United States District Court, N.D. Ohio, Eastern Division
Donald C. Nugent
REPORT AND RECOMMENDATION
R. Knepp II United States Magistrate Judge
Brandon Votaw (“Plaintiff”) filed a Complaint
against the Commissioner of Social Security
(“Commissioner”) seeking judicial review of the
Commissioner's decision to deny disability insurance
benefits (“DIB”). (Doc. 1). The district court
has jurisdiction under 42 U.S.C. §§ 1383(c) and
405(g). This matter has been referred to the undersigned for
preparation of a report and recommendation pursuant to Local
Rule 72.2. (Non-document entry dated June 14, 2018).
Following review, and for the reasons stated below, the
undersigned recommends the decision of the Commissioner be
filed for DIB in June 2015, alleging a disability onset date
of February 15, 2015. (Tr. 185-86). His claims were denied
initially and upon reconsideration. (Tr. 102, 118). Plaintiff
then requested a hearing before an administrative law judge
(“ALJ”). (Tr. 128-29). Plaintiff (represented by
counsel), and a vocational expert (“VE”)
testified at a hearing before the ALJ on August 8, 2017. (Tr.
53-86). On October 16, 2017, the ALJ found Plaintiff not
disabled in a written decision. (Tr. 15-44). The Appeals
Council denied Plaintiff's request for review, making the
hearing decision the final decision of the Commissioner. (Tr.
1-6); see 20 C.F.R. §§ 404.955, 404.981.
Plaintiff timely filed the instant action on June 14, 2018.
Background and Testimony
1984, Plaintiff was 30 years old at his alleged onset date.
See Tr. 42, 185. At the time of the hearing, he
lived with his fiancé and her seven-year-old son. (Tr.
60). Plaintiff had past work as a cook. (Tr. 61-64).
believed he was unable to work due to problems walking,
difficulty moving his hands and feet due to numbness,
swelling, and stiffness, as well as back issues, anxiety, and
depression. (Tr. 65).
presented to the August 2017 hearing using a
recently-prescribed wheeled walker, and otherwise used a
cane, due to peripheral neuropathy and lumbar stenosis.
See Tr. 58, 71-73. Plaintiff testified his
physicians were not certain what caused his neuropathy. (Tr.
71). He started using a cane from his grandmother around 2015
or 2016; the cane was not prescribed, but no physician ever
told him not to use it. (Tr. 71-72). Plaintiff testified he
had fallen “at most” ten times since late 2015.
(Tr. 73). He started using the walker - prescribed by Dr.
Erin Tischner - two months prior. (Tr. 72). Plaintiff
elevated his legs about three times per day for about thirty
minutes on instructions from Dr. Tischner and his podiatrist;
he had swelling worsened by humid weather. (Tr. 65, 74-75).
testified to difficulty climbing stairs in his home.
See Tr. 73 (“A lot of time it feels like my
legs were like heavy weight, dead weight, just trying to get
them to lift up to go. Sometimes I'll get like stabbing
pain as I do that.”). Due to this, he slept downstairs
“at most” twice per week. (Tr. 73-74). When asked
if he could stand independently without holding on to
something, he responded: “It seems like I'm usually
always holding onto something.” (Tr. 74).
had a driver's license and was able to drive. (Tr. 61).
However, driving caused stiffness in his feet, and he
experienced numbness in his legs and lower back after about
30 to 45 minutes. (Tr. 70). Plaintiff went to the gym five
days per week for 45 minutes to one hour; he did water
aerobics on two or three days, and seated “light
lifting” five days per week. (Tr. 66). He also
sometimes rode a stationary bicycle. (Tr. 77). He also looked
after his stepson when he was not in school. (Tr. 66).
typical day, Plaintiff got up, showered, and “tr[ied]
to straighten up the house”. (Tr. 65). He testified he
could mop and do laundry (though someone else carried the
basket). (Tr. 66). He sometimes made dinner (Tr. 66), but his
fiancé did the grocery shopping (Tr. 68). Plaintiff
enjoyed cooking (Tr. 68-69), but experienced numbness and
tingling in his legs when standing to cook, so he rested in a
chair, or prepared some of the meal while sitting or holding
his walker (Tr. 76). Plaintiff estimated he could sit for 30
to 45 minutes. (Tr. 70). He estimated he could stand for 15
to 20 minutes, while holding onto his walker, and walk for 10
to 15 minutes with the walker. (Tr. 77).
February 2015, Plaintiff went to the emergency room with
anxiety symptoms (Tr. 316); Providers recommended psychiatric
follow-up. (Tr. 290).
August 2015, Plaintiff underwent a consultative examination
with Charles Frommelt, D.O. (Tr. 323-25). Plaintiff
complained of panic attacks and right lower extremity
problems. (Tr. 323). He reported problems with his right leg
for the prior 18 years, but denied falls, weakness, or
paresthesia. Id. Dr. Frommelt noted Plaintiff's
gait was abnormal, favoring his right leg and walking on the
lateral aspect of his foot; his stride was shortened. (Tr.
