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Rueda v. Berryhill

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

June 22, 2018

RODOLFO RUEDA, JR. Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          JOHN R. ADAMS, JUDGE

          REPORT AND RECOMMENDATION

          JONATHAN D. GREENBERG, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Rodolfo Rueda, Jr., ("Plaintiff or "Rueda"), challenges the final decision of Defendant, Nancy A. Benyliill, [1] Acting Commissioner of Social Security ("Commissioner, ”), denying his applications for Period of Disability ("POD"), Disability Insurance Benefits ("DIB"), and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423 et seq. ("Act"). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned United States Magistrate Judge pursuant to an automatic referral under Local Rule 72.2(b) for a Report and Recommendation. For the reasons set forth below, the Magistrate Judge recommends that the Commissioner's final decision be VACATED and the case be REMANDED for further proceedings consistent with this decision.

         I. PROCEDURAL HISTORY

         In April 2014, Rueda filed an application for POD, DIB, and SSI alleging a disability onset date of October 15, 2013 and claiming he was disabled due to neck and back pain, “fluid volume, ” colitis, depression, and an enlarged liver. (Transcript (“Tr.”) 380, 382, 405.) The applications were denied initially and upon reconsideration, and Rueda requested a hearing before an administrative law judge (“ALJ”). (Tr. 301, 310, 319, 326, 331.)

         On June 8, 2016, an ALJ held a hearing, during which Rueda, represented by counsel, and an impartial vocational expert (“VE”) testified. (Tr. 215-242.) On September 14, 2016, the ALJ issued a written decision finding Rueda was not disabled. (Tr.8-31.) The ALJ's decision became final on July 13, 2017, when the Appeals Council declined further review. (Tr. 1.)

         On September 7, 2017, Rueda filed his Complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 13, 14, 16.) Rueda asserts the following assignments of error:

I. The ALJ's decision was not based on the record as a whole and lacked the support of substantial evidence.
A. The ALJ failed to properly evaluate Mr. Rueda's fibromyalgia and conversion disorder.
B. The ALJ failed to properly consider Mr. Rueda's multiple hospitalizations.
II. The ALJ's failed to properly evaluate the medical opinions of the treating physicians and her findings were not supported by substantial evidence.
A. The ALJ failed to properly evaluate the opinion of Dr. Nair, the treating pain specialist.
B. The ALJ failed to properly evaluate the medical opinion of Dr. Syed, the treating neurologist.
III. The RFC did not accurately portray Mr. Rueda and the ALJ failed to include all of his functional limitations from both his severe and non-severe impairments.

(Doc. No. 13.)

         II. EVIDENCE

         A. Personal and Vocational Evidence

         Rueda was born in December 1968 and was 47 years-old at the time of his administrative hearing, making him a “younger” person under social security regulations. (Tr. 11, 243.) See 20 C.F.R. §§ 404.1563(c). He has a high school education and is able to communicate in English. (Tr. 222.) He has past relevant work as a janitor, die setter, machine operator, inspector hand packager, and a job coach. (Tr. 23.)

         B. Medical Evidence[2]

         From November 5 to November 8, 2013, Rueda was hospitalized for intractable abdominal pain. (Tr. 1197.) His abdominal examination was normal and his abdominal ultrasound was significant only for a mild fatty infiltration. (Id.) His symptoms resolved with medications and he was discharged. (Id.)

         Rueda was again hospitalized from November 11 to November 13, 2013 for right flank pain, vomiting, and diarrhea. (Tr. 740.) He reported recurrent abdominal pain for the past several months. (Tr. 743.) During his hospitalization, he consulted with Edward S. Feldman, M.D., a gastroenterologist. (Tr. 746.) Dr. Feldman determined the etiology of Rueda's abdominal pain was unclear. (Id.) Rueda's urine drug screen was positive for cocaine, so he was tapered off narcotics. (Tr. 747.) He was discharged in improved condition. (Tr. 761.)

         On December 12, 2013, Rueda required another hospitalization for abdominal pain and shortness of breath. (Tr. 712.) His liver ultrasound indicated mild biliary duct dilation. (Tr. 717.) During his visit, Rueda consulted with Marina Magrey, M.D., a rheumatologist. (Tr. 719.) Dr. Magrey concluded Rueda possibly had fibromyalgia and prescribed Neurontin. (Tr. 721.)

         From December 28 to December 30, 2013, Rueda was hospitalized for chest and abdominal pain. (Tr. 677.) An abdominal CT scan indicated a mild, non-specific small bowel dilation, which did not require any surgical intervention. (Tr. 686.) His labwork was again positive for cocaine. (Tr. 703.) The etiology of Rueda's gastroparesis was unclear and he was discharged in improved condition. (Tr. 702-703.)

