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Tate v. Berryhill

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

July 13, 2018

NICHOL TATE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Jonathan D. Greenberg, United States Magistrate Judge

         Plaintiff, Nichol Tate (“Plaintiff” or “Tate”), challenges the final decision of Defendant, Nancy A. Berryhill, [1] Acting Commissioner of Social Security (“Commissioner”), denying her applications for a 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, and 1381 et seq. (“Act”). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) and the consent of the parties, pursuant to 28 U.S.C. § 636(c)(2). For the reasons set forth below, the Commissioner's final decision is AFFIRMED.


         In May 2014, Tate filed an application for POD, DIB, and SSI alleging a disability onset date of February 1, 2014 and claiming she was disabled due to depression, lupus, a brain disorder, bipolar disorder, and a stroke. (Transcript (“Tr.”) at 241, 248, 269.) The applications were denied initially and upon reconsideration, and Tate requested a hearing before an administrative law judge (“ALJ”). (Tr. 178, 187, 194, 199.)

         On June 22, 2016, an ALJ held a hearing, during which Tate, represented by counsel, and an impartial vocational expert (“VE”) testified. (Tr. 55-91.) On August 2, 2016, the ALJ issued a written decision finding Plaintiff was not disabled. (Tr. 30-52.) The ALJ's decision became final on August 12, 2017, when the Appeals Council declined further review. (Tr. 1.)

         On September 21, 2017, Tate filed her Complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 13 & 14.) Tate asserts the following assignment of error:

Whether the Administrative Law Judge's decision is supported by substantial evidence when she failed to consider whehter[sic] Plaintiff's condition meets or equals Listing 14.06.

(Doc. No. 13 at 1.)

         II. EVIDENCE

         A. Personal and Vocational Evidence

         Tate was born in December 1972 and was 41 years-old at the time of her administrative hearing, making her a “younger” person under social security regulations. (Tr. 46.) See 20 C.F.R. §§ 404.1563(c) & 416.963(c). She has a high school education and is able to communicate in English. (Id.) She has past relevant work as a sales associate, day care center worker, food service worker, order control clerk at a blood bank, and a telemarketer. (Id.)

         B. Medical Evidence[2]

         In 2005, Tate underwent a spinal MRI which revealed degenerative changes in the cervical and lumbar spines and broad-based disc protrusions in the lumbar spine. (Tr. 356.)

         On April 27, 2013, Tate presented to an express care facility, reporting she has been experiencing numbness and tingling in her hands and right arm for the past several weeks. (Tr. 346-347.) Physician's assistant George Livingston, P.A., noted Tate's fingers were diffusely swollen and she had limited use of her right hand. (Tr. 348.) Mr. Livingston ordered labwork and referred her to a specialist. (Id.)

         Tate initially saw rheumatologist Marina Magrey, M.D., on June 4, 2013. (Tr. 330.) She reported a history of joint pain, chest pain, oral ulcers, and hiradenitis (a chronic skin condition). (Tr. 330-331.) She also relayed she had suffered a stroke in 2002, but had minimal residual deficits in speech, memory, and gait. (Tr. 331.) On examination, Tate had nodules under her breasts and scars from skin procedures. (Tr. 333.) She had tenderness in her fingers, toes, left wrist, elbows, and knees, but full range of motion in her hips and shoulders. (Tr. 334.) She also had a full range of motion in her cervical and lumbar spine and no effusion in her knees. (Id.) Dr. Magrey reviewed Tate's blood work and concluded the results were “consistent with connective tissue disorder.” (Tr. 335-336.) She ordered additional labwork and prescribed steroids and Plaquenil. (Tr. 336.)

         Tate returned to Dr. Magrey on July 6, 2013, reporting chest pain, a cough, and pain in her knees. (Tr. 479.) On examination, she had tenderness in her hands and knees. (Tr. 481.) She had full range of motion in her elbows, shoulders, cervical spine, and lumbar spine. (Id.) Her knees displayed no effusion. (Id.) Dr. Magrey determined Tate's “inflammatory arthritis has improved” and her joint swelling had subsided. (Tr. 483.) She discontinued Tate's steroids and prescribed Naproxen, Neurotin, and Plaquenil. (Id.)

         On August 29, 2013, Tate reported worsening joint pain and fatigue to Dr. Magrey. (Tr. 467.) She also described some emotional lability. (Id.) On examination, Tate had a full range of motion in her shoulders, elbows, hips, cervical spine, and lumbar spine. (Tr. 469.) She had slight swelling in her wrists, with a painful range of motion. (Id.) There was no effusion in her knees, but they were tender. (Id.) Dr. Magrey noted Tate's bloodwork was consistent with systemic lupus erythematosus and she renewed Tate's medications. (Tr. 472.)

         Tate saw Dr. Magrey again on November 27, 2013, reporting pain her knees and right wrist. (Tr. 456.) She described poor sleep, confusion, and occasional pain in her shoulders, neck, and right side. (Id.) On examination, Tate had tenderness in her hands and wrists, with a painful range of motion. (Tr. 458.) She had a full range of motion in her shoulders, hips, elbows, cervical spine, and lumbar spine. (Id.) Her knees and ankles were tender, but she had no spinal tenderness. (Id.) Dr. Magrey prescribed Savella and Plaquenil, noting Tate's symptoms were “more consistent with fibromyalgia.” (Tr. 460.)

