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Guerrero v. Commissioner of Social Security

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

December 13, 2019

DEBORAH GUERRERO, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Edmund A. Sargus, Jr. Judge

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Deborah Guerrero, brings this action under 42 U.S.C. § 405(g) seeking review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her application for Supplemental Security Income Benefits (“SSI”). For the reasons set forth below, it is RECOMMENDED that Plaintiff's Statement of Errors (Doc. 9) be OVERRULED and that judgment be entered in favor of Defendant.

         I. BACKGROUND

         Plaintiff filed her application for SSI on March 16, 2016, alleging that she was disabled beginning November 30, 2014. (Tr. 575-80). After her application was denied initially and on reconsideration, the Administrative Law Judge (the “ALJ”) held a hearing on November 30, 2018. (Tr. 429-54). On December 18, 2018, the ALJ issued a decision denying Plaintiff's application for benefits. (Tr. 11-26). The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-5).

         Plaintiff filed the instant case seeking a review of the Appeals Council's decision on April 15, 2019 (Doc. 1), and the Commissioner filed the administrative record on July 1, 2019 (Doc. 8). This matter is now ripe for review. (See Docs. 9, 10, 11).

         In his decision, the ALJ found that Plaintiff had not engaged in substantial gainful activity since March 15, 2016, the application date. (Tr. 13). He found that Plaintiff suffers from the following severe impairments: degenerative disc disease of the cervical and lumbar spine, osteoarthritis/degenerative joint disease of the right knee, sleep apnea, and diagnosis of fibromyalgia. (Id.). The ALJ, however, found that none of Plaintiff's impairments, either singly or in combination, met or medically equaled a listed impairment. (Tr. 16).

         As for Plaintiff's residual functional capacity (“RFC”), the ALJ opined:

[T]he claimant has the residual functional capacity to perform a range of light work. More specifically, the claimant can lift and/or carry 20 pounds occasionally and 10 pounds frequently; can sit for up to six hours in a workday; can stand and/or walk for up to six hours in a workday; can push and/or pull as much as can lift and/or carry; can frequently operate foot controls with the right foot; can occasionally climb ramps, stairs, ladders, ropes or scaffolds; can occasionally balance, stoop, kneel, crouch and crawl; can occasionally work at unprotected heights and operate a motor vehicle; and can frequently work with moving mechanical parts and in vibration.

(Tr. 17).

         A. Relevant Hearing Testimony

         The ALJ summarized the testimony from Plaintiff's hearing:

At the hearing, the claimant's assertions of mental complaint remained secondary, minimal, and general, such as stating she had depression and problems with short-term memory. Treatment was conservative, consisting primarily of medication. Any counseling was infrequent and had become even less. (See previous discussion of non-severe/non-medically determinable impairment). With respect to her primary complaint, the claimant's focus was on the symptom of pain. She said she stopped working in 2014 because of back pain radiating into the shoulders. She did not believe she could return to that job (i.e. Quality Assurance) because she could not be on her feet, had recent fainting spells, and had back and hip pain. The claimant said she filed a prior application in 2010 because of issues with her back; it was her contention now that her back was worse. Yet, she also denied work from 2007 to 2011 not because of alleged impairment [but] because of having moved to another state.
According to the claimant, treatment for asserted pain, be it back, knee, or other pain, was primarily conservative, consisting of medication management. She had historically had injections but denied more than a couple of days of benefit. She had historically had an ablation treatment but denied any benefit. She said a couple of knee aspirations and a minimally invasive laparoscopic procedure on the right had been helpful. She had obstructive sleep apnea (OSA). Treatment was likewise conservative, such as use of a CPAP and/or medication; treatment was helpful. She vaguely alleged recent black out/fainting spells. She used medication and took other conservative measures for asserted urinary frequency. The claimant vaguely, somewhat evasively, and unpersuasively said she “can't lift hardly anything anymore.” She maintained she could be on her feet only “a couple of minutes.” She took breaks when performing chores such as vacuuming and washing dishes.

(Tr. 18-19).

