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Johnson v. Berryhill

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

June 13, 2019

NANCY A. BERRYHILL, Acting Comm'r of Soc. Sec., Defendant.




         Plaintiff, Jennifer L. Johnson (hereinafter “Plaintiff”), challenges the final decision of Defendant Nancy A. Berryhill, Acting Commissioner of Social Security (hereinafter “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, 1381 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 AFFIRMED.

         I. Procedural History

         On June 1, 2015, Plaintiff filed her applications for POD, DIB, and SSI, alleging a disability onset date of September 10, 2013.[1] (Transcript (“Tr.”) 247-254). The application was denied initially and upon reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 171-202). Plaintiff participated in the hearing on March 6, 2017, was represented by counsel, and testified. (Tr. 36-73). A vocational expert (“VE”) also participated and testified. Id. On May 15, 2017, the ALJ found Plaintiff not disabled. (Tr. 29). On April 17, 2018, the Appeals Council denied Plaintiff's request to review the ALJ's decision, and the ALJ's decision became the Commissioner's final decision. (Tr. 1-6). On June 14, 2018, Plaintiff filed a complaint challenging the Commissioner's final decision. (R. 1). The parties have completed briefing in this case. (R. 11, 13 & 14).

         Plaintiff asserts the following assignment of error: (1) the RFC determination was not supported by substantial evidence. (R. 11).

         II. Evidence A. Relevant Medical Evidence [2]

         1. Treatment Records

         a. Physical Impairments

         On May 8, 2014, Peter Bambakidis, M.D., saw Plaintiff for a follow up for multiple sclerosis, and noted Plaintiff was clinically stable. (Tr. 366). Plaintiff reported a few falls in the last two months. Id. Her gait was ataxic, but there was only borderline rombergism.[3] Id. She had rapid, alternating movements of the fingers performed in an irregular manner suggesting a volitional element. Id.

         On August 11, 2014, Dr. Bambakidis noted that Plaintiff had been approved for Tecfidera. (Tr. 364). Plaintiff was doing “relatively well” and had a fairly ataxic gait. Id.

         On August 18, 2014, Plaintiff was seen by Andrew Z. Filiatraut, D.O., for a “recheck of joint pain.” (Tr. 400). Plaintiff complained of joint pain, joint stiffness, decreased range of motion (ROM) and morning stiffness. Id. Plaintiff characterized her pain as throbbing, severe, and occurring daily. Id. On examination, Plaintiff had full ROM in the spine, as well as the upper and lower extremities without pain or weakness. (Tr. 401).

         On September 17, 2014, Mohammed A. Ali, M.D., treated Plaintiff for complaints of joint pain and tenderness in her lower back, hands, fingers, and hips. (Tr. 393). Plaintiff reported moderate but worsening pain. Id. Dr. Ali noted that Plaintiff had skin psoriasis since the 1990s, and observed Plaintiff had gained fifty pounds in the last two years since she stopped working. Id. He assessed psoriatic arthritis. (Tr. 394).

         On November 19, 2014, Plaintiff reported feeling well to Dr. Ali with minor complaints. (Tr. 388). She measured 5'7” tall and weighed 316 pounds with a BMI of 49.57. Id. On examination, her upper and lower extremities were noted as abnormal, but she had normal cervical spine movements. Id.

         On November 23, 2014, Plaintiff reported to Dr. Bambakidis that she was “doing relatively well as of late and is tolerating the Tecfidera without much in the way of difficulty.” (Tr. 363).

         On January 20, 2015, Plaintiff reported that she felt well with minor complaints. (Tr. 386). Dr. Ali noted that Plaintiff's rash is 90 percent better, and her joint symptoms were improving. Id. On examination, Plaintiff's upper and lower extremities “show normal ROM without pain or weakness.” Id.

         On April 20, 2015, Plaintiff told Dr. Ali that she does not feel well due to pain in her back, hands, and wrists. (Tr. 381). On examination, Plaintiff's upper and lower extremities “show normal ROM without pain or weakness.” Id.

