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Westfall v. Commissioner of Social Security Administration

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

November 20, 2019



          Sharon L. Ovington, United States Magistrate Judge.

         I. Introduction

         Plaintiff Jennette Westfall has attempted for over ten years to establish her eligibility for period of disability, Disability Insurance Benefits, and Supplemental Security Income. She applied for benefits in March 2008, asserting that she has been under a disability since March 2006. Her applications were denied initially and upon reconsideration. She appealed and, after a hearing, Administrate Law Judge (ALJ) Carol K. Bowen found she was not eligible for benefits because she was not under a disability.

         Plaintiff brought a previous action in the United States District Court for the Southern District of Ohio. The Court found that the ALJ improperly evaluated Plaintiff's treating physician's opinion, vacated the Commissioner's non-disability finding, and remanded Plaintiff's case to the Commissioner for further consideration. Westfall v. Colvin, 3:12-cv-293, 2013 WL 4500032 (S.D. Ohio July 16, 2013) (Ovington, M.J.) report and recommendation adopted, 2013 WL 4500032 (S.D. Ohio Aug. 21, 2013) (Rose, D.J.).

         Upon remand, ALJ Elizabeth A. Motta held a hearing and found that Plaintiff was ineligible for benefits. But Plaintiff persisted. She returned to the United States District Court for the Southern District of Ohio where, upon the parties' joint motion for remand, the Court vacated the ALJ's non-disability finding and ordered the case again be remanded to the Commissioner. Westfall v. Comm'r of Soc. Sec., 3:15-cv-405 (S.D. Ohio May 12, 2016) (Rice, D.J.).

         Upon remand-and at issue in the present case-ALJ Mark Hockensmith, after a hearing, concluded that Plaintiff 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. #7), the Commissioner's Memorandum in Opposition (Doc. #10), 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 Hockensmith's non-disability decision.

         II. Background

         Plaintiff asserts that she has been under a “disability” since August 10, 2006. She was thirty-five 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 high school education. See Id. §§ 404.1564(b)(4), 416.964(b)(4).[1]

         A. Plaintiff's Testimony

         Plaintiff testified at the hearing before ALJ Hockensmith that her health problems began after her head-on collision with a garbage truck. (Doc. #6, PageID #s 1100-01). After the accident, Plaintiff began seeing her family-care physician, Dr. Menendez, more frequently-about every three months. Id. at 1101. Dr. Menendez usually spends fifteen to thirty minutes with her at each appointment. Id. at 1102. He does full checkups and blood work. Id. Additionally, he refers her to specialists, such as Dr. Flaugher, Plaintiff's rheumatologist; receives reports from them; and discusses their reports with Plaintiff. Id. at 1101-02. He has been Plaintiff's family-care physician for thirty years. Id. at 1101.

         Plaintiff had cervical-fusion surgery in October 2006. Id. at 1096. She cannot turn her neck to look up, down, or to the side. Id. at 1092. Instead, she has to move her entire body to look in a different direction. Id. If she tries to turn her neck, she has pain down her shoulders, arms, and back. Id. Despite her pain, her doctors are not able to do anything else other than fuse more bones together. Id. However, they do not recommend that because it will further restrict her ability to move her neck. Id. Plaintiff has had radiofrequency treatments on her neck and upper back and has also undergone cervical epidural injections. Id. at 1104. To alleviate her pain, Plaintiff tried stretching. Id. at 1097. However, she ended up in the emergency room twice with excruciating pain so she stopped. Id. at 1097-98. “So there's really not anything I can do … to relieve the pain.” Id. at 1098.

         Plaintiff has a hard time sitting because of her back. Id. at 1095. She cannot bend and cannot get off the floor without help or difficulty. Id. She does not use a computer. After being on her smart phone after five to ten minutes, she “can't do it anymore.” Id. at 1093. She testified that she smokes, so when she goes outside her house to smoke, that is the time that she reads, “so it's like ten minutes maybe.” Id. at 1094.

         Plaintiff has trouble with her knee as well. She had a left knee arthroscopy in January 2007. Id. at 1096. Her doctors wanted to do surgery on her knee again but she first had to have surgery on her right Achilles tendon. Id. at 1097. She has had knee injections and has gone through physical therapy. Id. at 1104. Nonetheless, she has excruciating pain when she uses or bends her leg. Id. at 1095. She also has difficulty walking up or down stairs because she cannot put all of her weight onto her knee. Id.

         Plaintiff has problems with her hands. She cannot use her fingers for long periods of time because she gets numbness and tingling in her pinky and ring finger. Id. at 1094. She also gets sharp pain up her arm. Id. She often drops things if she tries to hold onto them for too long. Id. at 1094-95. Her doctors told her she has muscle atrophy in her hands. Id. at 1105.

         Plaintiff lives with her husband and son. Id. at 1087. She has a driver's license but only drives if she has to. Id. at 1089. She needs someone with her if she drives because she cannot turn her head. Id. Further, she is scared to drive because she gets numbness in her hands, arms, and legs. Id. Plaintiff “can't really do hardly anything anymore.” Id. at 1098. She mostly stays at home. Id. She tried to go to a car show with her husband and kids but after walking a few blocks, she was unable to walk back to the car. Id. She is able to go to the grocery store. Id. Likewise, Plaintiff is able to clean but it takes her all day because she has to stop to take breaks. Id. at 1098-99. She also makes one meal per day. Id. at 1099. But her cooking is also limited. For instance, she cannot bend down to put casseroles in the oven or take them out. Id. She is able to pick up a gallon of milk but “five or ten pounds is quite a bit” for her. Id. at 1099-100. Her personal care is limited because she does not go anywhere. She is not able to do her hair. Id. at 1100. Plaintiff estimated that she could sit for fifteen to twenty minutes before she needs to get up or change positions. Id. at 1095. However, she cannot stand in one place, she has to walk a little, but she cannot go very far. Id. at 1095-96.

         B. Carlos Menendez, M.D.

         Plaintiff's primary-care physician, Dr. Menendez, has treated Plaintiff for various impairments including, for instance, chronic neck pain, right knee pain, back pain, wrist pain, obesity, and depression. Id. at 362-410, 443-67, 564-604, 864-94, 1582-1872. Dr. Menendez provided the opinions at issue in the present case.

         In June 2008, Dr. Menendez completed a questionnaire regarding Plaintiff's conditions. He noted that Plaintiff had neck and chest pain of severe intensity. She experienced significant muscle spasms to her paracervical muscles and her cervical spine range of motion was limited in all planes. Id. at 362-63.

         A few months later, in October 2008, Dr. Menendez reported that Plaintiff has osteoarthritis and depression. He opined that Plaintiff is unable to sit or stand longer than fifteen minutes without interruption. Id. at 446. She cannot stoop, climb, bend, or look up or down. Id. She cannot lift, push, or pull more than ten pounds. Id. Further, she has poor memory and concentration and is unable to tolerate stressful environments. Id.

         In December 2008, Dr. Menendez opined that Plaintiff was totally disabled. Id. at 587. In February 2009, he indicated that Plaintiff continued to suffer from chronic pain and disability and her condition was permanent. Id. at 585. Plaintiff's neck had reached maximal medical benefit from her medications. Id. She may, however, need physical therapy and epidural blocks in the future. Id. ...

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