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Ward v. Commissioner of Social Security

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

May 20, 2019




          Thomas M. Parker United States Magistrate Judge

         I. Introduction

         Plaintiff, Ivan Paul Ward, III, seeks judicial review of the final decision of the Commissioner of Social Security, denying his applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and XIV of the Social Security Act. This matter is before me pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3), and Local Rule 72.2(b). Because the Administrative Law Judge (“ALJ”) failed to apply proper legal standards in evaluating the state agency consultants' opinions, I recommend that the Commissioner's final decision denying Ward's applications for disability insurance benefits and supplemental security income be VACATED and that Ward's case be REMANDED for further consideration.

         II. Procedural History

         On December 17, 2015, Ward applied for DIB and SSI. (Tr. 231-39).[1] Ward alleged that he became disabled on July 7, 2013, due to “1-eye blind shadow on the side, lungs-asthmatic severe was on life support in 2005, back-stenosis and arthritis and bulging disks, PTSD, insomnia, anxiety and panic disorder, anorexic and bulimia disorder.” (Tr. 73, 89, 231, 233, 263). The Social Security Administration denied Ward's applications initially and upon reconsideration. (Tr. 73-144). Ward requested an administrative hearing. (Tr. 184-85). ALJ Jeffrey La Vicka heard Ward's case on January 30, 2018, and denied his claims in a March 9, 2018, decision. (Tr. 8-72). On June 11, 2018, the Appeals Council denied further review, rendering the ALJ's decision the final decision of the Commissioner. (Tr. 1-5). On July 9, 2018, Ward filed a complaint to seek judicial review of the Commissioner's decision. ECF Doc. 1. On October 19, 2018, Ward filed a motion for summary judgment, stating that the court should grant summary judgment in his favor for the reasons stated in his merits brief. ECF Doc. 11.

         III. Evidence

         A. Personal, Educational and Vocational Evidence

          Ward was born on April 4, 1985, and he was 28 years old on the alleged onset date. (Tr. 231, 233). Ward had a GED. (Tr. 40-41). He also had previous work experience as a stacker and rack loader, which the ALJ determined he could no longer perform. (Tr. 22, 69).

         B. Relevant Medical Evidence

         1. Physical Health Treatment Records

         Because Ward's arguments focus on his alleged mental health-related disability, it is unnecessary to set forth a detailed history of how his physical health issues were treated or evaluated. The following captures the key parts of his physical health care records that reveal information about his mental status and/or the consistency of his complaints.

         On February 22, 2013, November 18, 2013, September 15, 2014, October 21, 2014, and March 24, 2015, Ward went to the emergency department with “mild” to “moderate” respiratory distress due to asthma. (Tr. 606-09, 620-25, 655-61, 663-66, 672-77). During his emergency department visits, Ross Lentini, MD, and Marian Barnett-Rico, MD, noted that Ward was cooperative and pleasant, and he improved with asthma medications. (Tr. 608-09, 622-24, 657-60, 666). On March 24, 2015, Antony Cesario, CNP, noted that Ward had no back or joint pain, no anxiety symptoms, normal range of motion in his extremities, and normal mood, sleep, and appetite. (Tr. 672, 676).

         On March 2, 2013, Charles Payne, DO, admitted Ward to the hospital after he complained that he had chest pain and coughed up blood and mucous. (Tr. 389, 589). Dr. Payne noted that Ward was pleasant and cooperative during his examination. (Tr. 590).

         On June 6, 2013, Ward saw his primary care physician, Mumtaz Husain, MD, for a checkup and asthma medication refills. (Tr. 912). Dr. Husain noted that Ward had persistent tooth pain, anxiety, insomnia, left eye blindness, panic disorder, asthma, steroid-induced diabetes, and “very poor compliance with treatment.” (Tr. 912). On examination, Dr. Husain noted that Ward was conversant, his lungs were clear, and his extremities were normal. (Tr. 912).

         In June and July 2013, Ward twice went to the emergency department for back pain. On June 22, 2013, Ward reported that his back pain began after he fell out of his truck in May 2013, and on July 11, 2013, Ward said that he hurt his back lifting 50-pound bags while working at home. (Tr. 408, 496, 498). During his June 22 emergency department visit, Allison Callahan, PAC, noted that Ward denied any weakness in his lower extremities, was pleasant, had some pain in his back, and had normal range of motion and gait. (Tr. 408-09). During his July 2013, visit, Brian Richardson, MD, noted that Ward had limited range of motion in his back, but he did not have any limitations in his extremities or gait. (Tr. 499, 501). Callahan and Dr. Richardson both gave Ward Vicodin, and they directed Ward to follow up with Dr. Husain. (Tr. 409, 501, 503). On June 25, 2016, Ward asked Dr. Thomas to refill his Vicodin, and Dr. Thomas noted that Ward was likely “over using the Vicodin and not using it properly.” (Tr. 486).

