United States District Court, S.D. Ohio, Western Division, Dayton
DECISION AND ENTRY
L. Ovington, United States Magistrate Judge.
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.
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)
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)
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
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
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. §§
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.
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.
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.
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.
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.
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
Carlos Menendez, M.D.
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
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.
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.
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.