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Kapp v. Commissioner of Social Security

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

March 31, 2017

REBECCA KAPP, Plaintiff,



         Plaintiff, Rebecca Kapp, brings this action under 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her application for social security disability insurance benefits. This matter is before the Court for disposition based upon the parties' full consent (ECF No. 4) and for consideration of Plaintiff's Statement of Errors (ECF No. 19), the Commissioner's Memorandum in Opposition (ECF No. 24), and the administrative record (ECF No. 8). For the reasons that follow, the Court OVERRULES Plaintiff's Statement of Errors and AFFIRMS the Commissioner's decision.

         I. BACKGROUND

         Plaintiff filed her application for benefits on October 2, 2013, alleging that she has been disabled since October 9, 2011, due to a foot injury, fibromyalgia, depression, high blood pressure, osteoporosis, and strokes. (R. at 208-09, 228.) Plaintiff's application was denied initially and upon reconsideration. Plaintiff sought a de novo hearing before an administrative law judge. Administrative Law Judge Katie H. Pierce (“ALJ”) held a hearing on November 10, 2014, at which Plaintiff, represented by counsel, appeared and testified. (R. at 65-82.) Sheila Justice, a vocational expert, also appeared and testified at the hearing. (R. at 82-87.) The ALJ held a supplemental video hearing on March 4, 2015, at which Jody Skinner appeared and testified as a vocational expert. (R. at 42-55.) On March 25, 2015, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 14-26.) On January 7, 2016, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (R. at 1-6.) Plaintiff then timely commenced the instant action.


         A. Plaintiff's Testimony

         Plaintiff testified at the November 10, 2014 administrative hearing that she last worked as a restaurant manager in 2009. (R. at 65.) She said that she could no longer perform that job because it requires her to be on her feet for 17 hours a day. (Id.) Plaintiff stated that “standing still for five minutes is painful.” (R. at 66.) She added that she also has trouble sitting due to the pain in her right leg and foot, explaining that she needs to keep readjusting because of shooting pain down the back of her leg and swelling in her knee and foot. (R. at 66-67.) Plaintiff testified that elevating her leg above her chest or at least her waist makes the pain tolerable. (R. at 67.) She estimated that she can be on her feet for four or five minutes before she has to lean on a wall. (R. at 70.) She indicated that she had driven once recently and that “it wasn't pleasant.” She explained that putting pressure on the gas pedal hurt the top of her foot. (R. at 71.) Plaintiff estimated that she could sit for 20-30 minutes while elevating her leg before she would have to lay down and elevate her legs. (R. at 113.)

         When asked about other problems she was experiencing, Plaintiff testified that that she found it difficult to concentrate and that she has confusion and insomnia due to her medications. (R. at 69-70.) She noted that when she tries to read a book, she has to read the same page four times and does not know what she just read. (R. at 70.)

         Plaintiff also testified that she has had two strokes. (R. at 71-72.) She stated that she was unable to further her education after suffering the second stroke. (R. at 73-74, 76-77.) The ALJ noted during the hearing that the evidentiary record contains no actual diagnosis of either condition by a medical professional. (R. at 75.)

         Plaintiff next testified that orthopaedic physician Dr. Goldman had recommended a cane. She said that she did not yet have one, but was contacting her insurance company to find out if any of the cost would be covered. (R. at 77.)

         Plaintiff described a typical day as staying in her bed with her legs elevated and sometimes taking a hot bath. (R. at 78.) She added that her children come into her bed with her to watch a movie and play games because she is no longer able to go outside and run with them. (R. at 78-79.) Plaintiff indicated that her husband and children perform all of the household chores. (R. at 80.)

         During the March 4, 2015 administrative hearing, Plaintiff testified that Dr. Goldman referred her to a pain management physician. She said that she was only able to see him twice because she moved to Ohio. Plaintiff said that the pain management specialist recommended trying SI joint injections to address her pain. (R. at 41-42.)

         B. Vocational Expert Testimony

         Jody Skinner testified as the vocational expert (“VE”) at the March 4, 2015 hearing. (R. at 42-55.) The VE testified that Plaintiff's past relevant work included a restaurant manager, light exertion, but performed at the medium exertional, skilled level; and a waitress/server, a light, semi-skilled position. (R. at 43-44.)

         The ALJ proposed a series of hypothetical questions regarding a hypothetical individual with Plaintiff's age, education, and work experience. (R. at 44-47.) The VE testified that such an individual with the residual functional capacity (“RFC”) the ALJ ultimately assessed for Plaintiff could not perform her past employment. Such an individual could, however, perform over 372, 000 sedentary jobs in the national economy, including the representative jobs of assembler, surveillance system monitor, and addresser. (R. at 46.) The VE testified that her testimony does not conflict with the Dictionary of Occupational Titles (“DOT”) with the exception of the sit-stand option, as well as raising the leg and foot to waist height. (R. at 47.)


         A. Physical Impairments

         1. Thomas Hospital

         In April 2010, Plaintiff presented to the emergency room with complaints of paresthesia and muscle weakness. She was observed to have her neck in a torticollis/spasm-type position and was diagnosed with hypokalemia. Plaintiff was given medication and discharged. (R. at 293-95.)

