United States District Court, N.D. Ohio, Eastern Division
JEFFREY J. HELMICK JUDGE.
REPORT AND RECOMMENDATION
A. Ruiz United States Magistrate Judge.
Myanh Thi Nguyen (hereinafter “Plaintiff”),
challenges the final decision of Defendant Nancy A.
Berryhill, Acting Commissioner of Social Security
(hereinafter “Commissioner”), denying her
applications for a Period of Disability (“POD”)
and Disability Insurance Benefits (“DIB”) under
Title II of the Social Security Act, 42 U.S.C. §§
416(i), 423 et seq. (“Act”). This court
has jurisdiction pursuant to 42 U.S.C. § 405(g). This
case is before the undersigned United States Magistrate Judge
pursuant to an automatic referral under Local Rule 72.2(b)
for a Report and Recommendation. For the reasons set forth
below, the Magistrate Judge recommends that the
Commissioner's final decision be AFFIRMED.
9, 2015, Plaintiff filed her applications for POD and DIB,
alleging a disability onset date of June 30, 2014.
(Transcript (“Tr.”) 143-153). The application was
denied initially and upon reconsideration, and Plaintiff
requested a hearing before an Administrative Law Judge
(“ALJ”). (Tr. 93-100). Plaintiff participated in
the hearing on February 7, 2017, was represented by counsel,
and testified. (Tr. 45-72). A vocational expert
(“VE”) also participated and testified.
Id. On May 1, 2017, the ALJ found Plaintiff not
disabled. (Tr. 39). On January 10, 2018, the Appeals Council
denied Plaintiff's request to review the ALJ's
decision, and the ALJ's decision became the
Commissioner's final decision. (Tr. 1-4). On March 15,
2018, Plaintiff filed a complaint challenging the
Commissioner's final decision. (R. 1). The parties have
completed briefing in this case. (R. 12 & 13).
asserts the following assignments of error: (1) the ALJ erred
by failing to account for symptoms related to scoliosis and
degenerative disc disease; and (2) the residual functional
capacity (“RFC”) determination did not account
for her limited English skills. (R. 12, PageID# 564).
Relevant Medical Evidence
January 28, 2014, Ryan Szepiela, M.D., ordered an x-ray of
Plaintiff's knees. (Tr. 325-328). Both x-rays were
February 10, 2015, Plaintiff reported pain in her back, knee,
thigh, and hands, as well as swelling of the hands in the
morning. (Tr. 276). On physical examination, Plaintiff had
decreased lordosis of the lumbosacral spine, bilateral muscle
spasm on palpation of the paraspinal muscles, 5/5 strength in
all muscles tested, normal gait, no clubbing or cyanosis of
her fingernails, no joint swelling, normal movements of her
extremities, no joint instability, and normal muscle strength
and tone. (Tr. 279). In addition, the following three tests
were all negative: lumbar spine instability test; slump test;
and Thomas test. Id. Dr. Szepiela increased
Plaintiff's Gabapentin prescription, noted that Plaintiff
was not active, and placed her in warm water aquatic therapy.
Id. She was instructed to use Vicodin sparingly.
March 16, 2015, Plaintiff was seen by Jessica Yonley, D.O.
(Tr. 360-364). Plaintiff reported that aqua therapy helped a
lot on the days that she attends, and she wanted to attend
even more sessions than prescribed. (Tr. 360). On physical
examination, Plaintiff had a shuffled gait but required no
assistive device. (Tr. 363). Cervical lordosis was normal,
thoracic kyphosis was increased, lumbar lordosis was
decreased, and her scoliosis was moderate. Id. Dr.
Yonley advised Plaintiff to use heat on her lower back, to
perform stretches she showed her, and to continue her water
therapy. (Tr. 364).
March 26, 2015, Dr. Szepiela observed that Plaintiff was
“doing better with her back with aquatic
therapy.” (Tr. 274). On physical examination, Plaintiff
had a normal gait, no joint swelling, no clubbing or cyanosis
of the fingernails, normal movement in all extremities, no
joint instability, and normal muscle strength and tone.
Id. Dr. Szepiela assessed muscle spasm and arthritis
of both hands. Id.
