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Shehee v. Berryhill

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

June 5, 2019

PATRICIA SHEHEE, Plaintiff,
v.
NANCY A. BERRYHILL[1], Acting COMMISSIONER OF Social Security ADMINISTRATION, Defendant.

          SARA LIOI, JUDGE

          REPORT & RECOMMENDATION OF MAGISTRATE JUDGE

          GEORGE J. LIMBERT, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Patricia Shehee (“Plaintiff”) requests judicial review of the final decision of the Commissioner of Social Security Administration (“Defendant”) denying her application for Supplemental Security Income (“SSI”). ECF Dkt. #1. In her complaint, filed on May 9, 2018, Plaintiff asserts that the administrative law judge (“ALJ”) erred by: (1) discounting her allegations of pain and disability symptoms; and (2) finding that she could perform more than sedentary work and did not have limitations as to absenteeism and being off-task. Id. Defendant filed an answer on July 24, 2018. ECF Dkt. #11. Plaintiff filed her brief on the merits on August 23, 2018. ECF Dkt. #13. Defendant filed a response brief on November 6, 2018. ECF Dkt. #16. Plaintiff did not file a reply brief.

         For the following reasons, the undersigned RECOMMENDS that the Court AFFIRM the ALJ's decision and DISMISS Plaintiff's case in its entirety with prejudice.

         I. PROCEDURAL HISTORY

         On November 5, 2015, Plaintiff protectively filed an application for SSI, alleging a disability onset date of October 9, 2011. ECF Dkt. #12 (“Tr.”) at 157-167.[2] Her claim was denied both initially and upon reconsideration. Id. at 86, 96. On June 7, 2016, Plaintiff filed a written request for a hearing before an ALJ. Id. at 101. Plaintiff appeared and testified at a hearing before an ALJ on October 16, 2017. Id. at 11, 120, 147. Ted S. Macy, an impartial vocational expert (“VE”), also appeared at the hearing telephonically. Id. at 11, 26, 28. On November 30, 2017, the ALJ issued a decision denying Plaintiff's claim for SSI. Id. at 8-21. On April 5, 2018, the Appeals Council denied Plaintiff's request for review. Id. at 1. Accordingly, the decision issued by the ALJ on November 30, 2017 stands as the final decision.

         Plaintiff filed the instant suit on May 9, 2018. ECF Dkt. #1. Defendant answered the complaint on July 24, 2018. ECF Dkt. #11. On August 23, 2018, Plaintiff filed a brief on the merits. ECF Dkt. #13. Defendant filed a response brief on November 6, 2018. ECF Dkt. #16. Plaintiff did not file a reply brief.

         II. MEDICAL AND TESTIMONIAL EVIDENCE

         A. Medical Evidence

         Plaintiff alleged a disability onset date of October 9, 2011, but the earliest medical records on file date from February 12, 2015. Tr. at 11, 242. Plaintiff was diagnosed with hypertension (“HTN”) in her 30s and followed up with her former primary care provider (“PCP”) at St. Lukes until 2011. Id. at 242. Plaintiff did not have a PCP and was not on any medications for 3 years until February 2015. Id. at 242, 245. On February 12, 2015, Plaintiff visited St. Vincent Charity Medical Center in Cleveland, OH to establish a new PCP. Id. at 242, 388. During this first visit in February 2015, the hospital reported that Plaintiff had a past medical history (“PMH”) of HTN, hyperlipidemia, chronic obstructive pulmonary disease (“COPD”) and was a chronic smoker who had quit one year prior. Id. at 242. Plaintiff's blood pressure (“BP”) was elevated (diastolic of 139 and a systolic of 230, id. at 253) and she was rushed to the emergency department after she was given some oral medications to bring her BP level down. Id. at 242. She also complained of a frontal headache that started at the emergency department's office, as well as midsternal heaviness and sharp left lower rib chest pain on and off on moving in the bed. Id. Her headache improved, but her chest pain became worse with movements. Id. The hospital noted her blindness and mature cataract in her left eye and noted that her right eye had mild exophthalmos. Id. at 244; see also Id. at 308. Plaintiff's high BP was treated with a Cardizem drip. Id. at 253. She also received an echocardiogram, which showed left ventricular hypertrophy and impaired diastolic filling presented with squeezing chest pain. Id. at 260.

