United States District Court, S.D. Ohio, Western Division, Dayton
DECISION AND ENTRY
L. Ovington, United States Magistrate Judge.
Marcina Kilgore brings this case challenging the Social
Security Administration's denial of her application for
period of disability and Disability Insurance Benefits. She
applied for benefits on May 1, 2013, asserting that she could
no longer work a substantial paid job. After a hearing,
Administrative Law Judge (ALJ) Gregory G. Kenyon concluded
that she was not eligible for benefits because she is not
under a “disability” as defined in the Social
appealed. The Appeals Council vacated ALJ Kenyon's
decision and remanded the case to resolve several issues.
Upon remand, ALJ Kenyon conducted a second hearing after
which he found that Plaintiff was not under a disability and
was therefore, not eligible for benefits.
case is before the Court upon Plaintiff's Statement of
Errors (Doc. #12), the Commissioner's Memorandum in
Opposition (Doc. #16), Plaintiff's Reply (Doc. #17), and
the administrative record (Doc. #5).
seeks a remand of this case for payment of benefits or, at a
minimum, for further proceedings. The Commissioner asks the
Court to affirm ALJ Kenyon's non-disability decision.
asserts that she has been under a “disability”
since March 1, 2010. She was forty years old at that time and
was therefore considered a “younger person” under
Social Security Regulations. See 20 C.F.R. §
404.1563(c). She has a high school education. See
id. § 404.1564(b)(4).
testified at the hearing before ALJ Kenyon that she has
fibromyalgia and a lot of pain, starting in the back of her
neck, down her shoulders, along her spine, and across her
hips. (Doc. #5, PageID #93). She also has pain in
other places, but not consistently. For instance, she has arm
pain four to five days a week. Id. at 108-109.
pain can be burning, throbbing, or stabbing. Id. at
93. It sometimes feels like she is bruised or like she has
worked out. On a scale from one to ten, her pain-without
medication and little-to-no activity-is eight. Id.
With medication and little-to-no activity, her pain is about
six. Id. at 93-94. If she does a lot of activity,
her pain is over ten. Id. at 94. It does not take
much activity for her pain to flare up. For her
grandson's birthday, she showered, wiped her kitchen
counters and table, and hung a few decorations. Id.
at 95. After those limited activities, the back of her neck
hurt and her arms and heels of her feet burned. Id.
Plaintiff uses her hands, they hurt. Id. at 109.
Sometimes she struggles with grabbing or holding onto things.
Id. at 110. She has dropped “quite a
few” dishes and has trouble opening things with her
hands. Id. She has to use a “little rubber
thing” to open a gallon of milk. Id.
Additionally, “I can have pain in my upper arms if I
tried to do … dishes or laundry in and out of the
washer. It'll feel super fatigued and painful.”
Id. at 94. She sometimes feels like there is a tight
knot near her shoulder blade that causes her difficulty
reaching above her head. Id. at 97. Further,
temperature extremes aggravate her pain. Id.
Sometimes her pain flares up “out of the blue.”
Id. at 95.
takes pain medication-pentazocine. Id.
Unfortunately, “[i]t is beginning to wear off its
ability to help.” Id. at 98. Her doctor wants
her to try a patch that delivers consistent pain relief but
her insurance will not approve it. Id. Plaintiff had
some cervical epidurals that helped with pain from her disc
problems but not with her other pain. Id. at 99. She
also had occipital nerve blocks to help with her headaches.
Id. They provided some relief but were extremely
also tried physical therapy (a couple years before the
hearing). Id. at 98. It helped with her muscle pain
but seemed to trigger migraines. Id. at 98-99.
Ultimately, she discontinued it because she has a $30 copay
and could not afford to go to physical therapy two to three
times a week in additional to all the specialists she sees
and medication costs. Id.
also gets migraines. She usually knows when a migraine is
starting-she has blurred vision, noises are amplified, and it
feels like things are spinning. Id. at 100. When it
starts, she takes medication, uses ice packs, drinks water,
tries to eat something, and sits in a recliner with the
blinds shut. Id. at 113. She has
“full-blown” migraines four to five days a week.
Id. at 100. They sometimes last two to three days.
