United States District Court, N.D. Ohio, Eastern Division
CAMILLE M. WRIGHT, Plaintiff,
NANCY A. BERRYHILL, Acting Comm'r of Soc. Sec., Defendant.
A. BARKER JUDGE.
REPORT AND RECOMMENDATION
A. RUIZ MAGISTRATE JUDGE
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.
28, 2015 and July 30, 2015, Plaintiff filed her applications
for POD, DIB, and SSI, alleging a disability onset date of
July 7, 2015. (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).
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).
Relevant Medical Evidence
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).
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).
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.
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.”
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.
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).
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).
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).
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.
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.
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).
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).
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.
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.
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.
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).
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).
17, 2017, Plaintiff reported she was happy after receiving