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Thaxton v. Commissioner of Social Security Administration

United States District Court, S.D. Ohio, Western Division, Dayton

July 31, 2018

ROBBIN THAXTON, Plaintiff,
v.
COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          Walter H. Rice, District Judge

          REPORT AND RECOMMENDATIONS [1]

          SHARON L. OVINGTON, UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff Robbin Thaxton brings this case challenging the Social Security Administration's denial of her applications for period of disability, Disability Insurance Benefits, and Supplemental Security Income. She applied for benefits on August 30, 2012, asserting that she could no longer work a substantial paid job. Administrative Law Judge (ALJ) Emily Ruth Statum concluded that she was not eligible for benefits because she is not under a “disability” as defined in the Social Security Act.

         The Appeals Council denied Plaintiff's request for review, and she filed a previous action in United States District Court for the Southern District of Ohio. See Thaxton v. Comm'r of Soc. Sec., 3:15-cv-352, Doc. #s 8-9 (S.D. Ohio April 21, 2016). Upon the parties' Joint Motion to Remand to the Commissioner, the Court vacated the Commissioner's decision and remanded the case pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings. Id. Upon remand, ALJ Gregory G. Kenyon determined that Plaintiff was not eligible for benefits because she is not under a disability.

         The case is before the Court upon Plaintiff's Statement of Errors (Doc. #8), the Commissioner's Memorandum in Opposition (Doc. #11), Plaintiff's Reply (Doc. #12), and the administrative record (Doc. #s 6-7).

         Plaintiff seeks a remand of this case for payment of benefits or, at a minimum, for further proceedings. The Commissioner asks the Court to affirm ALJ Kenyon's non-disability decision.

         II. Background

         Plaintiff asserts that she has been under a “disability” since January 31, 2008. She was forty-three years old at that time and was therefore considered a “younger person” under Social Security Regulations. See 20 C.F.R. §§ 404.1563(c), 416.963(c). She has since turned fifty years old and is accordingly considered a person “closely approaching advanced age.” See Id. §§ 404.1563(d), 416.963(d). She has a limited education. See Id. §§ 404.1564(b)(3), 416.964(b)(3).[2]

         A. Plaintiff's Testimony

         Plaintiff testified at the hearing before ALJ Kenyon that she has an extra vertebra in her lower back that pinches the nerves and causes sharp pain in her lower back. (Doc. #7, PageID #648-49). On a scale from one to ten, her pain is at ten most of the time. Id. at 649. She sometimes has to lie on the floor with her knees up to ease the pain in her back. Id. at 648. Before she goes to sleep, she gets into her Jacuzzi tub to help with the pain. Id. at 649. It does not bother her as much when she is sleeping and relaxed. Id. She also uses a heating pad and takes over-the-counter medications. Id. at 650. She saw a chiropractor for two weeks but stopped because it was causing her more pain. Id.

         She also has burning pain in her upper back between her shoulder blades. Id. at 648-49. If she walks too far, she has to stop and bend down on her knees to ease the pain. Id. at 648.

         Additionally, Plaintiff has pain in her knees. Id. at 650. On a ten-point scale, her knee pain is between six to seven. Id. at 651. “I had bad … cartilage in my kneecaps and my kneecaps will go from the front clear around to the back and it brings me to the ground.” Id. at 650. That usually happens once or twice a month. Id. Her knees swell up about twice a day, and she puts heat on them to reduce the swelling. Id. at 650, 657.

         Plaintiff struggles with depression. Id. at 651. At least for or five times a week, she “want[s] to sit and cry all the time.” Id. She also isolates herself in her room. Id. She sometimes has trouble interacting with other people. Id. For example, she goes off on her family three or four times a week “sometimes for no reason at all.” Id. She has also gone off on a person at the trailer park and people at the grocery store. Id. at 652. She also hears voices and music at nighttime four or five times per week. Id. at 652-53.

         Plaintiff only went to school through the eighth grade. Id. at 646. While in school, she was in special education classes. Id. She cannot comprehend what she reads and sometimes has trouble figuring out or pronouncing words. Id. She struggles with helping her granddaughter-who is in the first grade-with her homework. Id. She also has trouble with math. Id. at 647.

         Plaintiff lives with her husband, her thirty-year-old daughter, and seven and thirteen-year old granddaughters in a doublewide trailer. Id. at 644-45, 659-60. She also has two adult sons. Id. at 644. She spends an ordinary day sitting in her recliner with her feet propped up and a pillow behind her back. Id. at 654-55. Her daughter does the housework, laundry, and cleaning. Id. at 645. The only chore Plaintiff does is make her bed-and that takes her between twenty and thirty minutes because she has to take breaks in between. Id. at 655-56.

