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Lewis v. Commissioner of Social Security

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

July 8, 2019

ANNA M. LEWIS, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Judge Sarah D. Morrison

          REPORT AND RECOMMENDATION

          ELIZABETH A. PRESTON DEAVERS CHIEF UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Anna M. Lewis (“Plaintiff”), brings this action under 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her application for Social Security Disability Insurance benefits (“SSDI”). This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 8), the Commissioner's Memorandum in Opposition (ECF No. 10), Plaintiff's Reply (ECF No. 11), and the administrative record (ECF No. 6). For the following reasons, it is RECOMMENDED that the Court REVERSE the Commissioner's nondisability finding and REMAND this case to the Commissioner under Sentence Four of § 405(g).

         I. BACKGROUND

         Plaintiff applied for disability benefits on June 22, 2015.[1] (R. at 175-81.) Plaintiff's claim was denied initially and upon reconsideration. (R. at 1-3, 36-48.) Upon request, a hearing was held on August 25, 2017, in which Plaintiff, represented by counsel, appeared and testified.[2] (R. at 53-81.) A vocational expert also appeared and testified at the hearing. (R. at 77-81.) On December 27, 2017, Administrative Law Judge Timothy Gates (“the ALJ”) issued a decision finding that Plaintiff was not disabled at any time after December 31, 2013, the alleged onset date.[3] (R. at 36-48.) On May 13, 2018, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (R. at 1-3.) Plaintiff then timely commenced the instant action. (ECF No. 1.)

         II. HEARING TESTIMONY

         A. Plaintiff's Testimony

         Plaintiff testified that she is married with two daughters, ages nineteen and fifteen. (R. at 57.) She further testified that her nineteen-year-old daughter lived with her. (Id.) Plaintiff stated she had a high school diploma and worked as a Registered Nurse (“RN”) after obtaining her degree in 1995. (R. at 58.) Plaintiff testified that she worked as an RN at a couple different facilities. (Id.) She further testified that sometime from 1998 to 2002 she was working at Fairfield Medical Center at one point as an RN case manager, another point as a floor nurse, and another point as a visiting nurse. (R. at 58-59.) She stated that in the visiting nurse position she “had a case load of [her] own patients that [she] saw in their homes.” (R. at 59.) Plaintiff further stated that she worked as a visiting nurse from about 2002 to 2007. (R. at 60.) Plaintiff testified that as a visiting nurse the heaviest amount of weight she lifted was “a person.” (R. at 61.) She further testified that lifting a patient could involve using gait belts. (Id.)

         Plaintiff stated that from 2007 to 2013 she worked for Fairhope Hospice as an on-call nurse from 4:00 pm to 8:00 am the following day. (Id.) In that position, Plaintiff testified that she “went to [a] patient's home if they were in a pain crisis” and that she “did a lot of death calls” because when someone dies “the nurse goes and takes care of the family and the patient's body and gets it ready to go wherever they've chosen.” (R. at 61-62.) Plaintiff further testified that in that position the heaviest amount of weight she lifted was a person who had died. (R. at 62.)

         Plaintiff stated she has not worked since 2013 because after she had her back surgery she “did well for a few months” but “then [she] woke up [on] a morning in August [2013] and all the pain that [she] had prior [returned].” (Id.) Plaintiff further stated that she called her doctor (“probably Dr. Degenova”) who “ordered some testing.” (R. at 63.) Plaintiff testified that the doctor told her that she “had an abundance buildup of scar tissue that was wrapping around nerves and . . . an area above [her] surgery was bulged or herniated.” (Id.) Plaintiff then testified that she was sent to Dr. Meszaros, who is a neurologist. (Id.)

         Plaintiff stated Dr. Meszaros told her she could either have a spinal stimulator implanted or she could get a continuous Morphine pain pump. (Id.) Plaintiff testified that she chose the spinal stimulator and a temporary one that was “30 to 50% effective” was implanted in October 2015. (R. at 63-64.) Plaintiff stated that the spinal stimulator “helped a little bit.” (R. at 63.) Plaintiff then had a permanent spinal stimulator implanted in February 2016. (R. at 63-64.) Plaintiff stated she must turn the spinal stimulator “up to the max settings” for pain relief. (Id.) Plaintiff further stated that the spinal stimulator “hurts worse by the time [she is] done [with it] than it [helps her].” (R. at 64.) Plaintiff testified that, therefore, she does not use it. (Id.) Plaintiff testified that if she had the pain pump it would be “a needle going and a catheter going into one of [her] veins.” (R. at 65.) She further testified that the pain pump would provide “Morphine around the clock.” (Id.) Plaintiff stated that she is “putting that off” because she is “afraid to do it.” (Id.)

         Besides the back problems, Plaintiff testified that she has bipolar disorder which Dr. Menosky treats with medication. (Id.) Plaintiff further testified that the medication Latuda “seems to help a little bit” so that she is not “hiding in [her] house 24 hours a day.” (R. at 66.) Plaintiff stated she is to “the extreme of . . . depression” and that it is hard for her to “do any daily activities.” (Id.) Plaintiff testified that she must sleep in a reclining chair because she “can't lay flat” because “the nerves make [her] legs go into spasms, ” which she describes as “very painful.” (Id.)

         Plaintiff stated that she was able to stand in one place before needing to sit down “25 to 45 minutes at the most.” (Id.) She further stated that “the bending . . . is impossible.” (Id.) Plaintiff testified that when she is at a shopping mall and goes into a store then she “usually [has] to sit down for a little while” but that she doesn't “even go anymore” because “it's impossible” and “not enjoyable, ” but that if she does go with her kids she has to take muscle relaxers. (Id.)