         On February 21, 2014, Tate visited rheumatologist Sonia Manocha, M.D. (Tr. 421.) Tate relayed she was having increased forgetfulness and throbbing back pain. (Id.) On examination, she had tenderness in her hands and wrists, with a painful range of motion in her wrists. (Tr. 423.) Tate had a full range of motion in her elbows, shoulders, hips, and lumbar spine, but her cervical spine range of motion was limited and painful. (Id.) Dr. Manocha noted her symptoms were “more consistent with fibromyalgia” and ordered a cervical spine x-ray. (Tr. 425.)

         On March 26, 2014, Tate underwent a functional capacity assessment with physician Janeen Masternick, D.O. (Tr. 412-418.) On examination, Tate had pain with range of motion in “every joint of her body” and tenderness “in every spot on her body [Dr. Masternick] palpated.” (Tr. 416.) She had a decreased range of motion in her cervical and lumbar spine. (Tr. 416-417.) Her straight leg raise was negative bilaterally. (Tr. 417.) She ambulated with an assistive device, was able to heel, toe, and tandem walk. (Id.) Dr. Masternick noted slight right-sided weakness, but measured 5/5 strength in Tate's upper and lower extremities. (Id.) Tate had altered sensation in all dermatones of her upper and lower extremities and 18/18 fibromyalgia tender points. (Id.) Tate was able to lift at least 15 pounds at waist level with mild pain, but was unable to squat. (Tr. 418.)

         Dr. Masternick offered the following opinion on Tate:

Based on the history and physical exam, the patient has mild functional limitations. The patient can life/carry up to 15 pounds at the waist level frequently.
The patient can sit for a maximum of 30 minute intervals for a maximum of 6 hours per day. She can stand for a maximum of 30 minute intervals for a maximum of 5 hours per day.


         On June 11, 2014, Tate returned to Dr. Magrey, reporting her medications were not helpful. (Tr. 386.) She indicated she had recently started an antidepressant, but still felt depressed. (Id.) On examination, Tate had tenderness in her hands and wrists. (Tr. 388.) Her lumbar spine, shoulder, elbow, and hip range of motion were normal. (Id.) She had a limited and painful range of motion in her cervical spine. (Id.) Dr. Magrey encouraged Tate to participate in aerobic activity and decreased Tate's Lyrica dosage in hopes it would improve her confusion. (Tr. 389.)

         Tate reported continued problems with confusion and memory, as well as stiffness in her shoulders, on October 8, 2014. (Tr. 354.) On examination, she had tenderness in her hands and feet. (Tr. 355.) Her hip and elbow ranges of motion were normal. (Tr. 356.) Her shoulder range of motion was normal, but painful. (Id.) She had a limited and painful range of motion in her cervical spine, but her lumbar spine, ankles, and knees were all normal on examination. (Id.)

         Dr. Magrey noted Tate's symptoms were concerning for “being [a] manifestation of active mixed connective tissue disease.” (Tr. 357.) She concluded she would need to “restage [Tate's] disease and try to relate which symptoms are most related to inflammation rather than fibromyalgia.” (Id.)

         On November 19, 2014, Tate visited rheumatologist Maria Antonelli, M.D. (Tr. 536.) She described pain in her feet and knees. (Id.) Dr. Antonelli reviewed a chest x-ray from October 2014, which indicated no evidence of interstitial lung disease. (Tr. 539.) X-rays of Tate's knees revealed no significant degenerative changes. (Tr. 548.) Dr. Antonelli concluded Tate had mixed connective tissue disease, but no clear inflammatory arthritis. (Tr. 540.) She prescribed Mobic and recommended Tate begin physical therapy for her knees and fibromyalgia. (Id.)

         On December 4, 2014, Tate attending a counseling session with therapist Leanne Hardy, PCC-S. (Tr. 531.) She reported irritability and anger. (Id.) Tate then visited psychiatrist Jyoti Aneja, M.D. on December 12, 2014. (Tr. 518.) She indicated that while she felt better in the morning than in the afternoon, she felt overwhelmed and stressed. (Id.) Dr. Aneja noted Tate had a “limited desire to discuss her symptomatology and how to get better.” (Id.) Dr. Aneja listed Tate's diagnoses as bipolar disorder and history of alcohol abuse. (Tr. 519.) She prescribed Depakote and Klonopin. (Tr. 520.)

         Tate attended a physical therapy session with physical therapist Diana Ina, P.T., on December 17, 2014. (Tr. 512.) On examination, she had mild edema in her knees and normal sensation. (Tr. 514.) Tate had 4/5 strength in her lower extremities and pain with squatting. (Tr. 514, 515.) Her gait was independent without an assistive device. (Tr. 515.)

