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Smith v. Commissioner of Social Security Administration

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

June 20, 2019

BERNADETTE SMITH, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          JOHN R. ADAMS, JUDGE.

          REPORT AND RECOMMENDATION

          Kathleen B. Burke, United States Magistrate Judge.

         Plaintiff Bernadette Smith (“Plaintiff” or “Smith”) seeks judicial review of the final decision of Defendant Commissioner of Social Security (“Commissioner”) denying her application for Disability Insurance Benefits (“DIB”). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation pursuant to Local Rule 72.2.

         For the reasons explained herein, the undersigned recommends that the Court AFFIRM the Commissioner's decision.

         I. Procedural History

         Smith filed an application for DIB on May 18, 2015, alleging a disability onset date of May 5, 2015. Tr. 83, 125, 133, 134, 147, 224-225, 258. She alleged disability due to obstructive sleep apnea, asthma, arthralgia, myalgia, hyperglycemia, crying spells, depression, anxiety, and leg swelling. Tr. 125, 134-135, 148, 154, 251. After initial denial by the state agency (Tr. 148-150) and denial upon reconsideration (Tr. 154-156), Smith requested a hearing (Tr. 157-158). A hearing was held before an Administrative Law Judge (“ALJ”) on September 11, 2017. Tr. 98-124.

         In his February 6, 2018, decision (Tr. 80-97), the ALJ determined that Smith had not been under a disability from May 5, 2015, through the date of the decision (Tr. 84, 92). Smith requested review of the ALJ's decision by the Appeals Council. Tr. 220-223. On June 22, 2018, the Appeals Council denied Smith's request for review, making the ALJ's decision the final decision of the Commissioner. Tr. 1-7.

         II. Evidence

         A. Personal, educational, and vocational evidence

         Smith was born in 1967. Tr. 224. Smith was not married. Tr. 531. She has an adult daughter. Tr. 531. Smith was living with her mother at the time of the hearing and had been living with her since Smith lost her job in August 2014. Tr. 101, 103, 251. Smith graduated from high school and worked as a night clerk, receptionist at a homeless shelter for almost 30 years. Tr. 101, 103-104, 108-111, 252-253, Doc. 12, p. 2. At her job, she did a lot of different tasks, including some maintenance and she also supervised other employees. Tr. 104, 108-111. In 2014, Smith was terminated from her position for being tardy a couple of times. Tr. 110, 251.

         B. Medical evidence

         1. Treatment history

         On February 4, 2015, Smith was seen at the South Pointe Hospital emergency room for complaints of shortness of breath and productive cough with clear sputum for the prior four weeks; mid-sternal chest pain with coughing; and bilateral pedal edema for a few months. Tr. 438. Smith indicated that she had a history of asthma but had not had asthma medicine for over a year. Tr. 438. The emergency room diagnoses were dyspnea and lower extremity edema. Tr. 439. The exam revealed 2 lower extremity edema. Tr. 439. Breathing treatments were not administered because the lung exam was negative for wheezing and diminished lung sounds. Tr. 439. A CT of the chest was negative for pulmonary embolism. Tr. 439. A chest x-ray showed no acute pulmonary process and an ultrasound of the lower extremities showed no evidence of deep vein thrombosis. Tr. 440. Smith was provided prescriptions for Lasix and Albuterol. Tr. 439. Smith was discharged in stable condition. Tr. 440.

         Following her emergency room visit, on May 5, 2015, Smith saw Geeta Gupta, M.D., in internal medicine for her shortness of breath and joint pain. Tr. 436-438. A review of systems was positive for shortness of breath, wheezing, myalgias and joint pain but negative for chest pain, leg swelling, back pain and falls. Tr. 436. Physical examination findings were unremarkable. Tr. 437. Dr. Gupta assessed obstructive sleep apnea; mild intermittent asthma, stable; arthralgia; myalgia; hyperglycemia; and obesity. Tr. 437. Dr. Gupta ordered additional testing and provided Smith with a consult for nutrition therapy. Tr. 437.

         On May 14, 2015, Smith had pulmonary function testing performed. Tr. 443. The testing was “consistent with a mild obstructive ventilatory defect.” Tr. 443. A sleep study was performed on May 29, 2015. Tr. 441-442. The impression was moderate obstructive sleep apnea syndrome exacerbated to severe during REM sleep. Tr. 442. It was recommended that Smith undergo a CPAP titration study with a dose of Ambien to help facilitate sleep and discuss weight reduction. Tr. 442.

