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Clemow v. Commissioner of Social Security

United States District Court, S.D. Ohio, Western Division

February 28, 2018




         Plaintiff Chettie Clemow filed this Social Security appeal in order to challenge the Defendant's finding that she is not disabled.[1] See 42 U.S.C. §405(g). Proceeding through counsel, Plaintiff presents two claims of error for this Court's review. As explained below, I conclude that the Commissioner's finding of non-disability should be AFFIRMED, because it is supported by substantial evidence in the record as a whole.

         I. Summary of Administrative Record

         On June 3, 2013, Plaintiff filed an application for Disability Insurance Benefits (“DIB”); she filed a related application for social security income (“SSI”) on June 19, 2013. In both applications, she alleged disability beginning on June 21, 2011 due to a combination of physical and mental impairments.

         After her claim was denied initially and upon reconsideration, Plaintiff requested an evidentiary hearing before an administrative law judge (“ALJ”). On September 8, 2015, she appeared with counsel and gave testimony before ALJ Andrew Gollin; a vocational expert also testified. On November 10, 2015, the ALJ issued an adverse written decision, concluding that Plaintiff is not disabled. (Tr. 12-29).

         Plaintiff was 39 years old on her alleged disability onset date, and remained a younger individual at the time of the ALJ's decision. She previously worked in multiple jobs, most of which were part-time, including as a bank teller, as a telephone recruiter for product studies, as a personal trainer, as a child care attendant, and as a receptionist. (Tr. 27). There was evidence in the record, including her own testimony, that she continued working part-time into 2013, but there is no dispute that her limitations preclude her from all prior work.

         The ALJ determined that Plaintiff has severe impairments of depression, anxiety, attention deficit disorder (ADD), arthritis (knee), fibromyalgia, and a left rotator cuff tear. (Tr. 14). In addition, the ALJ noted non-severe impairments of narcolepsy, substance abuse disorder in remission, and hyperlipidemia. (Tr. 15). The ALJ determined that none of Plaintiff's impairments, either alone or in combination, met or medically equaled any Listing in 20 C.F.R. Part 404, Subpart P, Appendix 1, such that Plaintiff would be entitled to a presumption of disability. (Tr. 15).

         Instead, the ALJ found that Plaintiff retains the residual functional capacity (“RFC”) to perform a restricted range of sedentary work, subject to the following limitations:

(1) no more than the occasional push/pull with foot controls using the left lower extremity, and provided the job allows the person to alternate between sitting/standing at will and provided the person is not off task more than 10% of the work day; (2) no more than the occasional climbing of ramps and stairs, no climbing of ladders, ropes, or scaffolds, and no more than occasional balancing, stooping, crouching, kneeling, and crawling; (3) limited to being able to understand, remember, and carry out instructions involving simple, routine, and repetitive tasks that do not require a fast-paced production rate and do not involve strict production rates or quotas; (4) no more than occasional changes in workplace setting and workplace duties; (5) no more than infrequent and brief interaction with the general public, defined as no more than 5% of the workday with each interaction lasting no more than five minutes; (6) no more than occasional interaction with coworkers and supervisors; (7) work that can be in proximity to others, but not in tandem or as part of a team.

(Tr. 17). Considering Plaintiff's age, education, work experience and RFC, and based on testimony from the vocational expert, the ALJ determined that Plaintiff could still perform a significant number of jobs in the national economy, including work such as a packer, inspector, and bander. (Tr. 28). Therefore, the ALJ determined that Plaintiff was not under a disability. The Appeals Council denied further review, leaving the ALJ's decision as the final decision of the Commissioner.

         In her appeal to this Court, Plaintiff argues that the ALJ erred by (1) improperly weighing the medical opinion evidence, and (2) improperly evaluating her credibility. I find no reversible error.

         II. Analysis

         A. Judicial Standard of Review

         To be eligible for benefits, a claimant must be under a “disability.” See 42 U.S.C. §1382c(a). Narrowed to its statutory meaning, a “disability” includes only physical or mental impairments that are both “medically determinable” and severe enough to prevent the applicant from (1) performing his or her past job and (2) engaging in “substantial gainful activity” that is available in the regional or national economies. See Bowen v. City of New York, 476 U.S. 467, 469-70 (1986).

         When a court is asked to review the Commissioner's denial of benefits, the court's first inquiry is to determine whether the ALJ's non-disability finding is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (additional citation and internal quotation omitted). In conducting this review, the court should consider the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports the ALJ's denial of benefits, then that finding must be affirmed, even if substantial evidence also exists in the record to support a finding of disability. Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). As the Sixth Circuit has explained:

The Secretary's findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion.... The substantial evidence standard presupposes that there is a ‘zone of choice' within which the Secretary may proceed without interference from the courts. If the Secretary's decision is supported by substantial evidence, a reviewing court must affirm.

