United States District Court, N.D. Ohio, Eastern Division
REPORT & RECOMMENDATION OF MAGISTRATE
J. LIMBERT, UNITED STATES MAGISTRATE JUDGE
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
following reasons, the undersigned RECOMMENDS that the Court
AFFIRM the ALJ's decision and DISMISS Plaintiff's
case in its entirety with prejudice.
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. 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
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.
MEDICAL AND TESTIMONIAL EVIDENCE
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.
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).
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.
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.
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
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.
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.
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.
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
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.
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.
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.
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
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
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.
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 ...