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Pierce v. Commissioner of Social Security

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

June 10, 2019

DENINE PIERCE, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Benita Y. Pearson Judge

          REPORT AND RECOMMENDATION

          James R. Knepp II United States Magistrate Judge

         Introduction

         Plaintiff Denine Pierce (“Plaintiff”) filed a Complaint against the Commissioner of Social Security (“Commissioner”) seeking judicial review of the Commissioner's decision to deny supplemental security income (“SSI”). (Doc. 1). The district court has jurisdiction under 42 U.S.C. §§ 1383(c) and 405(g). This matter has been referred to the undersigned for preparation of a report and recommendation pursuant to Local Rule 72.2. (Non-document entry dated March 9, 2018). Following review, and for the reasons stated below, the undersigned recommends the decision of the Commissioner be affirmed.

         Procedural Background

          Plaintiff protectively filed for SSI in February 2015, alleging a disability onset date of January 1, 2010. (Tr. 185).[1] Her claims were denied initially and upon reconsideration. (Tr. 114- 15). Plaintiff then requested a hearing before an administrative law judge (“ALJ”). (Tr. 147). Plaintiff (represented by counsel), and a vocational expert (“VE”) testified at a hearing before the ALJ on October 5, 2016. (Tr. 34-73). On March 10, 2017, the ALJ found Plaintiff not disabled in a written decision. (Tr. 10-22). The Appeals Council denied Plaintiff's request for review, making the hearing decision the final decision of the Commissioner. (Tr. 1-6); see 20 C.F.R. §§ 416.1455, 416.1481. Plaintiff timely filed the instant action on March 9, 2018. (Doc. 1).

         Factual Background

         Personal Background and Testimony

         Born in 1966, Plaintiff was 48 years old at the time of her application, and 50 at the time of the ALJ hearing. See Tr. 42, 185. She graduated from high school and studied communications for two years in college, receiving an Associate's Degree. (Tr. 42-43). Plaintiff also had training as a CNA and as a loan officer. (Tr. 43). At the hearing, the ALJ clarified with Plaintiff's counsel that Plaintiff alleged disability due to cervical degenerative disc disease, Hepatitis C, major depressive disorder, anxiety, Wells disease, obesity, asthma, COPD, diabetes, hypertension, and moderate obstructive sleep apnea. (Tr. 40-41).

         At the time of the hearing, Plaintiff lived in an apartment on the second floor with her twenty-year-old son. (Tr. 41). She used a cane and pulled on railings to go up the stairs. Id. Plaintiff testified she could not work due to illnesses caused by hepatitis, a neck problem, anxiety, and “not being able to sit or stand for a very long time.” (Tr. 47-48). She attributed her inability to sit to her anxiety. (Tr. 48) (“I get anxious and I got to stand up[.]”).

         Plaintiff stopped driving in 2007 due to eyesight problems, shaking hands, and anxiety. (Tr. 43-44). Plaintiff lost her license after being in an accident. (Tr. 44). For transportation, she relied on family members, friends, or paratransit. (Tr. 45).

         Plaintiff's hepatitis caused symptoms of chills and sweats, vomiting, and stomach pain approximately twice per week. (Tr. 49). It took her about two to three days to recover from these episodes. Id. Plaintiff's physician was awaiting insurance approval to prescribe a new medication. (Tr. 49-50). Plaintiff experienced anxiety which included, in her words “[p]aranoia, schizophrenia, hearing voices, just like wow” and she “really [did not] like being around people.” (Tr. 50-51). She had these symptoms for the past four to five years; she saw a psychiatrist once or twice per month and took gabapentin and Prozac. (Tr. 50-51). Plaintiff avoided interacting with people, but spoke with family members and friends on the phone. (Tr. 51-52). She saw her grandchild twice per month and talked with on the phone. (Tr. 54).

         Plaintiff had received cortisone shots and physical therapy for her neck pain. (Tr. 54-55).

