United States District Court, N.D. Ohio, Eastern Division
REPORT AND RECOMMENDATION
A. Ruiz United States Magistrate Judge
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.
November 29, 2012, Plaintiff filed an application for SSI,
alleging a disability onset date of November 1,
2011. (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).
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.
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.
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).
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).
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.
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.
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).
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).
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).
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).
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).
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).
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.
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).
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.
Medical Opinions Concerning Plaintiff's Functional
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).
9, 2013, State Agency physician Louis Goorey, M.D., affirmed
Dr. Hinzman's findings and RFC assessment. (Tr. 109-107).