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Ballard v. Commissioner of Social Security

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

July 24, 2019

JASON SCOTT BALLARD, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          James Gwin Judge

          REPORT AND RECOMMENDATION

          JAMES R. KNEPP II UNITED STATES MAGISTRATE JUDGE.

         Introduction

         Plaintiff Jason Scott Ballard (“Plaintiff”) filed a Complaint against the Commissioner of Social Security (“Commissioner”) seeking judicial review of the Commissioner's decision to deny disability insurance benefits (“DIB”). (Doc. 1). The district court has jurisdiction under 42 U.S.C. §§ 1383(c) and 405(g). This matter has been referred to the undersigned for preparation of a report and recommendation pursuant to Local Rule 72.2. (Non-document entry dated August 15, 2018). Following review, and for the reasons stated below, the undersigned recommends the decision of the Commissioner be reversed and remanded for further proceedings.

         Procedural Background

         Plaintiff filed for DIB in January 2016, alleging a disability onset date of July 1, 2015. (Tr. 200-01).[1] His claims were denied initially and upon reconsideration. (Tr. 131-39, 141-47). Plaintiff then requested a hearing before an administrative law judge (“ALJ”). (Tr. 150-51). Plaintiff (represented by counsel), and a vocational expert (“VE”) testified at a hearing before the ALJ on January 11, 2018. (Tr. 32-77). On February 15, 2018, the ALJ found Plaintiff not disabled in a written decision. (Tr. 15-25). The Appeals Council denied Plaintiff's request for review, making the hearing decision the final decision of the Commissioner. (Tr. 1-6); see 20 C.F.R. §§ 404.955, 404.981. Plaintiff timely filed the instant action on August 15, 2018. (Doc. 1).

         Factual Background

         Personal Background and Testimony

         Plaintiff was born in August 1973, making him 42 years old on his alleged onset date. See Tr. 37, 200. He originally alleged disability due to degenerative disc disease, obstructive sleep apnea, irritable bowel syndrome, high blood pressure, depression, learning disorder, kidney removal, chronic pain, past kidney cancer, and thrush. (Tr. 220). Plaintiff had past work as an electrician, truck driver, and machinist, and stopped working in July 2015. (Tr. 39-41).

         Plaintiff believed he was unable to work due to left flank pain and dizziness on exertion and bending. (Tr. 43); see also Tr. 48. He stated the dizziness started when his left kidney was removed in late 2015. (Tr. 43-44). Plaintiff had stage two kidney disease in his remaining kidney. (Tr. 47-48). He also had a hernia repair in October 2017; this was his fourth such repair, and it did not provide relief. (Tr. 45-47). He was careful with lifting, moving, and twisting so as not to aggravate the hernia. (Tr. 47). Plaintiff also testified to a 2013 back surgery from which he still suffered complications. (Tr. 45). He previously received some back pain relief from injections, but stopped getting them due to financial reasons. (Tr. 50). He had similarly stopped pain management “because of problems with money” and effectiveness. (Tr. 63).

         Plaintiff was dizzy every day when exerting himself, or bending down. (Tr. 49). Plaintiff testified doctors were uncertain the cause of his dizziness. (Tr. 48-49). He was seeing an eye doctor, who believed he might have shingles in his cornea, and had seen a neurologist. Id. He did not undergo the neurologist-recommended vestibular therapy for financial reasons. (Tr. 49).

         Plaintiff saw his primary care physician Dr. Peiffer every three months. (Tr. 52). She treated him for his dizziness, among other things, and sent him to a neurologist for follow up. Id.

         Plaintiff did not believe he could lift anything in large quantities, and reported Dr. Fenton had advised him not to lift over twenty pounds. (Tr. 52-53). He did not believe he could bend down and pick something up. (Tr. 53). He testified he could not sit for lengthy periods due to his back problem. (Tr. 54). Plaintiff could stand in place for ten minutes. (Tr. 64). He could walk on flat surfaces if he was careful, but slopes caused problems due to his back and kidney. Id. Plaintiff testified to back discomfort after about 45 minutes of sitting. (Tr. 64-65).

