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Kilgore v. Commissioner of Social Security Administration

United States District Court, S.D. Ohio, Western Division, Dayton

July 17, 2019



          Sharon L. Ovington, United States Magistrate Judge.

         I. Introduction

         Plaintiff 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 Security Act.

         Plaintiff 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.

         The 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).

         Plaintiff 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.

         II. Background

         Plaintiff 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).[1] She has a high school education. See id. § 404.1564(b)(4).

         A. Plaintiff's Testimony

         Plaintiff 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.

         Her 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.

         If 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.

         Plaintiff 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 painful. Id.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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 119-20.

         She was 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.

         Plaintiff 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.

         Plaintiff 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.

         During 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.

         B. Medical Opinions

         i. Rick Gebhart, M.D.

         Plaintiff's 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.

         On 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, [2] a 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 arthritis. Id.

         Before 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.

         Plaintiff's 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. Id.

         Dr. 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.

         There 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.

         Based 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. at 1125.

         Plaintiff 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 ...

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