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Freeman v. Commissioner of Social Security

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

May 7, 2018


          Edmund A. Sargus, Jr. Chief Judge


          Chelsey M. Vascura, Magistrate Judge

         Plaintiff, Janet Freeman (“Plaintiff”), brings this action under 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her application for social security disability insurance benefits. This matter is before the undersigned for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 10), the Commissioner's Response in Opposition (ECF No. 13), Plaintiff's Reply (ECF No. 14), and the administrative record (ECF No. 7). For the reasons that follow, it is RECOMMENDED that Plaintiff's Statement of Errors be OVERRULED and that the Commissioner's decision be AFFIRMED.

         I. BACKGROUND

         Plaintiff protectively filed her application for a Period of Disability and Disability Insurance Benefits on September 14, 2012. In her application, Plaintiff alleged a disability onset of February 14, 2012. Plaintiff's application was denied initially on December 11, 2012, and upon reconsideration on April 1, 2013. Plaintiff sought a hearing before an administrative law judge. Administrative Law Judge Thomas Wang (“ALJ”) held a hearing on June 18, 2014, at which Plaintiff, represented by counsel, appeared and testified. Thomas Nimberger, a vocational expert, also appeared and testified at the hearing. On July 17, 2014, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. On December 23, 2015, the Appeals Council granted Plaintiff's request for review. The Appeals Council then remanded the case to the ALJ for further proceedings, ordering him to obtain additional evidence concerning all of claimant's impairments in order to complete the administrative record, give further consideration to claimant's maximum residual functional capacity, and obtain supplemental evidence from a vocational expert.

         On April 29, 2016, the ALJ held a second hearing, at which Plaintiff, represented by counsel, appeared and testified. Plaintiff amended her alleged onset date to September 3, 2013. On June 24, 2016, the ALJ issued a second decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. On July 3, 2017, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. Plaintiff then timely commenced the instant action.

         In her Statement of Errors, Plaintiff raises a single issue: that the ALJ violated the treating physician rule. Specifically, Plaintiff asserts that the ALJ erred in his consideration and weighing of the opinion of Plaintiff's treating physician, Dr. Shelby Raiser, D.O. According to Plaintiff, the ALJ failed to properly apply the controlling weight test and failed to offer good reasons for only giving “some weight” to Dr. Raiser's opinions. In Plaintiff's view, Dr. Raiser's opinions support her application for disability. Plaintiff emphasizes that in the ALJ's first decision, he gave great weight to Dr. Raiser's opinions, whereas in the second decision, he gave the opinions only some weight.


         A. Plaintiff's Testimony

         At the first administrative hearing, Plaintiff testified that she is divorced and that her oldest son, Brandon, 18, lives with her. (R. at 139.) When the ALJ asked Plaintiff why she was alleging her disability onset date as of February 14, 2012, Plaintiff testified that on that date, she was working, and upon her return from lunch, she had difficulty standing, talking, and breathing, at which time her supervisor called 911. (R. at 138-39.) When asked by the ALJ what she does during the day, Plaintiff indicated she “mostly lay[s] around.” (Id.) She also stated that she is on a significant number of medications and that she suffers near-daily bouts of diarrhea and vomiting, as well as occasional fainting. (R. at 142, 148.) When questioned by her attorney, Plaintiff indicated that she “barely” does house work or chores or goes to the grocery store and that she only cooks using a microwave. (R. at 150, 154.) She further testified that her pain causes spasms while driving, difficulty sleeping, and difficulty sitting or standing. (R. at 153.)

         At the April 29, 2016 administrative hearing, Plaintiff testified that she believed her doctor limited her to lifting and carrying only 5-pounds, but that she goes to 10-pounds because she is unsure if the limit was outdated. (R. at 79.) She testified further that she can only bend or stoop “once or twice a week at the most” due to significant pain lasting for days afterward. (R. at 80.) Plaintiff again testified that she spends most of her time simply lying around, but added that she also uses a heating pad when lying down. (R. at 82.) On examination by her attorney, Plaintiff described her training and regular duties as a bank teller for PNC. (R. at 82-99.) Plaintiff also described her duties as a cashier for TC Market. (R. at 99-100.) Plaintiff's attorney then asked whether she had any improvement in her condition since the previous hearing, which she indicated she had not. (R. at 100.) Plaintiff added that back surgery was recommended as the only option to relieve her pain, but that her cardiologist did not want her to go through surgery. (R. at 100-101.)

         B. Vocational Expert Testimony

         The vocational expert (“VE”) testified at the administrative hearing that Plaintiff's past jobs include bank teller and cashier checker. (R. at 103.) The VE then testified that a hypothetical individual of Plaintiff's age, education, and vocational profile who retained the residual functional capacity (“RFC”)[1] that the ALJ ultimately assessed could not perform Plaintiff's past work. (R. at 105.) The VE testified that the hypothetical individual could, however, perform approximately 184, 400 light, unskilled jobs in the national economy (approximately 7, 025 jobs locally) such as garment tacking machine tender, storage facility rental clerk, and label coder. (R. at 105-06.) The VE further opined that the work experience of the hypothetical individual imparted transferrable skills. In response to questioning by Plaintiff's counsel, the VE testified that if Plaintiff were to miss more than two-days of work per month, she could not sustain competitive employment. (Id.)