April 14, 2015, x-rays of Plaintiff's right hand revealed
“no fracture, dislocation, or destructive lesion. Joint
space is well preserved. There is some narrowing at the third
DIP joint.” (Tr. 441).
28, 2015, Plaintiff continued to complain to Dr. Szepiela of
back pain, hand pain, and right foot pain. (Tr. 266). On
physical examination, Dr. Szepiela made no observations
concerning Plaintiff's back, but noted normal appearance
of Plaintiff's right hand and fingers, no hand
tenderness, and normal range of motion. (Tr. 269). Dr.
Szepiela ordered an MRI of Plaintiff's lower back, and
noted Plaintiff was getting a foot x-ray and would see a
podiatrist for a bunion. Id.
17, 2015, an MRI of Plaintiff's lumbar spine yielded the
following impression: “Multilevel changes of
degenerative disc disease as detailed above. Findings are
most profound at ¶ 4-LS where there is lateral recess
stenosis and right-sided neural foraminal stenosis. There is
also mild left-sided neural foraminal stenosis at ¶
5-S1.” (Tr. 435).
April 26, 2016, Plaintiff was seen by Patrick W. McCormick,
M.D., for a neurosurgery consultation. (Tr. 455). Dr.
McCormick observed that Plaintiff was present with an
interpreter. Id. “The interpreter explained to
[Dr. McCormick] that [Plaintiff] does speak very good
English, but she wanted the interpreter there to make sure
she understood everything” and to help her with
questions “if she could not come up with the exact
right vocabulary.” Id. Plaintiff reported pain
that radiated down her leg with episodic numbness and
tingling. Id. On physical examination, Dr. McCormick
found 5/5 strength in the upper and lower extremities, normal
tone in all four extremities, and no evidence of atrophy or
fasciculation in any muscle group tested. (Tr. 456). The
sensory examination revealed grossly intact sensation in all
four extremities. Id. Plaintiff's station was
normal, and her gait had “mild antalgic
features.” Id. Her deep tendon reflexes were
“1 and symmetric, ” and no pathologic reflexes
were identified. Id. Straight leg raise test was
positive on the left at 40 degrees and negative on the right.
(Tr. 457). The lumbar spine was non- tender to palpation and
range of motion was limited in all planes. Id.
Plaintiff's “ultimate decision was to avoid surgery
and to continue nonsurgical treatment;” Tylenol No. 3
was added to her pain regimen for intense episodes of
stabbing pain in the leg. Id.
October 24, 2016, Plaintiff returned to see Dr. McCormick and
indicated that her chief complaint had changed from left
lower extremity radiculopathy, which had resolved, to
right-sided lower extremity radiculopathy. (Tr. 463). She
also reported increasing discomfort in her upper thoracic
region and one episode of shortness of breath, which
Plaintiff stated was due to her worsening scoliosis as
suggested by imaging studies. Id. Plaintiff denied
any ongoing difficulty with respiration. Id. She was
advised to return to Dr. McCormick to discuss the need to
have her scoliosis surgically repaired. Id.
Plaintiff's examination results were the same as before,
but Dr. McCormick additionally found that the range of motion
in her lumbar spine was limited in all planes with an obvious
scoliotic deformity. (Tr. 464-465). However, straight leg
raise testing was negative bilaterally. (Tr. 465). Dr.
McCormick “doubt[ed] very much that her event of
respiratory symptoms was related to the scoliosis in that I
have seen many patients over the years with this pattern of
scoliosis that is typically left untreated.”
Medical Opinions Concerning Plaintiff's Functional
September 2, 2015, state agency medical consultant
Venkatachala Sreenivas, M.D., reviewed the evidence of
record. (Tr. 78-80). He opined that Plaintiff's
statements about the intensity, persistence, and functionally
limiting effects of her symptoms were not substantiated by
the objective medical evidence alone. (Tr. 78). He opined
Plaintiff was only partially credible because “Clmt
treated for alleged impairments, imaging confirms severe
deficits. Clmt provided conflicting functional statements,
indicating [s]he can not take care of himself, but then
states [s]he helps take care of [her] grandmother, does
laundry, drives, shops, etc.” Id. Dr.
