United States District Court, S.D. Ohio, Eastern Division
DELORIS G. MICHAEL, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
Michael H. Watson Judge.
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE.
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.
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.).
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.
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
Relevant Testimony at the Administrative Hearings
July 7, 2014 Hearing
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.
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
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 ...