United States District Court, S.D. Ohio, Eastern Division
JAMES D. MYERS, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
C. Smith Judge
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE
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.
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).
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).
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.
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.
Relevant Hearing Testimony
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.
Relevant Medical Evidence
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
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
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 ...