified that he also has “tremendous” pain in his hips and back. (Tr. 105, PAGEID #: 163). That pain also began around 2009. (Tr. 106, PAGEID #: 164). And, in 2013, x-rays were taken. (Id.). Plaintiff testified that he was in rehabilitation for about six weeks, but “it was doing more harm than good”; after his sessions, he “couldn't hardly walk.” (Tr. 107, PAGEID #: 165). He took medication and, “on occasion, ” used a cane. (Tr. 108, PAGEID #: 166). Plaintiff estimated that “on occasion” meant three times per week. (Id.). Plaintiff testified that he needs to use the cane to walk up his road, which is roughly 400 feet and at a slight incline. (Tr. 108-09, PAGEID #: 166-67). Plaintiff testified that this difficulty began in 2013. (Id.). While giving this testimony, Plaintiff needed to take a break to compose himself. (Tr. 109, PAGEID #: 167).

         In response to his lawyer's questioning, Plaintiff testified that he has degenerative disc disease, hypertension, osteoarthritis, and back spasms. (Tr. 111-13, PAGEID #: 169-71). He also testified that he struggled to sit comfortably for more than 15 to 20 minutes. (Tr. 114, PAGEID #: 172). At this point in the hearing, Plaintiff addressed the ALJ, asking him if he'd noticed that Plaintiff had been “shuffl[ing] around in his seat.” (Id.). The ALJ responded no. (Id.). Plaintiff testified that he can stand for “maybe a half-hour.” (Id.). If he attempts to walk any longer, he “would probably fall down.” (Tr. 115, PAGEID #: 173). Plaintiff did not remember if a walking assistive device was prescribed for him. (Tr. 114, PAGEID #: 172). With regard to climbing stairs, Plaintiff testified that he has “to take them in sections, ” breaking between every few stairs. (Tr. 115-16, PAGEID #: 173-74). Plaintiff estimated that he can lift 50 pounds once and 20 pounds repeatedly. (Tr. 116-17, PAGEID #: 174-75). He cannot, however, lift his arms above his head, and he has a weak grip. (Tr. 117, PAGEID #: 175). Plaintiff testified that he has good days and bad days; on a bad day, he needs to use a motorized cart at the grocery store. (Id.). He also testified that he cannot clip his own toenails. (Tr. 118, PAGEID #: 176). Plaintiff told the ALJ that he would love to go back to work and misses felling trees with his father, like he used to do. (Tr. 119, PAGEID #: 177).

         B. Relevant Medical Evidence

         As noted, Plaintiff's last-insured date is December 31, 2013. (Tr. 74, PAGEID #: 132). He accordingly must establish disability on or before that date in order to be entitled to a period of disability and disability benefits. (Id.). The ALJ gave Plaintiff “the benefit of [the] doubt, ” and considered medical evidence that post-dates the last-insured date to find medically determinable impairments of degenerative disc disease and degenerative joint disease. (Tr. 78, PAGEID #: 136). This Court does likewise. However, for the reasons explained below, the undersigned does not consider evidence that was not before the ALJ.

         1. Degenerative Joint Disease and Degenerative Disc Disease

         With regards to Plaintiff's degenerative joint disease and degenerative disc disease, the medical evidence shows routine visits to his general practitioner for complaints of left arm pain and shoulder pain from Plaintiff's alleged onset date until his last-insured date. (See generally Tr. 266-78, PAGEID #: 324-36). During these visits, Plaintiff had varying complaints of pain in his arm/shoulder, wrists, back, and neck. (Id.).

         On May 19, 2010, for instance, he reported that he believed he may have arthritis because all of his joints hurt. (Tr. 269, PAGEID #: 327). He noted during that appointment that he “[could not] find a job that suits him.” (Id.). During that visit, he also reported mowing the grass. (Id.). On November 11, 2010, Plaintiff returned to his general practitioner for a blood pressure check. (Tr. 270, PAGEID #: 328). During that visit, he told nurse practitioner Donna Mayer that he was “unable to find any work driving a truck” and he was “financially a mess.” Plaintiff did not report any complaints of joint pain. (Tr. 270, PAGEID #: 328). A record dated January 17, 2011 shows, inter alia, that Plaintiff had been having arm and shoulder pain for one week, which was “keeping him awake at night”; he had “intact grips equal and strong”; and Vicodin and was prescribed. (Tr. 272, PAGEID #: 330).

         During a June 13, 2011 visit, Plaintiff presented with complaints of joint pain in his shoulders and wrists and other joints, including his low back and bilateral knees. (Tr. 274, PAGEID #: 332). He reported that he took ibuprofen when the pain was severe, but it did not really help. (Id.). The musculoskeletal examination during this visit revealed findings of tenderness but no evidence of swelling, ecchymosis, or crepitus of the cervical spine, bilateral shoulders, hips, or bilateral knees. (Id.). The report revealed diagnoses of neck strain, shoulder strain, knee pain, and joint pain. (Id.). Plaintiff was prescribed Naproxen. (Id.).

         On July 19, 2011, Plaintiff stated was doing “pretty good, ” and that the sharp pain was gone. (Tr. 275, PAGEID #: 333). He reported that he was going to “hold off” on getting x-rays. (Id.). The examination noted tenderness of the lumbar spine but no evidence of swelling, ecchymosis or crepitus of the bilateral shoulder. (Id.).

