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McLain v. Commissioner of Social Security Administration

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

August 30, 2019

EDWARD MCLAIN, Plaintiff,
v.
COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          District Judge Walter H. Rice

          REPORT AND RECOMMENDATIONS [1]

          SHARON L. OVINGTON UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Plaintiff Edward Mclain brings this case challenging the Social Security Administration's denial of his application for period of disability and Disability Insurance Benefits. He applied for benefits on October 4, 2015, asserting that he could no longer work a substantial paid job. After a hearing, Administrative Law Judge (ALJ) Elizabeth A. Motta concluded that he was not eligible for benefits because he 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. #7), the Commissioner's Memorandum in Opposition (Doc. #8), Plaintiff's Reply (Doc. #9), and the administrative record (Doc. #6).

         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 he has been under a “disability” since September 18, 2015. He was thirty-four years old at that time and was therefore considered a “younger person” under Social Security Regulations. See 20 C.F.R. § 404.1563(c). He has at least a high school education. See Id. § 404.1564(b)(4).

         A. Plaintiff's Testimony

         Plaintiff testified at the hearing before ALJ Motta that his blood disorder- hypogammaglobinemia-affects his ability to work. (Doc. #6, PageID #92). He provided a cogent explanation of the disorder:

It affects about 1 in 25, 000 people and … there's two different types. There's specific and non-specific. I have non-specific which means that all of my immunoglobulins are impacted by the disease. Immunoglobulins are a type of blood cell that fights off infections. [W]hen I have blood work done, mine do not register so it's general hypogammaglobulinemia. It causes frequent infections mostly respiratory and bronchial infections as well as digestive tract infections and stomach infections. I spend quite a portion of my life being incredibly ill to the point where I can't even get out of bed where I have to … have my food prepared and brought to me if I could eat. I can't drive when … I'm very ill so I rely very heavily on my mother as a caregiver at this time.

Id. at 92-93.

         For over three years, Plaintiff has had gamma-globulin infusion therapy every four weeks. Id. at 93. “Essentially what they do is over a four-hour to five-hour period, they infuse my blood with gamma globulins and what that does is that helps create an artificial immune system in place of the immunoglobulins that my body would normally produce to help fight off infections.” Id. After a transfusion, he is usually nauseated for the next twenty-four hours. Id. at 100. He has anti-nausea medicine that sometimes helps. Id. If it is really bad during the infusion, they will give him an anti-nausea injection. Id. He also gets a headache and his arm hurts for the rest of the day. Id.

         Although the infusions help, Plaintiff still gets infections “quite often”-every four to six weeks. Id. at 93, 105. They are sometimes gastrointestinal infections but are more often respiratory-related infections such as acute bronchitis or a sinus, ear, or upper-respiratory infection. Id. at 105. When he has a respiratory-related infection, he generally has a difficult time breathing. Id. He also has a hard time focusing because he is so sick. Id. Most of the time, he is in bed. Id. “[A] lot of times I can't get out of bed. If I do attempt to get out of bed, … the room will kind of spin.” Id.

         Plaintiff has asthma and uses inhalers. Id. at 94. At the time of the hearing, he still smoked but was down to three or four cigarettes a day. Id. at 95. He has some other health problems for which he takes medication, including simvastatin for high cholesterol and lisinopril for high blood pressure. Id. He also takes medication to help digest food. Id. at 94.

         Plaintiff has a history of seizures. He takes medication, Keppra. Id. at 95. His neurologist and psychiatrist diagnosed stress seizures. Id. at 102. He described what sort of events raise his stress to that level:

[T]he most recent experience was on June 5 when my mother quit her job over the phone and told me that she was moving to Tennessee. She was originally going to move at the end of this month which would have left me with six months of a lease to pay with no job and no income to support myself. I had three seizures back to back. They lasted maybe 45 seconds to a minute/minute and a half. During the course of one of the seizures, a bookcase did fall over on me. All the books fell on me. Everything else in the bookcase fell on me. Really, the frequency of the seizures depends on how stressed I get. I keep track as per instructions by my neurologist. I keep a seizure log to show when I have the seizures, what happened during the seizure, whether or not I went to the hospital or the ER or for how long afterwards I was postictal.

Id.

         Plaintiff struggles with depression and anxiety. He has panic attacks “very frequently.” Id. at 100. They last anywhere from ten to forty-five minutes. Id. at 101. When asked what they feel like, Plaintiff responded, “How I feel right now. I sweat, I get real bad dry mouth, … I can't communicate effectively, sometimes I will feel like … I can't breathe and will have to either breathe into a bag or put my head between my knees and try to breathe that way, I'm unable to focus on anything at all.” Id. at 100-01.

         Additionally, Plaintiff has crying spells one or two times a week. Id. at 101. They always last at least twenty to thirty minutes and sometimes more. Id. He has a hard time getting out of bed ten to fifteen days a month. Id.

         He began treatment with his psychiatrist, Dr. Barclay, and his therapist, Christine Farens, in 2012. Id. at 107. Dr. Barclay has spent five years fine-tuning Plaintiff's medications. Id. at 94. Plaintiff takes two medications for depression, two for anxiety, and one for sleeping. Id. The medications “keep things at bay.” Id. at 95. However, when he has high anxiety, his medications do not help. Id. Likewise, there are times he is depressed or cannot sleep. Id. For example, there are some days when he is awake for twenty-four hours ruminating or feeling depressed and anxious. Id. After he spends that much time awake, if the issue causing anxiety is resolved, he is able to get some sleep. Id. at 98-99. Unfortunately, he still cannot sleep for eight hours at one time. Id. at 99. Instead, he sleeps for about an hour, gets up for a few hours, and then goes back to sleep for another hour. Id. If the issue is not resolved, he is not able to sleep during the day and, instead, he watches TV, chain smokes, and sometimes paces. Id. When he has not slept, he has a hard time concentrating and forming cohesive thoughts. Id.

         Plaintiff lives in an apartment with his mother. Id. at 86-87. However, Plaintiff's mother planned to move to Tennessee in August 2017. Id. at 93. Plaintiff drives about once a week. Id. at 87. He goes to the grocery store once a month. Id. at 97. Plaintiff's only contact with his friends is through Facebook. Id. at 98. If he is not doing schoolwork and is not sick, he watches TV. Id.

         Plaintiff completed his bachelor's degree and began an online master's program in April 2015. Id. at 87. He anticipated graduating in August 2017. Id. at 87-88. It took him two and a half years to complete the program because he was only able to take one class per semester. Id. He estimated that, on average, he spent six to eight hours per week on his online studies. Id. at 95-96. He had a disability accommodation that allowed him 150-percent extra time for tests and an additional 24 hours to turn in assignments. Id. at 106. His professors usually allowed him additional time-up to a full week to turn in late assignments. Id.

         In the past, Plaintiff worked as a manager at Journey Shoes, Pacific Sunwear, and Family Video and as an assistant manager at Super Pets. Id. at 89. He also worked at the call center for Victoria Secret direct catalog and as a student cashier at Sinclair Community College. Id. at 89-90. He worked in a call center for GMB Servicing Company/Synchrony Financial for three and a half years. Id. at 90-91. Plaintiff resigned in lieu of being fired due to attendance issues. Id. at 91. He attempted to work part-time at JP Morgan Chase but had the same attendance issues and resigned. Id.

         Plaintiff was looking for jobs but stopped in February 2017 “when [he] realized … there was just no possible way for [him] to hold a job. No. one was willing to accommodate the time that [he] needed to have off.” Id. at 96.

         B. Medical Opinions

         i. James ...


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