         Plaintiff testified he was able to drive short distances to the store, but anything over “an hour and a half or so” caused back problems. (Tr. 38-39). On a typical day, Plaintiff helped get his kids ready for school (Tr. 57-58) (“I help them get breakfast and stuff going and get them on the bus.”), and help his father-in-law “get on the ride to dialysis” and then prepare him lunch when he returned (Tr. 58). He also did light cleaning, including vacuuming. Id. When his children returned from school, he got them a snack, helped with homework, and “tried] to prepare dinner”. (Tr. 59). Plaintiff was training to be a Freemason and sometimes went to meetings. Id. He was “very limited” in his ability to do yardwork, and mowed the grass using a riding lawnmower. Id. He grocery shopped, but only with his wife; he could walk around the store, but was hesitant to pick things up due to his back and his hernia. (Tr. 63).

         The ALJ asked Plaintiff about a record regarding hiking in North Carolina. (Tr. 54). Plaintiff responded that he traveled to see family and “walk[ed] around”, but it was not “a hiking trail of any sort.” (Tr. 55). Plaintiff also testified that he “did play some golf” approximately twice per month the prior year but “played very poorly”; he had to swing “[v]ery lightly”. (Tr. 55-56).

         Plaintiff saw Dr. Lauren Alexander once per month, but then did not see her for some time because she had a baby. (Tr. 50-51). He last saw her in December 2017, and had an appointment scheduled for later in January 2018. (Tr. 51). He was “kind of reluctant” to try group therapy. (Tr. 52). Plaintiff testified to difficulty concentrating and reading. (Tr. 61). He was in special education classes from second grade onward, and had a fourth-grade reading level. (Tr. 66).

         Relevant Medical Evidence

         Physical Health

         Prior to his alleged onset date, Plaintiff was diagnosed with renal cell carcinoma of the left kidney in 2010. See Tr. 336. He had a left partial nephrectomy in January 2011. See Id. He had repair of incisional herniorrhaphy with mesh at the sight of the previous partial left nephrectomy in 2012. See Tr. 415. Plaintiff also underwent a laminectomy in 2007 and disc surgery in 2009, see Tr. 292, and a L3-L5 laminectomy with L4-S1 posterior fusion in 2013, see Tr. 415.

         Plaintiff saw Leann Whyte, C.N.P., and Robert Geiger, M.D., at Summit Pain Specialists in March 2015 for a routine follow-up regarding lumbar spine pain. (Tr. 680-81). Plaintiff reported a recent hospitalization for vertigo and left eye nystagmus; he also reported numbness and weakness in his legs. (Tr. 680). He ambulated “without difficulty”, but had pain to palpation in his lumbar spine and limited range of motion. Id.

         In July 2015, Plaintiff saw Erica Gersteinmaier, PA-C, of Physicians Urology Center for Urologic Health for left flank pain and swelling. (Tr. 336-41). She noted Plaintiff's most recent abdominal CT showed a left renal mass. (Tr. 336). Plaintiff also went to the emergency room in July 2015 reporting a headache and left flank pain following a nephrostomy tube placement. (Tr. 601). He was discharged with diagnoses of shingles and flank cellulitis. (Tr. 605).

         An August 2015 abdominal CT revealed mild degenerative changes in the spine with posterior decompression of the lumbar spine. (Tr. 585-86). It also showed mild increased inflammatory changes in the left kidney “raising question of infectious process.” (Tr. 586).

         Plaintiff returned to the Urology Center in September, at which time Lawrence Gellar, M.D., recommended a nephrectomy. (Tr. 296). In November, Plaintiff underwent an open left radical nephrectomy and surgical repair of a left flank hernia. (Tr. 357-58, 427-28). At a December post-operative evaluation, Dr. Geller noted Plaintiff had no residual cancer. (Tr. 278).

         Also in November 2015, Plaintiff saw Ms. Whyte and Michael Louwers, M.D., at Summit Pain Specialists for lumbar spine pain. (Tr. 643-46). Plaintiff reported his current pain management regimen allowed him to do activities of daily living and be more physically active. (Tr. 644).

         Plaintiff saw primary care physician, Kelli Peiffer, D.O., in December 2015. (Tr. 737-44). Plaintiff reported continued dizziness and fatigue; he expressed disappointment that his surgery had not resolved these symptoms. (Tr. 737). Plaintiff's physical examination was unremarkable. (Tr. 739-40). Dr. Peiffer referred Plaintiff to rheumatology. (Tr. 740).

