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Nguyen v. Berryhill

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

January 16, 2019

NANCY A. BERRYHILL, Acting Comm'r of Soc. Sec., Defendant.



          David A. Ruiz United States Magistrate Judge.

         Plaintiff, 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.

         I. Procedural History

         On July 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).

         Plaintiff 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).

         II. Evidence

         A. Relevant Medical Evidence

         [1]1. Treatment Records

         On January 28, 2014, Ryan Szepiela, M.D., ordered an x-ray of Plaintiff's knees. (Tr. 325-328). Both x-rays were unremarkable. Id.

         On 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. Id.

         On 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).

         On 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.

         On 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).

         On May 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.

         On June 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).

         On 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.

         On 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.” Id.

         2. Medical Opinions Concerning Plaintiff's Functional Limitations

         On 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).

         On 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).

         On 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).

         On June 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).

         On 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. 462).

         III. Disability Standard

         A 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 416.909(a).

         The 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).

         IV. Summary of the ALJ's Decision

         The ALJ made the following findings of fact and conclusions of law:

1. The claimant meets the insured status requirements of the Social Security Act ...

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