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Davis v. Commissioner of Social Security

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

January 16, 2020

CHRISTIAN L. DAVIS, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Sarah D. Morrison Judge

          REPORT AND RECOMMENDATION

          ELIZABETH A. PRESTON DEAVERS CHIEF UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Christian L. Davis, brings this action under 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his application for Social Security Supplemental Security Income (“SSI”). This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 11), the Commissioner's Memorandum in Opposition (ECF No. 17), and the administrative record (ECF No. 8). For the reasons that follow, it is RECOMMENDED that the Court OVERRULE Plaintiff's Statement of Errors and AFFIRM the Commissioner's decision.

         I. BACKGROUND

         Plaintiff's mother filed an application for child's SSI benefits on his behalf in August 2011, when he was 15 years old, alleging disability since April 1, 2011 due to low motor skills, mental problems, fibromyalgia, and learning challenges. (R. at 152-57, 236.) Plaintiff's application was denied initially and upon reconsideration. Plaintiff sought a de novo hearing before an administrative law judge (“ALJ”). Following an initial hearing on January 11, 2013, ALJ James B. Griffith issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 13-25.) Plaintiff turned eighteen in January 2014. ALJ Griffith's decision became the final decision of the Commissioner when the Appeals Council denied review on August 21, 2014. (R. at 1-6.)

         Plaintiff thereafter commenced a civil action, Davis v. Commissioner of Social Security, Case Number: 2:14-cv-1909. (ECF Nos. 1 and 3). This Court remanded Plaintiff's claim to the Appeals Council. (Id., ECF No. 15 and 16, R. at 1553-66.)

         On October 23, 2015, the Appeals Council subsequently vacated and remanded ALJ Griffith's decision. (R. at 1567-69.) The case was assigned to ALJ Edmund Giorgione who held a hearing on February 3, 2016, at which Plaintiff and a Vocational Expert (“VE”) testified. (R. at 1476.) Prior to ALJ Giorgione issuing a decision, he passed away. (ECF No. 11 at 2.) A subsequent hearing was held on August 2, 2016, by ALJ Timothy Gates. (R. at 1503.) On September 1, 2016, ALJ Gates issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act, either prior to or since attaining age 18. (R. at 1438-66.) On September 18, 2017, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (R. at 1281-86.) Plaintiff then timely commenced the instant action.

         II. HEARING TESTIMONY

         A. First Hearing: January 11, 2013

         Plaintiff testified at the first administrative hearing on January 11, 2013, at which time he was sixteen years old. (R. at 32-56.) At the time of this hearing, Plaintiff testified that he had pain that was throbbing and radiating. (R. at 37.) He had been experienced this pain for four to five years at the time of the hearing. (Id.) For the past two or three years prior to the hearing, Plaintiff said he had days where he laid in bed staring at the ceiling all day. (R. at 44-45.) He described having migraine headaches that feel “like something is hitting me on all sides of my head. It's just throbbing, and it never goes away.” (R. at 38.) Plaintiff testified that he cannot spend a whole day at school because every time he tries, there are “flashing lights that aggravate my migraines.” (R. at 30.) When asked how he kept up with his school work, Plaintiff replied that the school was implementing a home tutoring program. (R. at 41.) At the time of the hearing, he was unsure if he was going to be held back, as he believed he was failing most of his classes. (Id.)

         B. Second Hearing: February 3, 2016

         Following remand by this Court to the Commissioner, Plaintiff testified at another hearing on February 3, 2016, at which time he was twenty years-old and had graduated from high school. (R. at 1481-82.) Plaintiff used a cane at this hearing, testifying that his “rheumatoid doctor told me that I can use walking aides, canes or a walker. When it's bad enough, I usually use a cane and depending on the weather, it tends to make me worse. Since it's raining out today, I'm at my lowest right now.” (R. at 1483.) When asked what his most severe problems were, Plaintiff pointed to his migraines and arthritis, noting “they kind of go back and forth between each other, so one makes the other worse.” (Id.) He also testified that he has vision problems including light sensitivity and trouble focusing. (R. at 1485.)

