United States District Court, S.D. Ohio, Eastern Division
ROBIN R. POPP, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
L. Graham Judge.
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.
Robin Popp filed this action under 42 U.S.C. §§
405(g) and 1383(c) seeking review of a final decision of the
Commissioner of Social Security (the
“Commissioner”) denying her application for
disability insurance benefits. For the reasons that follow,
it is RECOMMENDED that Plaintiff's statement of errors be
OVERRULED, and that judgment be entered in favor of the
applied for benefits on January 9, 2013, alleging a
disability onset date of July 1, 2008. (Doc. 10 at Tr. 50,
PAGEID #: 103). Her application was denied initially on April
9, 2013 (id. at Tr. 61, PAGEID #: 114), and upon
reconsideration on September 18, 2013 (id. at Tr.
88, PAGEID #: 141). Administrative Law Judge George Gaffaney
(the “ALJ”) held a hearing on May 19, 2014
(id. at Tr. 26, PAGEID #: 79), after which he denied
benefits in a written decision on June 4, 2014. (Id.
at Tr. 19, PAGEID #: 72). That decision became final when the
Appeals Council denied review on September 8, 2015.
(Id. at Tr. 1, PAGEID #: 54). Plaintiff now appeals.
(Doc. 10 (administrative record); Doc. 18 (statement of
errors); Doc. 21 (response)).
Testimony at the Administrative Hearing
counsel began the hearing by listing Plaintiff's
“severe impairments” as “impairments of the
lumbar spine, impairments of the cervical spine,
osteoarthritis of the knees, obesity, and some mental health
impairments that have been diagnosed by consultative
exam.” (Doc. 10 at 27, PAGEID #: 80). He explained
further that Plaintiff had “been diagnosed with
spondylolisthesis of L4 over L5 with some central and
foraminal stenosis, ” and that an L4/L5 laminectomy and
fusion” she “was to undergo” “in June
of 2013” was postponed “due to a[n] infection on
her leg.” (See Id. (“It has not been
rescheduled because, in the interim, Ms. Popp lost her
medical insurance.”)). Regarding her knee pain,
Plaintiff's counsel explained that Plaintiff has “a
large horizontal cleavage tear” in her left meniscus,
and a smaller, similar tear in her right meniscus.
(Id. at 27-28, PAGEID #: 80-81).
testimony followed her counsel's statements. At the time
of the hearing, Plaintiff was 55 years old, 5'8”
tall, weighed 260 pounds, and had an 11th-grade education.
(Id. at Tr. 27, 29, PAGEID #: 80, 82). Prior to
filing for disability benefits, she worked most recently as a
security guard. (Id. at Tr. 29, PAGEID #: 82). She
was forced to quit that job, however, because she
“couldn't take all the walking up and down the
steps” and the “sitting.” (Id.).
Specifically, according to Plaintiff's testimony, she is
“unable to sit for very long” or “stand for
very long, ” and can only walk about 50 feet at a time.
(Id. at Tr. 30, PAGEID #: 83; see Id. at
Tr. 32-33, PAGEID #: 85-86 (Plaintiff testifying that she can
stand for roughly ten minutes at a time and sit for thirty
minutes at a time). Plaintiff told the ALJ that her back pain
bothered her the most, testifying that she is in constant
pain no matter what position she is in or movements she
makes. (See Id. at Tr. 32, PAGEID #: 85). She
continued: “[The pain] goes from my lower back down my
right leg, and at times it causes my right leg to just kind
of buckle under me.” (Id.). Plaintiff
testified that “[d]oing anything for a long period of
time makes it worse.” (Id.). According to
Plaintiff, she was prepared to have surgery in the summer of
2013, but was unable to do so because she lost her insurance.
(See Id. at Tr. 34, PAGEID #: 87). Beyond that, she
said she had not received any treatment for her lower back
pain. (See Id. at Tr. 33, PAGEID #: 86).
testified next regarding her neck pain. She told the ALJ her
neck was stiff “about 50 percent of the time, ”
which caused her to get “severe headaches.”
