Hescht v. Commissioner of Social Security Administration
Memorandum Opinion Adopting Report and Recommendation 21 . The Commissioners final determination denying Plaintiffs application for Supplemental Security Income benefits is hereby affirmed.This case is hereby terminated. Judge Donald C. Nugent(C,KA)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
COMMISSIONER OF SOCIAL SECURITY,
CASE NO. 4:13 CV 2101
JUDGE DONALD C. NUGENT
Magistrate Judge James R. Knepp II
This matter is before the Court on the Report and Recommendation of Magistrate Judge
James R. Knepp II (Docket #21), recommending that the Commissioner of Social Security’s
final determination denying Plaintiff, Sondra Hescht’s application Supplemental Security
Income be affirmed.
Factual and Procedural Background
As set forth by the Magistrate Judge, the factual and procedural history of this case is as
Plaintiff filed for SSI on November 25, 2009 alleging disability due to
bipolar disorder, migraines, back pain, depression, and asthma since her amended
alleged onset date of November 25, 2009. (Tr. 13, 153, 167, 173). Her claims
were denied initially and on reconsideration. (Tr. 91, 95, 101, 105). Plaintiff then
requested a hearing before an administrative law judge (“ALJ”). (Tr. 108).
Plaintiff (represented by counsel) and a vocational expert (“VE”) testified at the
hearing, after which the ALJ found Plaintiff not disabled. (Tr. 10, 34). The
Appeals Council denied Plaintiff’s request for review, making the hearing
decision the final decision of the Commissioner. (Tr. 1); 20 C.F.R. §§ 416.1455,
416.1481. On September 20, 2013, Plaintiff filed the instant case. (Doc. 1).
Prior to the instant case, Plaintiff filed for SSI on July 3, 2007, and alleged
a disability onset date of March 15, 2001. (Tr. 13, 71). On October 15, 2009, an
ALJ found Plaintiff was not disabled and restricted her to a range of medium
work. (Tr. 68, 74). That decision was affirmed initially and on reconsideration.
(Tr. 87, 88). The ALJ in the instant case determined she was not bound by this
prior decision because Plaintiff amended her onset date to November 25, 2009,
which was subsequent to the date of the initial disability determination. (Tr. 13).
Drummond v. Comm’r of Soc. Sec., 126 F.3d 837, 842 (6th Cir. 1997); see also
Acquiescence Ruling 98-4(6). Nevertheless, the instant ALJ believed the October
2009 decision had precedential value regarding Plaintiff’s condition at that time.
Personal and Vocational History
Born May 22, 1960, Plaintiff was 49 years old on the date her application
was filed. (Tr. 25). She has an eleventh-grade education and no past relevant work
experience. (Tr. 25, 42). At the hearing, Plaintiff had difficulty remembering her
employment history but was able to recall brief stints as a cashier, fast food
worker, and ceramics maker. (Tr. 45-50).
Plaintiff lived alone in subsidized housing. (Tr. 43-44). She said her
children would sometimes shop for her, but she went to the grocery store twice
per month for TV dinners, adding she did not usually cook a full meal for herself.
(Tr. 55). She was able to perform household chores “sometimes” but said pain
limited her ability to sweep the floors. (Tr. 58-59). Plaintiff had not obtained a
new driver’s license since her 1998 DUI conviction because she could not see or
sit well enough to drive. (Tr. 41). She said she did not drink alcohol, smoke, or
take un-prescribed drugs. (Tr. 57, 60).
Plaintiff averred she could not work due to body pain and numbness
causing a loss of control and sudden falls, headaches, inability to communicate
with others, and depression. (Tr. 51, 53-54). She said the falls were due to low
potassium, and with medication, she fell less frequently than she used to – only
twice in the last six months. (Tr. 52). However, later in the hearing, Plaintiff said
she would fall on the stairs a few times per week due to dizziness and poor
eyesight. (Tr. 59). Regarding headaches, Plaintiff said medication did not help; a
fact she did not tell her doctor because she did not want to constantly ask for
stronger medication. (Tr. 54). She took Percocet three times per day, which she
said relieved her pain “[a] little”. (Tr. 59). Plaintiff alleged trouble remembering,
concentrating, and focusing, and said she experienced crying spells in the past.
(Tr. 58). Plaintiff said she generally did not have trouble getting along with
and had trouble breathing due to asthma. (Tr. 56-58). Plaintiff thought she could
only stand for fifteen minutes, probably walk around the block, and lift “maybe
ten pounds”. (Tr. 56-57).