         On March 25, 2015, Plaintiff was admitted to the emergency department and was discharged on March 27, 2015. Id. In the morning of March 25, Plaintiff reported chest pain lasting for about 10 minutes and rated her pain a 10/10, but then in the afternoon it lowered to a 6/10. Id. Plaintiff also noticed some mild shortness of breath with minimal exertion. Id. The hospital found the following: the chest pain was non cardiac; unclear etiology; EKG was negative; cardiac enzymes were negative; and exercise stress test was negative. Id. Plaintiff's discharge medications consisted of Pravastatin Sodium (Pravachol), Amlodipine Besylate (Norvasc), Lisinopril (Zestril), Hydrochlorothiazide (Oretic), Metformin HCl (Glucophage), and Aspirin EC (Aspirin Enteric Coated).

         Plaintiff was referred to physical therapy, which she started on July 20, 2015 and ended on August 17, 2015. Id. at 300. Her functional goal was to be able to stand and walk without leaning on something for 15 minutes. Id. Upon discharge, she reported back pain but no lower extremity pain, and she was able to tolerate new stabilizing exercises. Id. at 300-304.

         On October 26, 2015, Plaintiff visited the emergency department complaining of bilateral leg pain for the past hour. Id. at 286, 384. She believed the pain was caused by the Prevacid medication she was taking. Id. at 289. She denied having any trauma and told the doctor that she never had any problem with blood clots and is on no medications that would predispose her to have that. Id. She also stated that she did not have calf pain and the leg cramps ceased during her hospital visit. Id. Plaintiff was sent home after her triage and was prescribed Cyclobenzaprine HCl (Flexeril). Id. at 287, 291. She was also instructed to apply heat to her legs and restrict activity. Id. at 291.

         On June 25, 2016, Plaintiff visited the emergency department of her PCP twice due to left hip and back pain. Id. at 371, 379, 381. First, she visited and was diagnosed with sciatica. X-rays of her left hip appeared unremarkable for bony abnormalities. Id. at 371. She was given Toradol and muscle relaxers, but she did not fill her muscle relaxer prescription by the time of her second visit that same day. She was subsequently discharged. Later that same day, Plaintiff called EMS after she experienced pain climbing her stairs, localized to her left paraspinal muscles. Id. The doctor noted that Plaintiff had prescriptions from previous visits for anti-inflammatories and muscle relaxers but found her to be “noncompliant on medications” and that she “[d]isplays some evidence of drug- seeking behavior.” Id. at 375.

         On February 22, 2017, Plaintiff visited her PCP with complaints of sharp nonradiating substernal chest pain of sudden onset. Id. at 364. Her pain was aggravated with touching of her inferior aspect of her sternum and it has no relieving factors and is associated with lightheadedness. Id. She was told to take aspirin. Id. at 370.

         On February 24, 2017, Plaintiff visited her PCP with complaints of chest pain suggestive of a musculoskeletal process. Id. at 360. She reported significant improvement in chest pain from 10/10 on admission to a 1/10 after receiving IV Toradol. Id.

         On August 8, 2017, Plaintiff visited her PCP and complained of left dental pain. Id. at 352. The hospital found widespread dental decay. Id. at 353. She was prescribed Naprosyn and Amoxicillin. Id. at 354.

         On August 18, 2017, Plaintiff visited her PCP, complaining of chest pain and mild shortness of breath, but she was not found to have any cardiac causes. Id. at 318, 323. The hospital ruled out acute coronary syndrome (“ACS”) and her EKG did not reveal any new ST-T wave abnormalities and troponins X2 were negative. Id. at 323, 326. The hospital determined that Plaintiff's chest pain was likely musculoskeletal. Id. at 326. The hospital also noted that she had a PMH of diabetes mellitus (“DM”) type II. Id. at 328. Plaintiff's list of medications at this time included Aspirin, Aspirin EC, Gabapentin (Neurontin), Gemfibrozil (Lopid), Glipizide (Glucotrol), Metformin HCl (Glucophage), and Naproxen. Id. at 329, 338.

