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Popp v. Commissioner of Social Security Administration

United States District Court, S.D. Ohio, Eastern Division

January 9, 2017

ROBIN R. POPP, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          James L. Graham Judge.

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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 Commissioner.

         I. BACKGROUND

         A. Prior Proceedings

         Plaintiff 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)).

         B. Testimony at the Administrative Hearing

         Plaintiff's 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).

         Plaintiff's 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).

         Plaintiff 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)).

         Regarding 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 . . . .)).

         C. Relevant Medical Background

         Plaintiff 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).

         On 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.).

         On that 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).

         Plaintiff 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. (Id.).

         Plaintiff 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 ...


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