Hicks v. Comm'r of Soc. Sec., Case No. 1:17CV1957
| Decision Date | 27 September 2018 |
| Docket Number | Case No. 1:17CV1957 |
| Parties | DENNIA HICKS, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant. |
| Court | U.S. District Court — Northern District of Ohio |
MEMORANDUM AND ORDER
Plaintiff Dennia Hicks ("Hicks" or "claimant") challenges the final decision of Defendant Commissioner of Social Security ("Commissioner"), denying her applications for a period of disability, disability insurance benefits ("DIB"), and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381 et seq. ("Act"). This court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned United States Magistrate Judge pursuant to the consent of the parties. (R. 13.) The issue before the court is whether the final decision of the Commissioner is supported by substantial evidence and, therefore, conclusive. For the reasons set forth below, the Commissioner's final decision is remanded.
On September 10, 2013, Hicks filed two applications for a period of disability and DIB, and for SSI benefits, with both applications alleging disability beginning December 31, 2012. (R. 11, Transcript ("tr."), at 29, 214-219, 235-245.) Hicks's applications were denied initially and upon reconsideration. (Id. at 91-120, 121-154, 155-161.) Thereafter, Hicks filed a written request for a hearing before an administrative law judge. (Id. at 171-172.)
An Administrative Law Judge ("the ALJ") held the hearing on March 2, 2016. (R. 11, tr., at 46-77.) Hicks appeared at the hearing, was represented by counsel, and testified. (Id. at 48- 71.) A vocational expert ("VE") also attended the hearing and provided testimony. (Id. at 49, 69-76.) On March 31, 2016, the ALJ issued his decision, applying the standard five-step sequential analysis to determine whether Hicks was disabled. (Id. at 29-40; see generally 20 C.F.R. §§ 404.1520(a), 416.920(a).) Based on his review, the ALJ concluded Hicks was not disabled. (Id. at 29, 40.) The Appeals Council denied Hicks's request for review, thus rendering the ALJ's decision the final decision of the Commissioner. (R. 11, tr., at 1-3.)
Hicks now seeks judicial review of the Commissioner's final decision pursuant to 42 U.S.C. § 405(g). The parties have completed briefing in this case. Hicks's brief asserts that the ALJ erred when evaluating the pertinent opinion evidence. (R. 16, PageID #: 2116.)
Hicks was born in 1966, and was 46 years old on the alleged disability onset date. (R. 11, tr., at 37, 214, 235.) Accordingly, Hicks was considered a youngerindividual age 45-49 for Social Security purposes. See 20 C.F.R. §§ 404.1563, 416.963. Hicks has a ninth-grade education, and is able to communicate in English. (R. 11, tr., at 37, 52, 238.) Hicks had past relevant work as a short order cook, and a combination job of home attendant/resident care aide. (R. 11, tr., at 37, 71-72.)
Disputed issues will be discussed as they arise in Hicks' brief alleging error by the ALJ. As noted earlier, Hicks applied for DIB and SSI benefits on September 10, 2013, alleging disability beginning December 31, 2012. (R. 11, tr., at 29, 214-219.) Hicks listed her physical or mental conditions that limit her ability to work as: "depression; hbp; anxiety; fibromyalgia; diabetes 2; arthritis; neck; shoulders; knees lock; constant pain needles feelings like a pulling." (R. 11, tr., at 239.) Hicks' assignment of error concerns the opinions of Dr. Placeway, Dr. Morton, and Dr. Wax (R. 16, PageID #: 2116), so the court will primarily focus on their treatment of Hicks.
At a February 26, 2013, appointment with Nurse-Practitioner ("NP") Jean Knudsen, Hicks reported that she was severely depressed, was caring for both her mother and her granddaughter, and was very stressed. (R. 11, tr., at 445.) Hicks reported that she lost her job "because she missed too much work caring for mother and grandchild." Id. She was not sleeping, and was taking Nyquil. Id. Hicks wasassessed with depressive disorder, but was doing much better. Id. at 446. She had diabetes mellitus Type II, uncontrolled, hypertension ("HTN"), and hyperlipidemia ("HLD"). Id.
On June 11, 2013, Hicks visited Elva Thompson, CNP, to establish care as a new patient. (R. 11, tr., at 564.) Hicks reported she had been having joint pain in her shoulder, knees, elbows and ankles. Id. She was diagnosed with osteoarthritis in her left knee, but had not been taking the medication prescribed for it. Id. Her medications for joint pain were changed. Id. at 466.
At an August 14, 2013, visit with Eric Friess, M.D., Hicks complained of a long history of leg pain and cramping "but walks her dog many blocks daily." (R. 11, tr., at 903.) The doctor noted that Hicks was not taking the prescribed medications as directed, and "insists they do not work for pain control." Id. at 903-904. Hicks requested a referral for a chronic pain management consult. Id. at 903.