         This pattern of repeated emergency room visits and hospitalizations continued into 2014. Rueda visited the emergency room three times in January 2014 for abdominal pain. (Tr. 658, 635, 621.) The hospital physicians noted Rueda had a “very extensive abdominal workup, ” but the etiology of his symptoms was not identified. (Tr. 640.)

         On February 21, 2014, Rueda visited pain management physician Preeti Gandhi, M.D. for neck, lower back, abdominal, hand, and shoulder pain. (Tr. 542.) He characterized his pain as sharp, burning, and continuous. (Id.) Rueda reported six weeks of sobriety from cocaine, despite a positive urine screen. (Id.) Dr. Gandhi told Rueda due to his cocaine usage he would not be a candidate for opioid therapy. (Id.) On examination, Rueda had a limited range of motion in his cervical and lumbar spine and altered sensation over both arms. (Tr. 545.) His lumbar spine x-ray revealed degenerative changes. (Id.) Dr. Gandhi noted Rueda had recently expressed suicidal ideation and recommended he seek treatment at the chronic pain rehabilitation program at the Cleveland Clinic. (Tr. 546.)

         Rueda visited the emergency room on February 27, 2014 for abdominal pain, vomiting, and diarrhea. (Tr. 526.) The emergency room doctors identified no “acute emergent [abdominal] catastrophe, ” but did note some possible opioid seeking behavior. (Tr. 529.) Rueda received Zofran and was discharged. (Tr. 530.)

         On March 6, 2014, Rueda began a course of physical therapy for neck pain with Jacqueline Graham, PT. (Tr. 489.) Ms. Graham reviewed x-rays from January 2014, which revealed minor degenerative changes in the cervical spine. (Tr. 491.) On examination, Rueda had a decreased range of motion in his cervical spine. (Tr. 492.)

         On March 14, 2014, Rueda visited the MetroHealth emergency room for chest pain, dizziness, and diarrhea. (Tr. 508.) The emergency room physicians concluded the pain was unlikely cardiac in nature and a history of negative abdominal evaluations. (Tr. 512.) That same day, Rueda visited a different emergency room, at St. John Medical Center, reporting abdominal pain. (Tr. 1188.) This time, he was hospitalized for four days. (Id.) He underwent a endoscopy, which was negative, and a colonoscopy, which revealed some hemorrhoids. (Id.)

         Rueda returned to the MetroHealth emergency room on March 26, 2014 for abdominal pain. (Tr. 495.) His abdominal CT scan was negative for any acute process. (Tr. 498.) The emergency room physicians noted Rueda's reported pain was somewhat out of proportion to his examination. (Id.) They prescribed Pepcid and Tylenol. (Id.) That same day, Rueda visited St. John Medical Center with the same complaints. (Tr. 1332.) On examination, his abdomen was soft, tender, and non distended. (Tr. 1334.) His CT scan indicated a slight thickening in the colon. (Tr. 1336.) The emergency room doctors prescribed Cipro and Flagyl. (Id.)

         In April 2014, Rueda visited the emergency room three times for abdominal pain. (Tr. 479, 860, 1173.) A CT scan of his abdomen revealed borderline dilatation of the ascending colon. (Tr. 862.) From April 23 to May 3, 2014, Rueda required hospitalization for abdominal pain, dizziness, nausea, and vomiting. (Tr. 1173.) His stool was positive for clostridium difficile (a bacterial infection in the colon), and he required medications for this infection. (Id.) His diarrhea improved and he was discharged. (Id.)

         Rueda returned to the emergency room on May 18, 2014 for abdominal pain and diarrhea. (Tr. 1309.) On examination, he had mild abdominal tenderness, but normal bowel sounds with no abdominal distention. (Tr. 1311.) His labwork was normal, but his CT scan revealed mild colitis. (Tr. 1312.) The emergency room physicians provided him with Bentyl and Flagyl. (Id.)

         From July 29 to July 30, 2014, Rueda was hospitalized for left-sided chest pain. (Tr. 864.) As Rueda was not exhibiting any angina, the pain was determined to be likely musculoskeletal in nature. (Id.)

         Rueda was hospitalized again from August 11 to August 19, 2014, after losing consciousness and falling down a flight of stairs. (Tr. 1140, 1670.) During his hospital stay, he consulted with a neurologist and underwent an EEG, which was normal. (Tr. 1198, 1141.) He also developed acute dizziness, which improved with medication. (Tr. 1141.)

         On August 21, 2014, Rueda returned to the emergency room for a headache and neck pain. (Tr. 1269.) On examination, his sensation and motor skills were normal. (Tr. 1272.) A CT scan of his brain was negative and his cardiac workup was unremarkable. (Id.)