         Plaintiff also testified to breathing problems that started in approximately 2014. (Tr. 56). Plaintiff had gained weight (“up and down like 20 pounds up, more up”) due to taking prednisone. (Tr. 45). She testified that her weight made breathing difficult (Tr. 45) and stopped her from walking long distances (Tr. 56). Plaintiff also testified she had been hospitalized three times in 2016. (Tr. 56). She used a nebulizer, Symbicort, and albuterol to treat her breathing problems. Id. These medications helped “for the most part”; on a few occasions she required emergency treatment after overexerting herself. (Tr. 58).

         Plaintiff experienced numbness in her legs due to diabetes and had a dropped foot due to nerve damage. (Tr. 61).

         Plaintiff's son did the laundry, shopping, cleaning, and dishes. (Tr. 42, 58-59). Plaintiff no longer cooked because she “really shouldn't be around the fumes, the gas and stuff”. (Tr. 59). She was able to make her own bed. Id. During the day, Plaintiff watched television (approximately six hours per day), read books (approximately three hours per day), and sometimes sat on her porch. (Tr. 59-60). Plaintiff also attended approximately three medical appointments per week. (Tr. 60-61).

         Plaintiff used a walker at the time of the hearing. (Tr. 63). She testified it, along with a cane, were prescribed by Dr. Karen Kea due to her breathing difficulties. Id. She was unable to walk unassisted. (Tr. 64). She also testified the walker was necessary due to the numbness in her legs, and her anxiety about falling, however, it was prescribed for breathing. Id.

         Relevant Medical Evidence[2]

         Prior to Application Date

         In April 2014, Plaintiff underwent a pulmonary function test suggesting “the presence of a possible both and [sic] restrictive ventilatory impairment.” (Tr. 527). The physician recommended further testing “to clarify”, and noted “[n]o significant change from the previous exam.” Id. Karen Majewski, CNP, noted Plaintiff's “breathing [was] good until a few weeks ago.” (Tr. 528). She was “on prednisone per her dermatologist and [it] does not affect her breathing”. Id. She reported shortness of breath and difficulty walking long distances. Id. On examination, Plaintiff was in “mild distress with [a] dry cough”; her lungs had “[g]ood breath sounds; no wheezes, rales or rhonchi”; she had normal percussion and good diaphragmatic excursion. (Tr. 530). Ms. Majewski prescribed a trial of Symbicort. (Tr. 532).

         In July 2014, Plaintiff saw internal medicine physician Karen Kea, M.D., complaining of, inter alia, pain in her neck, shoulders, and lower back. (Tr. 509). On examination, she had no edema, and Dr. Kea assessed chronic neck pain, among other things. Id. The same day, Plaintiff saw a nutritionist with a goal of losing weight. (Tr. 503). Plaintiff reported moderate activity of walking daily, and that she shopped and cooked. Id. The nutritionist recommended attending group exercise classes, eating three small meals per day, and baking foods instead of frying. (Tr. 504). He noted Plaintiff's obesity was “related to inactivity & inconsistent meal pattern.” Id.

         In September 2014, Plaintiff had a hysterectomy. See Tr. 466. At a follow up appointment in October 2014, Plaintiff answered “no” to the question “Do you use or should you be using crutches, cane, walker, or wheelchair?” (Tr. 455).

         Plaintiff saw Dr. Kea again in November 2014 for left knee and lower back pain. (Tr. 448-49). Dr. Kea noted no edema, assessed low back pain and cervical degenerative disc disease, and referred Plaintiff to the pain clinic. Id. In December, Plaintiff saw orthopedist Andrew Tsai, M.D., for left knee pain. (Tr. 443). She walked with a cane. Id. On examination, she had normal musculature, normal gait and station, and normal muscle strength; she had intact sensation and no edema. (Tr. 446-47). Dr. Tsai also noted Plaintiff had no wheezes or rales, and breathed comfortably on room air. (Tr. 446). She had some reduced range of motion, tenderness and crepitus in her left knee. (Tr. 447). Dr. Tsai took x-rays, which showed minimal degenerative changes (Tr. 563-65), and assessed left knee patellofemoral syndrome and generalized osteoarthritis (Tr. 447). He prescribed Mobic and recommended physical therapy for quadricep strengthening and patellofemoral pain. Id.