325). He had some decreased range of motion in his right leg,
but normal sensation, strength, and reflexes. (Tr. 324-25).
in August 2015, Plaintiff established care with Heather
Williams, F.N.P. (Tr. 392-96). He reported paresthesia in his
legs which began a few months prior, and paresthesia in his
left arm that began a few weeks prior. (Tr. 392). It was
worse with walking and standing, and relieved by sitting with
his feet up. Id. He reported difficulty going up
stairs, but attributed that to his weight. Id. On
examination, Ms. Williams noted Plaintiff had pain with
palpation and with range of motion in his lower back, and he
was unable to perform a straight leg raise. (Tr. 393). Ms.
Williams assessed, inter alia, paresthesia and back
pain; she prescribed Naproxen, and ordered lab work. (Tr.
October 2015 ankle brachial test showed no evidence of
significant peripheral arterial disease in Plaintiff's
legs. (Tr. 399). A nerve conduction study revealed normal
sensory responses, but motor nerves with reduced amplitude
which “can be consistent with axonal loss or muscle
atrophy.” (Tr. 397). An electromyogram
(“EMG”) “suggest[ed] a peripheral
neuropathy that is axonal.” (Tr. 398).
next saw Erin Tischner, D.O. in February 2016. (Tr. 436-38).
He complained of, inter alia, bilateral lower
extremity paresthesia “which [had] been present for
years”. (Tr. 436). She noted Plaintiff had recently
begun taking gabapentin. Id. Dr. Tischner noted
“bilateral trace edema” in Plaintiff's legs.
(Tr. 437). She assessed, inter alia, unspecified
polyneuropathy and low back pain, instructed Plaintiff to
increase his gabapentin, and ordered a lumbar spine MRI. (Tr.
437-38). Dr. Tischner noted that labs and a lumbar spine
x-ray did not show any explanation for Plaintiff's
neuropathy. (Tr. 438).
following month, Plaintiff reported low back pain, as well as
weakness, numbness, and paresthesia in his legs. (Tr. 433).
On examination, Dr. Tischner noted exaggerated lordosis in
Plaintiff's lower back and paraspinal spasm. (Tr. 434).
She continued to diagnose unspecified polyneuropathy and
refilled Plaintiff's gabapentin prescription.
March 2016, Plaintiff saw endocrinologist Ahmad Al-Shoha,
M.D., for hyperthyroidism. (Tr. 460-69). On examination, Dr.
Al-Shoha noted normal strength, reflexes, coordination, and
gait; however, Plaintiff also had decreased sensation in both
feet. (Tr. 466).
April 2016 MRI showed multilevel discogenic changes with
bilateral recess stenosis at ¶ 3-L4 and mild central
canal stenosis at ¶ 4-L5 and S1, as well as foraminal
encroachment on the left at ¶ 3-L4. (Tr. 442).
underwent an orthopedic consultation with Rajiv Taliwal,
M.D., in June 2016. (Tr. 415-19. Plaintiff “ambulate[d]
with difficulty”, with an “antalgic and waddling
gait” on both sides. (Tr. 417). His posture was noted
to be “unbalanced”. Id. Plaintiff used a
cane “for mobilization” and reported falling
twice within the prior six months due to “legs giving
out”. (Tr. 415). On examination, Plaintiff had stiff
and painful range of motion in his low back, but full muscle
strength, normal sensation, and normal reflexes in the legs.
(Tr. 417-18). Dr. Taliwal assessed spinal stenosis of the
lumbar region, and degeneration of the lumbar or lumbosacral
intervertebral disc. (Tr. 418). He advised Plaintiff to take
over-the-counter anti-inflammatory and pain medications, and
to continue a home exercise program; he also noted Plaintiff
“may benefit from [physical therapy] and weight loss as
well as epidural injections.” Id.
also returned to Dr. Tischner in June 2016 with continued
complaints of pain, weakness, numbness, and paresthesia in
his legs. (Tr. 429). Plaintiff neurological examination
revealed no focal signs. (Tr. 430). Dr. Tischner continued to
diagnose unspecified polyneuropathy and low back pain, and
refilled Plaintiff's gabapentin prescription.
2016, Plaintiff saw Justin Drummond, M.D., a pain management
physician, for low back pain. (Tr. 451-54). Plaintiff
reported low back pain radiating to his hips, worse with
standing, lifting, and walking. (Tr. 451). He also reported
neuropathy in his feet, and minimal relief from gabapentin
and naproxen. Id. Dr. Drummond noted Plaintiff moved
around the room “with difficulty”, had pain with
palpation and facet loading, and had a positive straight leg
raise test bilaterally. (Tr. 451-53). Dr. Drummond described
Plaintiff's gait as “very abnormal . . . right knee
straight out without bending with a cane.” (Tr. 453).
He had diminished sensation to light touch in his left
lateral leg, and “was grunting”, but able to
support his weight when standing. Id. He had normal
patellar reflexes. Id. Dr. Drummond noted
Plaintiff's “exam[ination] seem[ed]
disproportionate to EMG and MRI findings as patient struggled
with dorsiflexion and extension/flexion at knees.”
Id. Dr. Drummond assessed other chronic pain, and
observed Plaintiff “use[d] a cane for ambulation
secondary to pain.” Id. Dr. Drummond noted
Plaintiff had been referred for consideration of lumbar
epidural steroid injections, but Plaintiff “would like
to think about it”. (Tr. 454).
endocrinology visit in July 2016, Dr. Al-Shoha noted similar
physical findings to his previous visit, including continued