         On December 14, 2015, Tate had a consultation with neurologist Gary Kutsikovich, M.D. (Tr. 576.) She reported her 2002 stroke, along with right-sided paresthesia and confusion. (Id.) On examination, Tate did have right-sided weakness and decreased sensation on the right side. (Id.) Her coordination was normal, but her gait was hesitant. (Id.) Dr. Kutsikovich ordered a brain MRI and EEG. (Id.) The EEG revealed left hemispheric slowing, consistent with Tate's history of a stroke. (Tr. 578.) There was no evidence of epileptiform activity. (Id.) The brain MRI revealed scattered predominantly periventricular white matter hyperintensities. (Tr. 579.) These findings were non-specific, but a demyelinating disease could be considered. (Id.)

         On January 11, 2016, Tate was hospitalized due to difficulty swallowing. (Tr. 561.) Barium swallow testing indicated no evidence of dysphagia causing aspiration. (Tr. 651, 643.) She began a medication regimen and her symptoms did improve. (Tr. 648.) She followed up with gastroenterologist Lubna Chaudhry, M.D., on January 19, 2016. (Tr. 643.) At that time, Tate indicated she was feeling better, but not “100%.” (Id.)

         On January 18, 2016, Tate visited psychiatrist Gabriela Feier, M.D., reporting worsening depression due to her physical health. (Tr. 648.) Her sleep was satisfactory and she denied suicidal ideation. (Id.)

         Tate returned to Dr. Antonelli on January 28, 2016, indicating her pain was “mostly controlled.” (Tr. 629.) She denied any current swelling, but reported difficulty swallowing her medications. (Id.) Dr. Antonelli changed Tate's Neurontin prescription to the liquid formulation and advised her to return in 2-3 months. (Tr. 632.)

         On February 2, 2016, Tate visited Dr. Kutsikovich for “bouts of confusion” and right sided paresthesia. (Tr. 581.) She denied any abdominal problems. (Id.) On examination, Dr. Kutsikovich noted Tate had difficulty with complex commands, right sided weakness, and decreased sensation on the right. (Id.) Dr. Kutsikovich reviewed Tate's MRI and EEG and advised her to return in one year. (Id.)

         Tate saw gastroenterologist Rosita Frazier, M.D., on February 11, 2016. She indicated she was doing “okay” since her hospitalization. (Tr. 617.) She denied any weight loss, was tolerating a soft diet, and had intermittent diarrhea. (Id.) She continued to have abdominal bloating, but it was improved. (Id.) Dr. Frazier noted Tate had a mixed connective tissue disease with “likely global [gastrointestinal] dysmotility.” (Tr. 619.)

         On March 2, 2016, Tate visited Dr. Antonelli, reporting her liquid medications were helpful. (Tr. 600.) She described morning stiffness, but indicated it was minimal with no swelling. (Id.) On examination, Tate had a full range of motion in her elbows, wrists, ankles, and knees. (Tr. 602.) She had no swelling or tenderness in her fingers and her grip was full. (Id.)

         Tate returned to Dr. Antonelli on April 13, 2016, with hand and wrist pain. (Tr. 596.) On examination, she had decreased grip, but no swelling in her hands. (Tr. 597.) Her knees were tender and she had a full range of motion in her elbows, knees, and wrists. (Id.) Dr. Antonelli prescribed a short course of steroids for Tate's pain and stiffness and recommended she have a home health assessment to determine if she required any aids. (Tr. 598.)

         C. State Agency Reports

         1. Mental Impairments

         On August 19, 2005, in connection with a prior application, Tate underwent a consultative examination with psychologist David V. House, Ph.D. (Tr. 316-323.) During the examination, she had mild word and date finding difficulties. (Tr. 317.) She presented as “somewhat elliptical, circumstantial and at times not well organized in manner.” (Id.) She reported depression, crying spells, and suicidal ideation. (Tr. 318.) She described some “mild delusional material” to Dr. House, including sensing her father's spirit. (Tr. 319.) Dr. House administered IQ testing and Tate received a verbal IQ of 90, a performance IQ of 83, and a full scale IQ of 86. (Tr. 320.) Memory testing revealed Tate was in the 30-39 percentile. (Tr. 321.) Based upon this examination, Dr. House diagnosed mood disorder, PTSD, and cannabis abuse. (Tr. 322.) He assessed a Global Assessment of Functioning[3] (“GAF”) score of 51. (Tr. 323.) Dr. House provided the following opinion on Tate:

1. Concentration and attention are mildly limited due to features of depression and anxiety.
2. Ability to understand and follow directions does not appear to be limited.
3. Ability to withstand stress and pressure is moderately limited due to features of depression and anxiety.
4. Ability to relate to others and deal with the general public is mildly limited. She is somewhat socially isolated due to emotional factors.
5. Level of adaptability is mildly limited. She really does not receive psychiatric treatment.
6. Insight into her current situation and overall level of judgment are moderately and mildly limited respectively.

(Tr. 322.)

         Tate underwent another consultative examination with Dr. House on July 17, 2014. (Tr. 490-498.) Tate reported she saw a psychiatrist for medications, but denied any current counseling. (Tr. 492.) She described poor sleep, crying spells, and hopelessness. (Tr. 493.) She indicated anxiety when driving and avoidance of crowds. (Tr. ...

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