United States District Court Northern District of Ohio Eastern Division

Case: 5:13-cv-01296-JRK Doc #: 21 Filed: 08/04/14 1 of 24. PageID #: <pageID> UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION GARLAND P. DOUGLAS, Case No. 5:13 CV 1296 Plaintiff, Magistrate Judge James R. Knepp II MEMORANDUM OPINION AND v. ORDER COMMISSIONER OF SOCIAL SECURITY, Defendant. INTRODUCTION Plaintiff Garland P. Douglas seeks judicial review of Defendant Commissioner of Social Security’s decision to deny Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). The district court has jurisdiction under 42 U.S.C. § 405(g). The parties consented to the undersigned’s exercise of jurisdiction in accordance with 28 U.S.C. § 636(c) and Civil Rule 73. (Doc. 17). For the reasons given below, the Court affirms the Commissioner’s decision denying benefits. PROCEDURAL BACKGROUND On January 11, 2010, Plaintiff filed applications for DIB and SSI claiming he was disabled due to various back problems and anger management issues. (Tr. 163-68, 200). He alleged a disability onset date of December 31, 2004. (Tr. 163). His claims were denied initially and on reconsideration. (Tr.109-12). Plaintiff then requested a hearing before an administrative law judge (ALJ). (Tr. 101). Plaintiff (represented by counsel) and a vocational expert (VE) testified at the hearing, after which the ALJ found Plaintiff not disabled. (See Tr. 22, 39). The Appeals Council denied Plaintiff’s request for review, making the hearing decision the final Case: 5:13-cv-01296-JRK Doc #: 21 Filed: 08/04/14 2 of 24. PageID #: <pageID> decision of the Commissioner. (Tr. 1); 20 C.F.R. §§ 404.955, 404.981, 416.1455, 416.1481. On June 12, 2013, Plaintiff filed the instant case. (Doc. 1). FACTUAL BACKGROUND Plaintiff challenges only the ALJ’s treatment of Dr. Lewis’ opinion with respect to his physical limitations and therefore waives any argument concerning his mental impairments. Swain v. Comm’r of Soc. Sec., 379 F. App’x 512, 517-18 (6th Cir. 2010) (noting failure to raise a claim in merits brief constitutes waiver). Therefore, the Court focuses on the medical evidence only as it relates to Plaintiff’s physical impairments. Personal and Vocational History Born February 10, 1966, Plaintiff was 38 years on his alleged onset date and 46 years old on the date of the ALJ’s decision. (Tr. 31, 163). Plaintiff has a high school education, attended two years of college, and has past relevant work as a conveyor operator, maintenance mechanic, industrial electrician, diesel mechanic, marine electrician, and electrician. (Tr. 202, 276). Plaintiff lived in a two-story house with a friend, Eileen. (Tr. 45-46). His fourteen-year- old son also lived with him during the summers and he took care of his ten-year-old daughter every weekend. (Tr. 45-46). Plaintiff went to Washington State two weeks after cervical surgery in 2011, but said he did not perform any work while there. (Tr. 46-47). Rather, he said he spent time in a recreation area where potential employees read books, watched movies, played games, and talked. (Tr. 46-49). When asked to confirm that he was paid $3,200 for a vacation, he replied, “That’s right, yes sir, yes sir.” (Tr. 49). Plaintiff also worked sporadically on a few occasions for a week at a time in 2010 and 2011. (Tr. 46-51). Plaintiff testified that while he was not receiving treatment from 2007 until 2010, he drank beer or coffee, used old pain medication, and took Advil or Ibuprofren “like candy.” (Tr. Case: 5:13-cv-01296-JRK Doc #: 21 Filed: 08/04/14 3 of 24. PageID #: <pageID> 57-64). When he did not have pain medication, Plaintiff said he would “grit his teeth and deal with it.” (Tr. 57). Concerning daily activity, Plaintiff said he could not walk, sit, stand, or lie down. (Tr. 45-69). However, he said he could wash one dish at a time, work on the computer a few times a month, and make his pull-out bed every night. (Tr. 56, 66, 69). In function reports, Plaintiff said he could dress, bathe, shave, use the bathroom, prepare meals twice a week, shop occasionally for short periods, and read. (Tr. 255-57). Despite testifying he could not lie down, Plaintiff said when he was in “bad shape” he would lie in bed for two-to-four days, “sometimes a whole week!” (Tr. 255). Plaintiff also said he drove on occasion for short periods despite testifying he did not have a license. (Tr. 46, 256). Plaintiff testified he was in a car accident in 2004. (Tr. 53). According to Plaintiff, he was sitting between the driver and the passenger seat in a car going 83 miles per hour when it struck four or five vehicles stopped at a stop-light. (Tr. 53-54). Plaintiff said “he was tossed into the air” and when he woke up he could not feel his legs and could not walk. (Tr. 