         Over a year later, at a September 1 3, 2013 visit, Plaintiff reported hip and ankle pain without associated numbness or tingling in the extremities and denied any injuries to the area. Plaintiff alleged having pain in his back, neck, and shoulders. X-rays once again were recommended, but Plaintiff reported that he did not have money for x-rays and did not want to get them. (Tr. 276, PAGEID #: 334).

         Two months later, in November of 2013, Plaintiff reported that his pain was worsening. (Tr. 278, PAGEID #: 336). Specifically, he reported having weak grip strength and occasional muscle cramps. (Id.). He also reported that he took 800 mg of ibuprofen three times a day as well as Tramodol for pain relief. (Id.). Plaintiff noted continued low back-pain, ankle, and knee pain. (Id.). He described hearing a “grinding” sound when he moved his neck and reported intermittent “hot poking” pain in his left arm. (Id.). An examination revealed tenderness but no swelling, ecchymosis, or crepitus of the lumbar spine or bilateral hips and knees. (Id.).

         After his last-insured date, in March 2014, Plaintiff had x-rays. (Tr. 296, PAGEID #: 354). Those x-rays revealed “[d]egenerative disc space narrowing” at ¶ 4-C5 and, more so, at the C5-C6 level; and neural foramina encroachment was seen at the C5-C6 level bilaterally. (Id.). Plaintiff also had x-rays of the lumbar spine, which revealed findings of spurring at the inferior aspect of L4 and L5. (Tr. 301, PAGEID #: 359). An x-ray of Plaintiff's shoulders at this same time showed downsloping acromion variation that may impress upon the rotator cuff, but “[n]o advanced degenerative changes, ” “[n]o AC joint widening or prominent soft tissue calcifications, ” and “[n]o acute bilateral shoulder abnormality.” (Tr. 305, PAGEID #: 363). Later diagnostic studies, in June 2014 and April 2015, revealed “minor” osteoarthritis process in the right hip and “mild” degenerative disc disease of the lower lumber spine without significant stenosis. (Tr. 348, PAGEID #: 406; Tr. 363, PAGEID #: 421). These x-rays revealed no other abnormalities in the left hip or knees. (See generally Tr. 348, PAGEID #: 406; Tr. 350, PAGEID #: 408; Tr. 352, PAGEID #: 410; Tr. 354, PAGEID #: 412; Tr. 362-63, PAGEID #: 420-21).

         2. Asthma

         The records show diagnosis for asthma and chronic obstruction without asthmaticus. (Tr. 274, PAGEID #: 332). Treatment reports have shown that Plaintiff had clear lungs to auscultation bilaterally, with no dyspnea, wheezing, rales or rhonchi. (Tr. 274-75, PAGEID #: 332-33; Tr. 307, PAGEID #: 365). While Plaintiff reported some distress during strenuous activity, he denied shortness of breath, nausea, vomiting, or diaphoresis. (Tr. 270, PAGEID #: 328; Tr. 272-74, PAGEID #: 330-32; Tr. 276, PAGEID #: 334). According to a March 19, 2014 spriometry report, the findings were within normal limits. (Tr. 307, PAGEID #: 365).

         C. The ALJ's Decision

         The ALJ found that Plaintiff met the insured status requirements through December 31, 2013, and that he has not engaged in substantial gainful activity since September 15, 2010. (Tr. 76, PAGEID #: 134). The ALJ determined that Plaintiff suffers from the following severe impairments: “degenerative disc disease, degenerative joint disease and asthma . . . .” (Id.). At step three, the ALJ found that Plaintiff did not have an impairment or a combination of impairments that met or medically equaled the severity of any of the impairments in the Listings of Impairments. (Tr. 77, PAGEID #: 135). The ALJ found that Plaintiff retained the residual functional capacity (“RFC”) to perform light work, except he:

. . . could occasionally climb ladders, ropes, or scaffolds, frequently climb ramps and stairs, stoop, crouch, kneel, and crawl. . . . had to avoid concentrated exposure to humidity, environmental irritants (such as fumes, odors, dusts and gases), poorly ventilated areas, and chemicals. . . . [and] had to avoid use of moving machinery and to unprotected heights.

(Id.). At step four of the sequential evaluation, the ALJ concluded that Plaintiff was not capable of performing any of his past relevant work. (Tr. 81, PAGEID #: 139). At step five, the ALJ found that Plaintiff was not disabled because there were a significant number of jobs in the national economy which Plaintiff could perform, including the jobs of cashier, inspector-packer, and assembler. (Tr. 82, PAGEID #: 140).

         II. STANDARD OF REVIEW

         Under 42 U.S.C. § 405(g), “[t]he findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive. . . .” “[S]ubstantial evidence is defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec'y of HHS, 25 F.3d 284, 286 (6th Cir. 1994)). The Commissioner's findings of fact must also be based upon the record as a whole. Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). To that end, the Court must “take into account whatever in the record fairly detracts from [the] weight” of the Commissioner's decision. Rhodes v. Comm'r of Soc. Sec., No. 1:13-cv-1147, 2015 WL 4881574, at *2 (S.D. Ohio Aug. 17, 2015).

         III. ...


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