         In January 2016, Plaintiff saw Sabrina Barros, PA-C, and Dr. Louwers of Summit Pain Specialists, to evaluate low back/kidney pain. (Tr. 639-42). Plaintiff ambulated “without difficulty”, but had lumbar spine pain to palpation and positive facet loading. (Tr. 641). The providers assessed displaced lumbar disc, lumbar disc degeneration, postlaminectomy syndrome of lumbar spine, and neuropathy. Id.

         Also in January 2016, Phillip Wilcox, M.D., noted Plaintiff “had been doing reasonably well with his back until he underwent a nephrectomy”, but subsequently developed increased pain, including bilateral leg pain, but no numbness or tingling. (Tr. 708). Dr. Wilcox noted Plaintiff was “fully ambulatory” with “reasonable lumbar flexion” and negative straight leg raising. (Tr. 710). His impression was back pain with sciatica; he prescribed medication and instructed Plaintiff to “do exercises on his own” and return in one month. Id.

         In February 2016, Plaintiff underwent a rheumatology consultation with James Goske, M.D. (Tr. 718-22). He reported neurologic symptoms of uncertain cause, left-sided body aches, fevers of uncertain cause, and a positive ANA. (Tr. 718). Plaintiff reported at this visit that “the visual symptoms and dizziness are less”. Id. On examination, Dr. Goske noted normal gait, strength, tone, and reflexes, as well as normal range of motion in the cervical spine, lumbar spine, shoulders, elbows, hands, and ankles. (Tr. 719). Plaintiff had no tenderness to palpation in his lumbar spine. Id. He had “multiple, pronounced” tender points. Id. Dr. Goske assessed polyarthralgia, myalgia, fever, raised antibody titer, other malaise, and bone pain. (Tr. 720).

         Plaintiff returned to Dr. Peiffer in February 2016, reporting back problems, and an episode of left-sided chest pain. (Tr. 729). Dr. Peiffer assessed, inter alia, chronic low back pain, and provided a requested referral to a new pain management specialist. See Tr. 729-33.

         Plaintiff returned for a second visit with Dr. Geller in February 2016, reporting left-sided pain, passing bubbles in urine, and proteinurea. (Tr. 825). Plaintiff also returned to Dr. Goske, who, on examination, made similar findings to his prior visit. (Tr. 852). He assessed, inter alia, fibromyalgia, chronic pain, disc degeneration, abnormal finding of blood chemistry, and leukocytosis. (Tr. 852). Dr. Goske noted that “although autoimmune disease was suspected . . . all testing for connective tissue disease or autoimmune illness underlying his many concerns was not found.” He noted Plaintiff's “widespread and burning pain” was from fibromyalgia. (Tr. 853).

         In April 2016, Plaintiff denied fatigue, fever, nausea, abdominal pain, vomiting, diarrhea, arthralgias/joint pain, dizziness, muscle aches or weakness, and back pain. (Tr. 908). Plaintiff was diagnosed with hypertension, chronic back pain, and stage one chronic kidney disease. (Tr. 909).

         Plaintiff also returned to Dr. Peiffer in April 2016. (Tr. 911-15). He had high blood pressure, which nephrology managed. (Tr. 911). He reported headaches, visual changes; he was “extremely dizzy with slight movement” and “ha[d] felt this way since surgery in November.” Id. Plaintiff's new pain management physician wanted to wean certain medications, which resulted in increased pain. Id. Dr. Peiffer assessed hypertension, other chronic pain, and visual changes. (Tr. 915). She referred Plaintiff to ophthalmology. Id.