Sreenivas opined that Plaintiff could lift twenty pounds
occasionally and ten pounds frequently, stand/walk for four
hours, and sit for six hours in an eight-hour workday. (Tr.
79). Also, she could not climb ladders, ropes, and scaffolds,
could occasionally stoop, and frequently climb ramps and
stairs, balance, and crawl. (Tr. 79-80). She had no
manipulative, visual, communicative, or environmental
limitations. (Tr. 80).
December 4, 2015, state agency medical consultant Esberdado
Villanueva, M.D., reviewed the record, noting Plaintiff
alleged a worsening of symptoms and the need for additional
evidence, but that claimant was unable to attend a
consultative examination because she was out of the country.
(Tr. 87). He further noted Plaintiff did not respond to
multiple contact attempts. (Tr. 91).
December 7, 2015, state agency psychological consultant Todd
Finnerty reviewed the evidence of record and found there was
insufficient evidence of a mental impairment (Tr. 88).
8, 2016, Dr. Szepiela wrote a “To Whom It May
Concern” letter that stated in its entirety:
“Please keep Myanh on light duty working restrictions
lifting nothing greater than 10lbs until further notice. Any
question please call my office.” (Tr. 459, Exh. 6F).
October 3, 2016, Todd Ebel, M.D., completed a checklist
questionnaire indicating that Plaintiff could stand/walk for
less than one hour and sit for less than two to three hours
total in an eight-hour workday (Tr. 461). He further opined
she could lift 6 to 10 pounds frequently and 25 to 50 pounds
occasionally, but was extremely limited in her ability to
push/pull and markedly limited in her ability to bend, reach,
and handle. Id. Dr. Ebel stated that
“Patient's limited spinal ROM [range of motion] 2/2
scoliosis, that is progressing and starting to effect [sic]
respiratory status. Chronic nature of issue has lead to
severe OA [osteoarthritis] of legs at knees and hips. No.
good therapy or alternative exists for treatment of spinal
[illegible] progressing.” Id. On the same
date, Dr. Ebel completed a checklist mental functional
capacity assessment indicating Plaintiff was not
significantly limited in any area of mental functioning. (Tr.
claimant is entitled to receive benefits under the Social
Security Act when she establishes disability within the
meaning of the Act. 20 C.F.R. § 404.1505 & 416.905;
Kirk v. Sec'y of Health & Human Servs., 667
F.2d 524 (6th Cir. 1981). A claimant is considered
disabled when she cannot perform “substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 20 C.F.R.
§§ 404.1505(a) and 416.905(a); 404.1509 and
Commissioner determines whether a claimant is disabled by way
of a five-stage process. 20 C.F.R. § 404.1520(a)(4);
Abbott v. Sullivan, 905 F.2d 918, 923
(6th Cir. 1990). First, the claimant must
demonstrate that she is not currently engaged in
“substantial gainful activity” at the time she
seeks disability benefits. 20 C.F.R. §§ 404.1520(b)
and 416.920(b). Second, the claimant must show that she
suffers from a medically determinable “severe
impairment” or combination of impairments in order to
warrant a finding of disability. 20 C.F.R. §§
404.1520(c) and 416.920(c). A “severe impairment”
is one that “significantly limits ... physical or
mental ability to do basic work activities.”
Abbott, 905 F.2d at 923. Third, if the claimant is
not performing substantial gainful activity, has a severe
impairment (or combination of impairments) that is expected
to last for at least twelve months, and the impairment(s)
meets a listed impairment, the claimant is presumed to be
disabled regardless of age, education or work experience. 20
C.F.R. §§ 404.1520(d) and 416.920(d). Fourth, if
the claimant's impairment(s) does not prevent her from
doing past relevant work, the claimant is not disabled. 20
C.F.R. §§ 404.1520(e)-(f) and 416.920(e)-(f). For
the fifth and final step, even if the claimant's
impairment(s) does prevent her from doing past relevant work,
if other work exists in the national economy that the
claimant can perform, the claimant is not disabled. 20 C.F.R.
§§ 404.1520(g) and 416.920(g), 404.1560(c).
Summary of the ALJ's Decision
made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the
Social Security Act ...