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Holmes v. Commissioner of Social Security Administration

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

July 11, 2019




          Kathleen B. Burke, United States Magistrate Judge

         Plaintiff Jeffery Holmes (“Holmes”) seeks judicial review of the final decision of Defendant Commissioner of Social Security (“Commissioner”) denying his application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). Doc. 1. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation pursuant to Local Rule 72.2(b)(1).

         For the reasons stated below, the undersigned recommends that the Commissioner's decision be AFFIRMED.

         I. Procedural History

         Holmes protectively filed applications for DIB and SSI in May 2013, alleging a disability onset date of March 1, 2013. Tr. 442, 15. He alleged disability based on the following: pain and limitations in his shoulders, lumbar spine and left leg; pain in his buttocks; arthritis; dysthymic disorder; anxiety; paranoia; and memory loss. Tr. 454. After denials by the state agency initially (Tr. 172, 173) and on reconsideration (Tr. 204, 205), Holmes requested an administrative hearing. Tr. 275. A hearing was held before an Administrative Law Judge (“ALJ”) and Holmes amended his alleged onset date to April 1, 2013. Tr. 403. On February 26, 2016, the ALJ determined that Holmes was not disabled prior to May 1, 2015, but was disabled after that date. Tr. 227-228. Holmes appealed this decision to the Appeals Council. Tr. 316. The Appeals Council accepted review, vacated the ALJ's decision, and remanded to an ALJ for further review. Tr. 239-241.

         Upon remand, a new ALJ held a hearing on December 21, 2017. Tr. 46-67. In his January 16, 2018, decision (Tr. 15-38), the ALJ determined that there are jobs that exist in the national economy that Holmes can perform, i.e., he was not and is not disabled at any time during the relevant time period. Tr. 37-38. The Appeals Council denied Holmes's request for review, making the ALJ's decision the final decision of the Commissioner. Tr. 1-3.

         II. Evidence

         A. Personal and Vocational Evidence

         Holmes was born in 1966 and was 46 years old on his alleged onset date. Tr. 36. He previously performed work as a maintenance technician. Tr. 70.

         B. Relevant Opinion Evidence[1]

         1. Treating source

         On March 19, 2015, Holmes's treating physician, James R. Wolfe, M.D., provided a medical opinion in the context of a routine medication refill appointment. Tr. 800. Dr. Wolfe opined that Holmes's condition was stable, he was not physically limited, and Dr. Wolfe had not set any specific physical restrictions. Tr. 800. Dr. Wolfe stated, “Right now [Holmes] has a lot of complaints, but nothing that rises to the level where he really wants to do anything about it.” Tr. 800. Holmes's physical examination was normal and he was diagnosed with shoulder arthritis, lumbar disc degeneration with radiculitis, and opioid dependence. Tr. 800. Dr. Wolfe continued Holmes's medications. Tr. 800.

         On August 18, 2017, Holmes saw Dr. Wolfe for facet injections. Tr. 863. Upon exam, Holmes had minimal tenderness in his back, mostly facet pain, and was otherwise normal. Tr. 863. Dr. Wolfe stated, “I have not set any physical limitations nor have I recommended against employment.” Tr. 863. He encouraged Holmes to stay active and stick with his exercise program. Tr. 863.

