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Hurlbut v. Commissioner of Social Security

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

July 9, 2019

AMY L. HURLBUT, Plaintiff,




         Plaintiff, Amy L. Hurlbut, 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 disability insurance benefits and supplemental security income. This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 14), the Commissioner's Memorandum in Opposition (ECF No. 20), and the administrative record (ECF No. 9). Plaintiff did not file a Reply. For the reasons that follow, it is RECOMMENDED that Plaintiff's Statement of Errors be OVERRULED and that the Commissioner's decision be AFFIRMED.

         I. BACKGROUND

         In April 2014, Plaintiff filed applications for both supplemental security income and disability insurance benefits, alleging that she had been disabled since March 30, 2014. (R. at 249-64.) Plaintiff's application was denied initially and upon reconsideration. (R. at 152-78.) Plaintiff sought a de novo hearing before an administrative law judge. (R. at 179-80.) Administrative Law Judge Carrie Kerber (“ALJ”) held a hearing on February 21, 2017, at which Plaintiff, who was represented by counsel, appeared and testified. (R. at 48-90.) On March 30, 2017, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 25-40.) On February 23, 2018, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (R. at 1-7.) Plaintiff then timely commenced the instant action.


         A. Plaintiff's Testimony

         Plaintiff testified at the administrative hearing that she was thirty-six years old on the date of the administrative hearing and that she was approximately five feet, one inch tall, and weighed approximately 185 pounds. (R. at 55.) Plaintiff lives with her mother and step-father. (R. at 56.) Plaintiff has her driver's license and drives to get groceries “or go to the food place. The Job and Family Services or the Social Security.” (Id.) Plaintiff receives Medicaid assistance. (R. at 56-57.)

         Plaintiff received a college degree as a Certified Nursing Assistant and was certified in Missouri and North Carolina where she worked as a nursing assistant. (R. at 57, 60-62.) Before she became certified, she worked as a home health aide. (R. at 61-62.) Plaintiff also attended school to become a physical therapy assistant but did not finish that degree. (R. at 57.) Plaintiff worked at Walmart as a stock clerk and a deli worker. (R. at 58-60.)

         Plaintiff testified about her typical day and explained that she has difficulty getting out of bed sometimes. (R. at 64-65.)[2]

         Plaintiff testified that her biggest problems are her fatigue and constant pain. (R. at 69.) Although she has pain everywhere, her pain is located mostly in her upper body. (Id.) At the time of the hearing, Plaintiff was taking Paxil for anxiety, panic attacks, and headaches, and taking ibuprofen for headaches. (R. at 70.) She stopped taking other medications because they made her heart race and made her shake. (Id.)

         Plaintiff sometimes attends religious services, attending approximately once a month. (R. at 72.) She cannot go to the morning services because of problems of getting out of bed. (Id.) Plaintiff testified that she spends the entire day in bed approximately four times a month. (R. at 72-73.)

         Plaintiff is able to sweep with a broom and dust pan with a long handle for approximately twenty minutes. (R. at 66.) Plaintiff prepares meals in the microwave for herself and does her own grocery shopping. (Id.) When she is at the grocery store, most of the times she walks but she will use a motorized chair if she has to walk more than thirty minutes. (R. at 66-67.) Plaintiff does her own laundry but does not carry the laundry basket down to the basement where the front-loading laundry machine is located. (R. at 67-68.) Plaintiff is able to sit and fold laundry. (R. at 69.) Plaintiff used to help with yard maintenance by picking up sticks, mowing, weeding, cleaning gutters, but has not done that since her symptoms flared up around 2014. (R. at 68.)

         Plaintiff reads magazines and books for entertainment but many times has to re-read what she has read. (R. at 73-74.) She testified that she has the same problem watching television or movies and will space out and not know what is going on in the show. (R. at 74.) The previous year, Plaintiff went with her mother who drove to North Carolina. (R. at 74-75.) She was there for about a week and “pretty much just chilled there.” (R. at 75.) She did not have the energy to go shopping and keep up with everyone. (Id.) Plaintiff testified that when she returns from vacation she crashes and indicated that “I've had to learn not to push it all the time because I'll end up in a bed and I get out.” (Id.)