         On July 16, 2013, Ward saw Dr. Husain for a follow-up related to his back pain. (Tr. 914). On examination, Dr. Husain noted that Ward was alert, oriented, and conversant. (Tr. 914). At follow-ups on July 26, 2013, August 27, 2013, September 4 and 27, 2013, and October 24, 2013, Dr. Husain also noted Ward's insomnia and anxiety were controlled through medication. (Tr. 414-15, 421-22, 469-72, 480-81, 916-22).

         On July 25, 2013, Ward told Joel Siegal, MD, that he had constant, throbbing back and neck pain that began after he lifted bags at work. (Tr. 464, 475). He also complained that he had anorexia, wheezing, difficulty walking, and anxiety. (Tr. 475). On examination, Dr. Siegal noted that Ward was in no acute distress, was alert and oriented, and had intact cognition. (Tr. 475-76). Dr. Siegal renewed Ward's Vicodin prescription. (Tr. 466, 479).

         On September 13, 2013, Amanda Davidson, PT, evaluated Ward's functional capacity on referral from Dr. Husain. (Tr. 508-38, 541-72). Based on her testing, Davidson stated that Ward would be unable to return to work due to his disc derangement throughout the spine, inability to maintain proper postures, and weakness. (Tr. 509). Davidson noted, however, that Ward might have magnified his pain due to frustration and not being able to do what he would like to do. (Tr. 509). Davidson recommended that Ward not be cleared to return to work. (Tr. 509).

         On November 21, 2013, Ward told Dr. Husain that he felt “much better” after he took his asthma medications and antibiotics, and he also requested valium and Vicodin refills for his chronic back pain. (Tr. 923). Dr. Husain noted that Ward was conversant, alert, and oriented, had an appropriate affect, and controlled his insomnia and anxiety with treatment. (Tr. 923). On March 19, 2014, Dr. Husain noted that he wanted to wean Ward off valium. (Tr. 933).

         On February 7, 2014, Ward went to the emergency department for abdominal pain, headache, vomiting, dizziness, and a runny nose. (Tr. 627). On examination, Dr. Payne noted that Ward was pleasant and cooperative. (Tr. 630).

         On March 22, 2014, Ward again went to the emergency department for vomiting and abdominal pain. (Tr. 644). Ward told Ashley Kinsey, PA, that he did not eat well or drink enough, and Ward's wife said that he had an eating disorder. (Tr. 644). On examination, Kinsey noted that Ward was alert, cooperative, had no pain or limitations in his extremities, and had full muscle strength. (Tr. 646). Kinsey diagnosed Ward with nausea, noted that he had no activity restrictions and could return to work. (Tr. 657, 650).

         On June 16, 2015, Dr. Barnett-Rico noted that Ward was diagnosed with anorexia. (Tr. 681). Nevertheless, on examination, Dr. Barnett-Rico noted that Ward was well-nourished, well-developed, and cooperative. (Tr. 681). On June 13, 2017, Ward saw Dr. Barnett-Rico for a toe injury, and Dr. Barnett-Rico noted that Ward had no gastrointestinal issues, no weight loss or weakness, no decreased range of motion or back pain, and no depression, anxiety, or sleep issues. (Tr. 1002-03).

         On August 9, 2015, Ward's wife found him unconscious after he went out drinking with friends, said that he smoked marijuana, and “suspected he was taking other drugs.” (Tr. 687). Ward told Joseph Matua, DO, that he was “a diabetic who has been at the bar doing shots and drinking beer, ” and that he had vomited six times. (Tr. 687).

         2. Mental Health Treatment Records

         On October 12, 2015, Ward saw Kathy Enterline, MSW, because the court ordered him to go to anger management counseling after he was arrested for domestic violence. (Tr. 714-18). Ward told Enterline that he had social anxiety, isolation, anhedonia, worry, feelings of guilt due to unemployment, and nightmares about a childhood attack during which he lost his left eye. (Tr. 714). Ward told Enterline that he helped his parents run a bar and maintain apartments that they owned, but he was unable to maintain employment due to his back and eye injuries. (Tr. 715). Enterline diagnosed Ward with anxiety disorder and PTSD, noted that he had normal weight and a cooperative attitude, did not note any impairment to Ward's thought processes or perception, and stated that his therapy would focus on anger management, reduced anxiety, and learning coping skills. (Tr. 715, 718, 724). Ward attended two additional therapy sessions on October 28 and December 7, 2015; however, he quit going to therapy sessions and was discharged from services on March 28, 2016. (Tr. 722-26, 760-61).

