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Siverd v. Commissioner of Social Security

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

November 22, 2017

NOVA CECIAL SIVERD, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          CHRISTOPHER A. BOYKO JUDGE

          REPORT & RECOMMENDATION

          THOMAS M. PARKER UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Nova Cecial Siverd, seeks judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her application for supplemental security income (“SSI) under Title XVI of the Social Security Act. This matter is before the court pursuant to 42 U.S.C. §1383(c)(3), 42 U.S.C. §405(g) and Local Rule 72.2(b).

         Because the ALJ did not properly apply Social Security regulations or make it clear that he had a proper basis for discounting the views of Siverd's treating doctor, I recommend that the court VACATE and REMAND the final decision of the Commissioner for further proceedings.

         II. Procedural History

         Siverd filed an application for SSI on February 14, 2014. (Tr. 92, 113) Siverd alleged her disability began on November 20, 2013. (Tr. 265) Siverd's application was denied initially on March 28, 2014 (Tr. 166) and upon reconsideration on May 5, 2014. (Tr. 175) Siverd requested a hearing on May 5, 2014. (Tr. 175) Administrative Law Judge James M. Martin conducted a hearing on August 28, 2015. (Tr. 109-142) On September 21, 2015, the ALJ denied Siverd's claims for benefits. (Tr. 89-103) The Appeals Council denied review of the ALJ's decision on September 13, 2016, rendering the ALJ's decision the final decision of the Commissioner. (Tr. 1-4)

         III. Evidence

         A. Personal, Educational, and Vocational Evidence

         Siverd was 52 years old when she applied for benefits. (Tr. 265) She obtained her GED (Tr. 118) and had past work experience as a quality control inspector at a rubber factory and in housekeeping. (Tr. 119-120)

         B. Medical Evidence

         Siverd first treated with John Lee, D.O., on January 22, 2014. (Tr. 406) She complained of hip and back pain. She was smoking a pack of cigarettes every day but wanted to quit. For the past year she had had a cough, shortness of breath and fatigue. Dr. Lee ordered X-rays and lab work. (Tr. 408)

         X-rays taken of Siverd's lumbar spine on January 22, 2014 revealed 1.5 cm spondylolisthesis of L5 on S1, associated with pars defect and narrowed L5-S1 disc space, and concave defect superior endplate L3 vertebrae most likely a Schmorl's node and also osteophytes at ¶ 2, L3 and L4. (Tr. 376) X-rays of Siverd's hips and pelvis were normal. (Tr. 373-374)

         An X-ray of Siverd's' chest showed blunting of both costophrenic angles and findings consistent with chronic obstructive pulmonary disease (“COPD”). Minimal scoliosis of the thoracic spine convex to the right was also noted. (Tr. 372) A chest CT chest showed emphysema and prominent pancreatic duct with small adjacent cystic areas. (Tr. 370)

         On January 29, 2014, Siverd followed-up with Dr. Lee who referred her to pain management, recommended that she stop smoking, and told her to take Vitamin D once a week. (Tr. 403) At an appointment on February 10, 2014, Siverd reported feeling lightheaded since starting blood pressure medication. (Tr. 400)

         Siverd met with a pulmonologist, Yisa Sunmonu, M.D., on February 12, 2014. Siverd reported worsening exertional shortness of breath over the last year, labored breathing after walking two blocks, chronic cough and whitish phlegm. Dr. Sunmonu diagnosed shortness of breath on exertion, COPD, chronic bronchitis, tobacco dependence, chronic back pain, mild scoliosis, hypertension and Vitamin D deficiency. (Tr. 395-397)

         On February 24, 2014, Siverd complained to Dr. Lee of feeling lightheaded. He noted that she was doing much better after seeing a pulmonologist and starting inhalers. (Tr. 392)

         On March 17, 2014, Siverd complained of shortness of breath to Dr. Sunmonu. Dr. Sunmonu noted that Siverd was only smoking a 1/3 of a pack of cigarettes per day. (Tr. 410)

         Siverd participated in physical therapy from March 18, 2014 through May 9, 2014 for her lower back and hip pain. She completed 15 out of 16 visits and her goals were partially achieved. (Tr. 438, 439, 450)

         On March 26, 2014, Siverd complained to Dr. Lee that physical therapy was aggravating her back pain. Dr. Lee noted that Siverd had been diagnosed with severe COPD by her pulmonologist. (Tr. 418)