         In August 2016, Plaintiff underwent a functional capacity evaluation with G. Kurt Swanson, a physical therapist with the Edwin Shaw Rehabilitation Institute. (Tr. 1214-20). Mr. Swanson noted Plaintiff was unable to complete lifting exercises and complained of dizziness, headache, and lower back pain when attempting. (Tr. 1216). Plaintiff similarly complained of headache and dizziness when pushing and pulling. Id. Plaintiff reported similar pain, with additional lower back pain, when forward bending, sitting, standing, walking, crouching, kneeling, and climbing stairs. (Tr. 1217). Plaintiff required two hand rails to climb stairs. Id. On examination, Mr. Swanson noted Plaintiff's shoulder, elbow, forearm, and wrist range of motion were within normal limits; strength was 4. (Tr. 1219). Plaintiff had some reduced hip range of motion, and mostly 3 to 4 muscle strength in hips, knees, and ankles. Id. He had normal sensation. (Tr. 1220). Mr. Swanson assessed: obesity, poor posture habits, decreased trunk and lower extremity range of motion/flexibility, trunk weakness, lower extremity weakness, left flank swelling, and decreased balance in standing. Id.

         Plaintiff saw Dr. Wilcox in October 2016, reporting a flare-up of back pain with some radiation to his buttocks. (Tr. 983). On examination, Plaintiff ambulated normally and was “able to stand and bear weight without difficulty”. (Tr. 987). He had no paralumbar spasm or tenderness, and a negative straight leg raising test. Id. Later that month, an abdominal CT showed a stable hernia, and a small middle lobe pulmonary nodule. (Tr. 1055-56).

         Plaintiff went to the emergency room in November 2016 with abdominal pain. (Tr. 1040). A CT scan showed “[n]o acute . . . abnormality”, a small ill-defined area of low attenuation within the right hepatic lobe, and a broad-based hernia along the left flank. (Tr. 1052).

         In December 2016, Plaintiff told Dr. Wilcox he was having nerve pain with radiation to his right leg. (Tr. 975). On examination, he was “able to stand and move [around] room slowly”. (Tr. 979). Dr. Wilcox assessed recurrent sciatica. Id.

         In January 2017, Plaintiff underwent surgery to excise a suture granuloma of the left flank. (Tr. 1004). That same month, Plaintiff returned to Dr. Wilcox regarding his lumbar radiculopathy. (Tr. 969-73). On examination, Plaintiff had decreased range of motion in his lumbar spine. (Tr. 973). Dr. Wilcox did not recommend surgery; he referred Plaintiff to pain management. Id.

         A February 2017 abdominal CT showed no findings to suggest recurrent or metastatic disease, fatty liver, and an “essentially unchanged” left-sided lumbar hernia. (Tr. 1068). That same month, Plaintiff returned to Dr. Peiffer for his abdominal pain, which he reported included nausea, vomiting, and diarrhea. (Tr. 1181). Plaintiff also reported “dizzy episodes”. Id. On examination, Dr. Peiffer noted tenderness and guarding in Plaintiff's abdomen. (Tr. 1185). She assessed diverticulitis of the large intestine and hypertension. (Tr. 1185-86).

         Also in February 2017, Plaintiff saw neurologist Ahmed Itrat, M.D., for dizziness and vision loss. (Tr. 1634-43). Specifically, Plaintiff described symptoms of dizziness that were more pronounced with looking down or standing up. (Tr. 1634). Dr. Itrat noted brain MRIs had not revealed any demyelinating pathology. (Tr. 1634). On examination, Dr. Itrat noted that a “[t]rial of downgaze brings about symptoms of vertigo and he is unable to keep eyes open to appreciate any nystagmus”. (Tr. 1639). Plaintiff had a normal motor and strength examination. Id. His muscle stretch reflexes were diminished bilaterally, and he had reduced sensation over his lower and upper extremities. Id. His gait was normal and his Romberg's test was “weakly positive.” Id. Dr. Itrat noted the etiology of Plaintiff's dizziness was “likely multifactorial.” (Tr. 1642). He suspected it might be due to inner ear dysfunction, or cervical disc disease. Id. He recommended a cervical spine MRI, a check of serum B12 levels, and vestibular therapy; he prescribed medication and referred Plaintiff to an ENT. Id.

         In April, Plaintiff told Dr. Peiffer his pain medication helped, and that he was motivated to try to lose weight. (Tr. 1273). He noted there were “times where he can barely walk”, id., and reported dizziness (Tr. 1274). On examination, Plaintiff had abdominal tenderness. (Tr. 1277). Dr. Peiffer assessed, inter alia, intermittent vertigo and imbalance, and refilled Plaintiff's medications. (Tr. 1278). Dr. Peiffer continued to ...


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