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Davis v. Commissioner of Social Security Administration

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

August 9, 2019

DAPHNE DAVIS, Plaintiff,

          Thomas M. Rose District Judge


          Sharon L. Ovington United States Magistrate Judge

         I. Introduction

         After Plaintiff Daphne Davis worked for many years in the food-service industry, she began having significant problems with her right knee. Unfortunately, conservative treatments were unsuccessful and she underwent a total knee replacement. After surgery, Plaintiff was unable to continue working fulltime and applied for period of disability, Disability Insurance Benefits, and Supplemental Security Income. Her claims were denied initially and upon reconsideration. After a hearing, Administrative Law Judge (ALJ) Emily Ruth Statum concluded that Plaintiff was not eligible for benefits because she is not under a “disability” as defined in the Social Security Act.

         The Appeals Council denied Plaintiff's request for review, and she filed a previous action in United States District Court for the Southern District of Ohio. Upon the parties' Joint Motion to Remand, the Court vacated the Commissioner's decision and remanded the case pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings. See Davis v. Commissioner of Social Security, 3:16cv11 (S.D. Ohio July 11, 2016) (Rice, D.J.).

         Upon remand, Plaintiff achieved partial success: ALJ Elizabeth A. Motta found that she was under a disability beginning on April 20, 2016 but was not disabled within the meaning of the Social Security Act prior to that date. Thus, only the period of time between June 18, 2012 and April 20, 2016 is at issue in this case.

         The case is before the Court upon Plaintiff's Statement of Errors (Doc. #13), the Commissioner's Memorandum in Opposition (Doc. #14), Plaintiff's Reply (Doc. #15), and the administrative record (Doc. #10).

         II. Background

         Plaintiff asserts that she has been under a “disability” since June 8, 2012. She was forty-six years old at that time and was therefore considered a “younger person” under Social Security Regulations. See 20 C.F.R. §§ 404.1563(c), 416.963(c). On April 21, 2016, Plaintiff turned fifty years old and was accordingly a person “closely approaching advanced age.” See Id. §§ 404.1563(d), 416.963(d). She has a ninth-grade-or “limited”-education. See Id. §§ 404.1564(b)(3), 416.964(b)(3).[2]

         A. Plaintiff's Testimony

         Plaintiff testified at the hearing before ALJ Motta that she has had four knee surgeries, including a total knee replacement and cyst removal. (Doc. #10, PageID #1846). She had knee-replacement surgery in 2012 and “it's been a problem since.” Id. at 1847. She is not able to walk normally, she has back and knee pain, and she cannot fully straighten her leg. Id. at 1851. After surgery, Plaintiff attended physical therapy until her insurance stopped covering it. Id. at 1859. She wanted more physical therapy because it helped straighten her leg. Id.

         She still has swelling in her knee and leg. She was prescribed special stockings to eliminate swelling. Id. at 1860. Three or four years before the hearing, her family-care doctor, Dr. Brown, prescribed a cane because of Plaintiff's difficulty walking and so that she would not fall. Id. at 1847. Luckily, she has not fallen because she always uses her cane. Id. at 1861. Plaintiff also uses a brace to help her walk. Id. at 1860. At the grocery store, she uses an electric cart because she does not want to fall.

         In addition, Plaintiff has problems with her left shoulder. She had surgery to repair a torn ligament in it in November 2016, about a month before the hearing. Id. at 1850. It was still sore at the hearing. Id.

         Plaintiff has sciatic nerve problems that cause pain in her mid-back. Id. at 1848. As a result, she has trouble sitting in hard chairs. Id. Fortunately, her work gave her a soft chair to sit in. Id. Plaintiff takes Percocet for pain and has had cortisone shots in the past. Id. at 1850.

         Plaintiff has sleep apnea and has to use a CPAP machine every night. Id. at 1848-49. She also has some breathing problems and uses inhalers and a breathing machine. Id. at 1853.

         Plaintiff struggles with depression. Her former doctor prescribed her medication. Id. at 1851. However, he stopped accepting CareSource, her health insurance. At the time of the hearing, she was seeing Victoria Brookshire, a nurse practitioner in Huber Heights. Id. at 1849. Plaintiff believes she will prescribe medications in the future. Id. at 1851. Plaintiff sought some treatment from Samaritan Behavioral Health but has not been there since 2014. Id. at 1852.

         Plaintiff lives in an apartment with her 18-year-old daughter. Id. at 1841. She usually drives to her part-time job three times a week. Id. If she needs to go anywhere else, her mother drives her. Id. at 1841-42. Plaintiff does not leave her apartment as much as she used to but her mother and sister try to get her out when they can. Id. at 1856. She visits with them and goes to church on Sundays. Id. at 1856-57. When asked if she had a significant other, boyfriend, or anything like that, Plaintiff responded, “Not really. I don't call him that.” Id. at 1856.

         During the day, she reads her Jehovah book, watches TV, and plays games on her phone. Id. at 1857-58. She is generally able to use a computer. Id. at 1857. After her shoulder surgery, she had to use a long stick to help her type so that she did not have to move her arm. Id. She can take a bath or shower but it was more difficult after her shoulder surgery. Id. After surgery, she had a “home care lady” helping her but her doctor told her they were too much. For the most part, Plaintiff can dress herself. Id. at 1857. She has trouble putting on stockings. Id. At the time of the hearing, her sister helped her get dressed for work. Id. Her daughter does most of the chores around the apartment, including preparing meals and doing laundry. Id. at 1855-56. Plaintiff is able to go to the store but uses an electric cart. Id. at 1856.

         Plaintiff has worked at many restaurants. For example, she worked at KFC as a shift manager and assistant manager. Id. at 1843. She also worked for Golden Corral, Taco Bell, Lee's Famous Recipe, and Wendy's. Id. at 1844. At the time of the hearing, she was working as a receptionist at Extended Stay America. Id. at 1845. She usually worked about 8 hours a day, 3 days a week, for a total of 23 to 24 hours. Id. at 1845, 1854. She checks people in and directs them to their rooms. Id. at 1884. She spends most of her time at work sitting. Id. at 1854. However, she cannot sit continuously for hours at a time and has to get up and move around a little bit before sitting back down. Id. at 1859. If her employer offered her more hours, she would not take them because she does not think she would be able to work more. Id. She has to go to work in pain because she cannot take her medications and be able to function. Id. When she gets home, she takes her medication to make it through the rest of the day. Id. at 1860.

         B. Medical Opinions

         i. Morris Brown, M.D.

         Plaintiff's primary-care physician, Dr. Brown, completed a medical functional capacity assessment and a basic medical assessment in September 2011 (almost a year before Plaintiff's amended alleged onset date). He opined that Plaintiff was markedly limited in every functional category. Id. at 2545. He indicated that she had a right meniscal tear that required surgery. Id. at 2546. Her health status was poor but stable. Id. He concluded that her limitations were expected to last twelve or more months and Plaintiff was unemployable. Id. at 2545.

         On January 21, 2014, Dr. Brown indicated in his treatment notes that Plaintiff reported sharp pain in her lumbar spine and right knee. Id. at 1556. The pain interfered with her sleep and work. Id. It was present for more than twelve months. Id. Dr. Brown concluded that she cannot ...

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