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Finney v. Commissioner of Social Security Administration

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

August 26, 2019

LISA FINNEY, 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 Lisa Finney brings this case challenging the Social Security Administration's denial of her application for period of disability and Disability Insurance Benefits. She applied for benefits on November 6, 2014, asserting that she could no longer work a substantial paid job. Administrative Law Judge (ALJ) Elizabeth A. Motta 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. #9), Plaintiff's Reply (Doc. #10), 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 Motta's non-disability decision.

         II. Background

         Plaintiff asserts that she has been under a “disability” since July 27, 2013. She was forty-seven years old at that time and was therefore considered a “younger person” under Social Security Regulations. See 20 C.F.R. § 404.1563(c). She has a high school education. See Id. § 404.1564(b)(4).

         A. Plaintiff's Testimony

         At the hearing, ALJ Motta asked Plaintiff to focus on the time period between the middle of 2013 and the end of 2015. (Doc. #5, PageID #270). Plaintiff testified that her whole body started bothering her beginning in 2011. Id. at 270, 278-79. “I was in so much pain I was crying all the time. Couldn't hardly walk.… My hands and stuff [were] crippling up. When I would wake up, I would be a fetal position.” Id. at 270-71. She began treatment with Dr. Ranginwala who diagnosed rheumatoid arthritis and fibromyalgia. Id. at 271, 279. He prescribed her medications-“he had me on so much medication I couldn't even begin to tell you what all he had me on.” Id. at 273. ALJ Motta looked through the record and found that during the relevant time period, Plaintiff's medications included Neurontin, Amitriptyline, Norco, Cymbalta, Zanaflex, and Flexeril. Id. at 272-73. But with those medications, Plaintiff was still in constant pain. The only medications that helped were Flexeril and Amitriptyline. Neurontin caused Plaintiff to pass out and she had to start seeing a heart doctor (who took her off it). Id. at 271, 278. About a year before the hearing, Dr. Abraham at Pain Innovations prescribed Percocet for fibromyalgia. Id. at 271. She has also had injections in her right leg. Id. at 271, 281.

         Plaintiff's attorney asked her to use September 30, 2015-when she went to OSU Rheumatology-as a benchmark. Id. at 276. Plaintiff explained that at that time, she had arthritis in both hands but it was worse in her right hand. Id. at 277. With her right hand, she can barely write and can only turn doorknobs if they are easy. Id. at 277-78. She cannot open jars, tie two strings, peel potatoes, slice onions, or hold a cell phone. Id. She uses the speakerphone on her cell phone because she cannot lean her head to either side and it hurts to hold her arms up. Id. at 278.

         Plaintiff has depression and anxiety. She does not see a professional mental-health provider. Id. at 274. Her family-care doctor prescribes Paxil. Id.

         Plaintiff lives with her husband. Id. at 267. He works and they have insurance. Id. at 268. On an ordinary day, if Plaintiff takes Amitriptyline and sleeps well, she gets up around noon or 1:00. Id. at 275. When she wakes up, it takes her hands forty-five minutes to straighten out. Id. at 280. During the day, she's up and down all day. She is only able to sit for fifteen to thirty minutes and then she has to get up and walk around (leaning on furniture). Id. at 275, 279. In the summer, she sits outside and then tries to walk up and down her driveway. Id. at 275. For four or five months, Plaintiff has fallen three or four times a week. Id. at 280. She sometimes uses a cane (although it was not prescribed). Id.

         Between 2013 and 2015, Plaintiff did not cook very often. Id. at 274. Her daughter came over every evening. Id. Her husband also cooks. Id. at 281. If no one is there, she eats frozen meals. Id. Her daughter-in-law does her laundry. Id. at 275. She can lift a gallon of milk with her left hand but not her right. Id. at 279-80. She is not even able to hold a coffee cup in the morning with her right hand. Id. at 280. Plaintiff does not take showers because she once passed out in the shower. Id. at 276. She takes baths and her daughter or husband have to help her get out of the tub. Id. She stays in her pajamas all day. Id. Plaintiff's impairments have had a significant impact on her life: “I can't … even enjoy life. I can't enjoy my grandkids. I don't go to Chuck E. Cheese with them. I can't go outside and play ball like I used to with them. Now if they come to my house, they're taking care of Mawmaw.” Id. at 281.

         B. Opinion Evidence

         i. Cliff Fawcett, CNP

         Nurse Fawcett completed a physical medical source statement in December 2013. He diagnosed depression, fibromyalgia, and osteoarthritis. Id. at 666. He indicated Plaintiff's symptoms include fatigue and pain-specifically, she experiences daily “all over achiness, ” pain in her right hip and knee, and pain in her hand and fingers (which is worse in the mornings). Id. Nurse Fawcett opined that her depression contributes to the severity of her symptoms and functional limitations. Id. at 667. Her pain and other symptoms would constantly interfere with her attention and concentration needed to perform simple work tasks. Id. She is capable of tolerating low-stress jobs. Id. He estimated that she can walk for two blocks without rest or severe pain. She can sit for five minutes at one time for a total of less than two hours and stand between five and ten minutes for a total of less than two hours. Id. at 667-68. Nurse Fawcett opined that Plaintiff would need to take unscheduled breaks every ten to fifteen minutes. Id. at 668. Further, she needs to walk every ten minutes for between three and five minutes. Id. She can lift and carry less than ten pounds occasionally and ten pounds rarely. Id. She can rarely look up, turn her head to the right or left, hold her head in a static position, twist, stoop, crouch/squat, and climb stairs. Id. at 669. She cannot climb ladders. Id. In an eight-hour working day, Plaintiff can use her hands to grasp, turn, and twist objects ten percent of the time, use her fingers for fine manipulations ten percent of the time, and use her arms for reaching five percent of the time. Id. She is likely to be absent from work three or more days per month as a result of her impairments and treatment. Id.

         ii. Aisha Gargom, M.D.

         Dr. Gargom, Plaintiff's treating physician, completed an impairment questionnaire in April 2016. She indicated that Plaintiff's treatment included medication and she was stable. Id. at 756. When asked for Plaintiff's signs and symptoms, she checked twenty-nine boxes, including, for example, decreased energy, mood disturbance, change in personality, emotional withdrawal or isolation, and sleep disturbance. Id. Dr. Gargom opined that Plaintiff had a moderate restriction of activities of daily living; extreme difficulties in maintaining social functioning; marked deficiencies of concentration, persistence, or pace; and four or more repeated episodes of decompensation within a twelve-month period. Id. at 758. Plaintiff's impairments and treatment would cause her to miss about two or more days of work per month. Id. at 759.

         In December 2016, Dr. Gargom completed a fibromyalgia medical source statement. She indicated that Plaintiff meets the American College of Rheumatology criteria for fibromyalgia. Id. at 873. In addition to fibromyalgia, she diagnosed major depression, anxiety, and migraine headaches. Id. Plaintiff's symptoms include multiple tender points, nonrestorative sleep, chronic fatigue, morning stiffness, frequent and severe headaches, numbness and tingling, Sicca symptoms, anxiety, panic attacks, depression. Id. at 874. She noted that Plaintiff has constant pain in her shoulders, thoracic spine, and lumbosacral spine. Id. Her pain and other symptoms would constantly interfere with her attention and concentration to perform simple work tasks. Id. at 875. She is incapable of even low-stress jobs. Id. Plaintiff can sit for five minutes at one time, stand for five minutes at one time, and must walk every five minutes for a total of two minutes. Id. at 875-76. She can never carry or lift any weight. Id. at 876. She can rarely twist, stoop, crouch, climb ...


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