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Wright v. Berryhill

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

July 1, 2019

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




         Plaintiff, Camille M. Wright (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 July 28, 2015 and July 30, 2015, Plaintiff filed her applications for POD, DIB, and SSI, alleging a disability onset date of July 7, 2015.[1] (Transcript (“Tr.”) 265-271, 276-284). The application was denied initially and upon reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 175-210). Plaintiff participated in the hearing on July 21, 2017, was represented by counsel, and testified. (Tr. 40-79). A vocational expert (“VE”) also participated and testified. Id. On November 15, 2017, the ALJ found Plaintiff not disabled. (Tr. 12-30). On May 29, 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 July 25, 2018, Plaintiff filed a complaint challenging the Commissioner's final decision. (R. 1). The parties have completed briefing in this case. (R. 10 & 14).

         Plaintiff asserts the following assignments of error: (1) whether the ALJ improperly ignored evidence that Plaintiff requires the use of a cane; and (2) whether the opinions of Plaintiff's treating physician were afforded appropriate weight. (R. 10, PageID# 715).

         II. Evidence

         A. Relevant Medical Evidence[2]

         1. Treatment Records

         On July 7, 2015, Plaintiff was seen by Bhupendra Patel, M.D., for a complaint of pain in the right ankle after a slip and fall. (Tr. 382-384). His impression was a “comminuted displaced fracture involving supramalleolar aspect distal fibula, ” “[c]omplete fracture of medial malleolus displaced medially, ” and “anterior and medial displacement of distal tibia in relation to talar dome.” (Tr. 384).

         On July 21, 2015, Plaintiff underwent surgery involving an “[o]pen reduction, internal fixation bimalleolar fracture, right lower extremity, ” and “[r]epair of deltoid ligament” performed by Audley M. Mackel, M.D. (Tr. 416).

         On August 3, 2015, Plaintiff complained of 3 out of 10 pain at a follow-up examination. (Tr. 435). She was given a fiberglass cast, and Plaintiff was to continue physical therapy. (Tr. 436).

         On December 7, 2015, physical therapist Josepha Schenkelberg stated that Plaintiff entered the clinic ambulating with a standard, non-adjustable wooden cane that was too short for her, which used to be her grandmother's. (Tr. 491). On objective examinations, Ms. Schenkelberg noted deviations in Plaintiff's gait and that her functional strength allowed Plaintiff to “walk no farther than 1 city block.” (Tr. 491).

         On December 17, 2015, at a follow-up with Dr. Mackel, Plaintiff's “weight bearing status is now non weight bearing and weight bearing as tolerated.” (Tr. 482). Plaintiff's gait was noted as “mildly antalgic, limping on the right side, and outtoeing, ambulating with assistance, ambulating without assistance.” (Tr. 483). Plaintiff was prescribed Tylenol-Codeine and Naprosyn, and Dr. Mackel's plan included “Cane for ambulation.” Id.

         On December 18, 2015, Plaintiff began mental health treatment with psychiatrist Jaina Amin, M.D. (Tr. 637-641). On mental status examination, Plaintiff had a depressed and anxious mood, a depressed and tearful affect, organized and logical thought process, passive suicidal ideation with no plan or intent, had no hallucinations, was oriented x 3, had no deficits in m emory or attention/concentration, fair insight, and impaired judgment. (Tr. 640). Dr. Amin's impression was severe depression and PTSD. (Tr. 640-641). She prescribed a higher dosage of Effexor, and started Plaintiff on Prazosin. (Tr. 641).

         On January 22, 2016, notes from a telephone encounter with physical therapist Schenkelberg reveal the following:

Patient called PT on l /21 /2016 to inquire about her script for a standard cane. PT … [c]alled patient's daughter who is listed as emergency contact. Gave daughter the message that the script for the cane is here and PT was going to issue on 1/28/2015 or 1/13/2016 when patient had appointments, but she no showed both appointments. Told daughter that if her mom wants the cane to make an appointment with us and then it will be issued to her.

(Tr. 499) (emphasis in original).

         On February 5, 2016, Plaintiff told physical therapist Schenkelberg she had been non-compliant with her appointments due to transportation hardships, and because she cares for both of her elderly parents. (Tr. 496). Plaintiff stated she was improved with walking, stair negotiation and her home exercise program. Id. She used a cane during gait training. (Tr. 497-498).

         On February 12, 2016, Plaintiff was seen by Dr. Amin. (Tr. 629-632). Plaintiff's presentation on mental status examination remained largely unchanged since her December of 2015 examination, except that her judgment improved to fair. (Tr. 631). Plaintiff was prescribed Clonazepam for anxiety. Id.

         On April 6, 2016, physical therapist Schenkelberg noted Plaintiff was seen three times over a two-month period for gait training, neuromuscular re-education, and therapeutic exercise. (Tr. 560). The treatment plan called for two visits per week for six weeks. Id. She was unable to assess Plaintiff's status with respect to goals, and noted Plaintiff was discharged because she had not returned to therapy or scheduled follow-up appointments. Id.

         On May 27, 2016, Plaintiff was seen by Dr. Amin. (Tr. 625-628). Plaintiff reported that her medications were helping a little with anxiety. (Tr. 625). Plaintiff's presentation on mental status examination remained largely unchanged since February of 2015. (Tr. 627). Plaintiff was restarted on Venlafaxine, and started on Klonopin. (Tr. 627-628).

         On July 21, 2016, Plaintiff was seen by Desiree Paschal, LPCC. (Tr. 668-670). Plaintiff reported depression, anxiety, feeling overwhelmed, having low energy, weight loss, hopelessness, and feelings of guilt. (Tr. 668).

         On August 18, 2016, Plaintiff reported to Dr. Amin that she was burning herself, but denied suicidal ideation. (Tr. 618). On mental status examination she had a depressed and irritable mood, full affect, poor insight, and fair judgment. (Tr. 619-620).

         On September 20, 2016, Plaintiff reported to the Emergency Room (“ER”) using a cane, and reported being struck by a vehicle the previous evening. (Tr. 520). She was discharged the same date. (Tr. 525). Plaintiff had “some pain to palpation of the R hip, ” but could ambulate. Id. Plaintiff's neurological examination was completely benign, a head CT scan and pelvic x-ray were also unremarkable. Id. She was given a prescription for Tramadol and sent home. Id.

         On September 22, 2016, Plaintiff reported panic attacks to Dr. Amin. (Tr. 615). On mental status examination, Plaintiff had a full affect, anxious mood, and fair insight and judgment. (Tr. 617).

         On September 28, 2016, Plaintiff was seen for complaints of right hip, right lower extremity, right hand, and lower back pain. (Tr. 539-541). Claro Caluya, M.D., noted that she had an antalgic gait favoring the right lower extremity. (Tr. 540). Plaintiff was advised to use a heating pad, take hot showers, and to engage in a home exercise-stretching program. (Tr. 541) She was referred to a massotherapist, was to begin a course of passive physical therapy three times a week, and prescribed Naproxen and Percocet. (Tr. 611).

         On December 6, 2016, Plaintiff complained of 10 of 10 pain in her right hip and right leg. (Tr. 542). Chantal Dothey, M.D., noted Plaintiff could stand erect and walk with a normal gait. (Tr. 544). Dr. Dothey believed Plaintiff's long-term prognosis was favorable, “but because of the unpredictability of soft tissue injuries, an accurate assessment of future periods of symptoms and disabilities cannot be made.” (Tr. 545).

         On May 17, 2017, Plaintiff reported she was happy after receiving ...

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