         Plaintiff has a driver's license and usually drives once or twice a week. Id. at 645. She cannot lift anything heavier than a gallon of milk. Id. at 653. She is able to stand in one spot for five minutes before needing to sit down. Id. at 654. She can walk around the block but has to stop two or three times to bend down. This eases the burning in her back. Id. She can sit for about thirty minutes before she needs to stand up and walk around for two to three minutes. Id. at 654, 656.

         B. Medical Opinions

         i. James Wilcher, D.O.

         Plaintiff's treating physician, Dr. Wilcher, provided several opinions. In April 2015, he opined that Plaintiff is “unable to work due to back pain.” Id. at 1030. A little more than one year later, in May 2016, he indicated that Plaintiff “is unable to work for 12 mo[nths].” Id. at 1029.

         In October 2013 and October 2016, Dr. Wilcher completed medical-impairment questionnaires with almost identical responses. (Doc. #6, PageID #s 516-17); (Doc. #7, PageID #s 1027-28). He diagnosed hypertension and arthritis in her back, shoulder, and knees. (Doc. #6, PageID #516); (Doc. #7, PageID #1027). She experiences moderate pain in her back, shoulders, and knees and her treatment includes NSAIDS and exercise. (Doc. #6, PageID #516); (Doc. #7, PageID #1027).

         Dr. Wilcher opined Plaintiff could stand for thirty minutes at one time, sit for two hours, and work for four hours per day. (Doc. #6, PageID #516); (Doc. #7, PageID #1027). She can frequently lift ten pounds and can occasionally bend, stoop, balance, and raise her arms over shoulder level. (Doc. #6, PageID #s 516-17); (Doc. #7, PageID #s 1027-28). She needs to elevate her legs occasionally during an eight-hour workday. (Doc. #6, PageID #516); (Doc. #7, PageID #1027).

         ii. Pravesh Patel, M.D.

         Dr. Patel, Plaintiff's psychiatrist, completed a mental-impairment questionnaire in February 2014. (Doc. #7, PageID #s 827-30). He diagnosed depressive disorder, anxiety disorder not otherwise specified (NOS), and mood disorder. Id. at 827. She is responding well to medication-Wellbutrin, Remeron, and hydroxyzine. Id. at 828. However, her prognosis is guarded. Id.

         Dr. Patel identified some of Plaintiff's signs and symptoms including, for example, poor memory, sleep disturbance, emotional lability, feelings of guilt/worthlessness, perceptual disturbances, and decreased energy. Id. at 827. She also has an anxious mood and affect, trouble focusing, mood swings at times, and a tendency to get irritable easily. Id. at 828. Dr. Patel opined that Plaintiff's impairments and treatment would cause her to be absent from work more than three times per month. Id. at 829. And, Plaintiff's psychiatric condition “will decrease [her] pain threshold.” Id. at 828.

         Dr. Patel opined that Plaintiff is markedly impaired in her ability to carry out very detailed instructions, maintain concentration and attention for extended periods, respond appropriately to changes in the work setting, and complete a normal workday and workweek without interruptions from psychologically-based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods. Id. at 829-30. She is moderately impaired in most other areas, including for example, her ability to perform activities within a schedule, maintain regular attendance, be punctual within customary tolerances, make simple work-related decisions, and set realistic goals or make plans independently of others. Id.

         iii. Damian M. Danopulos, M.D.

         Dr. Danopulos examined Plaintiff in December 2012. (Doc. #6, PageID #s 346-56). His “objective findings were: 1) Lumbar spine mild arthritic changes, 2) Cervical spine arthralgias, 3) Left knee mild arthritic changes, 4) Well-controlled hypertension, and 5) Exogenous versus morbid obesity.” Id. at 349. He opined, “Her ability to do any work-related activities is affected from the combination of her lumbar spine and left knee early arthritic changes and her cervical spine arthralgias. Her well-controlled hypertension and her exogenous versus morbid obesity are additional problems.” Id. at 350.

         iv. Mary Ann Jones, Ph.D.

         In January 2013, Dr. Jones evaluated Plaintiff and administered the Weschler (WAIS-VI). Id. at 466-73. On the WAIS-IV, Plaintiff received a full-scale intelligent quotient of 64, a verbal comprehension index of 66, and working memory index of 66- all of which fall into the mild range of mental retardation. Id. at 470. Further, she achieved a perceptual reasoning index of 75 ...


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