Kimball v. Comm'r of Soc. Sec. Admin.
| Decision Date | 13 December 2021 |
| Docket Number | 3:20-CV-01705 |
| Court | U.S. District Court — Northern District of Ohio |
| Parties | NICHOLE D. KIMBALL, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant. |
REPORT AND RECOMMENDATION
Plaintiff Nichole Kimball (“Plaintiff” or “Ms Kimball”) seeks judicial review of the final decision of Defendant Commissioner of Social Security (“Commissioner”) denying her applications for Supplemental Security Income (“SSI”) and Disability Insurance Benefits (“DIB”). (ECF Doc 1.) This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation pursuant to Local Rule 72.2.
For the reasons set forth below, the undersigned recommends that the final decision of the Commissioner be AFFIRMED.
On May 18, 2018, Ms. Kimball filed an application for POD and DIB. (Tr. 210-16.) She alleged a disability onset date of July 11, 2017. (Tr. 18.) She alleged disability due to disk herniation with extrusion at ¶ 5-C6, spinal arthritis, cervical radiculopathy, scoliosis, spinal canal stenosis, and hypersomnia. (Tr. 255.) Ms. Kimball's application was denied at the initial level (Tr. 103-05) and upon reconsideration (Tr. 107-09), and she requested a hearing (Tr. 110-11). On June 5, 2019, and October 15, 2019, hearings were held before an Administrative Law Judge (“ALJ”). (Tr. 48-79, 34-47.)
On October 25, 2019, the ALJ issued a decision finding that Ms. Kimball had not been under a disability within the meaning of the Social Security Act from July 11, 2017, through the date of the decision. (Tr. 12-33.) On June 1, 2020, the Appeals Council denied Ms. Kimball's request for review, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-6.)
On August 3, 2020, Ms. Kimball filed a Complaint challenging the Commissioner's final decision. (ECF Doc. 1.) The parties have completed briefing. (ECF Docs. 14, 16, 17.)
Ms. Kimball was born in 1985, and was 32 years old on the alleged disability onset date, making her a “younger individual” under Social Security regulations at all relevant times. (Tr. 52.) She has a high school education and a cosmetology license. (Tr. 54-55.) Ms. Kimball worked after the alleged disability onset date, but this work activity did not rise to the level of substantial gainful activity. (Tr. 18.) Ms. Kimball's past work was classified as an assembly line worker, receptionist, and medical billing clerk. (Tr. 75-76.)
On December 23, 2016, Ms. Kimball sought care from Dr. James A. Gottfried. (Tr. 375.) She reported she “cannot focus and gets in a fog.” (Id.) Despite getting eight hours of sleep nightly, she reported she did not feel rested. (Id.) Dr. Gottfried noted she had a one and a half year old child, and that a recommended sleep study was “pending due to insurance purposes.” (Id.) She denied depression and reported a diet that included high protein drinks for breakfast and lunch, and a “meat, potatoes, vegetable” dinner, with fruits, vegetables, or almond bars for a snack. (Id.) Dr. Gottfried assessed chronic fatigue, dietary deficiency, and mild depression. (Tr. 376.) He ordered some blood tests and started her on a two-week trial of 20 mg of Fetzima for depression. (Id.) Fetzima was discontinued on February 25, 2017. (Tr. 349.)
On January 4, 2017, Ms. Kimball sought treatment from Dr. Christopher Avendano at Fireland Physician Group for excessive daytime sleepiness and fatigue with decreased mental acuity. (Tr. 337.) Dr. Avendano noted a home sleep test completed December 28, 2016 “revealed no evidence of a sleep related breathing disorder.” (Id.) He recommended an attended sleep test and prescribed Provigil to help with alertness. (Tr. 337-38.)
Ms. Kimball returned to Dr. Avendano on February 15, 2017, for a follow up appointment. (Tr. 335.) She reported difficulty getting her prescribed stimulant (Provogil) and “ultimately has been on Concerta, ” which made her irritable and did not improve her symptoms of tiredness and fatigue. (Id.) Dr. Avendano explained he was hesitant to prescribe other medications until an attended sleep study fully excluded a sleep-related breathing disorder or confirmed periodic limb movements associated with sleep. (Tr. 336.)
Ms. Kimball returned to Dr. Avendano again on March 22, 2017, for a follow up to a February 15, 2017 baseline polysomnogram which confirmed no evidence of obstructive sleep apnea or significant periodic limb movements associated with sleep. (Tr. 332.) She continued to report symptoms of excessive daytime tiredness and sleepiness, including while driving. (Id.) Dr. Avendano discontinued Concerta and initiated treatment with Adderall, noting that he still recommended a multiple sleep latency test to exclude narcolepsy. (Tr. 333.)
