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Jones v. Commissioner of Social Security

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

June 18, 2019


          Algenon L. Marbley, Judge.


          Elizabeth A. Preston Deavers, Chief United States Magistrate Judge.

         Plaintiff, Carolyn Dawn Jones, brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her applications for social security disability insurance benefits and supplemental security income. This matter is before the Chief United States Magistrate Judge for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 13), the Commissioner's Memorandum in Opposition (ECF No. 18), Plaintiff's Reply (ECF No. 19), and the administrative record (ECF No. 12). For the reasons that follow, it is RECOMMENDED that the Court OVERRULE Plaintiff's Statement of Errors and AFFIRM the Commissioner's decision.

         Because the parties have adequately presented the facts and legal arguments in their briefs, Plaintiff's request for oral argument (ECF No. 13) is DENIED.

         I. BACKGROUND

         Plaintiff applied for security disability insurance benefits and supplemental security income in June 2014, asserting that two deteriorating discs at ¶ 3-L4 and L4-L5, back pain, muscle spasms, neuropathy, emphysema, anxiety, and depression constitute a disability, which began on March 15, 2014. (R. at 204-08, 209-17, 255.) Plaintiff's applications were denied initially and upon reconsideration. Plaintiff sought a de novo hearing before an administrative law judge. (R. at 144-45.) Administrative Law Judge Carrie Kerber (“ALJ”) held a video hearing on January 11, 2017, at which Plaintiff, who was represented by counsel, appeared and testified. (R. at 44-66.) A vocational expert also appeared and testified at the hearing. (R. at 67-71.) On February 8, 2017, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 18-34.) On October 16, 2017, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (R. at 1-6.) Plaintiff then timely commenced the instant action.


         A. Plaintiff's Testimony

         At the administrative hearing, Plaintiff testified that she lived with her mother. (R. at 45.) She had a driver's license but did not drive to the hearing. A friend brought her for the hour-long drive, in which she testified that her “back was hurting real bad.” (R. at 46.) She does not drive long distances. (Id.)

         After discussing her job history, Plaintiff testified that she believes she cannot work due to her back. “My back, it swells up real bad. I have real sharp pain in my back. It goes down to my right leg. My right leg locks on me [] and I can't get it to move. If I sit too long of a time my back hurts. If I stand too long of a time my foot locks up and I can't put pressure on it.” (R. at 57.) Plaintiff rated her pain severity at a level of 8 on a 0-10 visual analog scale. (R. at 59-60.) Plaintiff also testified to suffering from chronic obstructive pulmonary disease (COPD), she uses inhalers and smokes a half-a-pack of cigarettes a day. (R. at 58.)

         Plaintiff estimated that she can stand for approximately 20 minutes, sit for approximately 20-25 minutes, and walk for 1-2 blocks. (R. at 57-58.) She can lift approximately 5 pounds or a gallon of milk. (R. at 59, 63.) Plaintiff walks with a limp on her right leg. (R. at 66.)

         She spends a typical day watching TV and lying down. Plaintiff testified that she spent “half the day” lying on her back with a pillow between her legs to relieve her pain. (R. at 61.) Plaintiff is able to feed and dress herself, do basic housework, attend doctor's appointments independently, shop independently, and care for her dog without assistance. (R. at 62-64.) She likes to read cook books and play bingo, even though she cannot sit for a long period of time. (R. at 65.) Plaintiff testified that she visits with friends “probably twice a week.” (Id.) She reported having no problems getting along with others. (Id.)

         B. Vocational Expert Testimony

         Before the vocational expert (“VE”) testified at the administrative hearing, Plaintiff's counsel objected to him being deemed an expert in the area of determining job numbers. Plaintiff's counsel asked the VE to explain the methods that he uses to come up with job numbers. The VE responded, “I use the Bureau of Labor Statistics data. I use the O*NET and other federal government publications, including the Occupational Outlook Quarterly and I perform minimally three time per week labor market surveys for the States of Michigan and Ohio, contacting employers. I also look at various help wanted websites in my work as a vocational rehabilitation counselor, assisting people into placement into employment.” (R. at 68.) The ALJ overruled Plaintiff's counsel's objection finding the VE duly qualified based upon the information in the file and his testimony. (Id.)

         The VE testified that Plaintiff's past relevant work includes work as a nurse's aide, a medium semi-skilled job; a packer, a medium, unskilled job; and a picker, a medium, unskilled job. (R. at 68-69.)

         The ALJ proposed a series of hypotheticals regarding Plaintiff's residual functional capacity (“RFC”) to the VE. (R. at 69-70.) Based on Plaintiff's age, education, and work experience and the RFC ultimately determined by the ALJ, the VE testified that Plaintiff could not perform her past relevant work, but could perform approximately 555, 000 unskilled, light jobs in the national economy such as a packer, sorter, and inspector. (R. at 69.) The VE also testified that if the hypothetical individual would be off tasks 10% of the workday or miss more than one day of work a month, it would be work preclusive. (R. at 70.)


         A. Adil Yamour, M.D.

         Plaintiff initially treated with Dr. Yamour, on February 12, 2013 after re-acquiring medical insurance. She was seen for her history of degenerative disc disease in the lumbar spine. (R. at 507.) Plaintiff indicated to Dr. Yamour that she graduated from high school, attended technical school and was a state tested nursing assistant. (“STNA”) (R. at 491.)[1] On examination, Dr. Yamour found tenderness in the lower lumbar and right hip. (R. at 508.) Dr. Yamour assessed lumbago, ordered an MRI, and Plaintiff was given medication, Tramadol. (R. at 510-11.)

