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Gibbons v. Commissioner of Social Security Administration

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

August 22, 2019

LILLIAN GIBBONS, Plaintiff,
v.
COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          Walter H. Rice District Judge.

          REPORT AND RECOMMENDATIONS [1]

          Sharon L. Ovington United States Magistrate Judge.

         I. Introduction

         Plaintiff Lillian Gibbons brings this case challenging the Social Security Administration's denial of her applications for period of disability, Disability Insurance Benefits, and Supplemental Security Income. She applied for benefits on February 23, 2015, asserting that she could no longer work a substantial paid job. 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.

         The case is before the Court upon Plaintiff's Statement of Errors (Doc. #8), the Commissioner's Memorandum in Opposition (Doc. #12), Plaintiff's Reply (Doc. #13), 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 June 10, 2011. She was thirty 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). She has a limited education. See Id. §§ 404.1564(b)(3), 416.964(b)(3).[2]

         A. Plaintiff's Testimony

         Plaintiff testified at the hearing before ALJ Kenyon that she has had back pain since she was nineteen years old. (Doc. #5, PageID #87). She has constant pain that is mostly aching but is sometimes really sharp. Id. at 88. Her pain goes down her left leg. Id. Her leg “goes in and out from time to time.” Id. at 88-89. On a scale from one to ten, her pain is usually at eight but some days it goes above ten. Id. at 88. If it is cold, she is in a lot more pain. Id. at 103.

         She has tried several forms of treatment. She had eight sessions of injections. Id. at 89. They helped “[s]omewhat, but not really. It caused more pain than it did anything.” Id. She has also tried a TENS unit. Id. She wears a back-brace part of the time. Id. at 90-91. It helps support her lower back. Id. at 91. At the time of the hearing she was looking for a new pain-management doctor. Id. at 88.

         Because of her back problems, she cannot sit for long periods-usually her limit is thirty minutes. Id. at 89-90. If she tries to do light housework, she has to take breaks to lie down and rest. Id. at 90. She can only stand for fifteen to twenty minutes before it starts to hurt really bad. Id. She does not walk because it causes pain. Id. She starts to feel pain even if she walks two blocks-from her house to her dad's house. Id.

         Plaintiff has a history of seizures. She had her first one in 2015 and went to the hospital. Id. at 91. The hospital released her and on the way home, she had a second seizure. Id. She was in the hospital for a week. Id. She has not had another seizure since.

         Additionally, Plaintiff has a history of pulmonary embolisms. Id. at 102. She also has some ongoing respiratory issues; she gets short of breath at least four times a day. Id. She uses an Albuterol inhaler. Id.

         Plaintiff struggles with anxiety and panic attacks. Id. at 92. Generally, when she is going to an unfamiliar place with unfamiliar people, her anxiety is high and she has panic attacks where she gets shaky and sweaty. Id. at 92-93. She tries to do a breathing technique that her therapist taught her to calm herself down. Id. at 93. Other than taking her kids to school, Plaintiff leaves her house two or three times per week. Id. at 92. Usually, she goes to her friend's house, nine houses down the street. Id. at 93. If she goes to the grocery, she gets really nervous, panicky, and always on alert. Id. She does not go to the mall because there are too many people. Id.

         Plaintiff also has post-traumatic stress disorder. She has flashbacks of the guy that beat her up about every three days. Id. at 94. She also has nightmares. Id. As a result, she takes sleeping medication. Id.

         Plaintiff has a history of depression. Id. Some days she gets sad and does not want to be around other people. Id. She has crying spells. Id. at 95. In the week before the hearing, she cried seven different times for no reason. Id. She has trouble with attention and concentration. Id. She does not pay attention unless she is in an unfamiliar place. Id. She can sometimes pay attention during a thirty-minute TV show. Id. at 96. But other times it is on and she has no idea what is going on. Id. She has a hard time concentrating to help her children with their homework. Id. at 95. She gets frustrated with them easily-within thirty minutes-and has to take breaks and walk away. Id. at 95-96.

         Plaintiff sees Dr. Ballerene, a psychiatrist, and a therapist, Ms. Terri, at Samaritan Behavioral. Id. at 99. She used to see Ms. Terri once a week. Id. When Dr. Ballerene asked if she was doing better getting out of the house, Plaintiff told her yes, she was trying to overcome her anxiety around other people. Id. at 100. For instance, she took her kids to Dick's Sporting Goods. Id. However, because there were so many people, Plaintiff had to go to her car to calm herself down before she could complete her purchase. Id. She also took her kids to the park. Id. That went much better because there were not many people there. Id.

         Plaintiff lives in a house with her two children-ages 11 and 15 (at the time of the hearing). Id. at 85. She and her husband are separated. Id. She is able to drive except when her anxiety is really high or she gets depressed. Id. at 85-86. She generally only drives to the grocery store or to take her kids to school. Id. at 86. If she is unable to drive, her father drives the kids to school. Id. at 85.

         During an ordinary day, she gets up, gets her kids up, lets the dog out, and then takes her kids to school if she can. Id. at 98. When she gets home, she does what she can until the pain gets too bad and then she rests. Id. It is then usually time to pick her kids up. Id.

         Plaintiff does not lift anything heavier than a gallon of milk. Id. at 96. For the past two years, she has only gotten between three and four hours of sleep per night. Id. During the day, she sometimes falls asleep for thirty minutes to an hour. Id. at 96-97. She is able to take care of her own personal needs. Id. at 97. But there are some days where she does not shower because she just sits, does not move, and wants everyone to leave. Id. She spends two to three days a week in bed all day or on the couch. Id. She does some chores during the day when she can. Id. at 98. But she has to take breaks when her pain is too bad. Id.

         Since June 2011, Plaintiff has had one job as a cashier at a drive-through. Id. at 87. They let her go because the medications she was taking were affecting her ability to communicate with customers. Id. Prior to that job, she worked for Action Rubber, running heavy equipment. Id. at 98. They tried to let her work from home but eventually let her go because of the medication she was on. Id. at 98-99.

         Plaintiff does not think she could show up for work five days a week without her mental issues causing her problems. Id. at 101. She explained that her dad has to take her kids to school two or three times a week because she cannot. Id. When she cannot take them, it is usually because she gets shaky, agitated, and feels like her heart ...


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