United States District Court, N.D. Ohio, Eastern Division
R. ADAMS, JUDGE.
REPORT AND RECOMMENDATION
Kathleen B. Burke, United States Magistrate Judge.
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.
reasons explained herein, the undersigned recommends that the
Court AFFIRM the Commissioner's
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.
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.
Personal, educational, and vocational evidence
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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. 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.
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.
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.
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
Bernadette shows no significant limitations in these areas.
ATTENTION AND CONCENTRATION AND PERSISTENCE IN SINGLE AND