Hicks applied for DIB and SSI benefits on September 10, 2013. (R. 11, tr., at 214-219.) On September 23, 2013, Hicks had a mental health assessment conducted by Tina S. Oney, Psychiatric Clinical Nurse Specialist ("PANS"). (R. 11, tr., at 928-933.) Hicks reported depression and anxiety. Id. at 928. Nurse Oney reported that Hicks seemed to be seeking medication for anxiety but "did not appear anxious at all." Id. at 929. She reported that she had fibromyalgia, and that she quit her job "because she was in too much pain and had anxiety." Id. But see R. 11, tr., at 445. Oney's impression was that Hicks had Adjustment Disorder withDepressed Mood. Id. at 932. The plan was to start a trial of Vittaria, and counseling. Id. at 933.
On referral from Dr. Friess, Hicks presented to Kutalba Tabbas, M.D., for her complaints of longstanding pain in her neck, and both arms and legs, on September 24, 2013. (R. 11, tr., at 938-941, 522-523.) Her pain was described as "pinching, sharp, dull, cramping, nagging and is relieved by nothing." Id. at 938. Dr. Tabbas assessed that Hicks' "duration for standing is worse after 3 days of standing at work, sitting is unremarkable, and walking is unremarkable." Id. Hicks reported trouble sleeping. Id.
On physical examination, Hicks complained of pain with range of motion in her cervical and lumbar spine. (R. 11, tr., at 940.) She had normal sensation, normal motor strength, normal fine motor coordination, and normal gait. Id. She had 18 trigger points. Id. Neck and lumbar X-rays showed minimal disc degeneration at L5-S1, but no major disc degeneration or degenerative joint disease. Id. at 941. Hicks was administered an IV lidocaine injection. Id.
Dr. Tabbas' plan was for Hicks to begin pool therapy, walking in the pool for about thirty minutes, three times per week. (R. 11, tr., at 941.) In addition, Hicks was prescribed a "Tramadol Cocktail." Id.
On November 5, 2013, state agency medical consultant Maria Congbalay, M.D., reviewed the medical record and opined that Hicks could occasionally lift or carry twenty pounds, and ten pounds frequently. (R. 11, tr., at 101.) Her ability to push or pull was otherwise unlimited. Id. She could stand or walk six hours of aneight-hour workday, and sit for six hours of a workday. Id. The claimant had postural limitations due to her obesity, uncontrolled diabetes mellitus, fibromyalgia, and knee and back pain. Id. Hicks could frequently stoop, kneel, crouch, and crawl, and occasionally climb ladders, ropes, or scaffolds. Id. She had no limitations for climbing stairs or ramps, or for balancing. Id.
On November 19, 2013, Hicks had a consultative psychological evaluation with psychologist Mitchell Wax, Ph.D. (R. 11, tr., at 668-673.) "The claimant's chief complaint about why she is not able to work is that she has medical problems." Id. at 668. Hicks reported that she lived with her mother and her six-year-old granddaughter. Id. at 669. She told Dr. Wax she left school in 9th grade, but "she has since gone back to school online and obtained a high school diploma2 in 2008." Id. Hicks reported to Dr. Wax that her last job was as a cook, where she worked for six months before being fired, "because I had too many absences." Id. at 670. She indicated that she had been fired from most of her jobs due to absenteeism. Id. The claimant reported that she was often depressed, and she slept most of the day, or watched television. Id. She does drive her granddaughter to school three or four times per week, and after school she visits with her and does homework with her until dinner time. Id. Dr. Wax described her speech as logical and coherent at times, while at other times she was vague, and appeared to be mentally drifting.Id. at 671. She described her usual mood as sad and depressed, with daily crying spells. Id. She seemed "fretful," and cried at times during the interview. Id.
Dr. Wax conducted no psychological testing, and apparently based his assessment on the clinical interview itself, along with a review of some medical records. (R. 11, tr., at 668, 671.) The psychologist noted Hicks had a past history of depression, and was taking antidepressant medication. Id. at 672. He indicated that claimant had difficulty maintaining a job, being fired from most of her jobs for absenteeism. Id. Dr. Wax suspected major depression with psychotic features. Id.
Dr. Wax's functional assessment of the claimant was that she "would have difficulty understanding, remembering, and carrying out instructions on a job due to her depression." (R. 11, tr., at 672.) Based on her performance on cognitive functioning tasks, such as remembering digits or simple words, adding by 3s to 40, etc., Dr. Wax indicated the claimant "appeared to be functioning in the low average range of intelligence." Id. at 671. Her ability to concentrate was intermittent. Id. Dr. Wax indicated the claimant would have difficulty maintaining attention and...
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