Fox v. Comm'r of Soc. Sec.
| Docket Number | 5:23-cv-580 |
| Decision Date | 10 October 2023 |
| Parties | ALLISON RENEE FOX, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant. |
| Court | U.S. District Court — Northern District of Ohio |
REPORT & RECOMMENDATION
James E. Grimes Jr. U.S. Magistrate Judge.
Plaintiff Allison Fox filed a Complaint against the Commissioner of Social Security seeking judicial review of the Commissioner's decision denying Disability Insurance Benefits. This Court has jurisdiction under 42 U.S.C §§ 405(g) and 1383(c). The Court referred this matter to a Magistrate Judge under Local Rule 72.2(b)(1) for the preparation of a Report and Recommendation. Following review, and for the reasons stated below, I recommend that the District Court affirm the Commissioner's decision.
Procedural history
In May 2021, Fox filed an application for Disability Insurance Benefits alleging a disability onset date of April 1 2017,[1] and claiming she was disabled due to type 1 diabetes, gastroparesis, diabetic neuropathy, persistent depressive disorder, generalized anxiety disorder, chronic migraines, and asthma. Tr. 162, 171, 175. The Social Security Administration denied Fox's application and her motion for reconsideration. Tr. 59, 64. Fox then requested a hearing before an Administrative Law Judge (ALJ). Tr. 85.
In January 2022, an ALJ held a hearing. Fox and a vocational expert testified. Tr. 27-58. In March 2022, the ALJ issued a written decision finding that Fox was not disabled. Tr 15-23. The ALJ's decision became final on February 7, 2023, when the Social Security Appeals Council declined further review. Tr. 1-3; see 20 C.F.R. § 404.981.
Fox filed this action on March 20, 2023. Doc. 1. She asserts the following assignment of error:
The ALJ failed to properly develop the record when he declined to either obtain a medical source statement of Plaintiff's limitations from treating sources or order a consultative examination for an opinion of Plaintiff's limitations.
Personal and vocational evidence
Fox was born in 1997 and was 24 years old on the date she filed her application. Tr. 33. She completed three years of college and used to work as a survey research caller, fast food cashier customer service representative, and writing tutor. Tr. 176-77.
Medical evidence[2]
In April 2016, Fox went to the emergency room for right wrist pain after she fell while “crowd surfing” at a concert. Tr. 228-29. X-rays were negative for a fracture and Fox was advised that she likely had a soft tissue injury. Tr. 229. The doctor advised Fox to wrap her wrist in a bandage and take ibuprofen as needed for pain. Tr. 229.
Eight days later Fox returned to the emergency room for left leg swelling that began three days before her visit. Tr. 227. She had an insulin pump, and reported redness and discolored drainage at the site of the pump the day before her visit. Tr. 227. Fox also reported an episode of nausea. Tr. 227. Fox's exam showed an insulin pump over the left buttock and a small red area on Fox's thigh. Tr. 227. A “[s]mall amount of purulent fluid [wa]s obtained.” Tr. 227. The doctor prescribed antibiotics and diagnosed Fox with cellulitis and a history of type 1 diabetes. Tr. 227-28.
Three years later, in April 2019, Fox saw Karla Detoya, M.D., for a follow-up diabetic visit. Tr. 591. A note lists Fox's use of an insulin pump. Tr. 591. Dr. Detoya assessed Fox with type I diabetes mellitus with hyperglycemia with long-term insulin use. Tr. 598. Fox denied any musculoskeletal, neurological, endocrinological, gastrointestinal, or psychiatric issues. Tr. 594. She denied depression, memory issues, or problems sleeping. 594. Fox's physical and mental exam findings were unremarkable. Tr. 595. Dr. Detoya wrote that Fox's high HbA1c[3] was “putting [Fox] at risk for complications/catastrophic event.” Tr. 598. Fox was advised to continue the current insulin pump setting, check her blood levels, and return in approximately three months. Tr. 598-99.
Almost two years later, in January 2021, Fox was hospitalized due to diabetic ketoacidosis (lack of insulin). Tr. 531. Fox improved with treatment and was discharged two days later. Tr. 531. Fox was assessed with diabetic ketoacidosis, “likely related to poor compliance [versus] insulin pump issue.” Tr. 534. A chest x-ray after Fox complained of shortness of breath was unremarkable. Tr. 271. Fox was also assessed with elevated procalcitonin (indicting infection), migraines, and depression. Tr. 534. Fox was advised to continue medications for migraines (Topomax) and depression (Venlafaxin). Tr. 534
In April 2021, Fox saw Elizabeth Bevington, M.D., to establish care and to obtain an endocrinology referral for her diabetes. Tr. 508. Fox reported a history of diabetes with neuropathy, anxiety, depression, and migraines. Tr. 508. She said that she was doing well on her migraine medication and that she hadn't had a migraine in about a year. Tr. 508-09. At that visit, Fox denied any musculoskeletal, neurological, or psychiatric issues. Tr. 509. She reported bloating, constipation, and nausea. Tr. 509. Fox's exam findings, including of Fox's abdomen, were normal. Tr. 510-11.