         B. Relevant Medical Evidence

         The ALJ also usefully summarized Plaintiff's medical records and symptoms. First, in considering whether Plaintiff's mental health impairment is severe, the ALJ considered her mental health records:

Medical records fail to support finding mental impairment severe. The claimant did not seek out or require any regular specialized mental health treatment. To the extent treatment was received, it was conservative, consisting of medication management with a general practitioner. The claimant rarely had complaint of mental health symptomatology. When she did have complaint, it was acute, situational in nature at times, and not inappropriate. For example, she had complaint secondary to financial concerns (Exhibit l7F/ 13, 21) and/or familial issues (e.g., Exhibit 3F/ 101). Mental status findings were not proved significantly deficient on any persistent or sustained basis. Rather, aside from a general reference to an anxious, depressed, and/or constricted mood and/or affect at times, and even more rare, if not only singular, of irritability or flight of ideas, mental status findings were unimpressive. This included no significant and persistent deficit in areas such as appearance, behavior, speech, thought processes or content, memory, attention, concentration, persistence, pace, psychomotor function, alertness, orientation, intellect or higher cognitive functions, interactions or social functioning. (Exhibits 3F/ 16, 18-19, 22, 24, 27, 58, 65, 71, 76, 81, 84, 87, 91, 93, 95-96, 97-98, 99-100, 101-02; 4F/5, 19; 7F/2, 4-5, 6-7, 8-9, 15-16; 12F/ l; 16F/5-6, 14; 17F/ l -2, 3-4, 5-6, 7, 13-14, 15-16, 18, 21-22, 2428, 31, 34, 38-39, 41-42, 43-44, 47, 51, 54, 57-58; 20F/31; 22F/3, 7-8, 10-11; and 23F). Records were absent any form of increasingly intensive psychiatric or psychological treatment indicating serious and ongoing mental health instability during the period at issue.

(Tr. 15).

         Then, the ALJ considered records pertaining to Plaintiff's back impairment:

Returning to medical records, first in terms of the back/spine, while there was degenerative disc disease, the degree of impairment alleged was not fully supported by the objective medical record. Diagnostically in this case, degenerative changes were primarily mild and no more than mild to moderate within the cervical and/or lumbar spine. There was no significant canal or neural foramina narrowing. There was no lumbar spinal stenosis resulting in pseudolcaudication. There was no herniation, fracture, or subluxation. The sacroiliac joints were intact. Alignment, vertebral body heights, and soft tissues were intact. While there was osteopenia, there was no osteoporosis. (e.g., Exhibits 3F/40, 107, 115, 118; 8F/4-9, 68-69, 88; and 20F/33, 49). In addition, there was no definitive nerve root compression and there was no spinal cord compromise. This included electromyography (EMG)/Nerve Conduction Study (NCS) (Exhibit 8F/4-9). While such testing might suggest possible radiculopathy or myopathy, there were no findings strong enough for any such definitive findings and the diagnostic testing as discussed above did not substantiate or support finding significant nerve root compression or spinal cord compromise.
Objective clinical findings likewise failed to support the degree of back/spine impairment alleged by the claimant. Decreased range of motion, if any, was highly colored by subjective assertion of pain and/or tenderness. Strength was unremarkable, with no significant and sustained weakness. Reflexes and sensation were unimpressive, with motor and sensory function within normal limits. Aside from subjective tenderness, joints were intact, with no sustained redness, warmth, swelling, edema, crepitus, laxity, instability, or synovitis. There was no atrophy, clonus, flaccidity, spasticity, or fasciculation. The claimant did not have an inability to ambulate independently and effectively, including records repeatedly absent any indication of use, let alone medically necessary and required use, of an ambulatory assistive device such as a cane. (e.g., Exhibits 3F/ 16, 18-19, 22, 24, 27, 71, 76, 81, 84, 87; 4F/5, 19; 7F/2, 11, 17; 8F/91-93, 100, 104, 150-51, 155-56; 12F/ l; 14F/4, 8; 16F/5-6, 14; 17F/ 10, 18, 24, 28, 31, 34, 47, 51, 54;20F/31; 22F/3, 10-11; and 23F).
While the claimant received treatment for complaint of back/spine pain, treatment was primarily conservative with medication. The claimant required no regular and extensive aggressive specialized care for the spine or surgical intervention. Objective medical records were absent evidence of significant progression or worsening during the period at issue. While the claimant might take breaks in performance of activities and/or do activities less frequently, objective medical records were not supportive of the degree of limitation now alleged, including no evidence [sic] to corroborate the claimant's vague assertion of being able to stand only a couple of minutes or unable to lift “hardly anything.” Based upon the objective medical record, such assertions are suggestive of exaggeration. Given such aforementioned evidence and consideration of the longitudinal record, limitation to light exertional work and additional nonexertional limitation to occasional posturals, occasional work at unprotected heights, ...

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