         Plaintiff goes to sleep around 2:00 or 3:00 in the morning and get up around 11:00 a.m. or 12:00 p.m. (R. at 76.) She naps between two and six hours a day depending on how tired her body is. (Id.) Plaintiff testified that she sometimes falls and is not sure if that is a result of a combination of fatigue and being dizzy. (R. at 79.) Plaintiff further testified that she never had fatigue before getting multiple sclerosis. (R. at 80.)

         B. Vocational Expert Testimony

         Joseph Thompson testified as a vocational expert (“VE”) at the February 21, 2017, administrative hearing. (R. at 84-89.) The VE testified that Plaintiff's past relevant work included a nursing assistant (very heavy as performed), deli worker, home health aide, and stock clerk, which is heavy as performed and semi-skilled position. (R. at 86.)

         The ALJ proposed a series of hypothetical questions regarding a hypothetical individual with Plaintiff's age, education, and vocational background. (R. at 86-89.) The VE testified that such an individual with the residual functional capacity (“RFC”) the ALJ ultimately assessed for (except with the ability to perform a full range of work at the light exertional level) could not perform Plaintiff's past employment due to exertion and skill level. (R. at 86-87.) Such an individual with a sit/stand capability could, however, perform 140, 000 light, unskilled jobs in the national economy, including the representative jobs of production inspector, packer, and assembler. (R. at 87.) The individual could also perform over 50, 000 sedentary, unskilled jobs in the national economy, including representative jobs of bench worker, bonder, and assembler. (Id.) The VE testified that those jobs would not be available at either the light or sedentary exertional level if the individual was to be absent from work four days per month. (R. at 87-88.) The VE further testified that the tolerance for being off task would be twenty percent, which would include scheduled breaks in the morning and afternoon, a thirty-minute lunch, and additional unscheduled breaks of one to two times per eight-hour shift. (R. at 88.)


         Douglas Woo, M.D., a neurologist, began treating Plaintiff on March 12, 2015. (R. at 652-59.) Plaintiff presented with complaints of multiple sclerosis, complaining of fatigue, weight gain, falling asleep during the day, frequent nocturia, sleep disruption from pain, difficulty with bright lights, impaired night vision, dry mouth, shortness of breath, productive cough, presyncope, chronic constipation, pain in joints, depression, and headaches. (R. at 653- 54.) Upon examination, Dr. Woo noted no distress but multiple focal areas of pain to palpation over bilateral neck consistent with myofascial trigger points. (R. at 655.) Noted impressions by Dr. Woo included multiple sclerosis, myalgias due to myofascial trigger points and osteoarthritis in neck/skull base, and fatigue and memory loss. (R. at 656.) Dr. Woo recommended that she continue with her Tysabri infusions for her multiple sclerosis. (Id.)

         On May 21, 2015, Plaintiff declined a Tysabri infusion, reporting that she had decided to discontinue her infusions. (R. at 647-48.) Upon her request, Dr. Woo spoke with Plaintiff and discontinuation paperwork was completed for Dr. Woo's signature. (R. at 648.)

         On January 24, 2016, Plaintiff presented to Dr. Woo for a check-up for her multiple sclerosis, reporting complaints of fatigue and pain in the back, neck, and shoulders. (R. at 664.) Since her last visit in March 2015, Plaintiff denied any symptoms of breakthrough clinical relapse or significant progressive neurologic decline. (R. at 665.) Dr. Woo noted that Plaintiff was not on any disease-modifying therapy for multiple sclerosis. (Id.) Plaintiff reported increased fatigue with the cold weather. (R. at 666.) Upon examination, Dr. Woo noted multiple focal areas of pain to palpation over bilateral neck base consistent with myofascial trigger points but normal sensation, movement, strength, and gait and her multiple sclerosis was currently clinically stable. (R. at 668-70.) Dr. Woo also assessed that Plaintiff had immediate recall, working memory, and long-term memory intact. (R. at 668.) Dr. Woo noted that Plaintiff's multiple sclerosis was currently clinically stable. (R. at 670.) Dr. Woo opined that her fatigue was likely multifactorial from a combination of multiple sclerosis, pain from myalgias, sleep disruption from pain, vitamin D deficiency, and mood disorder and that he would continue to monitor it. (Id.) He would defer starting any disease-modifying therapy for now because she was not currently interested in being on anything. (Id.) Dr. Woo noted that he would schedule a MRI of the brain. (Id.)

