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Cosme v. Commissioner of Social Security

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

January 24, 2018

OLGA COSME, Plaintiff,




         Plaintiff 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 Recommendation.

         The 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.


         On July 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.)

         The ALJ 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. at 122-131.)

         On 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.)

         The 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.

         Cosme presents the following legal issue for the court's review:

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.)


         Cosme 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.)


         Disputed 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.)

         Results 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.)

         Another 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.)

         On July 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.

         State 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.

         On 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.)

         Cosme 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.

         On 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.

         Cosme 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 #: 446.)

         Cristina 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.

         Linda 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. Id.

         Nurse 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.

         On July 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 ...

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