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Sypolt v. Berryhill

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

March 8, 2017

NANCY A. BERRYHILL, Acting Comm'r of Social Security, Defendant.



          David A. Ruiz United States Magistrate Judge

         Plaintiff Cynthia Sypolt (hereinafter “Plaintiff”), challenges the final decision of Defendant Nancy A. Berryhill, Acting Commissioner of Social Security (hereinafter “Commissioner”), denying her application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. § 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 a Report and Recommendation. For the reasons set forth below, the Magistrate Judge recommends that the Commissioner's final decision be REVERSED and REMANDED for further proceedings consistent with this opinion.

         I. Procedural History

         On November 29, 2012, Plaintiff filed an application for SSI, alleging a disability onset date of November 1, 2011.[1] (Transcript (“Tr.”) 154-159). The applications were denied initially and upon reconsideration, and Plaintiff requested a hearing before an ALJ. (Tr. 111-123). Plaintiff participated in the hearing, was represented by counsel, and testified. (Tr. 65-90). A vocational expert (“VE”) also participated and testified. (Id.) On January 8, 2015, the ALJ found Plaintiff not disabled. (Tr. 59). On April 6, 2016, the Appeals Council declined to review the ALJ's decision, and the ALJ's decision became the Commissioner's final decision. (Tr. 1-4). On June 9, 2016, Plaintiff filed a complaint challenging the Commissioner's final decision. (R. 1). The parties have completed briefing in this case. (R. 15 & 20).

         Plaintiff asserts the following assignments of error: (1) the finding that Plaintiff can perform a reduced range of light work is not supported by substantial evidence; and (2) the ALJ erred in finding Plaintiff's testimony was not credible. (R. 15).

         II. Evidence

         A. Relevant Evidence[2]

         1. Disability Application

         In her disability application, Plaintiff indicated that she suffered from shortness of breath, pain, excessive perspiration, and dizziness. (Tr. 195). She indicated that she experienced pain in her lungs and back. Id. She did not mention leg pain or weakness. Id.

         2. Treatment Records

         In a treatment note from Alliance Community Hospital dated August 23, 2013, Plaintiff claimed that she could sit about one hour before having to get up, that her pain woke her up at night, and that her pain was aggravated by standing for too long, walking too far, sitting for too long, and even by trying to sleep. (Tr. 456-458). She reported walking on her treadmill every other day for at least ten minutes. (Tr. 457). She also indicated that her activities of daily living (“ADL”) were accomplished with pain. (Tr. 458).

         On September 17, 2013, physical therapy notes indicate that Plaintiff progressed towards her goals, and Plaintiff felt her pain levels had decreased to a manageable level. (Tr. 460). Objectively, both her left and right lower extremities all revealed good extension/flexion on manual muscle testing. (Tr. 462). Nonetheless, she remained concerned as to “why her legs feel like they could give out.” (Tr. 460, 467). She reported being extra sore due to slipping on wet grass the other day. (Tr. 467). Her long-term goals were the ability to pick-up her grandchildren without any increase in back pain, to be able to stand and wash dishes for more than 15 minutes with no increase in back pain, and to walk on the treadmill every other day with no increase in back pain. (Tr. 475).

         On November 14, 2013, a magnetic resonance image (“MRI”) of Plaintiff's lower lumbar spine revealed only mild degenerative changes; there was no spondylolysis or spondylolisthesis and no paraspinal masses. (Tr. 543).

         On November 20, 2013, Plaintiff was seen by Pamela A. Rodocoy. (Tr. 488-489). On physical examination, Dr. Rodocoy noted that Plaintiff was in no appreciable distress, ambulated normally, had normal musculoskeletal strength and tone, had no edema, and normal gait and station. (Tr. 488). The “Assessment/Plan” included disorder of the back with a notation of “no si gnificant DDD [degenerative disc disease]” and weakness of limb. Id.

         On January 29, 2014, an EMG of Plaintiff's legs yielded normal results with no evidence of peripheral polyneuropathy, bilateral lumbosacral radiculopathy or myopathy. (Tr. 520).