         Upon examination on July 11, 2016, Dr. Woo again noted multiple focal areas of pain to palpation over bilateral neck and left upper back consistent with myofascial trigger points but normal sensation, movement, strength, and gait. (R. at 773-75.) Dr. Woo continued to defer starting any disease modifying therapy for Plaintiff's multiple sclerosis. (R. at 775.)

         On July 18, 2016, Dr. Woo completed a Mental Impairment Questionnaire. (R. at 782- 84.) Dr. Woo recorded diagnoses of attention deficit disorder / memory loss and multiple sclerosis. (R. at 782.) Dr. Woo opined that Plaintiff would be absent from work more than four days per month. (id.) Dr. Woo assessed marked limitation in her ability to perform six work activities. (R. at 783-84.) Dr. Woo assessed only moderate limitations in her ability to understanding, remember, and carry out very short and simple instructions and perform at a consistent pace without an unreasonable number and length of rest periods. (Id.) While he assessed Plaintiff with marked limitation/difficulty in maintaining concentration, persistence, or pace, Dr. Wood determined that Plaintiff had no limitations in activities of daily living or in maintaining social functioning. (R. at 784.)

         Plaintiff presented to Dr. Woo on December 7, 2016, with complaints of multiple sclerosis. (R. at 808-15.) Upon examination, Dr. Woo noted multiple focal areas of pain to palpation over bilateral neck base consistent with myofascial trigger points but normal sensation, movement, strength, and gait. (R. at 811-13.) Dr. Woo noted that Plaintiff's language was fluent with intact repetition and comprehension and that her immediate recall, working memory, and long-term memory were intact. (R. at 812.) Dr. Woo performed a trigger point injection in connection to myalgia/myofascial pain. (R. at 813.) Dr. Woo noted that he would send for a repeat brain MRI and would defer starting Plaintiff on a disease-modifying therapy for her multiple sclerosis until the results are known. (R. at 814.)

         On December 19, 2016, Dr. Woo complete a Multiple Sclerosis Residual Functional Capacity questionnaire. (R. at 801-06.) Dr. Woo identified several symptoms, including fatigue, balance problems, poor coordination, weakness, unstable walking, spasticity, bladder problems, pain, difficulty remembering, depression, emotional ability, difficulty solving problems, problems with judgment, and shaking tremor and/or speech/communication difficulties. (R. at 801.) Dr. Woo noted that Plaintiff did not have disorganization of motor function with sustained disturbance of gross and dexterous movement or of gait and station and did not have significant reproducible fatigue or motor function with substantial muscle weakness on repetitive activity demonstrated on physical examination. (R. at 802.) Dr. Woo noted that Plaintiff complained of a type of fatigue best described as lassitude rather than a fatigue of motor function and this kind of fatigue is typical of patients with multiple sclerosis. (Id.) Dr. Woo opined that Plaintiff's experience of pain, fatigue, or other symptoms would constantly interfere with her attention and concentration and that she was incapable of even “low stress” jobs. (R. at 803.) According to Dr. Woo, Plaintiff could walk one to two city blocks without rest; sit for thirty minutes at a time for a total of less than two hours; stand for thirty minutes at a time for a total of less than two hours. (R. at 803-04.) Dr. Woo reported that Plaintiff needed a job that permits unscheduled breaks lasting five to ten minutes every thirty to sixty minutes and permits shifting positions at will from sitting, standing, or walking. (R. at 804.) Dr. Woo reported that Plaintiff's legs should not be elevated with prolonged sitting. (Id.) Dr. Woo opined that Plaintiff could lift and carry ten pounds occasionally; could reach ten percent of the workday and perform fine and gross manipulation twenty percent of the workday; could stoop and crouch ten percent of the workday; and must avoid all exposure to noise, fumes, odors, dusts, gases, poor ventilation, and hazards. (R. at 805-06.) Dr. Woo further opined that Plaintiff's impairments would likely produce “good days” and “bad days” and that she was likely to be absent from work more than four times a month. (R. at 806.)


         On March 30, 2017, the ALJ issued her decision. (R. at 25-40.) The ALJ found that Plaintiff met the insured status requirements of the Social Security Act through June 30, 2019. (R. at 27.) At step one of the sequential evaluation process, [3] the ALJ found that Plaintiff had not engaged ...

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