         On April 7, 2014, Siverd met with Dr. John Hill for pain management. Siverd was experiencing pain with lumbar motion. (Tr. 479) On April 28, 2014, Siverd received a lumbar facet block medial branch nerve block at ¶ 3-4, L4, 5 and L5, S1 on the right and left side to treat lumbosacral spondylosis. (Tr. 429-430)

         On April 24, 2014, Siverd followed-up with Dr. Lee for tobacco abuse and Vitamin D deficiency. Dr. Lee's notes reflect that Siverd was going to receive a cortisone shot for lower back pain and that she was on oxygen at night. (Tr. 476)

         Siverd followed-up with Dr. Hill for pain management on May 6, 2014. Siverd had full range of motion with pain in her spine. (Tr. 435) On May 12, 2014, she received a second lumbar facet medial branch block at ¶ 3-4, L4-5, and L5-S1. (Tr. 455)

         Cynthia Campbell, NP, at the Pain clinic saw Siverd on July 3, 2014. Nurse Campbell noted 4/5 motor strength in Siverd's right lower extremity; positive straight leg raising test; and full range of motion in lumbar spine, but with pain. Campbell assessed degeneration of the lumbar and lumbosacral intervertebral disc; congenital spondylolisthesis; and thoracic or lumbosacral neuritis or radiculitis. (Tr. 464-466) Siverd followed-up with Campbell on August 22, 2014, November 19, 2014, June 3, 2015 and August 27, 2015. (Tr. 553, 541, 631, 678)

         Siverd followed-up with Dr. Sunmonu on July 15, 2014. Siverd had diminished breath sounds and prolonged expirations bilaterally. Dr. Sunmonu assessed shortness of breath, severe COPD with chronic associated bronchitis. At her previous visit, Siverd had been started on nocturnal oxygen for nocturnal hypoxia. Notes from this visit state that Siverd had cut down to a few daily cigarettes. (Tr. 461-462)

         Siverd went to the emergency room on October 7, 2014 reporting that she was having an episode of mental health disorder. Siverd was diagnosed with depression and was told to follow up with her family physician, Dr. Lee. (Tr. 513-520)

         Siverd met with Sanjay Srivastava, M.D., at the pulmonary clinic for a follow up on December 23, 2014. Siverd was running low on her inhalers. Siverd medications and oxygen were continued. Siverd was smoking 4-5 cigarettes each day. Dr. Srivastava discussed Siverd's need to completely quit smoking. (Tr. 535-537)

         Siverd followed up with the Pain Clinic on February 18, 2015. The clinic also performed a functional status assessment. Siverd reported feeling back and right leg pain that would wake her at night. Her right lower extremity motor strength was reduced to 4/5 and straight leg raising tests on the right were positive. Lumbar range of motion was decreased due to pain. Siverd was assessed with degeneration of lumbar and lumbosacral intervertebral disc, thoracic or lumbosacral neuritis or radiculitis and congenital spondylolisthesis. Siverd's prescriptions were renewed. (Tr. 530-531)

         Siverd also met with Dr. Lee on February 18, 2015. Siverd complained of cough and phlegm production. She was diagnosed with sinusitis. Dr. Lee also noted COPD and nasal congestion. (Tr. 523) Siverd met with Dr. Lee again on March 11, 2015 with a sore throat and possible thrush. (Tr. 659-660)

         Siverd presented to the emergency room on May 13, 2015 complaining of severe shortness of breath. She was admitted for “at least” two days due to her hypoxia and was advised that she needed to stop smoking. The next day, Siverd left the hospital without being discharged and without any prescriptions. (Tr. 559-563)

         Siverd met with Dr. Sunmonu on May 19, 2015. Notes indicate that Siverd's chronic breathing problem was worsening and that she had been admitted last week for two days to the hospital for COPD exacerbation. She had diminished breath sounds and prolonged expirations bilaterally on examination. (Tr. 644-646) Siverd also followed-up with Dr. Lee after her hospitalization. (Tr. 638)

         Siverd met with Dr. Sunmonu on July 14, 2015. Dr. Sunmonu noted continued worsening of Siverd's breathing and cough and diagnosed emphysema with no focal mass or infiltrate. (Tr. 625-626) Siverd met with Dr. Lee on August 20, 2015. She was out of albuterol and Dr. Sunmonu was out of the office. Siverd also complained of right hip pain. (Tr. 682)

         The administrative record contains literally dozens of doctor directives to Siverd to stop smoking. Despite these constant instructions, she never did even though doctors told her many times that her conditions - ...


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