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Neff v. Colvin

United States District Court, Sixth Circuit

April 29, 2013

E. RUTHANN NEFF, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


SHARON L. OVINGTON, Chief Magistrate Judge.


Plaintiff E. Ruthann Neff brings this case challenging the Social Security Administration's denial of her applications for Supplemental Security Income (SSI) and Disability Insurance Benefits (DIB). Plaintiff filed her SSI and DIB applications on February 26, 2008, asserting that she has been under a "disability" since November 1, 2007.[2] ( PageID## 224-30, 231-33). Plaintiff claims to be disabled due to a right knee injury with torn cartilage, a bulging disc in her neck, hemorrhoids, stomach problems, a left lung polyp, and a fast heart beat. ( See PageID# 258).

After various administrative proceedings, Administrative Law Judge (ALJ) Amelia G. Lombardo denied Plaintiff's applications based on her conclusion that Plaintiff's impairments did not constitute a "disability" within the meaning of the Social Security Act. ( PageID## 68-79). The ALJ's nondisability determination and the resulting denial of benefits later became the final decision of the Social Security Administration. This Court has jurisdiction to review the administrative denial of her applications. See 42 U.S.C. §§ 405(g), 1383(c)(3).

The case is before the Court upon Plaintiff's Statement of Errors (Doc. #8), the Commissioner's Memorandum in Opposition (Doc. #11), Plaintiff's Reply (Doc. # 12), the administrative record (Doc. # 6), and the record as a whole.


A. Plaintiff's Vocational Profile and Testimony

Plaintiff was 41 years old on her alleged disability onset date, which defined her as a "younger individual" for purposes of resolving her DIB and SSI claims. See 20 C.F.R. §§ 404.1563(c); 416.963(c)[3]; ( PageID## 77, 224). Plaintiff attended two years of college, see 20 C.F.R. § 404.1564(b)(4); ( PageID# 264), and has past relevant employment as a stock clerk. ( PageID# 128).

Plaintiff testified that she stopped working in November 2007 due to having surgery on her left foot and ankle. ( PageID # 105). Her employer held her job for a year, but she was unable to return to work. ( Id. ).

She had her first knee surgery in January 2004, and was off work for nine months before returning. ( PageID # 106). While she continued to work through 2007, she was also found to have a bulging disk in her neck. ( Id. ). She reported having problems with her other knee, her back, tachycardia, and depression. ( PageID ## 107, 111).

Plaintiff began using a walker because her "doctors [ ] tell [her] to use it because of [her] leg." ( PageID # 106). She testified that she cannot walk without using her walker. ( PageID # 116). At the time of the hearing, Plaintiff was not receiving treatment for her knee because she was told there was nothing "they could do." ( PageID# 113). She said her knee locks up and will not bend. ( PageID ## 113-14).

Plaintiff testified that, since her surgeries, her knee will not bend and "it causes me a lot of pain." ( PageID # 107). Plaintiff testified that she attended physical therapy after surgery, "but they said there was nothing more that they could do, it didn't - it didn't work, the surgery didn't work to repair it." ( PageID # 108). Plaintiff insisted that she "went to therapy" despite transportation challenges, and did not know why her medical records stated that she had failed to attend her scheduled therapy sessions. ( PageID # 109).

Plaintiff has a driver's license and drives occasionally - when she "feel[s] up to it." ( PageID # 104). She reported problems with standing, noting she "can stand for a little bit." ( PageID # 116). If her leg is elevated, she can sit. ( Id. ). Plaintiff testified that she has carpel tunnel syndrome and drops things. ( PageID # 116). She estimated that she could lift only five pounds. ( PageID # 117). Plaintiff testified that she lives with her boyfriend and his mother. ( PageID # 103). She reported doing no housework: her boyfriend's mother does all the cooking, dishes, and laundry. ( PageID ## 117-18).

B. Medical Opinions

Plaintiff relies on the opinions of her treating primary care physician, Han Mok Yang, M.D. The record shows that Dr. Yang treated Plaintiff from November 21, 2006, through at least March 5, 2010. ( PageID ## 730-40, 944-77). Dr. Yang's clinical notes reveal that Plaintiff was seen mostly for checkups and prescribed medication. Plaintiff's complaints included right knee pain; back and shoulder pain; chest pain; joint pain; and depression. ( PageID ## 948, 966, 968, 975). By September 15, 2009, Plaintiff reported that she had no strength and was using a walker. ( PageID # 951). Examination on November 3, 2010, revealed she had joint swelling. ( PageID # 949).