         On June 26, 2015, Smith saw Dr. Gupta for a follow up after having been treated at the emergency room for pain in her right hip and right knee that she had been having for several weeks and that worsened after Smith started moving boxes and going up and down stairs as she was in the process of moving. Tr. 471. While at the emergency room, Smith was treated with pain medications and given a brace and cane. Tr. 471. Her pain had improved slightly. Tr. 471. She was scheduled for an orthopedic follow up. Tr. 471. Dr. Gupta noted that Smith had a CPAP titration study performed; the results were pending. Tr. 471. Smith's musculoskeletal examination showed normal range of motion and no edema or tenderness and there was no redness, tenderness, or swelling in Smith's right knee. Tr. 472. Smith's gait was normal. Tr. 472. Dr. Gupta's diagnoses were osteoarthritis, obesity, and obstructive sleep apnea. Tr. 472.

         On July 13, 2015, Smith saw Michael Kolosky, D.O., a resident physician, and Robert J. Hampton, D.O., in the Department of Orthopaedics at South Pointe for her complaints of bilateral knee pain and right hip pain. Tr. 518-521. An x-ray of the bilateral knees taken on July 13, 2015, showed moderate predominantly compartment narrowing bilaterally; associated tiny tricompartmental osteophytes; and no acute fracture or dislocation seen. Tr. 523, 527. Diagnoses were bilateral knee degenerative joint disease, right hip degenerative joint disease, and obesity. Tr. 521. Dr. Kolosky discussed with Smith the etiology and natural progression of osteoarthritis and recommended that Smith see a nutritionist for her obesity, noting that “the majority of her pain is likely contributed to by being overweight and the increased stresses across her joints.” Tr. 521. Smith was provided with a prescription for Relafen 750 mg twice a day and a prescription for aquatic and land physical therapy. Tr. 521. Smith declined a cortisone injection. Tr. 521.

         Smith saw Dr. Gupta the next day, July 14, 2015, for follow up regarding her obstructive sleep apnea and weight problems. Tr. 467-468. Physical examination findings were normal. Tr. 467. Dr. Gupta's assessment/plan was obstructive sleep apnea - CPAP ordered; asthma, mild intermittent, uncomplicated - continue current medications and avoid triggers; generalized osteoarthritis - stable; and obesity - weight loss, diet and exercise. Tr. 468.

         Smith attended physical therapy sessions from August 2015 through October 2015. Tr. 491-499, 503-504, 506-515. At her last session on October 22, 2015, the physical therapist observed that Smith was overweight and ambulated into the gym with no obvious gait deviation at a normal pace - she was carrying her standard cane. Tr. 492. When Smith was discharged from physical therapy on October 22, 2015, it was noted that that Smith had improved tolerance for exercises; increased independence with home exercise plan; and decreased intensity of pain. Tr. 492.

         Smith saw Dr. Gupta on December 29, 2015. Tr. 543-544. Smith was doing well and her asthma was controlled. Tr. 544. Smith had pain due to osteoarthritis and was being seen by orthopedics. Tr. 544. Smith was using her CPAP machine and trying to lose weight. Tr. 544. On physical examination, Smith had a normal range of motion; there was no edema and she had a normal gait. Tr. 544.

         Smith saw Dr. Gupta on January 7, 2016, for her right knee pain and spasm in her left arm. Tr. 540-541. Smith complained of neck pain and tingling in her left hand. Tr. 541. Dr. Gupta assessed that the muscle spasm was likely radicular and she ordered a cervical x-ray. Tr. 541.

         Smith saw Dr. Gupta for follow up on February 4, 2016. Tr. 537-538. Smith complained of numbness and tingling in her feet and in her left hand. Tr. 537. Dr. Gupta noted that Smith's x-rays showed cervical spondylosis. Tr. 537. Smith reported that she had no more neck pain and no bowel or bladder dysfunction. Tr. 537. Physical examination revealed normal range of motion, normal reflexes, normal muscle tone, normal gait and normal coordination. Tr. 538-539. Dr. Gupta's assessment/plan was (1) osteoarthritis of spine with radiculopathy, cervical region - has normal neurological exam - consult to neurology; (2) morbid obesity due to excess calories - weight loss, diet and exercise; (3) mild intermittent asthma without complication - mild intermittent asthma stable - avoidance of triggers recommended; (4) obstructive sleep apnea - on CPAP; and numbness and tingling - may need MRI and EMG - consult to neurology. Tr. 538.