Ms. Kimball returned to Dr. Gottfried[1] on July 11, 2017, for treatment of back pain. (Tr. 386.) She reported she began experiencing pain in her lumbar region two months prior, and described it as “moderate and non-radiating, ” but severe enough to wake her from sleep. (Id.) It began suddenly when she was at the Kalahari water park, went down a slide, and hit the concrete. (Id.) The pain was aggravated by sitting, and alleviated by heat or cold. (Id.) She reported her back was stiff in the morning. (Id.) She denied fatigue. (Id.) On examination, her neck had a normal range of motion, her spine was not tender, straight leg raising was negative, there was no joint or limb tenderness to palpation in the lower extremities, and range of motion of her extremities was normal. (Tr. 387.) Neurological testing revealed normal muscle strength, no atrophy, normal reflexes, and intact sensation. (Tr. 388.) Dr. Gottfried noted some tenderness paraspinally in her lower lumbar region and restriction in extension of her lumbar spine. (Id.) He assessed backache and back injury, and ordered lumbar x-rays and physical therapy. (Id.) He also offered muscle relaxants, but Ms. Kimball declined explaining she did not like to take medications. (Id.) Nevertheless, she reported managing her pain with ibuprofen “around the clock, ” and Dr. Gottfried discussed medication safety and advised her to alternate ibuprofen and Tylenol. (Id.)
On October 13, 2017, Ms. Kimball was seen by Dr. Gottfried's colleague, Dr. Amy Browne, for “tearfulness.” (Tr. 398.) She reported she had been moderately depressed and irritable for weeks, and increasing issues with sleeping. (Id.) She denied all other symptoms. (Id.) On examination, all of Dr. Browne's findings were in the normal range, including intact judgment and insight, and appropriate mood and affect. (Tr. 399-400.) She assessed generalized anxiety disorder, and prescribed 5 mg of Lexapro. (Tr. 400.)
Ms. Kimball returned to Dr. Browne for follow up care on November 13, 2017. (Tr. 401.) She reported that she was taking her medication, but having no relief. (Id.) Again, all physical examination findings were normal. (Tr. 402-03.) Dr. Browne increased Ms. Kimball's dosage of Lexapro to 10 mg. (Tr. 403.)
Ms. Kimball returned to her sleep specialist, Dr. Avenando, on December 11, 2017, and reported that taking Adderall three times a day was decreasing her tiredness, and that she had experienced some improvement in her energy level with exercise. (Tr. 330-31.) Dr. Avenando noted she had lost weight, but reported that Ms. Kimball “feels this is more related to her workout activity and change in diet.” (Tr. 331.) He discussed a trial of a different medication, Xyrem, but Ms. Kimball chose to continue with Adderall at that time. (Id.)
On December 18, 2017, Ms. Kimball again returned to Dr. Browne for follow up care. (Tr. 404.) She described her anxious feelings as “improving with treatment.” (Id.) Again, all of Dr. Browne's physical examination findings were within normal limits. (Tr. 405.) Dr. Browne noted Ms. Kimball was “doing well with the lexapro, ” and recommended she return in three months. (Id.)
On February 20, 2018, Ms. Kimball was treated by Dr. Matthew Petznick for pain in her right shoulder. (Tr. 316.) She reported the injury sustained at Kalahari six months prior, and explained she had begun physical therapy, but stopped halfway through due to pain, popping, and rubbing sensations in her right shoulder. (Id.) She was taking ibuprofen and Aleve to treat the pain. (Id.) Dr. Petznick's assessments were winging of scapula and cervical pain. (Id.) He prescribed prednisone and ordered x-rays and an MRI of the affected area. (Id.)
X-rays performed on March 20, 2018 showed mild degenerative changes in Ms. Kimball's cervical spine, including slight interspace narrowing at ¶ 5-C6, and minimal anterior marginal spurs involving vertebral bodies at ¶ 4-C5 and C5-C6. (Tr. 313.) An MRI of Ms. Kimball's cervical spine performed on April 11, 2018, revealed mild interspace narrowing at ¶ 5/6 with small posterior hypertrophic spurs and posterior disc herniation which impinges on and mildly flattens the cervical spinal cord anteriorly to the right of midline. (Tr. 312, 409.) The defect also impinged on the C7 nerve root sleeve on the right. (Id.)
On April 17, 2018, a sleep study performed at the Firelands Regional Medical Center concluded Ms. Kimball had “for the most part normal sleep architecture, ” with no evidence of sleep related breathing disorder or clinically significant periodic limb movements. (Tr. 341-42.) Dr Avendano concluded she demonstrated excessive somnolence with no clear cause and diagnosed idiopathic hypersomnolence. (Tr. 339.) He recommended use of stimulants and good...
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