United States District Court, S.D. Ohio, Eastern Division
D. Morrison Judge
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE
Susan Flack brings this action under 42 U.S.C. § 405(g)
seeking review of a final decision of the Commissioner of
Social Security denying her applications for Disability
Insurance Benefits (“DIB”) and Supplemental
Security Income (“SSI”). For the reasons set
forth below, it is RECOMMENDED that the
Court OVERRULE Plaintiff's Statement of
Errors (Doc. 24) and AFFIRM the
filed her applications for DIB and SSI on March 26, 2014,
alleging disability beginning January 5, 2012. (Tr. 12, 408).
After her application was denied initially and on
reconsideration, the Administrative Law Judge (the
“ALJ”) held a hearing on April 20, 2017. (Tr.
80-130). On August 16, 2017, the ALJ issued a decision
denying Plaintiff's application for benefits, (Tr. 9-30),
and the Appeals Council denied Plaintiff's request for
review. (Tr. 1-6).
filed the instant case seeking a review of the
Commissioner's decision on May 21, 2018. (Doc. 1).
Roughly three months later, Plaintiff filed a Motion for
Leave to file First Amended Complaint. (Doc. 10). The
Undersigned recommended denying Plaintiff's Motion for
Leave to file First Amended Complaint (Doc. 17), and Judge
Marbley adopted the Report and Recommendation (Doc. 22). The
case then proceeded, and the matter is now ripe for
consideration. (Docs. 9, 24, 25, 26).
Relevant Hearing Testimony Medical Background
usefully summarized relevant portions of Plaintiff's
hearing testimony and medical records.
The claimant alleged she was unable to work due to her
history of back surgery, carpal tunnel syndrome bilaterally,
blood clots, and depression (Ex. B6E). At the hearing, she
testified that she was disabled due to low back pain,
depression, and anxiety. She alleged that simple tasks like
daily showering, doing dishes, cooking, and walking are
painful for her back, and she stated she has to use a cane or
hold a cart when she walks (Ex. B6E at 14). In her Function
Report, she alleged she was able to lift no more than 20
pounds, could not squat, could walk about 10 minutes, sit
about 20 minutes, and could not kneel (Ex. B7E at 6). She
testified that walking and standing exacerbates her back
pain. She also said she has difficulty with concentrating or
completing tasks and has difficulty getting along with others
due to depression (Ex. B7E at 6; Hearing Testimony).
* * *
In terms of the claimant's alleged back pain, she has a
history of back problems since 2000 secondary to work-related
“wear and tear” (Ex. B19F at 1). She had a back
fusion surgery in 2003 (Ex. B19F at 1). However, her spine
condition has required no further surgery. On examination in
October 2013, she was also able to walk on toes and heels and
get on and off the examination table without difficulty (Ex.
Bl lF at 2).
In March 2014, Darren J. Holsten, D.C. noted that her low
back appeared “relatively stable, ” and “no
additional treatment [was] medically indicated at this
time” (Ex. B15F at 4). On examination in August 2014,
she had positive straight leg raise on the right, she had a
symmetric and steady but slow gait, and she required no
assistive device (Ex. B19F at 4). She was able to lift,
carry, and handle light objects (Ex. B19F at 4). She said she
was unable to squat and rise, but she was able to rise from a
sitting position without assistance (Ex. B19F at 4). She had
“some difficulty getting up and down from the exam
table” (Ex. B19F at 4). Tandem walking was normal, and
the claimant could stand but not hop on either foot
bilaterally (Ex. B19F at 4). Imaging showed only “mild
disc disease at ¶ 2-3 and slight curvature of the lumbar
spine to the left” (Ex. B19F at 10). On examination in
May 2016, she had positive straight leg raise at full
extension and tenderness at approximately L2-5, but she had
normal range of motion in all extremities, and normal
sensation, strength, and coordination (Ex. B31F).
In April 2013, the claimant underwent a right carpal tunnel
release (Ex. B8F; B11 F at 1). In August 2013, she underwent
a left carpal tunnel release (Ex. B8F; B9F; Bl lF at 1). In
October 2013, she reported she was “much
improved” and “now in search of a job” (Ex.
