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Philpot v. Berryhill

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

December 7, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



          Jonathan D. Greenberg United States Magistrate Judge

         Plaintiff, Helen Philpot (“Plaintiff” or “Philpot”), challenges the final decision of Defendant, Nancy A. Berryhill, [1] Acting Commissioner of Social Security (“Commissioner”), denying her application for Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423, 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 AFFIRMED.


         In September 2012, Philpot filed an application for SSI, alleging a disability onset date of December 26, 2009 and claiming she was disabled due to asthma and osteoarthritis. (Transcript (“Tr.”) 107, 223, 245.) The applications were denied initially and upon reconsideration, and Philpot requested a hearing before an administrative law judge (“ALJ”). (Tr. 126-128, 136-137, 141.)

         On May 20, 2014, an ALJ held a hearing, during which Philpot, represented by counsel, and an impartial vocational expert (“VE”) testified. (Tr. 23-49, 107.) On August 28, 2014, the ALJ issued a written decision finding Philpot was not disabled. (Tr. 107-117.) On August 3, 2015, the Appeals Council issued an Order remanding the case to the ALJ for a new decision. (Tr. 120-121.) On remand, the ALJ was ordered to do the following:

• Obtain additional evidence concerning the claimant's physical impairments in order to complete the administrative record in accordance with the regulatory standards regarding consultative examinations and existing medical evidence (20 CFR 416.912- 913).
• Give further consideration to the claimant's maximum residual functional capacity and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations (20 CFR 416.945 and Social Security Ruling 96-8p).
• Obtain evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base (Social Security Ruling 83-14). The hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. The Administrative Law Judge will ask the vocational expert to identify examples of appropriate jobs and to state the incidence of such jobs in the national economy (20 CFR 416.966). Further, before relying on the vocational expert evidence the Administrative Law Judge will identify and resolve any conflicts between the occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titles (DOT) and its companion publication, the Selected Characteristics of Occupations (Social Security Ruling 00-4p). (Tr. 121.)

         On December 2, 2015, the ALJ held a hearing during which Philpot, represented by counsel, and a different vocational expert (“VE”) testified. (Tr. 10, 50-76.) On January 5, 2016, the ALJ issued a written decision finding Philpot was not disabled. (Tr. 10-22.) The ALJ's decision became final on January 10, 2017, when the Appeals Council declined further review. (Tr. 1-4.)

         On March 6, 2017, Philpot filed her Complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 14, 15.) Philpot asserts the following assignments of error:

(1) The ALJ's failure to provide Plaintiff with a supplemental hearing so that she could confront and cross-examine [VE] Mr. Nimberger was prejudicial and/or deprived her of a full and fair hearing.
(2) The ALJ's RFC is not based on substantial evidence and/or is contrary to law. (Doc. No. 14 at 4.)

         II. EVIDENCE

         A. Personal and Vocational Evidence

         Philpot was born in June 1977 and was thirty-five (35) years-old on the date the application was filed and thirty-eight (38) years old at the time of the December 2015 administrative hearing, making her a “younger” person under social security regulations. (Tr. 15.) See 20 C.F.R. § 416.963(c). She has a high school education and is able to communicate in English. (Tr. 15.) She has no past relevant work. (Id.)

         B. Relevant Medical Evidence [2]

         The bulk of Philpot's treatment records consist of emergency room visits relating to her asthma. In May 2010, Philpot visited the emergency room twice, once for nasal congestion and then again for an asthma exacerbation. (Tr. 380, 373.) The emergency room physicians provided her with medications and discharged her the same day. (Tr. 375, 376.) Philpot visited the emergency room again on April 24, 2012 for an asthma attack. (Tr. 583.) She was prescribed a short course of prednisone. (Tr. 583-585.)