On July 19, 2007, Plaintiff saw Ghazanfar Ahmed, M.D., for lower-back,
shoulder, and right leg pain which had lasted several years. (Tr. 230). She said she
had self-treated with ibuprofen and Tylenol but the pain was getting worse,
especially with standing. (Tr. 230). Plaintiff also complained of severe
depression and anxiety and had not seen a doctor in several years because she lost
her medical card. (Tr. 230). In addition, Plaintiff developed dermatitis in the back
of her neck. (Tr. 230). Dr. Ahmed indicated Plaintiff smoked one pack of
cigarettes per day and conducted a physical examination, which was normal aside
from a rash, positive straight leg raise tests bilaterally, and lumbosacral
tenderness. (Tr. 230). Dr. Ahmed assessed dermatitis, lumbosacral pain,
depression, and anxiety, and prescribed medication accordingly. (Tr. 231).
Plaintiff returned to Dr. Ahmed on January 14, 2008 because she was out
of blood pressure medication and complained of headaches, chest pain, and
shortness of breath. (Tr. 229). Plaintiff’s physical examination was unremarkable
and Dr. Ahmed resumed Plaintiff’s blood pressure medication but indicated her
depression and asthma were stable. (Tr. 229).
The following month, Plaintiff told Dr. Ahmed she ran out of anxiety
medication and was consequently feeling anxious. (Tr. 227). She complained of
worsening headaches with photophobia, phonophobia, and some nausea and
vomiting. (Tr. 227). Following an unremarkable physical examination, Dr.
Ahmed prescribed Zomig and resumed Xanax. (Tr. 227).
Plaintiff sought treatment from Columbiana County Counseling Center
(“Columbiana”) on October 2, 2007 due to depression and difficulty sleeping. (Tr.
240-51, 255-56). She reported being on Celexa and Xanax but said she lost her
medical benefits for failing to keep an appointment. (Tr. 240-51, 255-56).
Plaintiff sporadically followed up at Columbiana. On January 6, 2009, she
was anxious and tearful. (Tr. 254). At a medication check on January 20, 2009,
the treatment provider diagnosed bipolar disorder, indicated Plaintiff was angry
about her cholesterol level, refused to have her blood drawn, and was angry about
not being provided a high enough dose of Xanax. (Tr. 252). Plaintiff said she last
worked as a babysitter. (Tr. 241). At the time, she lived with a relative. (Tr. 240).
On July 29, 2009, Columbiana closed Plaintiff’s case because she had not
returned for treatment. (Tr. 234-38).
On February 16, 2009, K.A. Kaza, M.D., completed a mental status
questionnaire where he noted Plaintiff’s fair appearance, fair flow of conversation
and speech, and poor abilities to remember, understand, and follow directions;
maintain attention; sustain concentration; persist at tasks and complete them in a
timely fashion; interact socially; and adapt. (Tr. 259-60). Dr. Kaza predicted
Plaintiff would react poorly to pressure in a work setting that involved simple,
routine, or repetitive tasks. (Tr. 260).
On February 1, 2009, Plaintiff underwent an initial psychiatric evaluation
related to depression and stress. (Tr. 268). She did not report physical pain but
said she was unable to perform daily activities and was not sleeping well. (Tr.
268). The treatment provider diagnosed major depressive disorder. (Tr. 276).
Thereafter, Plaintiff had several follow-up individual counseling sessions
and periodic medication management appointments where she worked on coping
strategies, medication compliance, awareness of symptoms, and ways to increase
her circle of friends. (Tr. 290, 291-93, 296, 298, 301). Throughout her course of
treatment spanning from February 1, 2009 to January 1, 2010, Plaintiff
consistently said her medication was effective, her mood stabilized, and her
depression, coping skills, and anxiety improved. (Tr. 280-81, 291, 296-97). She
regularly appeared well-groomed, reported varying degrees of trouble sleeping,
and often complained of situational family problems. (Tr. 279, 282-89, 290-93,
Social worker Amy Frampton, LISW, completed a mental status
questionnaire on January 31, 2010. (Tr. 263). Ms. Frampton noted Plaintiff visited
with relatives occasionally and did not get along with former employers because
the managers were “mean”. (Tr. 262). However, Plaintiff was never disciplined
or fired. (Tr. 262). When asked to provide examples of anything that might
prevent work activities for a normal workday or workweek, Ms. Frampton
said Plaintiff would have a hard time dealing with people because of anxiety,
would not handle stress well, and due to physical problems, could not stand. (Tr.
262). She reported Plaintiff cooked TV dinners, cleaned her house except for the
floors, maintained personal hygiene, went shopping, banked and paid bills, and
did not have hobbies. (Tr. 263).
