United States District Court, N.D. Ohio, Eastern Division
REPORT AND RECOMMENDATION
R. KNEPP II UNITED STATES MAGISTRATE JUDGE.
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.
filed for DIB in January 2016, alleging a disability onset
date of July 1, 2015. (Tr. 200-01). 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).
Background and Testimony
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).
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 âbecause of problems with moneyâ and
effectiveness. (Tr. 63).
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).
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.
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).
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).
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).
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.
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.
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
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).
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).
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).
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).
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).
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
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.
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).
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.
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).
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).
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.
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.
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).
went to the emergency room in November 2016 with abdominal
pain. (Tr. 1040). A CT scan showed â[n]o acute . . .
abnormalityâ, a small ill-defined area of low attenuation
within the right hepatic lobe, and a broad-based hernia along
the left flank. (Tr. 1052).
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
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.
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.
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.
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 ...