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Votaw v. Commissioner of Social Security

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

July 8, 2019


          Judge Donald C. Nugent


          James R. Knepp II United States Magistrate Judge


         Plaintiff 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 affirmed.

         Procedural Background

         Plaintiff 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. (Doc. 1).

         Factual Background [1]

         Personal Background and Testimony

         Born in 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).

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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).

         On a 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).

         Relevant Medical Evidence

         In February 2015, Plaintiff went to the emergency room with anxiety symptoms (Tr. 316)[2]; Providers recommended psychiatric follow-up. (Tr. 290).

         In 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).

         Later 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. 394).

         An 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)[3].

         Plaintiff 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).

         The 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. Id.

         Also in 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).

         An 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).

         Plaintiff 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.

         Plaintiff 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. Id.

         In July 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).

         At an endocrinology visit in July 2016, Dr. Al-Shoha noted similar physical findings to his previous visit, including continued ...

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