         In September 2012, Philpot went to the emergency room two times for asthma attacks. Each time she received an albuterol inhaler and short 5-day course of steroids. (Tr. 541, 545.) In October 2012, she visited the emergency room three times for asthma exacerbations. (Tr. 684, 692, 698.) She was provided with steroids during one visit, and albuterol inhalers during the other two. (Id.)

         Philpot returned to the emergency room on November 17, 2012 for vomiting and again on November 26, 2012 for a sore throat. (Tr. 702, 721.) On December 17, 2012, a CT scan of her chest revealed mild diffuse bronchial wall thickening, which was consistent with reactive airway disease. (Tr. 707.) There were no acute findings. (Id.)

         On January 1, 2013, Philpot visited the emergency room for an asthma attack. (Tr. 731.) She reported shortness of breath, mild wheezing, and a cough. (Tr. 734.) She indicated she had run out of her albuterol. (Id.) On examination, she was not in respiratory distress, but she did have some decreased breath sounds and wheezing. (Tr. 735.) She received albuterol and a course of steroids. (Tr. 731). Philpot returned a few weeks later, on January 29, 2013. (Tr. 741.) She had again run out of her asthma medications, and was experiencing shortness of breath. (Id.) She relayed she had not been taking her Advair, but was planning on filling her prescription that day. (Id.)

         On February 10, 2013, Philpot presented to the emergency room, reporting shortness of breath. (Tr. 727.) She again indicated she had run out of her medications. (Id.) On examination, she was not wheezing or in respiratory distress. (Tr. 728.) She appeared comfortable, and was discharged home with a prescription for albuterol. (Id.)

         Philpot again ran out of her inhaler, and subsequently presented to the emergency room for an asthma exacerbation, on April 29, 2013. (Tr. 770.) The emergency room physician noted Philpot was “well known” for her recurrent asthma exacerbations and had “trouble following up and keeping appointments” with her primary care doctor. (Tr. 803.) Philpot was not wheezing on examination, and the doctor urged her to see a primary care doctor and get back on her medications. (Id.)

         Philpot went to the emergency room for a bladder infection on July 16, 2013, and again on September 18, 2013. (Tr. 816, 822.) During her September 2013 visit, she also reported she had twisted her right knee while picking up her niece. (Tr. 823.) She indicated she was still having pain, though her right knee was normal on examination, with no joint effusion. (Id.) The hospital doctor diagnosed her with a knee strain. (Tr. 825.)

         Philpot had another emergency room visit for a bladder infection on January 7, 2014. (Tr. 790.) She visited the emergency room on February 7, 2014 for a sore throat. (Tr. 793.)

         On April 9, 2013, Philpot visited South Pointe Hospital for a physical capacity evaluation. (Tr. 774.) Lidiya Kanarsky, an occupational therapist, was the evaluator. (Id.) During the examination, Philpot presented with a standard cane for ambulation, and reported left knee arthritis and asthma. (Id.) She occasionally grimaced in pain during the evaluation. (Id.)

         Ms. Kanarsky conducted a detailed physical examination of Philpot. Philpot had decreased grip strength on examination; good strength throughout the upper extremities; good strength in her right leg, left hip, and ankle; and fair strength in her left knee. (Tr. 775.) Philpot reported a sitting tolerance of 15-20 minutes, and had an observed sitting tolerance of 30 minutes. (Tr. 776.) She reported a standing tolerance of 5 minutes, and had an observed standing tolerance of 11 minutes. (Id.) Ms. Kanarsky noted that while Philpot reported left knee pain, she was using her cane in the right hand. (Id.) She questioned Philpot as to why she was using the cane in this manner, and Philpot implied her doctor had instructed her to use it this way. (Id.)