         On May 13, 2015, Dr. Bambakidis noted Plaintiff was doing very well on her Tecfidera medication with no adverse side effects. (Tr. 361). Plaintiff had not had the blood work drawn that he ordered. Id. Her gait had a spastic-ataxic quality. Id. He stated overall she was relatively stable and did not alter her medication (Tr. 362).

         On October 5, 2015, Dr. Ali saw Plaintiff for complaints of lower back pain of acute onset occurring for four weeks. (Tr. 525). On examination, Plaintiff's upper and lower extremities “show normal ROM without pain or weakness.” Id. Dr. Ali assessed psoriatic arthritis that was “stable and doing well” with no synovitis and improved rash, as well as chronic sprain or strain of lumbar region for which he recommended exercise weight reduction. Id.

         On November 30, 2015, Plaintiff saw Dr. Bambakidis, who again noted Plaintiff tolerated her medication without difficulty. (Tr. 613). Her gait was “mild to moderately wide-based and … similarly ataxic.” Id. She performed rapid alternating movements of the fingers well. Id.

         On January 4, 2016, Plaintiff indicated that she felt well with no complaints. (Tr. 637). On examination, Plaintiff's upper and lower extremities “show normal ROM without pain or weakness.” Id.

         On May 31, 2016 visit, Dr. Bambakidis noted that Plaintiff's symptoms were largely unchanged save for some numbness she reported in her right hand. (Tr. 618). He gait was mildly wide-based and mildly ataxic. Id. In summary, he noted Plaintiff was doing well and did not alter her management. Id.

         On June 21, 2016, Dr. Ali noted Plaintiff felt well with minor complaints, specifically pain in her lower back and hips. (Tr. 631). Her upper extremities “show[ed] normal ROM without pain or weakness and Lower extremities show full ROM without pain or weakness….” Id.

         On October 12, 2016, Plaintiff was seen by Bassam Alhaddad, M.D., as a new patient. (Tr. 655). In his summary of Plaintiff's “History of Present Illness, ” Dr. Alhaddad notes Plaintiff had a history of multiple sclerosis, was diagnosed with psoriatic arthritis and was “[d]iagnosed with fibromyalgia.” (Tr. 655). On rheumatological examination, Plaintiff had normal flexion and extension of the cervical spines, unremarkable straight leg raise test, normal bending of the lumbar spine, normal ROM in the shoulders, normal extension of the elbows, normal ROM of the wrists with mild tenderness on flexion/extension, tenderness of the metacarpals despite no swelling or synovitis, normal ROM of the hips and normal ROM of the knees, no pain or swelling in the ankles, and no tenderness in the feet. (Tr. 656).

         On November 18, 2016, Plaintiff was seen in an expedited follow-up visit complaining of worsening symptoms of multiple sclerosis. (Tr. 623). Dr. Bambakidis noted that Plaintiff had mild to moderately wide-based stance, mildly ataxic gait, and borderline rombergism. Id. In summary, he believed Plaintiff was doing well overall, but thought it prudent to assume that Plaintiff was experiencing a mild exacerbation, which he treated with a short course of steroids. Id.

         b. Mental Impairments

         On November 3, 2014, Plaintiff was prescribed Xanax for anxiety by Dr. Filiatraut, who recommended Plaintiff see a psychiatrist due to the fact that he did not believe any progress was being made. (Tr. 391).

         On February 6, 2015, Plaintiff was seen by a social worker, Joan Meister, LISW, for complaints of helplessness, frustration, and anxiety. (Tr. 334). She was diagnosed with agoraphobia without a history of panic disorder. Id.

         On February 24, 2015, Plaintiff was seen by Amanda Davis, MSN. (Tr. 509-517). Plaintiff reported “feeling a little bit depressed the past month, ” being in a down mood most of the time, frequent mood swings, feelings of worthlessness, and irritable mood. (Tr. 509). Her last panic attack was six months ago, but she continued to avoid public spaces and does not like to leave home. Id.

