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Myers v. Commissioner of Social Security

United States District Court, S.D. Ohio, Eastern Division

December 23, 2019

JAMES D. MYERS, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          George C. Smith Judge

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE

         Plaintiff, James D. Myers, brings this action under 42 U.S.C. § 405(g) seeking review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income Benefits (“SSI”). For the reasons set forth below, it is RECOMMENDED that Plaintiff's Statement of Errors (Doc. 9) be OVERRULED and that judgment be entered in favor of Defendant.

         I. BACKGROUND

         Plaintiff filed his application for DIB in January 2013, and his application for SSI in July 2013. Both applications allege that he was disabled beginning December 21, 2012. (Tr. 183-84). After his application was denied initially and on reconsideration, the Administrative Law Judge (the “ALJ”) held a hearing on December 16, 2014. (Tr. 40-82). On January 16, 2015, the ALJ issued a decision denying Plaintiff's application for benefits. (Tr. 18-39). The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-5). Plaintiff then filed a case in the United States District Court for the Northern District of West Virginia. That court remanded the case back to the Commissioner on September 12, 2016. (Tr. 570-71).

         Another administrative hearing was held on May 18, 2017, (Tr. 472-536), and the ALJ issued an unfavorable decision on September 18, 2017. (Tr. 445-64) The Appeals Council again denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. Plaintiff filed the instant case seeking a review of the Appeals Council's decision on May 20, 2019 (Doc. 1), and the Commissioner filed the administrative record on July 29, 2019 (Doc. 8). This matter is now ripe for review. (See Docs. 9, 11).

         In his decision, the ALJ found that Plaintiff had not engaged in substantial gainful activity since December 21, 2012, the alleged onset date. (Tr. 448). He found that Plaintiff suffers from the following severe impairments: multiple sclerosis and diagnoses of persistent dysthymic disorder, unspecified personality disorder, amnestic disorder (not otherwise specified), and cognitive disorder (not otherwise specified). (Id.). The ALJ, however, found that none of Plaintiff's impairments, either singly or in combination, met or medically equaled a listed impairment. (Tr. 450).

         As for Plaintiff's residual functional capacity (“RFC”), the ALJ opined:

[T]he claimant has the residual functional capacity to perform a range of sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) subject to some additional nonexertional limitations. More specifically, the claimant is able to: lift and/or carry up to 10 pounds occasionally and less than 5 pounds frequently; sit with normal breaks for 6 to 8 hours out of an 8-hour workday; and stand and/or walk with normal breaks for up to 2 hours out of an 8-hour workday. He also requires the use of a cane, as needed, to ambulate. He can never climb ladders, ropes, or scaffolds, but can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. He must avoid concentrated to temperature extremes, vibration, fumes, dusts, odors, gases, poor ventilation, and hazards of moving plant machinery and unprotected heights. He is unable to do commercial driving and is limited to simple, unskilled work involving occasional interaction with supervisors, coworkers, and the public. Finally, the work must be performed in a low stress work setting with no rapid production quotas or assembly line work, limited decision-making responsibilities, and few changes in the work setting.

         (Tr. 452).

         A. Relevant Hearing Testimony

         The ALJ summarized the testimony from Plaintiff's hearing:

Over the course of two hearings, the claimant testified that he is married and has one child (currently age 6). He indicated that his family supports itself through his wife's employment as a flight attendant. He testified that he has a 9th grade education, but indicated that he obtained his GED and is able to read, write, and perform simple math. The claimant initially alleged disability due to intermittent vertigo, double vision, and loss of focus.
At the first hearing, the claimant testified that he stopped working in 2012 because of impaired vision and vertigo secondary to an earlier diagnosis of multiple sclerosis. He reported that he did not feel like it was safe for him to be behind the wheel as a truck driver. He also indicated that no treating physician advised him that his driver's license should be revoked. The claimant testified that he was taking Aubagio and Naproxen for his medical conditions at that time. Despite that treatment, the claimant reported that he continued to experience memory issues, double vision, right upper extremity numbness, and an unsteady gait. Overall, he asserted that he was able to lift 20 to 25 pounds at one time, stand for 20 to 30 minutes at one time, and walk 15 to 20 minutes at one time.
At the second hearing, the claimant continued to report residual effects of his multiple sclerosis, such as double vision, headaches, memory issues, weakness, and fatigue. He also indicated that he was taking Betaseron and Ibuprofen for his physical issues. Overall, the claimant reported that he was able to repetitively lift 1 pound, sit for 1 hour at a one time, and stand 15 to 30 minutes at one time. The claimant also reported that he has problems with depression and anxiety for which he takes Cymbalta, but he indicated that he has never seen a psychologist or psychiatrist and was unable to recall where he received individual therapy during the alleged period of disability.

         (Tr. 453).