         Rueda visited Natwarial Jethva, M.D., an internal medicine physician, on August 26, 2014. (Tr. 1670.) He reported dizziness and repeated falls for the past several weeks. (Id.) He denied any drug use, despite a positive urine screen. (Id.) On examination, his gait and lumbar range of motion were normal. (Tr. 1672.)

         Rueda also visited neurologist Hayder Kadhim, M.D., on August 26, 2014. (Tr. 876.) He reported dizzy spells, repeated falls, and nausea. (Id.) He described several episodes of transient loss of consciousness. (Id.) He denied the use cocaine for the past 7-8 months. (Id.) On examination, Rueda did not require an assistive device for ambulation and his motor power and sensation were normal. (Id.) His neurological examination was nonfocal and his urine screen was positive for cocaine. (Tr. 877, 1678.) Dr. Kadhim recommended an EEG and MRI. (Tr. 877.) An August 26, 2014 brain MRI was normal, with no evidence of an acute intracranial process. (Tr. 1683.)

         From August 28 to September 3, 2014, Rueda was hospitalized after falling during a dizzy spell. (Tr. 1643, 1066.) His brain MRI indicated no changes. (Tr. 1066.) Rueda sustained another fall during the hospitalization. (Id.) He began physical therapy to address his dizziness and falls and was provided with a rolling walker. (Id.)

         Following this hospitalization, Rueda resided in a nursing home for several weeks for physical therapy. (Tr. 1644, 1646.) During his time at the nursing home, Dr. Jethva visited him for treatment. (Tr. 972.) Rueda indicated he still felt dizzy “all the time.” (Id.) His physical examination was overall normal, but he did have some generalized weakness. (Tr. 973.) Dr. Jethva noted the etiology of his dizziness remained undetermined. (Tr. 972.)

         On September 25, 2014, Rueda visited the emergency room for a headache, dizziness, and nausea. (Tr. 838.) A head CT scan was normal and he was discharged home. (Tr. 841, 842.) Rueda returned to the emergency room on October 24, 2014, reporting facial swelling and pain. (Tr. 842.) A CT scan of his facial bones indicated remote nasal bone fractures. (Tr. 846.) The emergency room physicians provided Rueda with Ultram and recommended he follow up with his doctor. (Tr. 847.)

         On November 3, 2014, Rueda presented to the emergency room with chest pain and dizziness. (Tr. 1127.) He was ambulating with a walker. (Tr. 1130.) A chest x-ray revealed increased interstitial markings in his lungs, so he was admitted overnight for observation. (Tr. 1134.) The emergency room physicians noted Rueda had undergone a cardiac catheterization in May 2014, which was negative for coronary artery disease. (Tr. 1136.) The doctors concluded Rueda's chest pain was non cardiac in nature and possibly related to the arthritis in his cervical spine. (Tr. 1137.)

         Rueda first visited Tanvir Syed, M.D., a neurologist, on November 24, 2014. (Tr. 1397.) He reported several episodes of “passing out” and body tremors since his fall in August 2014. (Id.) He also indicated pain in multiple areas of his body, memory loss, and the need for a walker. (Id.)

         On examination, Rueda displayed “hysteric weakness” of the legs and feet, as he was not able to mount any resistence against Dr. Syed's hands, despite being able to stand on his heels and toes without difficulty. (Tr. 1399.) Rueda's dizziness during testing also appeared “dramatic.” (Id.) His recent and remote memory was intact and his motor and sensory examination was normal. (Tr. 1397, 1400.) His gait was normal without spasticity, ataxia, or bradykinesis. (Tr. 1400.) Dr. Syed offered several differential diagnoses, including epileptic seizures, organic non-epileptic events, psychogenic nonepileptic seizures, or conversion disorder. (Tr. 1401.) Dr. Syed ordered an EEG and noted “his dizziness appears psychogenic as well, based on the dramatic manner with which he presented.” (Id.)

         On November 25, 2014, Rueda initially visited Priti Nair, M.D., a physical medicine and rehabilitation specialist. (Tr. 1420.) Rueda presented to Dr. Nair's office with a walker, reporting generalized pain, numbness in his arms and legs, and intermittent swelling in his joints. (Id.) On examination, Rueda's memory was impaired, his attention span and concentration were decreased, but his motor examination was normal. (Tr. 2120.) He had “give away” weakness throughout and altered sensation in his upper and lower extremities. (Id.) His coordination was normal and his gait was stable. (Id.) Dr. Nair advanced diagnoses of either fibromyalgia or conversion disorder. (Id.) She advised him to continue taking an antidepressant and ordered labwork. (Id.)