         A. Shelby Raiser, D.O.

         On October 9, 2012, Dr. Raiser provided a medical opinion regarding Plaintiff's physical abilities upon request by the Social Security Adjudicator. In her opinion, Dr. Raiser stated that “due to back pt unable to do physical activity. Especially stoop, bend, walk, stand for prolonged period of times.” (R. at 442.) Dr. Raiser also noted in her opinion that Plaintiff needed further evaluation of her back by a neurosurgeon. (Id.)

         On January 21, 2013, Dr. Raiser provided a second medical opinion regarding Plaintiff's physical abilities upon request by the Social Security Adjudicator. In her opinion, Dr. Raiser stated:

Pt has functional capacity for sedentary activities as follows. She must relieve position break every hour from a seated or standing position for 5-10 mins with walking and standing limited to 102 hours in a day but not consecutive. Lifting carrying pulling limited to 20 lbs on occasion. No. squatting, bending, stooping, kneeling no upper extrem restriction. These may be re-reviewed after eval with neurosurgeon.

(R. at 493.)

         Plaintiff visited Dr. Raiser for a routine checkup on May 30, 2014. At that time, she stated that her back hurt constantly. (R. at 530.) Dr. Raiser noted that Plaintiff's forearms were bruised. (Id.) When questioned about the bruises, Plaintiff told Dr. Raiser that she has been helping her son “do something on the boat.” (Id.) Although Plaintiff complained of back pain, physical exam testing revealed normal results, including a normal gait and range of motion. (R. at 531.)

         On September 9, 2014, Plaintiff saw Dr. Raiser for follow-up testing, during which she indicated that she was then smoking about 10 cigarettes per day. (R. at 676.) Dr. Raiser performed a physical exam with normal results. Importantly, Dr. Raiser noted a normal gait and no spinal abnormalities, symmetric and intact strength and sensation throughout, and reflexes throughout. (R. at 677.)

         Plaintiff returned to Dr. Raiser on January 13th and 29th of 2015. Physical exam testing during the January 13th visit again yielded normal results. (R. at 680.) Physical exam testing during the January 29th visit yielded identical results. (R. at 685.) Dr. Raiser noted, however, that Plaintiff then had 10% clogging in one heart vessel and 30% in another. (R. at 683.) Plaintiff's reported smoking remained unchanged. (R. at 679.)

         Plaintiff visited Dr. Raiser's office on March 26, 2015, indicating that her pain had worsened and that her neurosurgeon, Dr. Uselman, was no longer available. (R. at 751.) Dr. Raiser referred Plaintiff to neurosurgeons Drs. Mullins and Lobel on April 15, 2015. (R. at 752.) Dr. Mullins refused to schedule Plaintiff due to a past due balance. (Id.) Dr. Lobel was available for consultation, and his office was willing to accept Plaintiff's insurance. (Id.) Dr. Lobel's office made repeated attempts to reach Plaintiff in order to schedule an appointment, including phone calls and a scheduling letter, but Plaintiff did not respond. (Id.) After the third attempt to leave a voice message requesting that Plaintiff schedule an appointment, Dr. Lobel's office declined to make any further attempts to reach her. (Id.)

         Records from the Thornville Family Medical Center indicate that Plaintiff missed several appointments with Dr. Raiser in 2015. Specifically, Plaintiff cancelled an appointment on February 25, 2015 (R. at 746 (“Pt stated something came up . . . .”)); missed an appointment on March 18, 2015, (R. at 747); and cancelled her appointment on June 30, 2015, (R. at 756). Moreover, on March 16, 2016, Plaintiff was advised by Dr. Raiser that her prescriptions could not be refilled because Dr. Raiser had last seen her seven months prior. (R. at 769.)

         On August 4, 2015, Plaintiff again visited Dr. Raiser's office. Dr. Raiser noted that although Plaintiff continued to have fatigue and pain, “overall she has been ok.” (R. at 763.) Dr. Raiser performed a physical exam, which revealed only normal results, including normal gait, range of motion, and strength throughout. (R. at 760-61.)

         Plaintiff last visited Dr. Raiser's office on March 22, 2016. At that visit, Dr. Raiser noted that “overall [Plaintiff] is doing ok . . . . She continues with pain on a daily basis. [I]f she sits too long, if she walks too long, if she stands too long.” (R. at 770) Plaintiff continued to report smoking approximately 10 cigarettes per day. (Id.) Dr. Raiser performed a physical exam, which ...

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