         2. Consultative Examiner

         On December 2, 2015, Holmes saw Kristin Cola, D.O., for an orthopedic consultative examination for low back pain and bilateral shoulder pain. Tr. 805. Upon exam, Holmes was unable to touch his toes but was able to get on the examination table. Tr. 806. He had an antalgic gait and he appeared to be unsteady on his feet. Tr. 806. He could rise up on his heels and toes but was unable to walk on his heels or toes. Tr. 806. He had mild paraspinal tenderness to palpation in the lumbosacral region of his back, negative sciatic notch tenderness, a positive straight leg raise test on the right, diminished sensation to light touch on his anterior thighs bilaterally, and his reflexes were slightly diminished and symmetric. Tr. 807. He had full muscle strength and reduced range of motion in both shoulders and his lumbar spine. Tr. 808-810. Dr. Cola opined that, based on the lack of range of motion in his shoulders, Holmes would be limited to sedentary desk-type work (typing, talking on the phone, and writing). Tr. 807. He would be unable to do any overhead activities. Tr. 807. Based on his apparent unsteady gait, he would not be safe to crouch, crawl, or climb scaffolding or ladders. Tr. 807. He could perform sedentary work for about an hour at a time and would need “multiple breaks to stand up and walk around and get readjusted.” Tr. 807. He could lift up to five pounds and could only drive short distances. Tr. 807. He did not need to use an assistive device at work every day; Dr. Cola recommended he use an assistive device only on particularly painful days “given his unsteadiness with pain.” Tr. 807.

         On December 16, 2015, Dr. Cola completed a check-box form on behalf of Holmes. Tr. 812-817. Based on her initial examination, Dr. Cola opined that Holmes could occasionally lift and carry up to 10 pounds and never more; sit for six hours in a workday, stand for one hour in a workday, and walk for a one hour in a workday; he did not need a cane to ambulate; he could never reach overhead or in any other direction with either hand; he could frequently handle, finger, and feel bilaterally and use foot controls and occasionally push and pull bilaterally; he could never balance, stoop, kneel, crouch or crawl; and he could occasionally climb ramps and stairs but never ladders or scaffolds. Tr. 812-815. Dr. Cola opined that Holmes can perform activities such as shopping, use public transportation, travel without a companion, prepare simple meals and feed himself, care for his personal hygiene, and sort, handle, and use paper files. Tr. 817. He could not ambulate without using a wheelchair, walker, or two canes or two crutches, he was not able to climb a few steps at a reasonable pace with the use of a single hand rail, and he was not able to walk a block at a reasonable pace on rough or uneven surfaces. Tr. 817.

         D. Testimonial Evidence

         1. Holmes's Testimony

         Holmes was represented by counsel and testified at the administrative hearing. Tr. 49. He testified that he has been seeing Dr. Wolfe for pain management since 2013. Tr. 50-51. Dr. Wolfe prescribes medication and gives him injections. Tr. 50. He has terrible pain in his shoulders that has gotten worse over time. Tr. 53. He used to get shoulder injections from Dr. Wolfe but has stopped them because they stopped helping him. Tr. 53-54. Since April 2013, his pain level has stayed the same or gotten worse. Tr. 54. He has difficulty reaching; he is unable to reach over his head and has difficulty reaching straight out in front. Tr. 54. He is able to reach in front of him about five inches; for example, he can pick up a piece of paper on the table in front of him. Tr. 54-55. Beyond five inches he starts getting pain. Tr. 55. He can lay his arms on the table, but he has to do it slowly and it hurts. Tr. 55. When asked if he has problems grasping or handling things, Holmes stated, “My gripping is not too bad.” Tr. 57. It has gotten better, but he “can't do lifting with the gripping with very much weight.” Tr. 57. He has no issues with fingering and at times has issues with feeling due to numbness. Tr. 57-58.

         Holmes also has pain in his mid and lower back that radiates down into both legs. Tr. 58. He saw a spine surgeon who did some injections, considered surgery, but then thought he had better wait on the surgery and sent him to Dr. Wolfe. Tr. 58. Dr. Wolfe gives him medication and injections. Tr. 58. There is no talk of surgery at this point. Tr. 58. He has had every kind of physical therapy you could think of since 2009 and it hasn't helped. Tr. 58. When asked about a treatment note that he used a walker or two crutches, Holmes stated that he did not use two crutches, “there is no walker, ” and he has a cane that he uses sometimes to help. Tr. 59. He started using a cane at home but he is embarrassed to use it outside the house. Tr. 59. He has never had a cane or walker prescribed to him; he was told in the past that if he needs assistance ...

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