United States District Court, N.D. Ohio, Eastern Division
CHRISTOPHER BOYKO JUDGE
REPORT AND RECOMMENDATION
A. RUIZ, UNITED STATES MAGISTRATE JUDGE.
Olga Cosme (“Cosme” or “claimant”)
challenges the final decision of Defendant Commissioner of
Social Security (“Commissioner”), denying her
application for Supplemental Security Income
(“SSI”) under Title 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
issue before the court is whether the final decision of the
Commissioner is supported by substantial evidence and,
therefore, conclusive. For the reasons set forth below, the
Magistrate Judge recommends that the Commissioner's final
decision be affirmed.
30, 2013, Cosme filed an application for SSI benefits,
alleging disability beginning July 30, 2013. (R.9, PageID #:
85, 310-317, 318-324, 355-364, 354 (changing disability onset
date).) Cosme's application was denied initially and upon
reconsideration. (R.9, PageID #: 85, 135-153, 154-163.)
Thereafter, Cosme filed a request for a hearing before an
administrative law judge. (R.9, PageID #: 177-178.)
held a hearing on August 12, 2015. (R.9, PageID #: 103-144.)
Cosme appeared at the hearing, was represented by counsel,
and testified. (Id. at 105-106, 113-122.) A
vocational expert (“VE”) also attended the
hearing and provided testimony. (Id. at 105-106,
132-143.) A medical expert testified as well. (Id.
January 29, 2016, the ALJ issued his decision, applying the
standard five-step sequential analysis to determine whether
Cosme was disabled. (R.9, PageID #: 85-97; see
generally 20 C.F.R. § 416.920(a).) Based on his
review, the ALJ concluded Cosme was not disabled. (R.9,
PageID #: 85, 97.)
Appeals Council denied Cosme's request for review, thus
rendering the ALJ's decision the final decision of the
Commissioner. (R.9, PageID #: 56-59.) Cosme now seeks
judicial review of the Commissioner's final decision
pursuant to 42 U.S.C. § 405(g). The parties have
completed briefing in this case.
presents the following legal issue for the court's
The ALJ found that Ms. Cosme retains the residual functional
capacity to perform a range of sedentary work with some
additional restrictions. This finding lacks the support of
substantial evidence because the ALJ failed to include in the
findings limitations regarding Ms. Cosme's need to
elevate her leg throughout the day and the ALJ failed to
include findings limiting Ms. Cosme's inability to
communicate in English.
(R. 11, PageID #: 653.)
PERSONAL BACKGROUND INFORMATION
was born on January 13, 1984, and was 29 years old, which is
defined a younger individual age 18-49, on the application
date. (R.9, PageID #: 318, 95.) Cosme has at least a high
school education, and is able to communicate in English.
(R.9, PageID #: 95, 359.) Cosme had past work as a cashier
for a brief period in 2006. (R.9, PageID #: 133-135.)
RELEVANT MEDICAL EVIDENCE
issues will be discussed as they arise in Cosme's brief
alleging error by the ALJ. Cosme applied for SSI on July 30,
2013. (R.9, PageID #: 318-324, 85.) Cosme listed her physical
or mental conditions that limit her ability to work as:
“thrombophlebitis in leg, severe headaches, chest
pains, pain in legs.” (R.9, PageID #: 358.)
from a May 2, 2009, left leg venous duplex doppler revealed
extensive deep venous thrombosis (“DVT”) in the
left leg extending from the common femoral vein down to the
posterior tibial vein. (R. 9, PageID #: 419.) The clot was
heterogeneous, with echogenic foci indicating a chronic
thrombus. Id. A bilateral leg venous duplex on
February 19, 2010, revealed partial thrombosis of the left
common femoral vein, superficial femoral vein, deep femoral
vein, greater saphenous vein, popliteal vein, and peroneal
vein, with echogenic thrombi visualized. Id. at 420.
(The right leg was unremarkable. Id.)
left leg venous duplex doppler was performed on May 9, 2013,
which showed acute DVT involving the common femoral vein and
proximal superficial femoral vein, with an incompetent valve
producing insufficiency at the superficial and deep venous
systems. (R. 9, PageID #: 423.)
29, 2013, Cosme presented to Mercy Medical Center complaining
of worsening pain in her left leg, palpitations and chest
pain with difficulty breathing. (R. 9, PageID #: 434.) There
was no edema of the extremities on examination, and Cosme
appeared comfortable with normal affect. Id. at 435.