         In August 2010, Plaintiff again presented to the emergency room with complaints of altered sensation in her upper face and occipital headaches, which she said she had been experiencing for the past two weeks. (R. at 303.) Sensory examination in Plaintiff's upper extremity showed variably decreased touch in her right upper extremity, varying between her proximal and distal arm and hand. When double simultaneous testing was performed, Plaintiff denied being able to feel the isolated right-sided stimulus, but was able to perceive the isolated left-sided stimulus. She was also able to perceive bilateral stimuli. Plaintiff's muscle tone was good, although voluntary strength testing showed decreased response. Her reflexes were 2/4 in both upper extremities, 2/4 at the knees, and 2/4 at the ankles. Plaintiff's toe signs were downgoing. (R. at 305.) Diagnostic testing, including an electroencephalogram, CTA of the head, CT of the head, and MRI of the brain, were found to be normal. (R. at 300, 320, 324-26.) Plaintiff's chest x-ray's revealed right basilar atelectasis. (R. at 321.) ECG testing revealed sinus tachycardia with non-specific ST abnormality. (R. at 302.) A physical therapist noted that Plaintiff walked with slow, deliberate steps that were unsteady in nature. (R. at 327-28.) Plaintiff was diagnosed with acute right sided hemiparesis secondary to a conversion disorder and told she would need outpatient psychiatry. (R. at 308.)

         In November 2010, Plaintiff again presented to the emergency room with complaints that her muscles were drawing. Plaintiff was observed to have an unsteady gait. CT testing of her head was normal. Plaintiff was diagnosed with hypokalemia. (R. at 296-99.)

         In July 2012, Plaintiff was seen in the emergency room for a lumbar back strain. She was prescribed Flexeril and Lortab. (R. at 704-05.)

         In February 2013, Plaintiff returned to the emergency room for ankle pain caused by turning her ankle while running. X-testing of her right foot revealed a 4th metatarsal nondisplaced fracture. Plaintiff was given a splint. (R. at 598-99.)

         On March 1, 2013, Plaintiff saw orthopaedist Robert Baird, III, M.D., in follow up for her foot fracture. Dr. Baird opined that the x-rays of Plaintiff's right foot revealed minimally displaced fractures of her 3rd and 4th metatarsals, as well as a possible lisfranc injury. Dr. Baird recommended a short leg cast and non-weight bearing to treat Plaintiff's foot fractures. (R. at 757.)

         On June 14, 2013, Plaintiff presented to the emergency room complaining of right foot pain. She reported that she broke her foot 4 months ago and has had cast placement times 2 with subsequent foot immobilizer. Plaintiff was started on partial weight bearing a week-and-a-half prior. The day prior, she was making dinner and turned while under crutches, kicking her right foot into her crutch. She stated that she heard a pop and felt instant pain. She reported having more pain and swelling since the injury and that she could not bear weight without pain. Plaintiff rated her pain severity at a level of 7 on a 0-10 visual analog scale, adding that it worsened with movement and was better with rest. (R. at 568.) X-rays of her right ankle and foot revealed osteopenia. (R. at 562-63.) Plaintiff was diagnosed with right foot pain and a contusion. (R. at 570.)

         On October 5, 2013, Plaintiff received x-ray and CT testing of her right knee that revealed a medial tibial plateau fracture due to a fall. (R. at 777-78.)

         2. Barbara Corcoran, M.D.

         Plaintiff treated with primary care physician Dr. Corcoran from September 2010 through at least September 2014. (R. at 376-91, 726-49, 771-804.)

         When seen on September 2, 2010, for stroke follow-up, it was noted that Plaintiff started smoking at age 13 and drank 6-7 sodas per day. (R. at 376.) On examination, Plaintiff was found to have decreased sensation in her fingers on her right hand and also in her right leg. (R. at 377.) Plaintiff was assessed with a transient ischemic attack (TIA), NOS, hypertension, and depression. (Id.) Plaintiff was advised to exercise more and to stop drinking alcohol and smoking. (R. at 378.)

         After Plaintiff fractured her foot in March 2013, Dr. Corcoran noted that x-rays revealed significant osteoporotic-appearing bones in her right foot. She applied a cast to Plaintiff's right lower extremity and restricted her to no weight-bearing. (R. at 727-28.)

         X-rays taken of Plaintiff's right foot on May 1, 2013, showed severe disuse osteoporosis of her foot and mild irregularity of her proximal 5th metatarsal, suspicious for underlying fracture. (R. at 749.) Repeat x-ray testing was performed on May 16, 2013, as a companion to the prior images, because Plaintiff had significant motion with reduced diagnostic quality. This x-ray revealed a third metatarsal insufficiency fracture and severe disuse osteoporosis. (R. at 742.) On May 24, 2013, Plaintiff underwent a DEXA bone density study, which revealed osteoporosis of her lumbar spine and osteopenia of her right femoral neck and hips. (R. at 736-38.)