         Plaintiff returned to Dr. Kea in January 2015, at which time she was noted to be using a walker. (Tr. 667-69). Plaintiff reported fatigue beginning two weeks prior around the time she had the flu. (Tr. 668). Dr. Kea deferred an examination, assessed hyperlipidemia, noted a family history of diabetes, and ordered lab work. Id.

         After Application Date

         At a March 2015 appointment, Plaintiff complained of a rash, a frequent cough, and shortness of breath with exertion. (Tr. 404). She also reported lower energy, night sweats, and chronic left flank pain. Id. On examination, Plaintiff had normal respirations; her lungs were clear, without wheezing, rales, or rhonchi. (Tr. 407). She had normal motor strength, no edema, no spinous tenderness, and normal gait. Id.

         The following month, Plaintiff attended a follow-up appointment. (Tr. 607-11). On examination, she had full motor strength, normal gait, no edema, no spinous tenderness, and negative pulmonary findings. (Tr. 610-11).

         Plaintiff returned to Dr. Kea in June 2015, requesting forms completed for a fishing license under disability and an “RTA appeal form.” (Tr. 582).

         That same month Plaintiff underwent a pulmonary function test which showed results “consistent with a moderate obstructive ventilatory defect without a significant response to inhaled bronchodilators, with air trapping”; Plaintiff also had a reduced diffusion capacity consistent with the diagnosis of COPD, and there was “evidence of possible expiratory respiratory muscle weakness.” (Tr. 1047).[3] Plaintiff also underwent an exercise oximetry study, which revealed “no significant oxygen desaturations” while Plaintiff was “walking at a normal pace and breathing ambient air. Id. She was able to walk 528 feet, and reported “mild dyspnea” at the end. Id. She “stopped walking after 4 minutes due to shortness of breath.” Id.

         At an appointment the following month, a progress note indicates Plaintiff's primary diagnosis was right foot drop, with other diagnoses including somatic dysfunction of the cervical, thoracic, and lumbar regions, and cervical degenerative disc disease. (Tr. 1097).

         In September 2015, Plaintiff underwent a rheumatology consultation for joint pain. (Tr. 1194-1201). She denied shortness of breath, wheezing, or cough. (Tr. 1199). On examination, she had normal pulmonary findings, no edema, and a normal gait. Id. She had full range of motion in her shoulders, elbows, wrists, knees, and ankles, with some pain in her left shoulder, left knee, and left ankle. (Tr. 1200). Maria Antonelli, M.D., assessed rotator cuff syndrome of the left shoulder, osteoarthritis of the left knee, and numbness of the left foot. Id. She recommended physical therapy for Plaintiff's shoulder and knee, and discussed Plaintiff's foot numbness, noting it was “intermittent . . . 1-2x per day for only minutes at a time”. (Tr. 1201). Dr. Antonelli suggested an EMG, but Plaintiff declined. Id.

         In October 2015, Plaintiff underwent a physical therapy evaluation. (Tr. 1287-90). The therapist noted Plaintiff “walked into therapy today independent without AD”. (Tr. 1287). On examination, she had decreased lordosis, rounded shoulders, and tenderness in her left knee and left shoulder joint. (Tr. 1288). She also had some decreased strength and range of motion findings. Id. The therapist recommended treatment once or twice per week for ten visits, and believed Plaintiff's prognosis to be good. (Tr. 1290).

         Plaintiff went to the emergency room with an asthma exacerbation in December 2015. (Tr. 887-89). Her wheezing “improved significantly after breathing treatments” and she was “in no respiratory distress.” (Tr. 888).

         Plaintiff saw Dr. Kea in December 2015, reporting flank pain, hair falling out, and chest pressure. (Tr. 1312). She was noted to be using a cane or crutches. Id. Dr. Kea's examination revealed no positive findings in Plaintiff's abdomen. (Tr. 1313). She assessed elevated glucose, chronic hepatitis, and flank pain; she ordered lab work. Id.

         Plaintiff returned to the emergency room in January 2016 reporting shortness of breath and left upper quadrant abdominal pain. (Tr. 915). An abdominal CT scan revealed “[n]o acute intra-abdominal abnormality”, mild fatty infiltration of the liver, and colonic diverticuli without diverticulitis. (Tr. 918). An Acute abdominal series showed “[n]o specific nonobstructive bowel gas pattern and ...


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