A chest CT showed a calcified right middle lobe nodule,
likely a benign granuloma. Id. at 437. Cosme was
diagnosed with chest wall pain, and discharged in stable
condition. Id. at 438.
agency physician Phyllis Sandell, M.D., completed a Physical
RFC Assessment on October 26, 2013. (R. 9, PageID #:
148-150.) Dr. Sandell found Cosme capable of lifting fifty
pounds occasionally, and twenty pounds frequently.
Id. at 149. She could stand or walk for a total of
two hours, and sit for a total of six hours, of an eight-hour
workday. Id. Cosme could occasionally push or pull
with the left leg, and should alternate sitting and standing
for five minutes hourly. Id. Dr. Sandell opined that
Cosme could occasionally climb ramps or stairs, and
occasionally kneel, crouch, or crawl, but she could never
climb ladders, ropes or scaffolds. Id. She could
frequently balance. Id. Dr. Sandell explained that
the postural limitations resulted from Cosme's leg pain,
and “chronic anticoagulation” (medication) meant
she should avoid heights. Id. at 149-150. Dr.
Sandell opined that Cosme should also avoid concentrated
exposure to hazards such as machinery. Id. at 150.
Dr. Sandell's RFC assessed that, because of
claimant's recurrent or chronic DVT, she would do best in
a sedentary vocation. Id.
reconsideration, State agency physician S. Ram Upadhyay,
M.D., concurred with Dr. Sandell's Physical RFC
Assessment, on January 31, 2014. (R. 9, PageID #: 158-160.)
presented to Gundumalla Goud, M.D., as a new patient on
September 4, 2014. (R. 9, PageID #: 453-455.) Cosme reported
that her active problems included DVT and right shoulder
pain. Id. at 453. The doctor increased her Coumadin
dosage, and advised her to apply moist heat to her shoulder.
Id. at 455.
April 11, 2015, Cosme presented to the emergency room with a
complaint of lower abdominal pain. (R. 9, PageID #: 499-504.)
Musculoskeletal and neurological exams were negative.
Id. at 500, 513. A CT scan showed a large amount of
complex fluid compatible with hemorrhage. Id. at
502. Cosme had a gynecology consultation for concern about a
possible ruptured hemorrhagic ovarian cyst. Id. at
502-503, 515-516. The gynecologist, Samir Ahuja, M.D.,
decided to stop her Coumadin temporarily to reverse her
anticoagulation. Id. at 516. Dr. Ahuja noted
“it is impossible to obtain a history from the patient
as she speaks minimal English, ” and had no one with
her who could help translate. Id. Cosme was
discharged on April 13, 2015. Id. at 533.
had a left leg venous ultrasound on April 22, 2015, that
showed “echogenic material consistent with nonocclusive
thrombus within the common femoral vein.” (R. 9, PageID
Canella, psychiatric nurse practitioner, completed a Mental
RFC Assessment on June 25, 2015. (R. 9, PageID #: 600-602.)
NP Canella diagnosed Cosme with adjustment disorder, with
mixed anxiety and depressed mood. Id. at 600. She
opined that, “from a mental health standpoint only,
” Cosme was generally capable of sustaining an 8-hour
workday, five days per week. Id.
Spahr, R.N., completed a Medical Source Statement on July 1,
2015. (R. 9, PageID #: 608-610.) Nurse Spahr diagnosed Cosme
with recurrent DVT, with symptoms of pain in her legs and
abdominal pain from recurring clots. Id. at 608. She
wrote that Cosme was unable to walk long distances, or stand.
Id. The prescribed medications Coumadin upset her
stomach, and Percocet caused dizziness and fatigue.
Spahr opined that Cosme could sit, stand, and walk only
thirty minutes at a time for a total of only one hour each
per workday. (R. 9, PageID #: 609.) The nurse stated that
Cosme would need to take “multiple” unscheduled
breaks throughout a workday, because she is unable to stand
for more than one hour, and on average she will need to rest
45 minutes before returning to work. Id. Nurse Spahr
estimated that Cosme would be absent from work three to four
days per month, due to blood draws, pain, swelling of her
legs and recurrent DVTs. Id. at 610.
14, 2015, Cosme had a functional capacity assessment by a
physical therapist, Karin Kleppel, with the assistance of a
Spanish-language interpreter. (R. 9, PageID #: 612-622.) The
therapist noted normal range of motion and strength in the
spine, arms, and right leg, but found decreased strength in
the left leg due to pain and swelling. Id. at 614.
Kleppel assessed that Cosme would have a low tolerance to all
weight-bearing activities, which “would eliminate her
ability to perform any job that includes standing or walking
for any length of time.” Id. Cosme's
ability to sit for any length of ...