Donald v. Comm'r of Soc. Sec.
| Decision Date | 13 December 2021 |
| Docket Number | 5:20-2526 |
| Parties | SHAWN DONALD, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant. |
| Court | U.S. District Court — Northern District of Ohio |
Plaintiff Shawn Donald (“Plaintiff' or “Donald”) challenges the final decision of Defendant, Kilolo Kijakazi [1] Commissioner of Social Security (“Commissioner”), denying his application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423, and 1381 et seq. (“Act”). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) and the consent of the parties, pursuant to 28 U.S.C. § 636(c)(2). For the reasons set forth below, the Commissioner's final decision is VACATED AND REMANDED.
On September 27, 2018, Donald filed an application for SSI, alleging a disability onset date of July 12, 2018 and claiming he was disabled due to gunshot wound to the abdomen resulting in 50% loss of intestines, arthritis, plate in right knee, screws and plate in left ankle, depression, and paranoid schizophrenia. Transcript (“Tr.”) at 12, 374, 409. The application was denied initially and upon reconsideration, and Donald requested a hearing before an administrative law judge (“ALJ”). Tr. 313.
On January 16, 2020 an ALJ held a hearing, during which Donald, represented by counsel, and an impartial vocational expert (“VE”) testified. Tr. 141-180. On February 26, 2020, the ALJ issued a written decision finding that Donald was not disabled. Tr. 12-33. The ALJ's decision became final on September 18, 2020, when the Appeals Council declined further review. Tr. 1-3.
On November 10, 2020, Donald filed his Complaint to challenge the Commissioner's final decision. Doc. No. 1. The parties have completed briefing in this case. Doc. Nos. 16, 17. Donald asserts the following assignments of error:
Donald was born in 1967 and was 51 years-old, which is defined as an individual closely approaching advanced age, on the date the application was filed. Tr. 30. See 20 C.F.R. § 416.963. He has past relevant work as a general laborer. Tr. 30.
On March 20, 2018, Donald went to the emergency room for right shoulder and neck pain four days after he helped a friend move a water tank and the friend's hand slipped and Donald had to “compensate to keep the tank from falling.” Tr. 469. Upon exam, he had full musculoskeletal range of motion and muscle strength, including in his shoulder, and “some tenderness” in his shoulder. Tr. 472.
An x-ray showed mild degenerative changes in his shoulder and spine. Tr. 472. He was given antiinflammatories and discharged. Tr. 474.
On June 4, 2018, Donald returned to the emergency room complaining of pain in his right shoulder for the past three months. Tr. 481. Upon exam, he had 5/5 strength in his upper and lower extremities and no abnormalities. Tr. 485. His right shoulder x-rays from his prior visit were reviewed and he was diagnosed with a trapezius strain. Tr. 485-486.
On July 12, 2018, Donald went to the emergency department for a gunshot wound to his abdomen. Tr. 496. Upon exam, he had good range of motion in his extremities, no tenderness in his arms and legs, and full strength and intact sensation. Tr. 497. He underwent an exploratory laparotomy and was diagnosed with a gunshot wound to the abdomen, small bowel and mesenteric injuries times three, liver laceration, and iatrogenic splenic capsular tear. Tr. 529. He was discharged from the hospital on July 18 in stable condition. Tr. 506.
On December 17, 2018, Donald saw Mark Vogelgesang, M.D., for a physical consultative examination. Tr. 698-706. Donald reported arthritis in his right knee and plates and screws in his right knee and left ankle from prior surgeries in 2016. Tr. 698. He described fracturing his left ankle after falling down and having “surgery with pins.” Tr. 698. Physical therapy had been very helpful. Tr. 698. His ankle occasionally swelled in cold weather, occasionally gave out, and he reported “pretty good movement” in it. Tr. 698. His knee was shattered when he fell into a pit and he had a plate and screws below his knee. Tr. 699. He reported slight edema in his knee, which he treated with ice, and it will occasionally catch or lock and occasionally throb, especially at night. Tr. 699. He had a cane at the exam “to prevent falls” when his right leg gives out, although “this has not been evaluated.” Tr. 699. He rated his ankle pain 7/10; his knee pain 9/10, and his right shoulder pain 10/10. Tr. 699. He reported being able to sit for an hour, stand for 20 minutes, and walk about 80 yards before the pain bothers him.