         Following this examination, Ms. Kanarsky made the following recommendations in her report:

• The patient's maximum lifting and carrying weight is approximately 17 pounds using just her left hand. She would be able to lift and carry 17 pounds occasionally with frequent lifting and/or carrying of objects weighing up to 8.5 pounds. The patient's maximum status lift using both arms is 39 pounds occasionally and 20 pounds frequently.
• The patient would be a good candidate for a part-time sedentary to light job task with lifting capabilities as described above.
• The patient would benefit from further therapy treatments, specifically physical therapy to address her left knee pain and gait training with proper use of an assistive device. The patient may also benefit from physical therapy aquatics for her left knee pain relief.
• The patient should avoid repetitive tasks of shifting, etc., and alternate any repetitive tasks with non-repetitive.
• The patient has a sitting tolerance limited to 15-20 minutes reported and 30 minutes observed, and standing tolerance limited to 5 minutes reported and 11 minutes observed, which is functional for part-time employment allowing for frequent change in working position. (Tr. 774.)

         Philpot continued to visit the emergency room on a regular basis. On March 18, 2014, she visited the emergency room, indicating she had fallen and twisted her left foot a few weeks ago and was still in pain. (Tr. 872.) On examination, she did have some tenderness, but her x-ray was negative for fracture. (Tr. 874.) The doctor told her to take Motrin, and follow up with a primary care doctor or orthopedist as needed. (Id.)

         On May 5, 2014, Philpot visited the emergency room, reporting shortness of breath. (Tr. 900.) She indicated she had recently run out of her nebulizer and asthma medications. (Tr. 901.) She had faint wheezing on examination. (Tr. 902.)

         Philpot underwent a consultative examination, with Eulogio Sioson, M.D., at the request of the Social Security Administration, on June 24, 2014. (Tr. 883.) During the examination, Philpot reported knee pain since 2009. (Id.) She relayed her treatment course was currently over the counter pain medications. (Id.) She also reported asthma since 2009, and indicated she visited the emergency room an average of seven times a year for such. (Id.) She indicated she was using her albuterol inhaler four times a week. (Id.)

         During the examination, Philpot was walking with a slight limp, with no assistive device. (Id.) She declined to do any heel/toe walking or squatting, citing knee pain. (Id.) She was able to get up and down from the examination table. (Id.) Her lungs had a somewhat diminished breath sounds, but no crackles, rhonchi, or wheezing. (Id.)

         On examination, Phipot's knee had a clicking sound with range of motion, along with some mild puffiness. (Tr. 884.) Dr. Sioson indicated it was “difficult to evaluate for instability due to pain.” (Id.) Otherwise, she had no heat, redness, swelling, subluxation, or gross deformity in the joints. (Id.) She had full strength in her upper extremities, and overall full strength in her lower extremities, beyond slightly decreased strength in her left knee. (Tr. 896.) She had normal grasp, manipulation, pinch, and fine motor coordination. (Id.) She had no muscle spasm or atrophy. (Id.) Philpot had full range of motion in her cervical spine, wrists, elbows, and hands. (Tr. 897.) She did have decreased range of motion in her shoulders, hips, knees, and lumbar spine. (Tr. 897, 898.)

         Dr. Sioson administered a pulmonary function test, which revealed a moderate obstructive ventilator impairment, with significant response after bronchodilator. (Tr. 893.) Philpot's FVC[3]value prior to a bronchodilator was 2.94, and after was 3.03. (Id.) Her FEV1 was 1.86 prior to the bronchodilator, and 2.52 afterwards[4]. (Id.)

         Dr. Sioson opined “if one considers limitation of range of motion from pain and above findings, work-related activities would be limited to light or sedentary work.” (Tr. 884.) He also provided a more specific opinion by filling out a form. (Tr. 885-889.) He opined:

• Philpot could frequently lift/carry up to 10 pounds, and occasionally lift up to 20. (Tr. 885.)
• She could sit for one hour at a time, and 4 hours total in an 8-hour workday. (Tr. 886.)
• She could stand for 15 minutes and walk for 15 minutes at a time, and for 1 hour total in a workday. She did not need a cane to ambulate. (Id.)
• She had no limits with her hands, including reaching, handling, and fingering. (Tr. 887.)
• She could occasionally climb ladders, scaffolds, ramps, and stairs. She could occasionally stoop and balance, but never kneel, crouch, or crawl. (Tr. 888.)
• She could never work at unprotected heights, or in humidity, wetness, dust, odors, fumes, pulmonary irritants, extreme cold, or extreme heat. She could occasionally work near moving mechanical parts or operate a motor vehicle. (Tr. 889.)

