United States District Court, S.D. Ohio, Western Division
MEMORANDUM OPINION AND ORDER
STEPHANIE K. BOWMAN, UNITED STATES MAGISTRATE JUDGE.
Chettie Clemow filed this Social Security appeal in order to
challenge the Defendant's finding that she is not
disabled. 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.
Summary of Administrative Record
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.
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.
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.
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).
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.
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
Judicial Standard of Review
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).
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
Id. (citations omitted).
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.
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.
Relevant Medical Evidence
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.
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).
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).
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.