         Plaintiff described that on a typical day, he can stand and walk about 25-30 minutes and sit 35 minutes. (R. at 1483.) He estimated that the most he could lift is 17 pounds based on the weight of his dog who he occasionally lifts. (Id.) At his home, Plaintiff can climb the steep stairs using the handrails. (R. at 1484.) He said that he could dress himself but that it took time. He said that he could shower or bathe himself but sometimes required help getting in and out of the shower. (R. at 1485.) He does not have a driver's license, noting that he was told by his neurologist that he would need to be screened first due to passing out. (R. at 1485-86.) He does not cook “too well, ” noting that he is forgetful. He does some dishes but “can't stand for too long and my hands cannot handle repetitive motion too well” because his joints tend to swell. (R. at 1486.) Plaintiff testified that he worked for one and one-half months in 2014 for a carwash but that he had to quit due to his medical condition. (R. at 1482.)

         Lynelle Hall testified as the VE at the February 2016 hearing. (R. at 1497-1501.) ALJ Giorgione ruled out past relevant work. (R. at 1482.) He proposed a hypothetical to VE Hall regarding Plaintiff's residual functional capacity (“RFC”). (R. at 1497-98.) Based on Plaintiff's age, education, and work experience and the RFC ultimately determined by ALJ Giorgione, VE Hall testified that the hypothetical individual could perform the requirements of sedentary unskilled jobs such as an addresser, with 1, 100 jobs in the state and 99, 000 nationally; a table worker, with 700 in the state and 58, 000 nationally; and an assembler, with 500 in the state and 35, 000 nationally. (R. at 1498.) VE Hall further testified that, if an individual missed work more than one day per month or would not on a consistent basis be able to maintain an eight-hour work day or a forty-hour work week because of the inability to maintain attention and concentration, it would be work preclusive. (R. at 1499.)

         C. Third Hearing: August 2, 2016

         At the supplemental administrative hearing on August 2, 2016, before ALJ Gates, Plaintiff testified that his dosage of medication had been increased since the previous hearing. (R. at 1510.) He testified that the following conditions had worsened: back pain, constant migraine headaches, and difficulty getting up. (Id.) Plaintiff explained that he had been a passenger in an April 2016 motor vehicle accident and suffered a concussion, noting his head “was swollen for about a month afterwards.” (R. at 1512-13.)

         At the time of this hearing, he was receiving infusions once a week to reduce pain and inflammation. (R. at 1510, 1515.) He described the infusions as a five-hour process that sometimes causes a spike in his blood pressure. (Id.) Plaintiff testified that he has nausea afterward and requires his mother's assistance to get up the stairs. (R. at 1515.) He testified that he remains in bed for four days after the infusions, that they result in more intense migraines, and that he receives very little benefit from them. (R. at 1516.)

         Plaintiff testified that his bones and muscles “really ache” when it is going to rain. (R. at 1512.) Plaintiff also testified that he stayed in bed “most of the day” and had difficulty with bathing, showering, and toileting. (R. at 1514.) Plaintiff also testified that his vision in his left eye had worsened and that he had an eye droop and blurred vision when fatigued. (R. at 1510- 11.) He testified that he continued to have light sensitivity. He stated that transitional lenses and sunglasses are “helpful a little, but they don't shield as much light as I was hoping.” (R. 1511- 12.)

         Lynne Kaufman testified as the VE at the supplemental August 2016 administrative hearing. (R. at 1517-22.) ALJ Gates posed substantially the same hypotheticals to VE Kaufman as ALJ Giorgione had posed to VE Hall at the prior hearing. VE Kaufman opined that, given all of these factors, the individual would be able to perform the requirements of the same three jobs identified by VE Hall. (R. at 1517-19.)