         When walking or standing, Plaintiff testified that she will “use a cart or [her] husband” for support. (R. at 66-67.) Plaintiff further testified that if she goes somewhere that she knows she will be at for a long time she uses “one of those motorized things.” (R. at 67.) Plaintiff stated that she is unable to lift a case of water. (Id.) Plaintiff testified that she has a driver's license and will drive “short distances” every other day to places such as the gas station, her mother-in-law's place, the grocery store, and the dollar store. (R. at 68.) Plaintiff stated that her daughters and husband help her with “everything, ” including cooking, laundry, and cleaning. (R. at 69.)

         Plaintiff testified that she has problems interacting with other people because she gets “really nervous” and will “break out into . . . an anxiety attack.” (R. at 68.) Plaintiff testified that for this reason she avoids crowds. (Id.) Plaintiff further testified the only friend she likes to socialize with is her mom and she is not involved in any clubs or organizations. (R. at 69.) Plaintiff stated that she goes to her child's school events if she can. (Id.) She stated that she went to her daughter's graduation but had to leave early, and that if she goes to her other daughter's softball games she would only go to part of the game. (Id.) In terms of interacting with others in the work environment, Plaintiff testified that she had no problem getting along with others or interacting with others. (Id.)

         In terms of mental health, Plaintiff testified that at one point she was in therapy, but she has not “done it in a while” because “it didn't work.” (R. at 71.) She further testified that to alleviate pain she will “walk around the base of [her] house” and use a heating pad, in addition to her pain medication. (Id.) Plaintiff stated that if she takes medication in the morning, around 1:00 pm she must “take some as needed medicine.” (R. at 72.) Plaintiff further stated that if she does anything such as going to the store she takes more medicine, as well as muscle relaxers. (Id.) Plaintiff also testified that she must concentrate on walking or she will “trip over [her] feet” and fall. (Id.)

         B. Vocational Expert Testimony

         Teresa Trent testified as the vocational expert (“VE”) at the August 2017 hearing. (R. at 77-81.) The VE testified that Plaintiff's past work would be described as nurse case manager and hospice nurse, which are both classified as skilled with exertional level as medium and very heavy as performed. (R. at 77.) Assuming a hypothetical individual with that past work and Plaintiff's age and education, who is limited to a light exertional level, can occasionally climb ramps and stairs but never ladders, ropes, or scaffolds, can occasionally stoop, kneel, crouch, and crawl, with no exposure to workplace hazards such as unprotected heights or moving mechanical parts, with occasional interaction with co-workers and the general public, who can adapt to a routine work environment with infrequent change, without demands for sustaining past pace or strict production quotas, the VE testified that this individual would not be able to perform Plaintiff's past work. (R. at 77-78.) The VE further testified, however, that this individual could perform work as a routing clerk, inspector, and mail clerk. (R. at 78.)

         Assuming a hypothetical individual of Plaintiff's age and education who is limited to a sedentary exertional level, who can stand and walk only up to two hours in an eight-hour work day, who can sit for up to six hours in an eight-hour work day, who is limited to lifting and carrying up to ten pounds occasionally but less than ten pounds frequently, who has the same postural limitations as the previous hypothetical but can only occasionally balance, who has the same environment and mental limitations as the previous hypothetical, the VE testified that this individual could perform work as a bench assembler, packager, and sorter. (R. at 78-79.)

         Assuming a hypothetical individual with the same limitations as the previous two hypotheticals, but who would be absent from work two days per month, the VE testified that this individual would be precluded from work because while missing up to one day per month is typically allowed anything beyond that becomes work preclusive over a period of time. (R. at 79.) Assuming a hypothetical individual with the same limitations as the first two hypotheticals, but who would be off task greater than ten percent of the time in an eight-hour work day, the VE testified that this individual would be precluded from work because anything beyond ten percent off task becomes work preclusive over a period of time. (R. at 79-80.)

         III. MEDICAL RECORDS

         A. State Agency Evaluations

         On September 10, 2015, state agency physician, Michael Delphina, M.D. reviewed the record and assessed Plaintiff's physical functioning capacity for the relevant time period. (R. at 82-95.) Dr. Delphina opined that Plaintiff could lift and/or carry twenty pounds occasionally and ten pounds frequently; stand and/or walk about six hours in a workday; and sit about six hours in a workday. (R. at 90.) Dr. Delphina opined that Plaintiff could never climb ladders, ropes, or scaffolds; could occasionally climb ramps/stairs or stoop; and did not have postural limitations for balancing, kneeling, couching, or crawling. (R. at 90-91.) Dr. Delphina based Plaintiff's postural limitations on her history of back pain with limited range of movement in her lumbar spine. (R. at 91.) Dr. Delphina also found that Plaintiff should avoid all exposure to hazards (machinery, heights, etc.). (Id.) On December 17, 2015, William Bolz, M.D. reviewed Plaintiff's records upon reconsideration and essentially affirmed Dr. Delphina's assessment. (R. at 96-110.)

         B. Clinical Examinations and Medical Procedures

         Plaintiff underwent an MRI scan on January 15, 2014 which was ordered by Martin Menosky, M.D. (R. at 320-21.) The following outlines the radiology interpretation for Plaintiff's MRI:

The vertebrae are intact and are normally aligned. Marked disc space narrowing and disc desiccation is again seen at L5-S1 and to a greater degree at L4-5, similar to the previous exams. Type II fatty discogenic and plate narrow changes at L4-5 are again noted, the vertebrae otherwise have normal narrow signal intensity. . . .
There is no disc bulging or protrusion or central or neural foraminal stenosis at any level . . . .
At L3-4 there is some very mild broad bulging of the disc which has developed since the previous exam. . . . There is no significant neural foraminal stenosis with ...

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