         The ALJ relied on four separate medical opinions to help him to determine Plaintiff's RFC. Id. at 18-19. The ALJ considered Plaintiff's treating providers. Id. at 18-19. Dr. Levy, M.D. completed a Functional Capacity Letter dated October 7, 2015 in which he noted Plaintiff's lumbar back pain, his treatments from July 10, 2015, August 14, 2015, and October 2, 2015, and her prognosis that she should follow-up with a spine specialist. Id. at 19. The ALJ afforded Dr. Levy's opinion less than controlling weight because Dr. Levy provided no opinion regarding specific functional limitations. Id.

         The ALJ also considered Plaintiff's other treating source, Dr. Louis, M.D., who completed a Medical Source Statement - Physical (MSS) on February 24, 2016. Id. Dr. Louis noted a treating relationship of one year and Plaintiff's diagnosis of blindness in her left eye with a stable prognosis; he noted no symptoms of pain, dizziness, or fatigue, and he noted that she does not use a cane or other assistive device while engaging in occasional standing or walking. Id. “Dr. Louis only indicated visual limitations of one degree DOC but no other exertional, postural, manipulative, or psychological limitations.” Id. Additionally, the ALJ found that Dr. Louis “opined no limitations regarding interference with attention and concentration due to pain or other symptoms, work stress tolerance, and absenteeism.” Id. The ALJ gave Dr. Louis's opinion less than controlling weight as well. Id.

         The ALJ then afforded great weight to the State agency medical consultant at the reconsideration level, Dr. Hughes, M.D, finding that his opinion was consistent with the record as a whole. Id. at 18. Dr. Hughes opined that Plaintiff: (1) can lift and/or carry 20 pounds occasionally and 10 pounds frequently; (2) can stand and/or walk about six hours in an eight-hour workday; (3) can sit about six hours in an eight-hour workday; (4) can frequently climb ramps or stairs, never climb ladders, ropes, or scaffolds, and frequently balance, stoop, kneel, and crouch; (5) has visual limitations in the left eye and must avoid all exposure to hazards, including commercial driving, operating hazardous machinery, and working at unprotected heights. Id.

         Also, the ALJ considered the State agency medical consultant at the initial level, Dr. Lewis, M.D., who opined that Plaintiff: (1) can lift and/or carry 50 pounds occasionally and 25 pounds frequently; (2) can stand and/or walk about six hours in an eight-hour workday; (3) has unlimited push and/or pull other than shown for lift and/or carry; (4) can frequently climb ramps or stairs, never climb ladders, ropes, or scaffolds, and frequently balance, stoop, kneel, crouch, and crawl; (5) has visual limitations in the left eye and must avoid all exposure to hazards, including commercial driving, operating hazardous machinery, and working at unprotected heights. Id. at 18. The ALJ afforded her opinion partial weight because new evidence was “presented at the reconsideration and hearing levels that demonstrated additional exertional limitations due to ongoing problems with back pain, hypertension, and diabetes mellitus type II.” Id.

         B. Testimonial Evidence

         On October 16, 2017, the ALJ held a hearing with Plaintiff and her attorney present, and a VE present via speaker telephone. Tr. at 26-27. On examination by the ALJ, Plaintiff testified that she lives on the third floor of her apartment building, and she takes public transportation often. Id. at 33-34. She stated that she is single and lives with her 16 year-old son who has asthma. Id. at 32-33. She also testified that she has had no full-time work in the last 15 years. Id. at 36. When asked why she was unable to work full-time for the past couple of years, Plaintiff testified that in 2000, before she had her son, she was working through a temp agency and hurt her back on the job. Id. at 37. She stated that she received a small settlement for her back injury. Id. The ALJ pressed her about what, if anything, has kept her from working since November 2015, when she filed her application with the Social Security Administration (“SSA”). Id. at 37-38. She replied that nothing has really kept her from working, but she cannot stand for very long. Id. at 38.

         The ALJ asked about Plaintiff's conditions since November 2015. Id. When asked about her vision, Plaintiff clarified that the vision in her right eye is “pretty good, ” and she was going to have cataract surgery on her left eye the following day, October 17, 2017, which should restore her vision in her left eye. Id. at 38-40.

         Plaintiff further testified that she still has some pain in her back and legs from her back injury accident from 2000. Plaintiff stated she has not had any back surgery and does not wear a splint, brace, or bandages on her back, but she has used a cane since about 2016 for when she has to walk longer distances, which would be over a mile or for walks lasting longer than 15 minutes. Id. at 40-43. Plaintiff also affirmed that she has high blood pressure ...


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