Grear v. Commissioner of Social Security

Filing 20

Memorandum Opinion and Order Adopting R&R 17 as supplemented with above findings regarding Plaintiff's RFC. The claims for benefits are denied. Judge Jack Zouhary on 11/17/2014. (D,L)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Tiffany Grear,

Case No. 3:13 CV 2407
Plaintiff,

MEMORANDUM OPINION
AND ORDER

-vsJUDGE JACK ZOUHARY
Commissioner of Social Security,
Defendant.

INTRODUCTION
In this social security appeal, Plaintiff Tiffany Grear timely filed a Complaint (Doc. 1) against
the Commissioner of Social Security, seeking judicial review of the Commissioner’s decision to deny
claims for a Period of Disability (“POD”), Disability Insurance Benefits (“DIB”) and Supplemental
Social Security Income (“SSI”). This Court has jurisdiction under 42 U.S.C. § 405(g).
This case was referred to Magistrate Judge White who issued a Report and Recommendation
(“R&R”) recommending this Court affirm Commissioner’s denial of benefits (Doc. 17). Before this
Court is Plaintiff’s Objection to the R&R (Doc. 18) and the Commissioner’s Response (Doc. 19).
Pursuant to Hill v. Duriron Co., 656 F.2d 1208 (6th Cir. 1981) and 28 U.S.C. §§ 636(b)(1)(B) & (C),
this Court has made a de novo determination of the Magistrate Judge’s findings. For the reasons
below, this Court adopts the recommendation to deny the claims for benefits.

BACKGROUND
The R&R accurately recites the relevant factual and procedural background from the
administrative record, and this Court adopts them in their entirety (see Doc. 17 at 2–3). Briefly,
Plaintiff is now 50 years old. She previously worked as a dispatcher for a trucking company and gas
station clerk and had worked continuously between 1982 and 2007, the date of her alleged onset of
disability. She is a high school graduate. Plaintiff’s disability claims are premised on her morbid
obesity (Plaintiff is 5'4" and weighs 443 pounds), osteoarthritis, depression, anxiety, effects from a
colon resection performed in 2000, breathing problems, and sleep apnea.
The Administrative Law Judge (“ALJ”) concluded that only Plaintiff’s morbid obesity and
osteoarthritis constituted “severe impairments” under the third step of the sequential analysis (AR 53)
and that these impairments did not meet a listed impairment in 20 C.F.R. Part 404 (AR 56). The ALJ
concluded that, considering Plaintiff’s residual functional capacity (“RFC”), jobs exist in significant
numbers in the national economy (AR 56–60).
STANDARD OF REVIEW
In reviewing a denial of POD, SSI, or DIB, this Court “must affirm the Commissioner’s
conclusions absent a determination that the Commissioner has failed to apply the correct legal
standards or made findings of fact unsupported by substantial evidence in the record.” Walters v.
Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997) (citing 42 U.S.C. § 405(g)). Judicial review
is limited to “whether the ALJ applied the correct legal standards and whether the findings of the ALJ
are supported by substantial evidence.” Blakely v. Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th Cir.
2009). “Substantial evidence is more than a scintilla of evidence but less than a preponderance and
is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

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Besaw v. Sec’y of Health & Human Servs., 966 F.2d 1028, 1030 (6th Cir. 1992). The Commissioner’s
findings “as to any fact if supported by substantial evidence shall be conclusive.” McClanahan v.
Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (quoting 42 U.S.C. § 405(g)). Even if
substantial evidence, or indeed a preponderance of the evidence, supports a claimant’s position, the
court cannot overturn the Commissioner’s decision “so long as substantial evidence also supports the
conclusion reached by the ALJ.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003).
DISCUSSION
Plaintiff objects to the ALJ’s RFC finding, which was (AR 56):
[C]laimant has the residual functional capacity to perform light work as defined in 20
CFR 404.1567(b) and 416.967(b) except the claimant should never climb ladders,
ropes, or scaffolds. She should never crawl. She can occasionally climb ramps and
stairs. She can occasionally (1/3 of the time) stoop, kneel, and crouch. She should
avoid all hazardous machinery and heights. She is able to understand and carryout
both simple and complex tasks that do not require strict production demands. She
would be able to interact appropriately with others but would work best in an
environment that does not require contact with the public on an occasional basis. The
work should be low stress and non-production paced. The claimant would need a
sit/stand, at-will work option.
She contends the ALJ “failed to properly consider [her] morbid obesity and the fact that—in
combination with her other impairments—the record indicates that she would not be able to bend,
push, or pull one-third of the day” (Doc. 18 at 1). Plaintiff further disagrees with the finding that she
can occasionally stoop, kneel, and crouch and contends the ALJ (and R&R) fails to account for
medical records indicating she required a cane or walker in order to ambulate. She also contends the
ALJ failed to account for medical evidence demonstrating “possible cervical myelopathy due to an
inability to raise her arms after surgery” (Doc. 18 at 3). Because the RFC did not accurately reflect
Plaintiff’s abilities, she argues the vocational expert’s testimony premised on the RFC cannot support
the ALJ’s findings.
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The Commissioner argues that Plaintiff did not raise this issue in her initial briefing or reply,
instead focusing her appeal to this Court on the weight the ALJ gave her treating physician, Dr.
Krendl and the ALJ’s finding that, aside from her obesity and osteoarthritis, Plaintiff’s other
conditions did not constitute “severe impairments” (Doc. 19 at 1). But, Plaintiff’s Opening Brief did
argue that the “ALJ failed to construct an appropriate residual functional capacity that considered the
full extent of all her impairments, including her morbid obesity” (Doc. 14 at 17) (emphasis in
original).
In assessing Plaintiff’s RFC, the ALJ did factor in her obesity. First and foremost, the ALJ
found Plaintiff’s obesity to be a “severe impairment” at the second step of the sequential analysis and
then considered that impairment throughout the remaining steps. In addition, the ALJ further limited
the residual functional assessment conclusions from Dr. Muhammad Khan in recognition of Plaintiff’s
obesity. “I gave some weight to Dr. Kahn’s opinion as it is supported by the medical evidence but
I placed the claimant at a more restrictive level of exertion to accommodate what appear to be the
effects of her obesity” (AR 58).
To the extent Plaintiff contends the ALJ was required to make an RFC finding reflecting Dr.
Krendl’s functional assessment opinion (AR 476–88) that Plaintiff can never sit, stoop, kneel, or
crouch and that she was unable to ambulate, the ALJ adequately explained why Kr. Krendl’s opinion
was afforded “some” but not “controlling” weight (AR 58), and this Court adopts the R&R’s analysis
concluding the same.

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CONCLUSION
Plaintiff’s Objection (Doc. 18) is overruled. This Court adopts the R&R (Doc. 17) as
supplemented with the above findings regarding Plaintiff’s RFC. The claims for benefits are denied.
IT IS SO ORDERED.
s/ Jack Zouhary
JACK ZOUHARY
U. S. DISTRICT JUDGE
November 17, 2014

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