         A February 15, 2013, MRI of the lumbar spine showed disc desiccation and anterior spondylosis at ¶ 4-L5 with shallow disc displacement abutting but not compressing the thecal sac. The disc encroaches mildly into the floor of the foramina bilaterally. There was no evidence of nerve root compression. There was also disc desiccation and anterior spondylosis at ¶ 3-L4 with shallow protrusion. The findings result in mild narrowing of the floor of the foramina bilaterally without nerve root compression. Minimal flattening of the thecal sac by the protruding disc was noted. (R. at 516-17.)

         In a March 2013 examination, Plaintiff showed a normal range of motion in the bilateral lower extremities, with no evidence of joint tenderness or evidence of muscle atrophy. (R. at 492.) In October 2013, Plaintiff was found to maintain a normal gait and station, and she exhibited no evidence of joint erythema or limitations in ambulation with slight tenderness over the lumbar spine. (R. at 458.) By January 2014, Plaintiff was found to continue to exhibit slight tenderness over the lumbar spine and right hip. Her range of motion was intact over the lower back and extremities. (R. at 439.) In April 2014, Plaintiff reported her low back hurts all of the time and she “sometimes” rated her pain as a 10 out of 10 on an analog pain scale. Dr. Yamour diagnosed chronic lumbar/lumbosacral disc degeneration and began Plaintiff on the medication, Percocet. (R. at 426.) In June 2014, Plaintiff was found to have an intact range of motion, with no evidence of joint erythema or joint tenderness, despite her complaints of ongoing pain in the lower back and right lower extremity. (R. at 416.) When seen in May 2015, Plaintiff reported joint pain but denied joint stiffness, decreased range of motion, joint swelling, and erythema of the joints. (R. at 677.) Dr. Yamour referred Plaintiff to pain management for her chronic lumbar disc degeneration. (R. at 678.)

         B. Fayette County Memorial Hospital

         In August 2014, Plaintiff presented to the emergency department after falling on some steps which injured her low back and right shoulder. Examination showed spasms in the right low back. She was diagnosed with contusion of the right low back and lumbosacral strain. (R. at 635-42.) In September 2014, she returned to the emergency department with pain in her left shoulder and examination showed tenderness and limited range of motion. She was diagnosed with AC joint arthralgia. (R. at 642-52.)

         Plaintiff was evaluated for pain management in July 2015 by Timothy Mellish, PA-C. Mr. Mellish indicated Plaintiff was being evaluated for her low back pain with radiation to the right leg that had been ongoing for three years. Plaintiff rated her pain severity at a level of 8 on a 0-10 visual analog scale and described her pain as aching, constant and exacerbated by sitting for too long, bending and driving. Plaintiff reported her previous treatment included pain medication, baths and heating pads. (R. at 615.) Mr. Mellish observed tenderness along the lumbar facets worse on the right than on the left. A FABER Patrick test on the left elicited pain in the right part to her back and straight leg raise was positive on the right for radicular pain. Mr. Mellish diagnosed lumbar spondylosis and sacroiliitis and referred Plaintiff to physical therapy before beginning injection therapy. (R. at 616.)

         Anshuman Raj Swain, M.D., a pain management specialist, saw Plaintiff in August 2015 and noted she had been in physical therapy for two weeks and was having numbness, tingling and weakness in the right leg and left elbow. Plaintiff again rated her pain severity at a level of 8 on a 0-10 visual analog scale which she described worsened with getting up and down and improved with medication. Dr. Swain resumed her medication, Percocet, and asked Plaintiff to complete physical therapy after which Dr. Swain would determine what injection treatment would be indicated for Plaintiff. (R. at 617.)

         Plaintiff saw Mr. Mellish in September 2015, noting her pain was worse with sitting and transitioning and made better with ice. At that time, Plaintiff had completed four weeks of physical therapy and she felt it provided “some relief but not much.” Plaintiff was still experiencing numbness and weakness in the left arm as well as right sided weakness. Mr. Mellish refilled Plaintiff's prescription medication. (R. at 619.) X-rays of the lumbar spine were found to be unremarkable. (R. at 618.)

         Plaintiff attended 12 physical therapy sessions. Upon discharge, she subjectively reported “fair” improvement. Plaintiff was found to still have sacral torsion. It was recommended that she may benefit from more physical therapy after injections and pain is managed. (R. at 565-66.)

         When Plaintiff saw Mr. Mellish in November 2015, she reported the same aggravating factors of sitting and transitioning. On examination, Mr. Mellish found tenderness in the right lumbar facet and right facet loading which produced increased pain. Mr. Mellish ordered a series of facet nerve blocks. (R. at 621-22.) The nerve blocks were administered in December 2015 by Dr. Swain. (R. at 623, 719-25.) Plaintiff reported 50% relief from the first block for two days and no relief from the second block. Her symptoms continued to be aggravated by sitting. On examination, Mr. Mellish found tenderness in the right lumbar spine, right lumbar facet loading positive for low back pain, flexion biased posture, and palpable trigger points felt in the right lumbar muscular. Mr. Mellish ordered a third facet block of the lumbar spine due to his belief that Plaintiff has complications with muscle spasms causing her to be unable to have relief from the second block. (R. at 624-25.)

         In January 2016, Plaintiff was dismissed from the program for failing to present for a pill count. (R. at 560.)

         C. Marta ...

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