Tr. 699. He can lift and carry about 25 pounds. Tr. 699. Upon exam, he had decreased range of motion and full strength in his right shoulder. Tr. 699. He had a slightly swollen right knee and no signs of crepitus or joint changes. Tr. 701. He had good mobility in his left ankle with a slight decrease in inversion. Tr. 701. His gait showed slight stiffness of the right knee walking with the cane and he was able to heel to toe walk with the cane and stand on his toes. Tr. 701. He was able to touch his toes and had a good range of motion in his back. Tr. 701. He had decreased sensation in his right foot, right leg and right thigh to sharp sensation and he had normal reflexes. Tr. 701. An x-ray of his right knee showed post-operative changes with plates and screws in the medial tibial plateau with minimal narrowing of the joint space. Tr. 697. A left ankle x-ray showed plate and screws along the distal fibula; the two long screws extending into the tibia were both fractured at the mid portion within the tibial and mild tibiotalar arthropathy and a small calcaneal spur were present. Tr. 697. Dr. Vogelgesang opined that it was possible that Donald could tolerate light to sedentary work, he may have to avoid extensive lifting over his shoulders, doing steps, and walking at heights, and he may need to rest periodically during the daytime “because of being in poor shape.” Tr. 702.
On December 18, 2018, Donald saw Cheryl Benson-Blankenship, Ph.D., for a psychological consultative evaluation. Tr. 708. He used a cane “for ambulatory support.” Tr. 708. Dr. Benson-Blankenship referenced a report from a psychological examination Donald had had in 2007: “testing that indicates that [Donald] has a lot of difficulty with reading and writing and epidemic [sic] related issues.” Tr. 709. She wrote, “[Donald] is functionally illiterate according to records.” Tr. 709. Upon exam, he had difficulty spelling the word “world” forwards and backwards and was unable to complete serial 7's or 3's. Tr. 710. Dr. Benson-Blankenship diagnosed polysubstance dependence and alcohol use disorder, both in self-reported long term remission; reading disorder; adult antisocial personality disorder; major depressive disorder, recurrent, moderate; and, generalized anxiety disorder. Tr. 711.
She opined that Donald had limitations in his ability to understand, remember and carry-out instructions based on Donald's reports that he Tr. 712.
On December 21, 2018, Donald saw his primary care physician, Colin Drolshagen, M.D., for a follow-up visit regarding memory loss, shoulder pain and medication refill. Tr. 715. Dr. Drolshagen noted that Donald had not started steroids for his chronic shoulder pain. Tr. 715. Donald reported whole body joint pain since his gunshot wound in July: knees, hips, sides, back. Tr. 715. He had been taking ibuprofen but it was not helping. Tr. 715. Dr. Drolshagen diagnosed memory loss and chronic joint pain and questioned whether Donald was suffering from early onset Alzheimer's and provided him with a number for geriatrics. Tr. 718.
On May 6, 2019, Donald saw Joshua Eugene Nash, D.O., a trauma physician, for a follow-up of his gunshot wound. Tr. 800. Donald reported residual aches and pains from his gunshot wound and, despite Dr. Nash's assurances, remained very concerned that the bullet in his abdominal wall will move and hurt him such that he had been altering the way he sleeps. Tr. 800. Donald was to follow-up in June to have the bullet removed. Tr. 804.
On May 22, 2019, Donald saw Dr. Drolshagen for a follow-up. Tr. 785. He reported right knee pain for over a month. Tr. 785. He denied an inability to bear weight, weakness, loss of sensation, and numbness and tingling, and endorsed his knee catching/giving out. Tr. 785. Upon exam of his right knee, he had abnormal patellar mobility (+ grind) and abnormal meniscus, normal range of motion, normal alignment, no LCL or MCL tenderness or laxity, and tenderness in the medial joint line and patellar tendon. Tr. 788. Dr. Drolshagen assessed acute pain of his right knee, prescribed a trial of Mobic, and referred him to a trial of physical therapy and an orthopedic physician. Tr. 788.
On July 19, 2019, Donald saw Kiel J. Pfefferle, M.D. at the Orthopedics and Sports Medicine Department. Tr. 920. Donald reported pain since his injury four years prior that had gradually worsened. Tr. 920. His pain was sharp and improved with rest and use of a cane and exacerbated by sleeping....
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