Id. (citations omitted).

         In considering an application for supplemental security income or for disability benefits, the Social Security Agency is guided by the following sequential benefits analysis: at Step 1, the Commissioner asks if the claimant is still performing substantial gainful activity; at Step 2, the Commissioner determines if one or more of the claimant's impairments are “severe;” at Step 3, the Commissioner analyzes whether the claimant's impairments, singly or in combination, meet or equal a Listing in the Listing of Impairments; at Step 4, the Commissioner determines whether or not the claimant can still perform his or her past relevant work; and finally, at Step 5, if it is established that claimant can no longer perform his or her past relevant work, the burden of proof shifts to the agency to determine whether a significant number of other jobs which the claimant can perform exist in the national economy. See Combs v. Commissioner of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006); 20 C.F.R. §§404.1520, 416.920.

         A plaintiff bears the ultimate burden to prove by sufficient evidence that she is entitled to disability benefits. 20 C.F.R. § 404.1512(a). A claimant seeking benefits must present sufficient evidence to show that, during the relevant time period, she suffered an impairment, or combination of impairments, expected to last at least twelve months, that left her unable to perform any job.

         B. Relevant Medical Evidence

         Plaintiff does not dispute any findings related to her mental impairments. Therefore, this summary focuses on her physical impairments, with reference to mental health records only insofar as they are relevant to her physical limitations. To support her claim that the ALJ erred in assessing her physical limitations, Plaintiff relies on records that document intermittent complaints of knee pain, two bunion surgeries on her right foot, and surgery to repair a partial tear of her left rotator cuff. She also has been treated by her primary care physician, Dr. Schaible, with medications and referrals to specialists (as appropriate) for depression and anxiety, fatigue attributed to a hypothyroid condition, a vitamin D deficiency, and hyperlipidemia. In addition to the referenced diagnoses, Plaintiff was diagnosed with fibromyalgia in March 2015, six months prior to her hearing before the ALJ.

         While not listed as a severe impairment, Plaintiff's obesity was also expressly considered by the ALJ. (Tr. 25). When she began treatment for knee pain on September 10, 2012, Plaintiff was 5'4” and weighed 185 pounds. (Tr. 387, 390). Over time, her weight gradually increased, to 190 pounds on 11/14/12 (Tr. 341), to 195 pounds on April 4, 2013 (Tr. 437), back to 190 pounds on 9/19/13 (Tr. 293), to 194 pounds on 10/21/13 (Tr. 432), and to 200 pounds on June 30, 2014. (Tr. 605).

         The orthopedist who first examined Plaintiff for knee pain in September 2012, Dr. Schwegmann, found no locking or instability and prescribed conservative treatment, including 10-14 days of an anti-inflammatory medication and corrective shoes. He directed Plaintiff to return if she did not show marked improvement within a few weeks. (Tr. 391). Plaintiff did not return until November 2012, when she reported new and different left knee pain incidental to a bunion surgery on her right foot that her podiatrist had performed on October 4, 2012. Post-surgery, she had used a scooter for a few weeks, using only her left leg to move and resulting in the knee pain. (Tr. 343). Dr. Schwegmann noted the resolution of the prior knee pain, and diagnosed new “transitional pain” in the left knee. (Tr. 345). Dr. Schwegmann again prescribed anti-inflammatories, along with a short course of physical therapy, with Plaintiff to follow up if her symptoms did not quickly resolve as before. (Tr. 345).

         Plaintiff did not return for another ten months, but on September 19, 2013, she reported to Dr. Schwegmann that her left knee pain had worsened due to the use of a walker after foot surgery. (Tr. 295). She reported gaining 20 pounds due to inactivity, although records reflect she weighed the same, at 190 pounds. (Tr. 293, 341). Dr. Schwegmann's clinical notes reflect that she appeared to be in no acute distress, had no warmth or erythema in her knee, and only “a little tenderness on the anserine bursa though near full extension.” (Tr. 296). She again had no locking or instability, and hip range of motion was symmetric without pain or discomfort. (Tr. 296). Dr. Schwegmann wrote: “Admittedly, no regular exercise program.” (Tr. 295). He counseled Plaintiff “about conditioning and stressed the importance of weight loss for long-term management of this condition.” (Tr. 296). Plaintiff declined anti-inflammatories, so he treated her with a cortisone shot. ...

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