         On July 23, 2013, Plaintiff reported that she had been ambulating with crutches since February 2013 and that she was still unable to put pressure on her foot. She added that if she stands too long it swells and hurts. (R. at 732.) Plaintiff exhibited tenderness on palpitation of her right foot. Plaintiff was prescribed Alendronate and hydrocodone and instructed to continue her weight bearing exercises. (R. at 733.) Dr. Corcoran assessed osteoporosis, osteopenia, hypertension, depression, and tobacco abuse. (Id.)

         In January 2014, Plaintiff reported that she had been experiencing palpitations with her pulse escalating up to 118. She reported that she “feels like she wants to rip her skin off/lots of stress going on in life.” Plaintiff indicated that she had felt like this for the past 2 weeks. She also reported that she had been drinking 5 cans of diet Pepsi and water. Dehydration was discussed, and Plaintiff's medications were adjusted. (R. at 788-90.)

         In July 2014, Plaintiff reported that her knee/foot began to swell when she tried going back to work. On examination, the nurse practitioner found mild crepitus in Plaintiff's right knee. (R. at 802.)

         3. Dawn Kidd, D.O.

         On May 4, 2011, Plaintiff was examined by Dr. Kidd for disability purposes. (R. at 401-04.) Plaintiff reported that she was seeking disability due to multiple sclerosis (“MS”). She indicated that she had been diagnosed with MS in 2000 and had showed some symptoms in her arms and legs. Plaintiff believed that her CT scans and MRIs were normal. On examination, Plaintiff showed very different sensation on her right versus her left side, could not feel soft touch on the left, and showed decreased reflexes. The remainder of Plaintiff's examination was normal, showing a normal range of motion throughout, negative straight-leg raise testing, and a gait within normal limits. Dr. Kidd assessed hypertension, depression, and multiple sclerosis “just from history.” Dr. Kidd offered no functional limitations. (R. at 402.)

         4. Ohio State University

         On July 14, 2011, Plaintiff presented to Fairfield Medical Center with right-leg pain and right-arm numbness. Throughout the examination, Plaintiff showed worsening right-sided weakness. A CT scan did not show any acute bleeding or any signs of stroke. Plaintiff was med-flighted from Fairfield Medical Center to Ohio State University for further management and testing. Before being given tPA stroke medication, Plaintiff's NIH stroke scale was 10, but after arrival at OSU, Plaintiff's NIH stroke scale[1] was 18. Plaintiff's neurological examination upon arrival revealed right-lower facial droop. She was able to raise her forehead and close her eyes. Plaintiff exhibited 1/5 strength in her right arm and right leg. Plaintiff's strength on her left side was 5/5 in her shoulders, biceps, triceps, right-sided iliopsoas, quadriceps, and hamstrings. Plaintiff displayed obvious sensory deficit, but had no cerebellar deficit on her left hand. She had a hard time generating words, but did appear to understand the questions that were asked. Diagnostic testing including an MRI of the brain, cerebral perfusion study, and a transthoracic echo, all of which revealed normal findings. Plaintiff was discharged the following day with the diagnosis of rule out ischemic stroke. (R. at 848-901.)

         5. Matthew W. Goldman, M.D.

         Plaintiff initially treated with orthopaedist Dr. Goldman on October 7, 2013, for her right knee injury. Dr. Goldman noted that Plaintiff went to Thomas Emergency Room four days prior after a fall. His treatment notes stated as follows: “She fell directly on her right knee. She has actually a more complicated story where she had a fourth metatarsal fracture. She was treated in a cast for eight weeks and then progressed with her weight bearing. It has actually been eight months that she has been on crutches. She has just recently weaned from her crutches and fell on that right leg suffering a tibial plateau fracture.” On examination, Dr. Goldman observed that Plaintiff had a tense and palpable effusion of her right knee, but was neurovascularly intact distally to the toes. (Tr. 828.) X-rays showed a non-displaced medial plateau fracture. (Id.) Dr. Goldman immobilized her right leg. (Id.)

         Plaintiff returned on October 28, 2013. Dr. Goldman noted that Plaintiff had “not worked on range of motion” of her right knee. He instructed Plaintiff to begin range of motion exercises and physical therapy, noting that Plaintiff “refused a referral to physical therapy and will do it with her friend” who was she said was a physical therapist. (R. at 827.)

         In November 2013, Dr. Goldman noted that Plaintiff was eight weeks post tibial fracture. He recommended that Plaintiff start physical therapy. (R. at 825.)

         In August 2014, Plaintiff returned to Dr. Goldman complaining that she had not made much progress with her leg. X-rays of Plaintiff's right leg showed disuse osteopenia, with no sign of fracture and good healing from the previous x-rays. Dr. Goldman referred Plaintiff to physical therapy to improve range of motion, strengthening, and stretching of the right lower extremity. (R. at 823.)

         Plaintiff attended six physical therapy sessions between August 19, 2014 and September 23, 2014. (R. at 809-14, 816, 821-22). Following her sessions, Plaintiff exhibited a better range of motion and strength. (Id.) After September 23, 2014, Plaintiff either canceled or ...

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