         III. RELEVANT RECORD EVIDENCE

         A. Medical Records Related to Childhood Disability Claim

         1. Nationwide Children's Hospital: Charles Spencer, M.D., Geoffrey Heyer, M.D., Sharon Wrona, CNP, and Juanita Marasca, M.D.

         Charles Spencer, M.D., Plaintiff's treating pediatric rheumatologist at Nationwide Children's Hospital, submitted a handwritten note, dated April 29, 2011, in which he reported that Plaintiff has juvenile fibromyalgia which causes diffuse body pain, fatigue, poor sleep, inability to concentrate, and “other problems.” (R. at 490.) Dr. Spencer stated Plaintiff may need extra tutoring, half day classes, elevator access, online classes, and other “504 adjustments”[1] to help him finish the current school year. (Id.) Dr. Spencer concluded that he hoped to make Plaintiff “much better” by the next school year. (Id.)

         Plaintiff was treated at the Outpatient Comprehensive Pain Clinic at Nationwide Children's Hospital in June through August 2011, for medical management, psychology (for relaxation, biofeedback, stress management, coping skills, psychotherapy, family therapy), physical therapy (core strengthening, flexibility, aerobic exercise), massage therapy, and attention to school return/sleep hygiene. (R. at 502-31.) During the program, Plaintiff's dosage of Lyrica was weaned, Neurontin, vitamin D supplementation and Cymbalta were started. (Id.) He was also started on low dose Tramadol for anticipated pain and Clonidine for sleep. (Id..)

         On May 24, 2011, Dr. Spencer prepared a narrative regarding Plaintiff's accommodations for school. (R. at 536.) Dr. Spencer recommended that Plaintiff have elevator access or minimized stair climbing, frequent locker trips to avoid carrying a heavy backpack, providing a second set of books for home, allowing 5 to 10-minute respites at the nurse's office for pain, allowing official medical absences based on parent report, and extended time to make up work. (Id.)

         In August 2011, a certified nurse practitioner in the Outpatient Comprehensive Pain Clinic, Sharon Wrona, CNP, prepared a letter to Plaintiff's school requesting use of a computer for his written school work noting he experiences increased hand pain with prolonged writing. (R. at 508.) She noted that he suffers from “a complex chronic pain condition that significantly impairs his ability to attend school regularly.” (Id.) In a separate letter from August 2011, Ms. Wrona opined that, in order to assist in Plaintiff's therapy, he should be provided an extra set of books, extra time between classes, a quiet place to rest if needed, extra time on exams and less busy work. (R. at 515.)

         Plaintiff was seen again in the Outpatient Comprehensive Pain Clinic at Nationwide Children's Hospital in April 2012. (R. at 1091.) He noted that Plaintiff's functioning had “significantly improved.” (Id.) Plaintiff reportedly tolerated his headaches on most days. (Id.) He had a stable mood and was attending school on average four days per week and he was encouraged to attend school daily. (Id.) Dr. Spencer noted in April 2012 that Plaintiff's fibromyalgia was severe and he was “doing better but had a long way to go.” (R. at 1204.) Dr. Spencer noted that Plaintiff was going to be transitioning from the pain clinic to Dr. Heyer for his headaches and fibromyalgia. (Id.)

         Pediatric neurologist, Geoffrey Heyer, M.D. noted in April 2012, that Plaintiff presented for follow up neurologic evaluation for headaches, dizziness and syncope. (R. at 1228-29.) Plaintiff reported that his pain had evolved into chronic daily headaches with rare headache-free intervals. (R. at 1228.) Dr. Heyer noted that Plaintiff's headaches were bifrontal and rarely occipital in location, throbbing in quality, and associated with nausea, dizziness, osmophobia, photophobia and phonophobia. (Id.) He reported to Dr. Heyer that he experienced significant sleep symptoms that included poor sleep quality, difficulty initiating sleep and frequent nightly waking. (Id.) Plaintiff's neurologic, power and sensory examinations were all normal, and his gait was also normal. (R. at 1228-29.) He complained of tenderness at multiple locations. (Id.) Dr. Heyer discussed analgesic treatment, an exercise plan and coping skills. (R. at 1229.)