         On October 12, 2015, Ward completed a self-assessment as part of his counseling intake process. (Tr. 720-21). Ward stated that he did not have any physical or mental disabilities, but he endorsed difficulty walking, difficulty breathing, arthritis, and asthma. (Tr. 720). He stated that he had no problems with nutrition, eating, appetite, or liquids; however, he said that he had unexplained weight loss. (Tr. 720). Ward also stated that he exercised. (Tr. 720).

         On July 12, 2016, Ward saw Koteswara Kaza, MD, for psychiatric treatment. (Tr. 783-92). Ward told Dr. Kaza that he had panic attacks, difficulty sleeping, anxiety that made him feel sick, difficulty going anywhere, and daily anger. (Tr. 783). Ward said that he avoided everyone, felt hopeless and worthless, and did not do anything other than sit at his table all day. (Tr. 783). Ward and his mother told Dr. Kaza that he went days without eating, then would binge eat, and make himself throw up. (Tr. 783). Ward said he drank every day, smoked “a few” cigarettes every day, enjoyed throwing a football around, and had trouble going places and doing things with his kids. (Tr. 786-87). On examination, Dr. Kaza noted that Ward was cooperative and pleasant, and he did not note any problems with Ward's thought content, perceptions, thought processes, or cognition. (Tr. 789-90). Dr. Kaza prescribed medications to control Ward's anxiety and depression. (Tr. 790-91). Dr. Kaza also ordered a drug test, tested positive for marijuana and negative for any other drugs. (Tr. 791, 793-94). On July 26, 2016, Ward told Dr. Kaza that his medications were not working, and that he had panic attacks twice a day. (Tr. 779). Dr. Kaza did not note any significant changes on examination, adjusted Ward's medications, and recommended psychotherapy. (Tr. 779-81). On August 13, 2016, Ward admitted to Dr. Kaza that he used marijuana, and Dr. Kaza told Ward to stop using marijuana because it could increase his anxiety and depression. (Tr. 778). On November 3, 2016, Ward told Dr. Kaza that he felt more anxious, had intolerable side effects from his medications, stopped taking his medications, and had some hallucinations. (Tr. 1167). Dr. Kaza noted that Ward had logical thought processes, appropriate behavior, and changes in his daily living activities. (Tr. 1167). He adjusted Ward's medications, and Ward refused psychotherapy. (Tr. 1169).

         From September 1, 2016, through January 4, 2018, Ward saw Maria Craig, PA, for 16 medication management sessions. (Tr. 1135-66, 1171-91). During his examinations, Craig regularly noted that examination, Ward was alert, oriented, cooperative, and that he had logical thought processes. (Tr. 1135-66, 1171-91). On September 1, 2016, Ward told Craig that his medications did not help him, and he continued to have panic attacks, anxiety, and depression. (Tr. 1164). Ward also stated that he had not used marijuana for “a couple weeks.” (Tr. 1164). On January 11, 2017, Ward told Craig that his antianxiety medication worked well. (Tr. 1177). On February 16, 2017, Ward said that he felt “horrible” after being without medications for two days, and that he saw things and heard voices calling his name. (Tr. 1180). On March 16, 2017, Ward said that his moods continued to oscillate, and that he had not left his home since his last doctor's visit. (Tr. 1183). Craig adjusted Ward's medication. (Tr. 1185). On May 16, 2017, Ward said that he felt much better, but he continued to have auditory hallucinations. (Tr. 1189). Craig noted that Ward was alert, logical, and cooperative, and she continued Ward's medications. (Tr. 1190-91). On June 13, 2017, Ward told Craig that he had an upset stomach and still had trouble regulating his moods, but he had better control over his anger. (Tr. 1160). Ward had increased depression on January 11 and August 10, 2017; however, on September 7, 2017, Ward said that he was “doing good” and his anxiety was “okay, ” so long as he kept to himself. (Tr. 1150, 1153, 1157). On October 5, 2017, Craig noted that Ward was better able to control himself, though he continued to have some anxiety, depression, and anger symptoms through January 4, 2018. (Tr. 1135-39, 1141-49).

         C. Relevant Opinion Evidence

         1.Treating Physician Opinion-Mumtaz Husain, MD

         On December 13, 2013, the Industrial Commission of Ohio, received a letter from Dr. Husain, stating:

This letter is to attest to the condition of Ivan Ward a current patient in my practice. [Ward] has suffered two separate injuries to his back causing multiple medical problems including thoracic sprain and lumbar sprain. The first injury we saw in office was due to a fall from a truck while at his place of employment and was treated for a compression facture. When he was released for light duty at work he suffered another injury and went to the emergency room he was treated for aggravation to a preexisting disc protrusion at ΒΆ 3-4 as well as the ...

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