Id. at 112. Her doctor has given her Toradol shots
to stop them. Id. at 112-13. On a scale from one to
ten, her pain during a migraine can be over ten: “It
can be excruciating. It can where I'm in tears, which I
know isn't going to help the migraine, but it hurts. I
feel horribly nauseated. Any level of sound -- all my
children know to be quiet. Ice, darkened room
….” Id. at 101. She takes Imitrex to
help with the pain. Id. at 112. She has to choose
carefully when she takes it because she can only take nine
pills per month. Id. At the time of the hearing, she
had just finished her third set of Botox treatments.
Id. at 100. They provide her with up to 40% relief.
Unfortunately, relief only lasts three weeks and she can only
get them every ninety days. Id.
also experiences fatigue-she wakes up tired and never feels
rested. Id. at 95. In addition, she has trouble
concentrating. Id. at 96. “I do have
difficulty being able to recall things or express my words,
and I lose track of words, can't find the right
word.” Id. She made an outline for the hearing
in case she cannot remember a word.
has obstructive sleep apnea. Id. at 102. She does
not use a CPAP machine. She used to only sleep for around
three hours at a time. However, she started taking trazadone
and because it knocks her out, she generally sleeps five to
six hours a night. Id.
experienced excruciating chest pains in the months before the
hearing. Id. at 119. She was taken to the hospital
by ambulance, and the only cause they could find for the pain
was extremely high blood pressure. Id. She now sees
a cardiologist and is on medication to control her blood
pressure. Id. However, she continued to have chest
pains and Dr. Gebhart diagnosed allodynia-“inflammation
that goes hand-in-hand with fibro.” Id. at
also recently diagnosed with gastroesophageal reflux disease.
Id. at 120. She sometimes wakes up in the middle of
the night gasping for air and vomiting acid through her nose.
Id. She vomits at least once a week. Id.
struggles with depression and anxiety. She explained,
“I was quite the perfectionist, very organized, very
goal-oriented. And to not be in control of the way my body
feels is very depressing.” Id. at 103. She has
crying spells a couple times every week. Id. at 104,
114. However, she tries to keep her depression from her
family. Id. at 105. She has thoughts of killing
herself a couple times a month. Id. at 104-05. She
saw a psychiatrist but stopped because she could not afford
the co-pay in addition to all her other doctors' co-pays.
Id. at 103. She has had trouble with interpersonal
relationships. Id. at 114. She does not have any
friends anymore. Id. at 115.
could not say how many pounds she could lift but said that
she needs two hands to take a gallon of milk out of the
refrigerator. Id. at 105. She can sometimes stand
for fifteen to twenty minutes and can maybe push it to thirty
minutes. Id. She can walk between one and five
blocks. Id. After sitting for an hour, she starts to
get stiff and sore. Id. at 106. She is able to take
care of her personal needs but it takes a lot of energy.
Id. She only showers if she knows she has to leave
the house. Id. She only leaves the house when she
has doctor appointments and sometimes to go grocery shopping
with her husband. Id. at 111. She estimated that she
stays home twenty to twenty-five days a month. Id.
She does some light housework-for instance, cleaning kitchen
counters, some laundry, and making the bed. Id. at
106. Although she is able to, Plaintiff does not drive very
often because, for example, her vision is sometimes blurred;
she gets migraines; and she gets lost and has trouble
remembering where she is. Id. at 92.
an ordinary day, she wakes up, has coffee and something to
eat so she can take medication. Id. at 107. While
waiting for the medication to kick in, she sits with ice
packs or a heating pad. She takes care of two small
dogs-letting them outside and feeding them. If she has to
shower, that takes her a few hours. She does not cook very
much anymore because of the time and energy involved.
Id. She lies down every day for an hour or hour and
a half. Id. at 116. It helps with her fatigue but
she always wakes up with pain. Id. If she
doesn't lay down, she starts to feel disoriented, she
cannot focus, and she feels like she is in a haze.
Id. at 117. She has trouble communicating with her
children and sometimes forgets what she told them.
Id. at 118.