On October 30, 2008, Dr. Yang completed a medical update form on behalf of Plaintiff's short term disability carrier. Dr. Yang noted that Plaintiff could "never" return to work activity. He also noted that Plaintiff's prognosis was poor. ( PageID # 236).

Dr. Yang completed a Basic Medical form on behalf of Ohio Department of Job and Family Services on January 15, 2009. ( PageID ## 764-65). Dr. Yang described Plaintiff's medical conditions as tachocardic problems; arthritis; right leg pain and stiffness; chest pain; and hearing loss. Dr. Yang further noted that Plaintiff's health status was deteriorating. Dr. Yang opined that Plaintiff could not stand/walk or sit in an eight hour workday and she could not lift and carry any weight. Dr. Yang also opined that Plaintiff had marked limitations with respect to hearing, and extreme limitations in her ability to push/pull, bend, handle, and use repetitive foot movements. Dr. Yang concluded that Plaintiff was unemployable and was unable to work for twelve months or more. ( PageID # 765).

On February 13, 2009, Dr. Yang completed a questionnaire on behalf of the Bureau of Vocational Rehabilitation. ( PageID ## 766-70). Dr. Yang listed Plaintiff's diagnoses as severe arthrosis of the right knee, depression, and chest pain. He reported Plaintiff's limitations were permanent; she was not to lift/carry any amount; and she was not to push/pull. ( PageID # 766). Dr. Yang noted that Plaintiff was not to perform any work activity; she was never to climb, balance, stoop, crouch, kneel, or crawl; and was never to reach, handle, or finger. In addition, she was unable to cope with the stress of work. ( PageID # 767). Plaintiff was not released to work. Dr. Yang opined that she could not participate in a training program, and she could not maintain even part-time employment. ( PageID # 770).

On March 30, 2009, Dr. Yang completed interrogatories on Plaintiff's behalf. ( PageID ## 936-43). Dr. Yang reported that he had treated Plaintiff for three to four years. ( PageID # 936). Plaintiff had tachocardic problems, right knee stiffness, right leg pain, chest pain, depression, and hearing loss. ( PageID # 937). Dr. Yang opined that Plaintiff could not work. ( PageID # 938). Specifically, Dr. Yang reported that Plaintiff could not lift or carry any weight during a workday, and could not walk/stand any time during a workday because of her knee stiffness. ( PageID # 939). Dr. Yang also reported Plaintiff could not sit for any time during a workday because of her knee stiffness, and was never to climb, balance, stoop, crouch, kneel, or crawl. ( PageID # 940). She also had limits in her hearing, reaching, handling, fingering, feeling, and pushing/pulling abilities. She was restricted from heights, moving machinery, chemicals, dust, noise, fumes, and humidity. ( PageID # 941). She could not perform even sedentary work activity, and it was estimated she would be absent from work more than three times a month. ( PageID # 943).

Dr. Yang completed a second set of interrogatories on October 27, 2009. ( PageID ## 823-30). Dr. Yang listed Plaintiff's medical problems as knee pain/stiffness and depression. He again opined that Plaintiff could not work. ( PageID # 824). Dr. Yang noted that she could not lift or carry anything during a workday, and was not to stand or walk during a workday. ( PageID # 826). She could not sit during a workday because she could not bend her right knee. She was never to climb, balance, stoop, crouch, kneel, or crawl. ( PageID # 827). She was restricted from heights, moving machinery, chemicals, dust, noise, and fumes. ( PageID # 828). Dr. Yang concluded that Plaintiff could not perform even sedentary work activity. ( PageID # 830).

Plaintiff also relies on the opinion of her treating podiatrist, Gary Labianco, D.P.M., whom she began treating with on September 19, 2007. She presented with complaints of a left heel spur. Conservative treatment versus surgical correction was discussed. ( PageID ## 719-20).

On March 12, 2008, Dr. Labianco reported that Plaintiff has been having a large amount of difficulty ambulating secondary to a partially ruptured Achilles tendon and with a large retrocalacanel bursitis coupled with the inability to move her right knee: "She has accelerated arthritis there and she now has foot pain on the left and a knee that doesn't work on the right." ( PageID # 478). Dr. Labianco opined that Plaintiff should be considered disabled, as she will find great difficulty in moving around until her heel and/or knee are in better condition. At the time of his teledictation report, Plaintiff was attending physical therapy for the heel, but Dr. Labianco noted that she was possibly going to need a right knee replacement in the future. ( Id. ).

Dr. Labianco noted in February and March 2008 that Plaintiff's heel pain had "greatly decreased"; Plaintiff did "very well in physical therapy" for her foot; ...

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