         In June 2012, Dr. Heyer noted that Plaintiff's pain had not changed significantly after being taken off certain medication. (R. at 1216.) Plaintiff reported to Dr. Heyer, that his “fog” felt while on medications was gone. (Id.) They discussed further lifestyle changes and coping techniques for pain. (R. at 1217.)

         In August 2012, Dr. Heyer noted that Plaintiff's head pain had evolved to “chronic daily headaches with rare headache-free intervals, ” and that the headache itself was described as “bifrontal and rarely occipital in location, throbbing in quality, and associated with nausea, dizziness, osmophobia, photophobia and phonophobia," as well as pain with head movement and “associated visual symptoms of fortifications and blurring.” (R. at 1208.) An antibody study returned at 0.6 (normal range 0-0.4). (Id.) Dr. Heyer ordered a repeat study and discussed Plaintiff's fatigue and exercise. (R. at 1209.)

         Psychiatrist, Juanita Marasca, M.D. assessed Plaintiff in December 2012 due to concerns of a depressed mood given his “complicated history of pain and medical issues.” (R. at 1241- 1254.) Dr. Marasca found Plaintiff exhibited a depressed mood and constricted affect. (R. at 1241.) During the evaluation, Plaintiff was calm and cooperative, with logical thought process, average eye contact, clear speech, and estimated average intelligence. (R. at 1246-47.) Dr. Marasca stated Plaintiff's functional limitations seemed “particularly severe given his reported diagnoses and physical findings, ” noting that “some secondary gain cannot be ruled out.” (R. at 1247.) Dr. Marasca noted that Plaintiff does not fit the criteria for major depression but diagnosed him with a depressive disorder. (Id.) Plaintiff was referred for psychotherapy but antidepressant medication was deferred. (Id.)

         On August 22, 2013, Dr. Spencer reported that Plaintiff has juvenile arthritis with ankylosing spondylitis, as well as profound fibromyalgia. (R. at 1273.) Dr. Spencer noted that he has back pain, back stiffness, pains in multiple muscles and joints throughout his body that waxes and wanes, and chest pain. (Id.) According to Dr. Spencer, “these problems make[] it hard for him to exercise, walk distances, climb stairs, do his activities of daily living, study at times, and other activities. These problems are real and make his life very difficult there is also a lot of stress and depression.” (Id.)

         On September 4, 2013, Dr. Spencer completed a childhood disability evaluation form in which he opined that Plaintiff's impairments functionally equaled a listed impairment by causing marked limitations in two domains: attending and completing tasks, and health and physical well-being. (R. at 1267-72.)

         Dr. Heyer completed a childhood disability evaluation form in October 2013 in which he opined that Plaintiff's impairments functionally equaled a listed impairment by causing marked limitations in three domains: attending and completing tasks, moving about and manipulating objects, and health and physical well-being. (R. at 1275-80.)

         2. Cleveland Clinic

         On referral from Dr. Spencer, Plaintiff attended the pediatric pain rehabilitation program at the Cleveland Clinic in November 2011. (R. at 766-909.) He participated in “vigorous aerobic and strengthening activities, nutrition consult, psychological supervision, relaxation[, ] and coping strategies.” (R. at 768.) During the course of the program, Plaintiff was able to transition from a wheelchair to a rolling walker. (R. at 814.) By the third day, Plaintiff could walk without the walker. (Id.) On November 9, 2011, Plaintiff participated in an activity teaching progressive muscle relaxation and isometric relaxation. (R. at 843.) Plaintiff stated he was “so relaxed and my body doesn't feel like it's on fire anymore.” (Id.) On November 16, 2011, Plaintiff reported he could walk a mile with physical therapy, dress independently, and bend over to ties his shoes. (R. at 890.) Plaintiff showed “significant functional gains” by the time he was discharged from the rehabilitation program on November 18, 2011. He could walk independently and complete all activities of daily living. His fine motor skills had ...


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