Rick Gebhart, M.D.
treating physician, Dr. Gebhart, is board certified in family
medicine and bariatric medicine. Id. at 1106. He has
his own practice in Vandalia and has been in private practice
for nineteen years. Id. Dr. Gebhart has between 150
and 200 patients with fibromyalgia-more than any other doctor
in his town. Id. at 1130. Plaintiff has been his
patient for at least ten years. Id. at 1108. He sees
her about every eight weeks. Id. at 1109.
August 25, 2014, Dr. Gebhart gave a statement to
Plaintiff's counsel. Id. at 1102-36. He
testified that he was treating her for fibromyalgia,
history of migraines, and depression-which he speculates is
“the bipolar type.” Id. at 1108.
Plaintiff also has a history of tinnitus: “it drives
her sometimes almost crazy. I think it drives the anxiety and
the anxiety drives it and it becomes a vicious cycle.”
Id. at 1109. Further, Plaintiff recently reported to
Dr. Gebhart that her rheumatologist diagnosed psoriatic
her health began declining, Plaintiff saw Dr. Gebhart for
“normal things people come to the doctors for.”
Id. at 1111. He described her as a “very
vibrant, hard working person ….” Id.
Now, however, she is “[v]ery frustrated because
we've got these  diagnoses we can't seem to fix and
we try to treat the symptoms ….” Id.
Dr. Gebhart has “no doubt at all” about the
credibility and veracity of Plaintiff's complaints.
Id. at 1125.
fibromyalgia, depression, and tinnitus “started
abruptly about two and half, three years ago.”
Id. at 1110. Dr. Gebhart explained that migraine
headaches, fibromyalgia, anxiety, depression, and irritable
bowel syndrome “sit on the same gene.”
Id. at 1115-16. When that gene fractures, the more
it fractures, the more of these diagnoses, so I start with
migraines and later on as the gene fractures, you get
fibromyalgia. Id. at 1116. Genes fracturing is
“[g]enerally caused through some sort of, what is
thought is the new genetic sort of trauma.”
Id. It can be physical trauma (i.e., car accident,
blow to the head), emotional trauma, or infectious trauma.
Gebhart provided significant background information about
fibromyalgia. He explained, fibromyalgia is caused by
“excessive amounts of glutamate and excessive amounts
of substance P in the cerebral spinal fluid.”
Id. at 1114. Generally, fibromyalgia
“generates hyperesthesia, pain that is out of
proportion to what a normal person would feel.”
Id. It also usually causes people to have “an
extreme amount of fatigue.” Id. at 1115.
People with fibromyalgia do not sleep in stage four and REM
sleep as often as others. Id. As a result, even when
they do sleep, it is not as restorative. Id.
is no method to objectively determine the presence of
fibromyalgia. Id. at 1116. Under the American
College of Rheumatology's 2009 (and before) standards, to
diagnose fibromyalgia, a person was required to have eleven
of eighteen tenderpoints. Id. at 1113-14. This
standard changed in 2010, and under the new standards, to
diagnose fibromyalgia, an individual must have fatigue for at
least six months and have muscle aches and pain for at least
six months, and the physician must rule out any other medical
diseases that could cause the symptoms. Id. at 1113.
on these standards, Dr. Gebhart diagnosed Plaintiff with
fibromyalgia. Id. He rated her condition as
chronic-lasting more than six months with no end in the near
future. Id. at 1124. When asked if fibromyalgia is a
progressive disease, he explained, “I think it's
different for each person, but as I always tell my patients
that environment magnifies disease and if you have a
fibromyalgia patient and they are in your, maybe they have a
poor family structure that doesn't support them, they are
trying to still work at a job and there's a lot of stress
at that workplace, that it definitely worsens the
disease.” Id. at 1124-25. He is not hopeful
about Plaintiff's chances for improvement. Id.
takes several medications for treatment of fibromyalgia. Dr.
Gebhart did not have a list of Plaintiff's medications,
but indicated that he aims to “get these pain signals
coming from the spinal cord to quiet down.”
Id. at 1115. After reviewing a list of
Plaintiff's medications, Dr. Gebhart indicated that three
of them-Gabapentin, Lyrica, and Pentazine-all have side
effects involving feeling drunk and/or ...