54). Medical Evidence Indeed, Plaintiff was involved in a motor vehicle accident on February 22, 2004. (Tr. 905-06; 998-99). However, emergency room treatment notes revealed Plaintiff was unrestrained in the backseat, was not unconscious, and “got out of the van and walked around” after the accident. (Tr. 905). “His left leg was aching a little bit at that time” but it felt better on arrival to the hospital. (Tr. 905, 998). He reported neck tightness but no lower back pain, no abdominal discomfort, no chest pain, and no numbness or tingling in his extremities. (Tr. 905). On examination, Plaintiff was awake, alert, and oriented. (Tr. 905). Plaintiff’s neck was supple without adenopathy but he did have “some paraspinal muscle spasms[,] questionable C-spine 3 Case: 5:13-cv-01296-JRK Doc #: 21 Filed: 08/04/14 4 of 24. PageID #: <pageID> tenderness around the C3-C4 region[,]” non-tender back, normal extremities, no motor or focal sensory deficits, and normal vascular and neurologic examinations of the extremities. (Tr. 905- 06). Cervical spine x-rays were normal. (Tr. 528). Plaintiff was diagnosed with a “soft tissue injury”, given “400 milligrams of Motrin with one Vicodin tablet”, and discharged in good condition that same day. (Tr. 906). He was given a work excuse for one day. (Tr. 906). Two days later, Plaintiff returned to the emergency room complaining of a headache and left arm pain. (Tr. 993). Plaintiff was given Darvocet and a work excuse for two days. (Tr. 994). In the months following his accident, Plaintiff participated in physical therapy. (Tr. 542-48). In September 2004, Plaintiff underwent diagnostic left knee arthroscopy after reporting pain, locking, catching, giving way, and significant discomfort. (Tr. 285). Treatment notes revealed no abnormalities except a medial synovial shelf which the surgeon resected. (Tr. 285). There was no evidence of a meniscus tear. (Tr. 285). Dr. Coss recommended rest, ice, elevation, and progressive weight bearing. (Tr. 286). Plaintiff was also referred to a course of physical therapy. (Tr. 288-316). After a few sessions, Plaintiff reported he “felt good” and “ha[d] no pain to report.” (Tr. 309). Plaintiff was discharged from treatment for failing to keep his last three appointments. (Tr. 608). Plaintiff returned to the emergency room twice in November 2004 and reported chronic neck and back pain as a result of the car accident. (Tr. 451, 453, 455). During his November 18, 2004 visit, Plaintiff had full strength in his upper and lower extremities, normal sensation, and no weakness. (Tr. 455-56). He was given twenty Vicodin. (Tr. 451). Nine days later, he returned to the emergency room and stated he was out of Vicodin. (Tr. 451). Treatment notes revealed he was “very animated with his upper extremities” and “move[d] his head from side to side.” (Tr. 4 Case: 5:13-cv-01296-JRK Doc #: 21 Filed: 08/04/14 5 of 24. PageID #: <pageID> 451). Despite some tenderness, he had full and passive range of motion in his cervical spine. (Tr. 452). He was discharged with a diagnosis of acute exacerbation of upper back pain. (Tr. 452). Plaintiff returned to the emergency room in December 2004 requesting a refill of Vicodin. (Tr. 458). Plaintiff was given a small amount but instructed that the emergency room staff would no longer provide pain medication refills. (Tr. 459). He was told to follow up with his primary care physician. (Tr. 459). On January 19, 2005, Plaintiff began treatment with chiropractor Jason Cheatle, D.C. (Tr. 437). Dr. Cheatle treated Plaintiff throughout 2005 and during his workers compensation appeal. (Tr. 437-40, 896-99, 901-02, 907-10, 924-28, 932, 934, 940-46, 949, 1008, 1027-47). Generally, he noted Plaintiff’s continued complaints of pain. (Id.). On initial examination, Plaintiff had a normal gait and ambulation but diminished cervical range of motion. (Tr. 436). Cervical spine MRI’s requested by Dr. Cheatle revealed disc herniation at C3-4 and C5-6 with thecal sac compression, spondylosis at C6-7, annular tears at C2-5 levels, and mild neural canal narrowing at C6-7. (Tr. 930-31). On January 30, 2005, Plaintiff went to the emergency room for left knee and neck pain. (Tr. 1017). An examination revealed full strength in his lower and upper extremities, excellent range of motion in his knee, and no abnormalities. (Tr. 1017). Despite some tenderness, his cervical range of motion was normal. (Tr. 1017-18). Treatment providers felt further diagnostic testing was unnecessary despite complaints of pain and prescribed Vicodin and Ibuprofen. (Tr. 1018). On February 25, 2005, Plaintiff sought treatment with orthopedic surgeon Jeffrey M. Cochran, D.O., for complaints of neck and left arm pain.

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