B11 F at 1). She reported that her right hand felt “a
little bit stiff'” but was overall doing
“very well” (Ex. B1 1F at 2). On examination, her
grasp, pinch, manipulation, and fine coordination was normal
(Ex. B1 1F at 2). She had “excellent range of motion
without neuromuscular deficit” and “no residual
inflammatory changes” (Ex. B1 1F at 3). At a
psychiatric evaluation in July 2014, she demonstrated
unimpaired fine and gross motor skills (Ex. B18F at 3). She
had chiropractic treatment to address CTS symptoms (Ex.
B20F). In September 2014, she rep1ied that her CTS symptoms
were stable, rating her pain at worst at a two and currently
at a one (Ex. B20F at 5).
The ALJ's Decision
found that Plaintiff met the insured status requirements of
the Social Security Act through June 30, 2016, and had not
engaged in substantial gainful employment since January 5,
2012, the alleged disability onset date. (Tr. 14). The ALJ
determined that Plaintiff suffered from the following severe
impairments: chronic low back pain due to sacroiliitis and
status-post 2003 lumbar fusion, bilateral carpal tunnel
syndrome, diminished respiratory function due to status-post
pulmonary embolism, and depression. (Tr. 15). Relevant here,
the ALJ considered Plaintiff's obesity, concluding that
it did not constitute a “severe” impairment under
the Regulations. The ALJ explained:
There is evidence that the claimant is obese. In May 2014,
she had a BMI of 37.61 (Ex. Bl7F). Obesity is a consideration
in assessing the claimant's functional capacity and its
effect on the other impairments (SSR 02-lP). The undersigned
has given due consideration to the claimant's obesity in
assessing the claimant's residual functional capacity.
However, the evidence fails to establish that the
claimant's obesity will more than minimally affect her
ability to work full-time. Therefore, the undersigned
considered her obesity a non-severe impairment.
(Id.). Ultimately, the ALJ found that none of
Plaintiff's impairments, either singly or in combination,
met or medically equaled a listed impairment. (Id.).
Plaintiff's residual functional capacity
(“RFC”), the ALJ opined:
the claimant had the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) except she can
occasionally climb ramps and stairs, never climb ladders,
ropes, or scaffolds, and can occasionally balance, stoop,
kneel, crouch, or crawl. In addition, she can never work at
unprotected heights or around moving dangerous mechanical
parts. She can occasionally work in conditions of humidity
and wetness, in extreme heat or cold, in conditions where
there are vibrations, and in conditions where there is
concentrated exposure to dust, odors, fumes, or other
pulmonary irritants. She is also limited to performing
simple, routine and repetitive tasks, but not at a production
rate pace, for example, no assembly line work. Finally, she
is limited to tolerating few changes in the work setting,
defined as routine job duties that remain static and are
performed in a stable, predictable work setting. Any
necessary changes need to occur infrequently, and be
adequately and easily explained. She can frequent handle and
finger with the bilateral upper extremities. She requires a
sit/stand option at the work station to change position each
hour for two minutes while remaining on task 90% of the time.
“careful consideration of the evidence, ” the ALJ
found that Plaintiff's “statements concerning the
intensity, persistence and limiting effects of these symptoms
[were] not entirely consistent with the medical evidence and
other evidence in the record for the reasons explained in
this decision.” (Tr. 18).
the opinion evidence, the ALJ assigned the state agency
medical and psychological consultants' opinions great
weight. (Tr. 20 (citing Tr. 159-68; 171-87)). The ALJ
explained that “[t]he consultants have program
knowledge, and both opinions are consistent with the record
as a whole.” (Id.). The ALJ found, however,
that Plaintiff has “greater physical and mental
limitations than opined by the consultants based on
additional evidence that the consultants did not have access
to at the time they provided their opinions.”
then considered the opinion of licensed psychologist T.
Rodney Swearingen, Ph.D., who opined, among other things,
that Plaintiff would have some problems understanding,
remembering, and carrying out instructions. (Id.
(citing Tr. 986-90)). The ALJ gave this opinion some weight,
explaining that the opinion concerns Dr. Swearingen's
area of expertise, but also noting that the opinion
“does not provide specific limitations” and that
his limitations “primarily concern [Plaintiff's]
subjective report, rather than references to clinical
the ALJ considered the opinion of consultative examiner Dr.
Guy Klein who opined, among other things, that Plaintiff has
mild limitations with lifting and carrying weight.
(Id. (citing Tr. 992-1002)). The ALJ gave this
opinion some weight, explaining ...