         B. Relevant Medical Evidence

         The ALJ also usefully summarized Plaintiff's medical records and symptoms. First, he considered the records documenting Plaintiff's physical impairments:

In assessing the claimant's residual functional capacity, the undersigned first points out that his claim for disability has two distinct components. The first part is related to his multiple sclerosis and the second component is related to his overall mental health condition. The undersigned will first address the claimant's multiple sclerosis diagnosis. The claimant was seen for a consultative examination performed by Dr. Sethi in April 2013. The claimant reported a history of intermittent headaches, vertigo, and lack of vision secondary to multiple sclerosis.
The claimant also indicated that he was not on any medications for any physical or mental diagnosis. He indicated that he had stopped working on the alleged onset date because he was involved in a motor vehicle accident while at work and his employer fired him over the incident (Exhibit 8F/2).
Dr. Sethi's physical examination revealed that the claimant was well-built, well-nourished, and in no acute distress. The examination of the claimant's head, eyes, ears, nose, throat, neck, chest, heart, and abdomen were normal. The claimant had mildly reduced range of motion of the dorsolumbar spine, varying sensation in the right lower extremity, and he reported being unable to walk on his tiptoes. Otherwise, the claimant had normal range of motion of the cervical spine, shoulders, elbows, wrists, hands, fingers, hips, knees, and ankles. He also exhibited 5/5 strength in all four extremities and with grasping, manipulations, pinching, and fine coordination (Exhibit 8F). Dr. Sethi's opinion is addressed in the opinion section of the decision located below the analysis of the claimant's treatment evidence.
As far as treatment is concerned, the claimant first sought treatment with his primary care provider, Dr. Seco, in April 2014 for reports of a discolored brown area on his right foot. The claimant also reported right arm numbness, fatigue, and dizziness at times due to an earlier diagnosis of multiple sclerosis. However, he indicated that he did not take any medications for multiple sclerosis and just dealt with the symptoms. The claimant also specifically denied any issues with confusion, disorientation, impaired memory/judgment, anxiety, loss of interest, incontinence, frequency/urgency, blurred vision, vision loss, back pain, joint pain, joint swelling, joint effusion, limited range of motion, muscle aches, muscle weakness, stiffness, focal weakness, headaches, facial drooping, incoordination, or any falls in the preceding six months. The claimant also reported that he was taking care of his 3-year-old son while his wife worked (Exhibit 5F/5-21).
The claimant continued to follow up with Dr. Seco's office through August 2014. At the final visit, the claimant specifically denied any issues with focal weakness, dizziness, headache, facial drooping, incoordination, memory problems, numbness, seizures, slurred speech, tremor, joint pain, joint swelling, limited range of motion, muscle aches, muscle weakness/stiffness, anxiety, sadness/tearfulness, or loss of interest. The physical examination at this visit also revealed that the claimant was comfortable, alert, and oriented. He had a normal range of motion of the neck and his respiratory system and cardiovascular system were also normal. The claimant's abdominal area was nontender without any other abnormality being noted. The examinations of the claimant's head, neck, and back were normal. The claimant also exhibited normal range of motion of the upper extremities, low back, and lower extremities. The claimant had normal stability, muscle strength, and muscle tone of all four extremities along with normal deep tendon reflexes, sensation, gait, and station (Exhibit 5F/76-89).
The claimant also established treatment with Dr. Zyznewsky, a neurologist, in June 2014 with reports of headaches, balance problems, and tingling/numbness of the right upper extremity and left lower extremity. The claimant reported that he had been diagnosed with multiple sclerosis approximately twenty (20) years prior to this visit due to experiencing double vision at that time. The claimant indicated that he had never really had any follow-ups for the condition since that date (Exhibit 7F/2).
As a result, Dr. Zyznewsky had the claimant undergo updated testing in the form of a brain MRI, an EEG, an EMG/nerve conduction study, and a duplex can of the carotid cervical area. The brain MRI revealed the presence of multiple foci and white matter consistent with multiple sclerosis, but there was no acute intracranial process (Exhibit 7F/8-9). The EEG was normal (Exhibit 7F/5). The EMG/nerve conduction study was also normal specifically indicating that the nerve conduction velocities and needle studies of the lower extremities were normal and no evidence of radiculopathy or neuropathy was present (Exhibit 7F/4). The duplex scan revealed no significant stenosis (Exhibit 7F/7).
Based upon these findings, Dr. Zyznewsky placed the claimant on Aubagio, which the claimant indicated he was tolerating well except for some residual diarrhea. Dr. Zyznewsky also prescribed the claimant a cane. In November 2014, the claimant told Dr. Zyznewsky that he was no longer taking Aubagio because his hair was falling out. Dr. Zyznewsky offered the claimant Tecfidera as a replacement medication, but the claimant did not return his call and was a no show for his final scheduled appointment in February 2015 (Exhibits 6F, 7F, and 10F).
The claimant then had a break in treatment for his multiple sclerosis until he established with a new neurologist, Dr. Paris, in February 2017. At this visit, the claimant reported that he was experiencing double vision on and off, right arm and left leg numbness, and left leg weakness while walking. He also indicated that he had not been on any medications for his multiple sclerosis recently. In fact, the claimant reported that he had only taken Betaseron for 6 months approximately 20 years prior to his visit with Dr. Paris (Exhibits 16F/2 and 8).
The physical examination revealed that the claimant had mild hand tremors, decreased sensation in the left leg, and an ataxic gait. Otherwise, the claimant was awake, alert, and in no acute distress. The claimant's mental status examination was normal and he had normal strength in the bilateral upper extremities and right lower extremity. His left lower extremity strength was 4-/5. The claimant's cranial nerves were also intact (Exhibit 16F). Based upon this examination, Dr. Paris had the claimant undergo a brain and cervical spine MRI. The results indicated that there was white matter present in the brain consistent ...

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