         On May 3, 2016, Smith saw neurologist Dr. Robert F. Richardson, Jr., M.D., regarding Smith's tingling paresthesias in her hands and feet as well as in her face that Smith indicated she had been experiencing for about a year. Tr. 551-552. Smith's paresthesias was not constant but occurred daily and lasted seconds to minutes. Tr. 551. Smith also reported occasional lightheadedness and a six-month history of cramping/jerking of the muscles in her left proximal arm. Tr. 551. Dr. Richardson's motor examination showed normal power, tone, and bulk and her extremities were without edema. Tr. 552. A sensory examination showed reduced pinprick sensation on the entire left hemibody other than the face and normal joint position sensation throughout. Tr. 552. A coordination examination showed normal finger to nose and heel to shin testing. Tr. 552. Smith's muscle strength reflexes were normal and symmetric throughout and her gait and station were normal. Tr. 552. Dr. Richardson's impression was “Diffuse tingling paresthesias. Exam evidence for left hemisensory deficit. Possibilities are intracranial pathology such as demyelinating disease, stroke, or tumor. I cannot rule out conversion disorder, however.” Tr. 552. In order to further evaluate Smith's condition, Dr. Richardson ordered a cranial MRI. Tr. 552, 588-590.

         Smith saw Dr. Richardson for a follow up on July 12, 2016. Tr. 556. A physical examination continued to show reduced pinprick sensation on the entire left hemibody other than the face. Tr. 556. Otherwise, the physical examination findings were normal. Tr. 556. Dr. Richardson indicated that the cranial MRI showed no significant pathology. Tr. 556. Dr. Richardson's impression was “Diffuse tingling paresthesias without structural findings to explain. The presentation is not consistent with peripheral neuropathy. I cannot rule out conversion disorder given the lack of objective findings.” Tr. 556. Dr. Richardson offered Smith nortriptyline to treat the tingling and to potentially address any mood disorder. Tr. 556. Smith declined the medication. Tr. 556. Dr. Richardson indicated that Richardson should follow up with him in three months. Tr. 556.

         On July 21, 2016, Smith saw Dr. Gupta for a physical. Tr. 561-564. Smith reported joint and neck pain and tingling and sensory change. Tr. 562-563. Physical examination findings, however, were normal. Tr. 563.

         Smith saw Dr. Richardson on October 10, 2016, for follow up. Tr. 557. Dr. Richardson's impression again was “Diffuse tingling paresthesias without structural findings to explain. The presentation is not consistent with peripheral neuropathy. I cannot rule out conversion disorder given a lack of objective findings.” Tr. 557. Dr. Richardson discussed medication again with Smith but she indicated she was comfortable with her current status. Tr. 557.

         Smith saw Dr. Gupta on October 20, 2016. Tr. 567-568. Progress notes reflect that Smith was doing well; she was using her CPAP machine; her asthma had been stable; she was not losing weight and had not seen a nutritionist. Tr. 567. Dr. Gupta ordered a consult for a weight management program. Tr. 568.

         On March 15, 2017, Smith was treated at the emergency room for complaints of a fever, chills, cough, myalgia and headache. Tr. 594-598, 628-633. Smith denied worsening of her asthma, back pain, chest pain, leg pain, leg swelling, or difficulty ambulating. Tr. 597, 632, 633. On physical examination, Smith exhibited normal range of motion. Tr. 598. Smith was discharged in stable condition with diagnoses of influenzal acute upper respiratory infection, myalgia, arthralgia (unspecified joint), fever (unspecified cause), and hypokalemia. Tr. 598. Smith was instructed to take potassium for seven days and Naprosyn as needed and to follow up with her primary care physician. Tr. 598.

         Smith saw Dr. Gupta for follow up on March 28, 2017. Tr. 601-602. Smith reported feeling much better following her emergency room visit for influenza. Tr. 601. Smith reported joint pain. Tr. 601. On physical examination, Smith exhibited normal range of motion, no edema, and a normal gait. Tr. 601. Dr. Gupta noted that Smith had seen weight management. Tr. 601. Dr. Gupta assessed chronic pain of both knees, noting that Smith declined surgery and steroid injections. Tr. 602.

