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Michael v. Commissioner of Social Security

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

July 20, 2018

DELORIS G. MICHAEL, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Michael H. Watson Judge.

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Deloris G. Michael, filed this action seeking review of a decision of the Commissioner of Social Security (“Commissioner”) denying her Title II Social Security Disability Benefits application. For the reasons that follow, it is RECOMMENDED that Plaintiff's Statement of Errors (Doc. 12) be OVERRULED, and that judgment be entered in favor of Defendant.

         I. BACKGROUND

         A. Prior Proceedings

         Plaintiff filed an application for Title II Social Security Disability Benefits on August 10, 2012, alleging disability since January 1, 2007. (Tr. 77, PAGEID #: 136). Her application was denied initially (Tr. 77-88, PAGEID #: 136-47), after reconsideration (Tr. 91-104, PAGEID #: 150-63), and by an Administrative Law Judge (Tr. 106-14, PAGEID #: 165-73). By order dated February 8, 2016, the Appeals Council remanded the case for further proceedings. (Tr. 118-20, PAGEID #: 177-79). Specifically, the Appeals Council directed an Administrative Law Judge to evaluate Plaintiff's mental impairments on remand and further consider the opinion of medical expert Dr. James M. McKenna. (Id.).

         Following the remand, Administrative Law Judge Jeffrey Hartranft (the “ALJ”) convened a hearing on October 4, 2016, at which time Plaintiff amended her alleged onset date to December 9, 2010. (Tr. 37-75, PAGEID #: 95-133). On October 25, 2016, the ALJ issued an unfavorable decision. (Tr. 121-36, PAGEID #: 180-95). Plaintiff again requested review of the administrative decision to the Appeals Council. (Tr. 227, PAGEID #: 287). The Appeals Council adopted the ALJ's statements “regarding the pertinent provisions of the Social Security Act, Social Security Administration Regulations, Social Security Rulings and Acquiescence Rulings, the issues in the case, and the evidentiary facts, as applicable.” (Tr. 4, PAGEID #: 62). Further, the Appeals Council adopted the ALJ's findings and conclusions regarding whether Plaintiff was disabled but made additional findings as to the testimony and opinion of the medical expert, Dr. McKenna, who testified at the first hearing. (Tr. 5, PAGEID #: 63). Ultimately, the ALJ found that Plaintiff was not under disability as defined in the Social Security Act during the relevant timeframe. (Id.).

         Plaintiff filed this case on February 19, 2018 (Doc. 3), and the Commissioner filed the administrative record on April 27, 2017 (Doc. 9). Plaintiff filed a Statement of Specific Errors (Doc. 12), the Commissioner responded (Doc. 13), and no reply was filed.

         B. Relevant Testimony at the Administrative Hearings

         1. July 7, 2014 Hearing

         Plaintiff testified that she was not able to work due to “trouble with [her] legs” and problems breathing, including “get[ting] short-winded very easily.” (Tr. 17, PAGEID #: 75). As to her legs, Plaintiff stated: “I can't sit very long because the backs of them hurt really bad. And then I have neuropathy in my feet, and then they kind of start going numb and crazy on me. And so I have to elevate my legs a lot.” (Tr. 18, PAGEID #: 76). Plaintiff stated that she was told she had neuropathy within the last year, but never had any testing done. (Id.).

         At the hearing, Dr. James McKenna, MD, a board certified internal medicine and pulmonary disease physician, testified as a medical expert. (Tr. 23, PAGEID #: 81). The relevant portion of his testimony is as follows:

ALJ: Can you tell me, Doctor, based upon your review of the file, the impairments that are documented, as of the date last insured?
ME: Yes. And Your Honor, would have been exogenous morbid obesity and - of a mild to moderate degree, with a BMI of 43.5. . . . There was a history of certain sleep apnea, and I didn't see that polysomnogram in the file . . .
***
ME: And then rehab, the - we have the knee issue and, at the consultative examination, they did a x-ray of her knee. And that showed that the was - on 8/10/10. So that was definitely prior to her date last insured. And there was mild narrowing of the medial compartments of the knee joint. And the lateral compartment and the patellofemoral was normal. So it was determined early, in terms of arthritis. There's evidence that she has a fatty liver, on some of the imaging studies. But that was, I think, more recently. I don't think it goes back quite that far. And there were studies, pulmonary function tests done to see how she could do the huffing and puffing. And she did amazingly well on the test back from 9/21/09. That's in 1-F page - ALJ: 11, I believe.
ME: Yeah. 1-F, page 11, yes. . . so it's near normal, but it's not quite normal. . . . Then lastly, we have the nicotine dependence. It appears that she was again smoking at quite a brisk rate for awhile [sic], and at a rate of up to two packs per day. Or no, I'm sorry, I take that back. I'm not quite sure if - actually, I don't really see the smoking mentioned, like they found.
CLMT: I know I smoked years ago, but I've never smoked two packs a day.
***
ME: ... So that's basically about it, Your Honor. The morbid obesity would be a severe impairment. If we assume that her sleep apnea's going to be controlled on CPAP, that could be a severe impairment, but it's possibly non-severe. The obstructive sleep apnea was not detected during the period under review, so that doesn't apply.
The fatty liver was, and knee degenerative arthritis was evident at that time. Now for somebody with that level of obesity, I'm not quite sure that the - with the mild narrowing, you usually have quite [inaudible] pain and cartilage without any defects. So it's just slightly thin. So it would not quite be enough, at the level of obesity, to - with a BMI in the 40 to 45 range - we're not quite enough to restrict ...

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