Starin v. Berryhill, CASE NO. 1:16CV01684

• Decision Date: 05 May 2017
• Docket Number: CASE NO. 1:16CV01684
• Parties: DIANNE LYNN STARIN, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of Ohio

DIANNE LYNN STARIN, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

CASE NO. 1:16CV01684

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION

May 5, 2017

JUDGE BENITA Y. PEARSON

MAGISTRATE JUDGE JONATHAN D. GREENBERG

REPORT AND RECOMMENDATION

Plaintiff, Dianne Lynn Starin ("Plaintiff"), challenges the final decision of Defendant, Nancy A. Berryhill,¹ Acting Commissioner of Social Security ("Commissioner"), denying her application for Disability Insurance Benefits ("DIB") 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 an automatic referral under Local Rule 72.2(b) for preparation of a Report and Recommendation. For the reasons set forth below, it is recommended that the Commissioner's final decision be AFFIRMED.

I. PROCEDURAL HISTORY

On August 10, 2011, Plaintiff filed an application for DIB alleging a disability onset date of September 26, 2009 and claiming she was disabled due to post-traumatic stress disorder and depression. (Transcript ("Tr.") 349). The applications were denied initially and upon reconsideration, and Plaintiff requested a hearing before an administrative law judge ("ALJ"). (Tr. 166, 177, 182). On February 5, 2013, Plaintiff amended her alleged onset date from September 26, 2009 to August 27, 2011. (Tr. 326).

On February 8, 2013, Plaintiff appeared at a hearing before an ALJ. (Tr. 182). On April 8, 2013, the ALJ issued a written decision finding Plaintiff was not disabled. (Tr. 191). On July 23, 2014, on Plaintiff's request, the Appeals Council granted review and, finding that the ALJ had erred, remanded the case to the ALJ. (Tr. 197-99). The ALJ was ordered to give further consideration to Plaintiff's maximum residual functional capacity and provide appropriate rationale with specific references to the record in support of the assessed limitations. (Tr. 198). The ALJ was further ordered to obtain evidence from a vocational expert to clarify the physical and mental demands of Plaintiff's past relevant work and the effect of the assessed limitations on Plaintiff's ability to perform past relevant work. (Tr. 198).

On January 21, 2015, the ALJ held a second hearing, during which Plaintiff, represented by counsel, and an impartial vocational expert ("VE"), testified. (Tr. 43). On March 3, 2015, the ALJ issued a written decision finding that Plaintiff was not disabled. (Tr. 18-37). On March 13, 2015, Plaintiff requested review by the Appeals Council. (Tr. 14-15). On May 11, 2016, the Appeals Council declined further review, making the ALJ's decision the Commissioner's final decision. (Tr. 1).

On June 30, 2016, Plaintiff filed her complaint challenging the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 12, 14, 15). Plaintiff asserts the following assignments of error:²

(1) Whether the ALJ failed to properly evaluate the opinions of John Nickels, M.D., and Deepak Raheja, M.D., Plaintiff's treating physicians.

(2) Whether Plaintiff's assigned residual functional capacity is contrary to law because it fails to include any limitations of Plaintiff's ability to use her hands and arms.

(Doc. No. 12).

II. EVIDENCE

A. Personal and Vocational Evidence

Plaintiff was born in 1961 and was fifty-three years-old on her date last insured, making her a individual closely approaching advanced age under social security regulations. (Tr. 35). She has a limited education and is able to communicate in English. (Id.) She has past relevant work as a convenience store clerk, sales clerk, and order clerk. Id.

B. Medical Evidence

On December 9, 2011, Plaintiff had an initial pain assessment with Dr. Nickels. (Tr. 485). Based on a form filled out by Plaintiff, she began feeling pain in her upper right arm in March 2011 after having fallen. (Tr. 485). She described the pain as burning and stabbing and she rated her pain as a seven or eight out of ten. (Tr. 483). An MRI performed on December 14, 2011 revealed normal findings except for fluid in the suboracoid space and tendinosis of the rotator cuff. (Tr. 482).

Plaintiff points out that she sought treatment from Dr. Nickels office from 2011 to 2015; that she complained of aches, numbness, weakness, burning, and stabbing in her right arm; and that she consistently rated her pain at 5 to 9 out of 10. (Tr. 449, 451, 457, 461, 465, 469, 473, 476, 479, 507, 510, 514, 518, 522, 526, 530, 534, 538, 542, 546, 549, 553, 557).³

C. Opinion Evidence

1. State Agency Reviewers

On September 27, 2011, state agency reviewer Kristen Haskins, Psy.D. estimated Plaintiff's intellectual functioning in the borderline to low average range. (Tr. 163). She opined that Plaintiff's symptoms would likely interfere with her pace and persistence, but that she would be able to work in a setting without sustained fast pace. (Tr. 163). Dr. Haskins further opined that Plaintiff's symptoms may interfere with work performance. Noting that she is able to cook,clean and grocery shop, Dr. Haskins opined that Plaintiff would be able to work in a static setting without stringent time or production quotas. (Tr. 164).

