United States District Court, N.D. Ohio, Eastern Division
CHRISTOPHER A. BOYKO JUDGE
REPORT & RECOMMENDATION
M. PARKER UNITED STATES MAGISTRATE JUDGE
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).
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.
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)
Personal, Educational, and Vocational Evidence
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)
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)
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)
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.
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.
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.
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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.
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)
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)
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)
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)
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)
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 - ...