(Id. at Tr. 34, PAGEID #: 87). She further testified
that her neck pain and headaches are occasionally bad enough
that she has to go sit in a dark room by herself with no
noise. (See Id. at Tr. 34-35, PAGEID #: 87-88;
see Id. at Tr. 35, PAGEID #: 88 (Plaintiff
testifying that she gets neck-related headaches “[a]t
least a couple times a week)).
her daily routine, Plaintiff testified that she spends most
of her days watching television, with an occasional trip to
the porch to sit outside for a few minutes. (See Id.
at Tr. 36-37, PAGEID #: 89-90). Plaintiff's pains,
according to her testimony, prevent her from showering every
day. (See Id. at Tr. 37, PAGEID #: 90). She said she
was capable of loading the washer and dryer, although she was
unable to transport the clothes to and from the washer and
dryer. (Id.). In addition, Plaintiff testified that
she is unable to drive and that her daughter does the grocery
shopping. (See Id. at Tr. 38, PAGEID #: 91
(“Because I -- there's been times where I've
forgot where I was, what I was doing. I had to pull over and
actually force myself to remember where I was or which way I
was supposed to go . . . .)).
Relevant Medical Background
saw Dr. Sudhir Dubey for a psychological evaluation on July
23, 2012, for the purpose of assessment only, with no
treatment being recommended or provided. (Doc. 10, Tr. 236,
PAGEID #: 289). Dr. Sudhir noted that Plaintiff drove herself
to the appointment, her “hygiene and grooming were
unremarkable, ” and her “[g]ait was
unremarkable.” (Id. at Tr. 237- 38, PAGIEID #:
290-91). Plaintiff told Dr. Sudhir that her activities
include socializing with her friends and family,
“purchasing supplies as necessary, paying bills as
necessary, deciding how to spend the day, having the ability
to drive, [keeping up with] self-care, and managing a daily
routine.” (Id. at Tr. 239, PAGEID #: 292).
August 23, 2012, Plaintiff presented to consultative examiner
Dr. Judith Brown for “back and knee problems.”
(Id. at Tr. 244, PAGEID #: 297). Dr. Brown noted
that “[t]he claimant ambulates with a normal gait,
which is not unsteady, lurching or unpredictable. She does
not require the use of an ambulatory aid. She appears stable
at station and comfortable in the supine and sitting
positions.” (Id. at Tr. 245, PAGEID #: 298).
There was no muscle weakness noted and her manual muscle
testing appeared normal. (Id. at Tr. 248-49, PAGEID
#: 301-02). Regarding Plaintiff's physical capacity for
work, Dr. Brown indicated that Plaintiff's “ability
to perform work-related activities such as bending, stooping,
lifting, walking, crawling, squatting, carrying and traveling
as well as pushing and pulling heavy objects appears to be at
least mildly affected by the findings noted.”
(Id. at Tr. 248, PAGEID #: 301). Dr. Brown
ultimately found that Plaintiff “could probably perform
light duty work.” (Id.).
same day, Plaintiff had an x-ray of her left knee and lumbar
spine. The x-ray showed “mild medial compartment
osteoarthritis without acute body abnormality” in the
knee, and “mild degenerative changes in lower lumbar
spine without acute body abnormality.” (Id. at
Tr. 261-62, PAGEID #: 314-15).
saw Dr. Frank Fumich on October 1, 2012, for lumbar and
cervical pain. (Id. at Tr. 269, PAGEID #: 322).
During a physical examination, Dr. Fumich noted Plaintiff had
“intact strength” in her lower extremities and
that her “knee and ankle range of motion were
full.” (Id. at Tr. 270, PAGEID #: 323). Upon
review of Plaintiff's lumbar spine x-ray, Dr. Fumich
noted “grade 1 spondylolisteseis seen on L4 over
L5” and “significant cervical spondylosis of the
level of C5-C6 with both anterior and posterior
formation.” (Id.). In order for Plaintiff to
be pre-certified for an MRI, she was ordered to complete
physical therapy for her neck and low back, and was see Dr.
Fumich again on an as-needed basis if her symptoms persisted.
saw Dr. William Sanko twice in October 2012 for knee pain.
(Id. at Tr. 267, 272, PAGEID #: 320, 326). During
one of those visits, Plaintiff described her knee problems as
ongoing for approximately twenty years, with her only
treatment being Ibuprofen and Tylenol. (Id. at Tr.
272, PAGEID #: 326). Dr. Sanko found “some mild
patellofemoral crepitus with range of motion” with
“a mildly positive patellar grind.”
(Id.). There was “positive medial joint line
tenderness to palpitation” and some discomfort
“with forward flexion of the knees.”
(Id.). Dr. Sanko noted that Plaintiff's ...