United States District Court, N.D. Ohio, Eastern Division
Y. Pearson Judge
REPORT AND RECOMMENDATION
R. Knepp II United States Magistrate Judge
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
Plaintiff protectively filed for SSI in February 2015,
alleging a disability onset date of January 1, 2010. (Tr.
185). 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.
Background and Testimony
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.
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
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).
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.
had received cortisone shots and physical therapy for her
neck pain. (Tr. 54-55).
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).
experienced numbness in her legs due to diabetes and had a
dropped foot due to nerve damage. (Tr. 61).
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).
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
to Application Date
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).
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.”
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).
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.
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.
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.
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).
returned to Dr. Kea in June 2015, requesting forms completed
for a fishing license under disability and an “RTA
appeal form.” (Tr. 582).
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). 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.”
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).
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.
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).
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).
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.
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 ...