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Flack v. Commissioner of Social Security

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

June 27, 2019

SUSAN FLACK Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Sarah D. Morrison Judge

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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 Commissioner's decision.

         I. BACKGROUND

         Plaintiff 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).

         Plaintiff 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).

         A. Relevant Hearing Testimony Medical Background

         The ALJ 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).

(Tr. 18-19).

         B. The ALJ's Decision

         The ALJ 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.).

         As to 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.

(Tr. 17).

         Upon “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).

         As for 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.” (Id.).

         The ALJ 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 findings.” (Id.).

         Next, 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 ...


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