         Rueda returned to Dr. Nair on December 15, 2014, with continued fatigue, swelling, and generalized pain. (Tr. 1933.) On examination, Rueda had diffuse pain and tender points in multiple regions of his body. (Tr. 1935.) His motor examination was normal and he had full strength in his upper and lower extremities. (Id.) Dr. Nair prescribed Gabapentin and Lyrica and again provided the differential diagnosis of fibromyalgia versus conversion disorder. (Tr. 1936.)

         That same date, Dr. Nair filled out a form regarding Rueda's limitations. She offered the following limitations for Rueda:

• He can walk or stand for 2 hours at one time;
• He can stand/walk for 4 hours total in an eight-hour workday;
• He can sit for more than 3 hours at one time;
• He can sit for more than 6 hours total in an eight-hour workday;
• He does not need a job that permits shifting positions at will;
• He must use a cane or other assistive device when engaging in walking/standing;
• He will require unscheduled 15-minute breaks every hour;
• He does not require his legs to be elevated with prolonged sitting;
• He can frequently lift 10 pounds, occasionally lift 20 pounds, and never lift 50 pounds;
• He can occasionally kneel, stoop, crouch, squat, bend, climb stairs, and balance;
• He can frequently look down, turn his head right or left, and look up;
• He does not have any significant limitations with reaching, handling, or fingering;
• His impairments are not likely to produce “good days” or “bad days;”
• He would be absent from work more than four days a month.

(Tr. 2108-2112.)

         Rueda returned to Dr. Syed on January 15, 2015, reporting he was still having his “usual spells.” (Tr. 1758.) He again had normal motor and sensory examinations. (Tr. 1759.) Dr. Syed concluded “I believe [his] diagnosis is conversion disorder, ” noting the “psychopathological mechanism” of this disorder. (Id.) Dr. Syed recommended meditation-based treatment, vestibular rehabilitation, and referred Rueda to his “higher health clinic.” (Id.) That same day, Rueda also saw Dr. Nair, who noted generalized diffuse pain and tender points in multiple regions of his body. (Tr. 1931.) Dr. Nair again offered the differential diagnosis of fibromyalgia versus conversion disorder. (Tr. 1932.)

         On February 20, 2015, Rueda visited the emergency room for chest pain. (Tr. 1819.) A chest x-ray indicated mild cardiomegaly, so Rueda was admitted overnight for observation. (Tr. 1823.)

         Rueda visited Dr. Syed at his “higher health clinic” on February 26, 2015. (Tr. 1754.) Dr. Syed noted Rueda continued to have “somatization/stress related symptoms.” (Id.) Dr. Syed recommended Rueda begin exercising 30 minutes a day, five days a week, with a target heart rate of 120-130. (Tr. 1755, 1757.) Dr. Syed explained to Rueda “it is extremely important that during the exercise you regularly tell yourself (mentally or verbally) that you are exercising for the purpose of curing your symptoms.” (Tr. 1755.)

         On March 23, 2015, Rueda reported good results with the Lyrica to Dr. Nair. (Tr. 1925.) On examination, he had diffuse pain and tender points in multiple regions. (Tr. 1927.) His motor exam, sensory exam, and coordination were all normal. (Tr. 1927, 1928.) His memory, concentration, and attention were all normal. (Tr. 1927.) He had full strength in his upper and lower extremities. (Id.) Dr. Nair listed Rueda's diagnoses as conversion disorder/fibromyalgia and ordered labwork to screen for lupus. (Tr. 1928.)

         On May 22, 2015, Rueda followed up with Dr. Syed, indicating extreme pain in his right shoulder. (Tr. 1750.) Rueda also reported he was baptized six months prior and had given up using drugs and alcohol at that time. (Id.) He relayed he felt healthier, but was still struggling with dizziness. (Id.) On examination, Rueda appeared to be in extreme pain and could not move his right arm. (Tr. 1751.) Dr. Syed told Rueda to return to the “higher health clinic” once his right arm healed. (Id.) Dr. Syed also noted the following

[I]t is interesting that he came clean today and stated he was doing drugs and drinking a significant amount of alcohol when I first saw him in clinic. His conversion to Seventh-Day Adventist coincided with him giving up these habits. This added history of drug abuse compounds the process of somatization, but treatment through higher health clinic should continue with same plan.

(Id.)

         On June 3, 2015, Rueda reported continued difficulty with his right shoulder to Dr. Nair. (Tr. 1917.) He had limited external and internal rotation in his shoulder on examination. (Id.) Dr. Nair ordered an MRI of Rueda's right shoulder. (Tr. 1920.)

         On June 8, 2015, physicians' assistant Donna Exmer, PA-C, filled out a form regarding Rueda's limitations, after completing a short physical examination on him. (Tr. 1740-1745.) Dr. Syed also signed this ...


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