In July 2021, Fox saw Dr. Bevington for gastrointestinal problems. Tr. 442. Fox reported constipation, constant stomach cramps, poor appetite, bloating, weakness, and feeling “more sick.” Tr. 442. Dr. Bevington assessed Fox with chronic generalized abdominal pain, slow transit constipation, and type I diabetes mellitus with diabetic neuropathy. Tr. 444. Fox was listed as stable on diabetic medication, which Dr. Bevington refilled. Tr. 444. Dr. Bevington prescribed magnesium oxide for Fox's gastrointestinal issues and referred Fox to a gastroenterologist. T 444.
In August 2021, Fox saw endocrinologist James Salem, M.D., for a follow-up after a hospitalization. Tr. 418. Fox reported feet numbness and nausea but said that medication helped. Tr. 418. She had an unremarkable physical and mental exam. Tr. 419-20. Dr. Salem assessed Fox with type 1 diabetes mellitus with diabetic neuropathy and diabetic gastroparesis. Tr. 418.
State agency review[4]
In June 2021, the state agency doctors reviewed Fox's application, but there was no medical evidence on file. Tr. 61-62. So they found that Fox didn't have a physical or mental medically determinable impairment. Tr. 61-62. In September 2021, on reconsideration, the state agency doctors reviewed the only evidence in the record-Fox's 2016 negative wrist x-ray-and found that Fox didn't have a physical or mental medically determinable impairment. Tr. 66-68.
Later, additional evidence was added to the record, which was on file at the time of the administrative hearing. Tr. 32-33; see also Tr. 15, 26.
Hearing testimony
Fox, who was represented by counsel, testified at the telephonic administrative hearing held in January 2022. Fox stated that she is a full-time college student. Tr. 39. She lives with her fiance and two roommates. Tr. 38. Fox said that she used to work full-time at a fast-food restaurant, but when she started college, she switched to part-time work. Tr. 40-41.
For her diabetes, Fox has an insulin pump. Tr. 42. She began using the insulin pump about eight or nine years before the hearing. Tr. 42. She explained that she is what is called a “brittle diabetic”-her blood sugar levels “are always going to be ... up and down.” Tr. 42. When Fox wakes up in the morning, she checks her blood sugar levels and takes her medication. Tr. 42. Her blood sugar is “usually kind of high in the morning,” so she is “usually pretty sick.” Tr. 42. She lies down for about an hour or so after taking her insulin, and then she is “usually pretty okay to start [her] day.” Tr. 42. Separately, she has nausea from gastroparesis. Tr. 43, 52.
Fox stated that she cooks and eats healthy food every day to maintain her diabetes. Tr. 43. She has a Planet Fitness membership and exercises there and at home. Tr. 44. At the time of the hearing Fox wasn't working, so it's her “job” to do chores around the house. Tr. 51. When asked about neuropathy, Fox stated that she mostly has neuropathy in her feet, but that she takes Gabapentin, which “helps immensely.” Tr. 44. Also, she can “walk it off.” Tr. 44. The neuropathy mostly occurs at night, and she can use a heating pad and “sleep it off.” Tr. 45.
When asked how long she could walk, Fox stated that she can walk for about 15 minutes before she would want to take a break to sit and drink water. Tr. 45. She doesn't experience problems using her fingers or hands. Tr. 46. When asked if her migraines were still an issue, Fox stated, “[n]ot so much, with the medications I'm on now.” Tr. 47. But when she gets nervous or stressed, she gets migraines despite her medication, and is bedridden. Tr. 47. Fox estimated that she had four migraines in the last month. Tr. 47. They last for about an hour or two. Tr. 47. When asked about her asthma, Fox stated that she needs to use her inhaler in the winter. Tr. 47.
When asked about whether her mental health issues impair her ability to work, Fox stated that her mental health issues caused her to take too many days off. Tr. 48. She called them “diabetes days” and said that she's too depressed to go to work. Tr. 48. Fox stated that she has trouble concentrating. Tr. 49. She's “really good with people” and has a group of friends who she sees regularly. Tr. 50, 52. She sees a mental health provider and takes medication for depression and anxiety. Tr. 50. The medication helps. Tr. 50. Fox has panic attacks at least once a day but has become adept at managing them. Tr. 50.
The ALJ found that Fox had no past relevant work. Tr. 55. The ALJ asked the vocational expert to determine whether a hypothetical individual...
To continue reading
Request your trial