         On February 7, 2014, Plaintiff was again seen by Dr. Rodocoy, and again complained of bilateral leg weakness, COPD, and disorder of the back. (Tr. 523-524).

         On March 19, 2014, Plaintiff was seen by Ali Shakir, M.D. (Tr. 501-505). Plaintiff complained of lower back and leg pain starting one-year earlier. (Tr. 501). Plaintiff alleged her pain was constant, and described the pain as aching, stabbing, burning, and throbbing; she rated her pain as ten out of ten. Id. She reported that her pain has been so intense that it significantly impacted her activities of daily living. Id. Her pain was worse at night, but was improved with walking, standing, medication, and changes in position. Id. Over the counter pain medications provided no benefit; a recent prescription of Gabentin helped, but relief was not sustained. Id. On physical examination, Plaintiff had a normal gait and was able to transition without assistance. (Tr. 503). Inspection of the lumbar spine revealed normal lumbar lordosis, marked tenderness over bilateral sacroiliac joints, and restricted range of motion (“ROM”) of the lumbar spine in all planes. Id. Lumbar ROM demonstrated moderate reduction in flexion and extension and mild reduction in side-bending. (Tr. 503-504).

         On March 25, 2014 and April 17, 2014, Plaintiff reported that she has significant leg weakness when her pain is significant, but that she had not fallen. (Tr. 497, 600). Throughout 2014, treatment notes variably describe Plaintiff as walking with an antalgic gait, while other times with a normal gait. (Tr. 498, 582, 585, 597, 624, 672).

         On May 7, 2014, Plaintiff told Dr. Shakir that steroid injections administered on April 16, 2014, had provided 50 percent pain reduction for about three weeks, but that her pain gradually re turned thereafter. (Tr. 690).

         On August 15, 2014, Plaintiff told Dr. Shakir that steroid injections administered on May 22, 2014, had provided 90 percent pain reduction for about two weeks, but that her pain gradually returned thereafter. (Tr. 623).

         On September 11, 2014, Gamal El-Mobasher, M.D., noted 3 pitting edema and varicose veins in Plaintiff's legs. (Tr. 653-654). Her weight was recorded as 193 lbs. with a Body Mass. Index (“BMI”) of 30.22. Id.

         On October 9, 2014, Dr. El-Mobasher noted that Plaintiff's pain management specialist would no longer prescribe any pain medication, and he declined to prescribe Plaintiff any Schedule Two pain medications. (Tr. 651).

         On October 14, 2014, Plaintiff told Dr. Shakir that steroid injections administered on October 8, 2014, had provided a good benefit until she fell on her back. (Tr. 671). She reported that the pain is made worse by running the sweeper or by sitting for more than 45 minutes. Id. Pain is lessened by walking or changing positions. Id.

         3. Medical Opinions Concerning Plaintiff's Functional Limitations

         On February 15, 2013, State Agency physician Gary Hinzman, M.D., reviewed Plaintiff's records and noted diagnoses of COPD and essential hypertension. (Tr. 94-97). Notably, back or leg pain were not included among the diagnoses. (Tr. 94). Dr. Hinzman indicated that Plaintiff's medically determinable impairments could reasonably be expected to produce pain or other symptoms, but that the intensity, persistence, and functionally limiting effects of the symptoms were not substantiated by the objective medical evidence alone. (Tr. 95). Dr. Hinzman noted that “[t]he claimant states she has shortness of breath, pain, dizziness and sweats a lot. This is consistent with the evidence and her symptoms are considered fully credible.” Id. Dr. Hinzman opined that Plaintiff retained the capacity for medium exertional work, including the ability to stand/walk and sit for six hours each in an 8-hour workday. Id. He did note that Plaintiff should avoid concentrated exposure to fumes, odors, dusts, gases, poor ventilation, etc. (Tr. 96).

         On May 9, 2013, State Agency physician Louis Goorey, M.D., affirmed Dr. Hinzman's findings and RFC assessment. (Tr. 109-107).

         4. ...

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