         On August 12, 2014, Philpot visited the emergency room, reporting pain in her right foot and a cough. (Tr. 908.) She denied any shortness of breath. (Id.) On examination, her foot appeared normal. (Tr. 909.) Her x-ray revealed hallux valgus and osteoarthritis in her right foot. (Tr. 911.) She was not in any respiratory distress or wheezing. (Tr. 913.) The emergency room doctors diagnosed her with a cough, right foot sprain, and asthma exacerbation. (Tr. 909.)

         Philpot visited the emergency room again on September 20, 2014, reporting nausea and vomiting. (Tr. 919.) On April 23, 2015, she had an emergency room visit for an upper respiratory infection and sore throat. (Tr. 928.) She did not have any shortness of breath. (Id.) She again visited the emergency room for nausea and vomiting on June 23, 2015. (Tr. 935.)

         On July 19, 2015, Philpot visited the emergency room reporting shortness of breath. (Tr. 943.) She indicated she had never been intubated or hospitalized for her asthma, and her last exacerbation had been about seven months prior. (Id.) Philpot reported the day before she had been helping her brother move, and was now having shortness of breath. (Id.) She admitted she had been out of her albuterol inhaler for several months, and had been using her nebulizer machine. (Id.)

         On examination, Philpot had diminished breath sounds and diffuse wheezing on examination. (Tr. 944.) The emergency room doctors felt she did not need a chest x-ray, but they did provide her with an aerosol treatment and a course of steroids. (Id.) They encouraged her to get her inhaler prescription refilled. (Id.)

         Philpot returned to the emergency room on August 26, 2015, reporting she wanted to have her albuterol prescription filled. (Tr. 951.) She was speaking clearly, with no shortness of breath or distress. (Id.) She again relayed she had never been hospitalized or intubated for her condition. (Tr. 952.) She reported she used an inhaler and nebulizer as needed, but had not needed it in the past week. (Id.) Her chest x-ray was negative for any acute pathology. (Tr. 953.) The hospital doctors administered a breathing treatment, and she felt better. (Id.) The doctors noted she was “overall a very well appearing” patient. (Id.)

         On November 6, 2015, Philpot presented to the emergency room with shortness of breath. (Tr. 961.) She reported she was out of her medications and needed refills. (Id.) She received an aerosol treatment, and reported improvement. (Id.) The hospital doctors discharged her with prescriptions for an inhaler and nebulizer solution. (Id.)

         C. State Agency Reports

         On November 16, 2012, state agency physician Maria Congbalay, M.D., reviewed Philpot's records and completed a Physical Residual Functional Capacity (“RFC”) Assessment. (Tr. 90 - 93.) Dr. Congbalay determined Philpot could occasionally lift and/or carry 50 pounds and frequently lift and/or carry 25 pounds; stand and/or walk for a total of 6 hours in an 8-hour workday; and sit for a total of 6 hours in an 8-hour workday. (Tr. 90.) She further found Philpot should avoid concentrated exposure to extreme cold, extreme heat, humidity, fumes, odors, dusts, gases, and poor ventilation. (Tr. 91.)

         On April 20, 2013, state agency physician Leanne Bertani, M.D., reviewed Philpot's records and completed a Physical RFC assessment. (Tr. 99- 101.) Dr. Bertani adopted the findings of Dr. Congbalay. (Tr. 100, 101.)

         D. Hearing Testimony

         During the May 20, 2014 hearing, Philpot testified to the following:

• She graduated from high school and completed some college coursework. (Tr. 27.) She was in special education while in school, and did not ...

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