         On March 17, 2015, Plaintiff reported that she noticed no change in her anxiety symptoms, and reported a panic attack the day before because she had to see a new family doctor. (Tr. 499). The symptom review noted that Plaintiff had mild depressive symptoms, mood swings, and irritability, but moderate anxiety with weekly panic attacks as well as moderate racing thoughts. Id. She was prescribed Xanax and Abilify, continued on Buspar, and Klonopin was discontinued as ineffective. (Tr. 502).

         On April 14, 2015, Plaintiff reported that medication helped alleviate her symptoms and she suffered only one panic attack the previous month. (Tr. 494). Nevertheless, she continued to feel anxious throughout the day and did not want to leave her house. Id. On mental status examination, she had depressed/anxious mood and constricted affect, logical thought process, impaired attention/concentration, average insight, and fair judgment. (Tr. 496). Her Xanax was increased and Abilify was discontinued due to side effects. (Tr. 497).

         On August 31, 2016, Plaintiff was seen by Vidya Pandit, M.D., who noted Plaintiff did not want to be seen by a nurse practitioner and insisted on a psychiatrist. (Tr. 629-630). Plaintiff reported her symptoms had not changed since her last visit three months earlier; those symptoms include depressed mood, crying spells, fatigue, poor concentration, irritability, loss of interest, weight gain, poor sleep, sense of failure, headaches, and anxiety. (Tr. 629). Dr. Pandit assessed depression and altered her medications, psoriatic arthritis for which she restarted Plaintiff on 800 mg of Ibuprofen three times daily, and morbid obesity for which she recommended a healthy diet and exercise. (Tr. 630).

         2. Medical Opinions Concerning Plaintiff's Functional Limitations

         On July 25, 2015, Doug Waltman, Ph.D., completed a Mental Status Questionnaire. (Tr. 460-462). He indicated Plaintiff was first seen on February 24, 2015 and last seen on July 8, 2015. (Tr. 460). Dr. Waltman indicated that Plaintiff had a depressed and irritable mood, with constricted affect, as well as mild depression with mood swings, moderate anxiety and racing thoughts. Id. Dr. Waltman noted that Plaintiff was impaired in attention and concentration, had fair judgment, and average insight. Id. Plaintiff had a positive response to medications but not fully effective. (Tr. 461). He further indicated that Plaintiff was capable of remembering, understanding, and following instructions; her ability to maintain attention and sustain concentration were impaired; her ability to engage in social interaction was impaired due to anxiety; and her ability to cope with stress was greatly impaired by her anxiety. Id.

         On July 30, 2015, state agency physician Edmond Gardner, M.D., completed a physical RFC assessment finding that Plaintiff could frequently lift/carry ten pounds, stand for two hours, and sit for six hours in an eight-hour workday. (Tr. 113, Exh. B3A). Further, Plaintiff could never climb ladders/ropes/scaffolds or crawl, but could perform other postural activities occasionally. (Tr. 114). Dr. Gardner opined Plaintiff was limited to frequent handling and fingering bilaterally. Id. Plaintiff also had to avoid concentrated exposure to extreme heat and all exposure to hazards. (Tr. 115).

         On August 25, 2015, state agency psychologist Karla Voyten, Ph.D., determined that Plaintiff had mild restriction of activities of daily living; moderate difficulties maintaining social functioning; moderate difficulties maintaining concentration, persistence, or pace; and no repeated episodes of decompensation of an extended duration. (Tr. 111, Exh. B3A). She completed a mental RFC assessment finding that Plaintiff had no understanding and memory limitations but did have sustained concentration and persistence limitations. (Tr. 116). She assessed moderate limitations in the following categories: ability to carry out detailed instructions; ability to maintain attention and concentration for extended periods; ability to sustain an ordinary routine without special supervision; ability to work in coordination with or in proximity to others without being distracted by them; and, ability to complete a normal workday and workweek without interruptions from psychologically based symptoms ...

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