On March 5, 2012, Diane Manos, M.D., concluded that Plaintiff "is not severely restricted due to any physical impairment." (Tr. 171-172). Also on March 5, 2012, Bruce Goldsmith, Ph.D., opined that Plaintiff has mild restrictions in activities of daily living (Tr. 172); mild difficulties maintaining social functioning (Tr. 172); and moderate difficulties in maintaining concentration, persistence, or pace. (Tr. 175).

2. John Nickels, M.D.

On February 5, 2013, Dr. Nickels filled out a medical source statement on behalf of Plaintiff, which noted diagnoses of lumbar radiculopathy; pain in the right shoulder and arm; and chronic bursitis of the right shoulder. (Tr. 495). Identified symptoms included pain across the lower back; pain in the right shoulder with reduced range of motion; throbbing in right arm, and fatigue. Id. Dr. Nickels opined that Plaintiff can sit no more than an hour at one time and no more than two hours total in an eight-hour day; and that Plaintiff can stand/walk for less than two hours total in an eight-hour day. (Tr. 496). He further opined that with prolonged sitting, Plaintiff's legs should be elevated twelve inches for 75% of an eight-hour work day, due to back pain. (Tr. 497). Dr. Nickels opined that Plaintiff had significant limitations with reaching, explaining that Plaintiff's right shoulder pain and decreased range of motion made it hard to reach. (Tr. 497). He further opined that Plaintiff would likely be absent four or more days per month as a result of her impairments. (Tr. 498).

3. Deepak Raheja, M.D.

On August 13, 2014, Dr. Raheja completed a medical source statement on behalf of Plaintiff. (Tr. 499). The listed diagnoses included cervical disc disease, lumbar disc disease, and carpal tunnel syndrome. (Tr. 499). Dr. Raheja opined that Plaintiff need to take unscheduled breaks six to eight times a day for thirty minutes each due to pain/paresthesia, numbness and adverse effects of medication (Tr. 500); that Plaintiff should never lift weight of ten pounds or more; that Plaintiff had significant limitations with reaching, handling, and fingering. (Tr. 501). Specifically, Dr. Raheja opined that Plaintiff could use either hand to grasp, turn, or twist objects less than 5% of an eight-hour day; that Plaintiff could use the fingers of either hand in fine manipulation less than 5% of the day; that Plaintiff could reach with either arm in front of her body less than 5% of an eight-hour day; and that Plaintiff could never reach overhead with either arm. (Tr. 501). He opined that Plaintiff was likely to be off task 25% or more of the time; that she was incapable of even low stress work; that she would have "good days" and "bad days"; and that she would be absent from work four or more days a month. (Tr. 502).

D. Hearing Testimony

During the hearing, Plaintiff testified to the following:

• Plaintiff testified that she had not worked since 2009. (Tr. 47).

• Plaintiff testified that she could not sit for more than 10 to 15 minutes due to the pain in her back. (Tr. 55). She testified that when she began to feel pain, she had to get up and walk around or change positions. (Tr. 55). She also testified that she could not stand for more than 5 to 10 minutes; she had to lean against a wall, sit, or lie down to relive pain. (Tr. 56). Plaintiff attributed the pain to having fallen three times. (Tr. 118).

• She further testified that she had carpal tunnel in her right arm; she said the pain was worse on her right side because she's right-handed. (Tr. 57; 122). She had to wear a brace when sitting or using the computer, but she was only able to usethe computer for about 10 to 15 minutes before stopping due to back pain and the brace getting in the way of her using the keyboard. (Tr. 58).

• Plaintiff said she walked with a cane at the suggestion of her doctor. (Tr. 63). She wore braces on both wrists and took pain medication for her back, neck and carpal tunnel. (Tr. 68). Plaintiff testified that despite regular doctor visits, heat therapy, pain medication, inflammatory medication, and multiple spinal shots, she only ever experienced temporary relief. (Tr. 128).

• She testified that she cooked once in a while, but she required assistance because her carpal tunnel made it difficult for her to hold things. (Tr. 64). She also had difficulty reaching and required assistance from her husband. (Tr. 122-23). She could hold a knife and fork, but could not cut with a knife and difficulty opening certain containers and jars. (Tr. 70). Plaintiff also had difficulty cleaning, grooming and dressing herself. (Tr. 70).

The ALJ noted that Plaintiff had past work as an order clerk and a store clerk. (Tr. 72). The ALJ...