         2. Opinion evidence

         a. Treating physician

         On July 25, 2017, treating physician Dr. Gupta completed a Medical Source Statement. Tr. 662-665. Dr. Gupta noted that her medical specialty was internal medicine and she had treated Smith since May 5, 2015. Tr. 663. Dr. Gupta indicated that Smith's diagnoses were (1) osteoarthritis with hip and knee pain; (2) cervical radiculopathy; (3) asthma - stable; (4) obstructive sleep apnea (on CPAP); (5) obesity; and (6) pre-diabetes. Tr. 663. Dr. Gupta indicated that emotional factors did not contribute to the severity of Smith's symptoms or functional limitations. Tr. 663. Smith's symptoms included pain in the knees, hips and multiple joints. Tr. 663. When asked to identify any clinical findings, laboratory findings and diagnostic test results supporting Smith's diagnoses, Dr. Gupta listed a January 7, 2016, cervical spine x-ray (degenerative joint disease); a July 23, 2015, knee x-ray (osteoarthritis); and a July 13, 2015, orthopedic evaluation of the bilateral knees and right hip (degenerative joint disease). Tr. 663. Dr. Gupta indicated that Smith's medications included an inhaler, albuterol, and a CPAP machine. Tr. 663. There were no side effects noted. Tr. 663.

         Dr. Gupta opined that functionally Smith was limited to lifting and carrying 10 pounds occasionally; handling, grasping, and fingering occasionally; standing for 3 hours total in an 8hour workday; walking for 3 hours total in an 8-hour workday; and sitting for 3 hours total in an 8-hour workday.[1] Tr. 664. Dr. Gupta opined that Smith would need to take unscheduled breaks during a workday as needed, every 2 hours, and Smith would have to rest for 15 minutes before returning to work. Tr. 664. Dr. Gupta opined that Smith's symptoms would likely be severe enough to interfere with the attention and concentration needed to perform even simple work tasks for more than 25% of an 8-hour workday. Tr. 664. Dr. Gupta indicated that Smith would be absent from work on an as-needed basis due to flare ups. Tr. 665. If Smith were placed in a competitive work situation, Dr. Gupta opined that Smith would have difficulty ambulating, noting that she uses a cane, and her pain could cause limitations. Tr. 665. Dr. Gupta opined that the limitations noted in her opinion initially manifested themselves in 2015 when Smith established care with Dr. Gupta. Tr. 665.

         b. Consultative examiner

         On December 23, 2015, consultative examining psychologist J. Joseph Konieczny, Ph.D., conducted a psychological evaluation. Tr. 531-535. Smith was one-half hour late to her appointment. Tr. 531. She was driven to the appointment by a friend. Tr. 531. Dr. Konieczny noted that Smith was subdued but pleasant and cooperative and she responded to all questions and tasks presented to her. Tr. 531, 532. When Dr. Konieczny inquired about Smith's disability, Smith replied “I have arthritis in my legs and back.” Tr. 531. In 2005, Smith was involved briefly in outpatient treatment to address depression following a miscarriage. Tr. 532. She relayed that she had been having some recent feelings of depression and a history of depression since 2010. Tr. 532. Smith indicated that her depression had worsened over the prior year because of her medical issues and inability to work. Tr. 532. Smith reported occasional episodes of crying but denied any suicidal thoughts. Tr. 532. She did not exhibit nervousness or anxiety and denied experiencing any such feelings on a regular basis. Tr. 532. Smith was not delusional or paranoid and denied experiencing hallucinations. Tr. 532. Smith showed no signs of impulsivity but she reported having difficulties controlling her temper and episodes of mood swings. Tr. 532.

         Dr. Konieczny observed Smith's movements and walking to be somewhat slow and labored. Tr. 532. Smith was using a cane to assist her with walking. Tr. 532. Smith noted having pain in her knees, feet and back. Tr. 532.

         Dr. Konieczny's diagnostic impression was other specified depressive disorder, depressive episodes with insufficient symptoms. Tr. 533, 534. Dr. Konieczny offered the following opinions regarding Smith's functional abilities:

ABILITY TO UNDERSTAND, REMEMBER, AND CARRY OUT INSTRUCTIONS
Bernadette shows no significant limitations in these areas.
ATTENTION AND CONCENTRATION AND PERSISTENCE IN SINGLE AND MULTI-STEP ...

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