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Baker v. Commissioner of Social Security

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

July 18, 2019

TRACY S. BAKER, Plaintiff,




         Plaintiff, Tracy S. Baker 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. 12), the Commissioner's Memorandum in Opposition (ECF No. 18), and the administrative record (ECF No. 7). No reply has been filed. 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

         On January 29, 2015, Plaintiff protectively filed applications for supplemental security income and disability insurance benefits, alleging that she had been disabled since January 1, 2015. (R. at 367-83.) Plaintiff's applications were denied initially and upon reconsideration. (R. at 259-65, 268-79.) Plaintiff sought a de novo hearing before an administrative law judge. (R. at 281-84.) Administrative Law Judge Timothy Gates (“ALJ”) held a hearing on July 28, 2017, at which Plaintiff, who was represented by counsel, appeared and testified. (R. at 85-112.) On December 20, 2017, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 65-77.) On June 28, 2018, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (R. at 3-9.) Plaintiff then timely commenced the instant action.


         Plaintiff testified at the administrative hearing that she has a high school diploma and attended joint vocational school for child care and obtained her commercial driver's license. (R. at 90-91.) Plaintiff previously worked as an inspector of cosmetic parts, as a truck driver, as a dryer feeder of wood, and worked logistics in a warehouse. (R. at 91-95.)

         Plaintiff stopped working around the time she was diagnosed with breast cancer in early 2015. (R. at 95-96.) Plaintiff underwent chemotherapy and radiation treatment, which ended in mid-October of 2015. (R. at 96-97.) This treatment made Plaintiff's fingers and feet numb and she “can't remember stuff.” (R. at 97.) Plaintiff broke her elbow one day when her feet were numb and she fell. (R. at 99.) Plaintiff felt that she was unable to work during the months that she underwent cancer treatments because the chemotherapy made her sick. (R. at 98.) She is currently taking a hormone medicine, Anastrozole, to block the cancer. (R. at 97.) Plaintiff testified that a side effect of the medicine is that she becomes emotional and she used to cry all of the time, but she denied that the medicine currently made her cry. (Id.) Plaintiff testified that she also takes Prozac and that it helps. (R. at 97-98.)

         Plaintiff testified that she still experiences difficulty with her arms and hands such as difficulty flipping pages and opening cheese wrappers. (R. at 98.) Sometimes there is pain and sometimes there is tingling and Plaintiff's right hand will go numb. (Id.) This numbness happens all of the time. (R. at 99.) Plaintiff testified that she still cannot bend all of the way her right elbow that she broke when she was undergoing cancer treatment, that she can lift maybe ten pounds with it, and that it hurts and aches. (Id.) When Plaintiff tries to run the sweeper she has to take breaks because of her elbow. (Id.) Plaintiff testified that her neuropathy also makes it difficult because she cannot feel what she is doing. (R. at 100.) The neuropathy in her feet causes them to feel numb and to hurt at night. (R. at 101.) She takes gabapentin for the neuropathy, which made her sleepy when the dosage was increased. (R. at 101, 103.)

         Plaintiff is able to perform household chores such as dishes and laundry “with a little trouble” and help from her mother who lives with her. (R. at 99-100.) Plaintiff's mother who reminds Plaintiff every day throughout the day of appointments and taking medicine because Plaintiff does not remember since her cancer diagnosis. (R. at 100.)

         Plaintiff goes to water therapy for arthritis in her left knee. (Id.) Plaintiff also has diabetes for which she takes three different kinds of insulin and Metformin. (R. at 100-01.) She has asthma and uses a regular inhaler and has a rescue one when needed. (R. at 102.) Plaintiff suffers from depression. (R. at 102.) She uses Prozac for her depression, which has helped even though she still gets depressed about once a week and does not want to get off the couch or do anything. (R. at 102-03.) Plaintiff saw someone in early 2016 for memory problems but her appointment to see a psychologist at the Stefanie Spielman Breast Cancer Center was cancelled for an unknown reason and Plaintiff never went back. (R. at 104.)

         Plaintiff sometimes drives short distances but basically her mother drives her all of the time now. (Id.)


         A. John Robertson, D.O.

         On January 30, 2015, John Robertson, D.O., Plaintiff's treating family practitioner, completed a statement on a form related to Plaintiff's claim for short term disability. (R. at 1089-93.) He reported the start date for her disability as January 27, 2015, when she underwent a biopsy of her left breast and that she would begin radiation on January 30, 2015, at the James Cancer Hospital. (R. at 1093.) Dr. Robertson opined that Plaintiff could return to work full-time by July 27, 2015 or within two to six months. (R. at 1093.)

         On February 19, 2015, Dr. Robertson completed a certification in connection with Plaintiff's request for leave under the Family and Medical Leave Act. (R. at 1041-44.)[2] Dr. Robertson noted that he treated Plaintiff on four occasions between December 31, 2014, and February 13, 2015. (R. at 1042.) He explained that Plaintiff was recently diagnosed with breast cancer and was referred to the James Cancer Hospital. (Id.) Dr. Robertson reported that Plaintiff was currently undergoing chemotherapy, which leaves her fatigued and nauseated. (Id.) According to Dr. Robertson, Plaintiff would be incapacitated for a single continuous period of time due to her medical treatment, including time for treatment and recovery, between January 29, 2015 and August 1, 2015. (R. at 1043.) He stated that her prognosis was to be based on the outcome of her chemotherapy. (Id.)

         B. Bruce Merwin, M.D.

         On September 29, 2015, Bruce Merwin, M.D., Plaintiff's treating radiation oncologist, completed a medical source statement. (R. at 2697-2700.) Dr. Merwin noted that Plaintiff's underwent surgery and chemotherapy in July 2015 following diagnosis of invasive ductal cancer of her left breast. (R. at 2698.) Dr. Merwin stated that Plaintiff's neuropathy resulting from her chemotherapy and diabetes was palliated with Neurontin. (Id.) Dr. Merwin opined that Plaintiff was unemployable because the pain made it difficult for her to stand on her feet and use her fingers and hands and that she is a risk of injuring herself or others at work. (R. at 2698-99.) Dr. Merwin further noted that Plaintiff was at risk for dropping objects and that she cannot tolerate working because of her painful neuropathy caused by diabetes and prior chemotherapy. (R. at 2699.) According to Dr. Merwin, “I believe she is unemployable and will never be employable.” (Id.)


         On December 20, 2017, the ALJ issued his decision. (R. at 65-77.) The ALJ found that Plaintiff met the insured status requirements of the Social Security Act through March 31, 2020. (R. at 67.) At step one of the sequential evaluation process, [3] the ALJ found that Plaintiff had not engaged in substantially ...

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