Plaintiff visited M. Singh, M.D., primarily for medication management
and prescription refills from March 12, 2008 to March 1, 2012. (Tr. 325-42,
423-42). She had a well-woman exam on May 11, 2009, which was
unremarkable. (Tr. 344-61). On February 18, 2010, Dr. Singh noted Plaintiff had
fallen four times in the past week. (Tr. 342). However, radiologic imaging of
Plaintiff’s right foot revealed no evidence of osseous, articular, or soft tissue
despite complaints of right foot pain and unsteady gait. (Tr. 365). On November
11, 2010, Dr. Singh described Plaintiff as “overmedicated”, said she had not
fallen for two weeks, and did not administer refills because Plaintiff told him she
was “fine”. (Tr. 427).
On April 27, 2010, Dr. Kaza evaluated Plaintiff’s psychiatric health. (Tr.
416). Plaintiff said she was nervous and could not sleep while her disability
application was being reevaluated. (Tr. 415). She also feared losing her medical
card. (Tr. 415). Otherwise, she said her mood swings and anxiety had decreased.
(Tr. 415). Socially, Plaintiff dropped out of school when she was
seventeen-years-old because she was pregnant. (Tr. 416). While in school,
Plaintiff received good grades but said she did not like it. (Tr. 416). On mental
status examination, Plaintiff was well-groomed with clear speech, a withdrawn
demeanor, auditory hallucinations, logical and concrete thought process,
somewhat intermittent eye contact, and bizarre or phobic delusions. (Tr. 416).
She had a depressed, anxious, angry, and irritable mood; constricted affect; was
cooperative; exhibited a loss of interest; and had trouble with memory and ability
to abstract. (Tr. 417). Dr. Kaza estimated Plaintiff had borderline intelligence and
poor-to-fair insight and judgment. (Tr. 417). Dr. Kaza diagnosed bipolar and
depressive disorders. (Tr. 417).
On May 19, 2010, Dr. Singh administered a stress test to address
Plaintiff’s dyspnea with exertion, hypercholesterolemia, asthma, chronic
obstructive pulmonary disease (“COPD”), chest pain, and dizziness. (Tr. 385).
The report indicated that Plaintiff had smoked one pack per day for the past thirty
years but had quit three months ago. (Tr. 385). Plaintiff developed back pain,
chest pressure, and shortness of breath during the infusion of Lexiscan, her
hemodynamic response was normal, and the resting ECG demonstrated normal
sinus rhythm and a normal pattern. (Tr. 385). The test was negative for ischemia.
On December 30, 2010, Dr. Singh wrote that Plaintiff could not work
“secondary to multiple problems” including severe bipolar disorder, depression,
possible connective tissue disease, and back and leg pain. (Tr. 409). He said she
could not stand or sit for more than one half-hour. (Tr. 409).
On October 28, 2011, Dr. Kaza completed an updated adult diagnostic
assessment where he indicated Plaintiff was stressed over her welfare benefits,
depression, and anxiety. (Tr. 410). Plaintiff’s mental status examination was
unremarkable aside from a depressed and anxious mood and some impairments in
memory and concentration. (Tr. 414).
Dr. Singh signed off on Plaintiff’s self-reported abilities on February 1,
2012. (Tr. 421). There, Plaintiff said she could stand or walk for two hours in an
eight-hour workday due to leg and back pain, sit for three hours in an eight-hour
workday due to back pain, lift up to ten pounds, and would occasionally require
additional breaks due to leg pain and migraines. (Tr. 421). In addition, Plaintiff
said she experienced six-to-eight bad days per month during which she would not
be able to complete an eight-hour shift. (Tr. 421).
On February 7, 2012, Dr. Kaza similarly signed off on Plaintiff’s
self-reported abilities. (Tr. 422). There, Plaintiff said she would often have
difficulty interacting with supervisors and co-workers, and maintaining
concentration, persistence, and pace during an eight-hour workday. (Tr. 422).
She would have occasional difficulty managing a low-stress work environment
would miss six-to-eight days per month due to symptoms. (Tr. 422).
Plaintiff’s friend, Rhonda L. Jones, wrote a statement regarding Plaintiff’s
disability on April 12, 2012. (Tr. 221). She said Plaintiff had “bad nerves”,
depression, did not like to leave her apartment, could not deal with people in the
public, had leg pain and back pain, would sometimes fall, and had bad headaches.
(Tr. 221). Ms. Jones said she could not see Plaintiff working “at all”. (Tr. 221).
State Agency Review and Examination
On February 9, 2010, state agency reviewing physician Paul Tangeman,
Ph.D., reviewed Plaintiff’s records and completed a psychiatric review technique
and mental residual functional capacity (“RFC”) assessment. (Tr. 306, 320). He
opined that due to bipolar and depressive disorders, Plaintiff had mild limitations
in ability to complete activities of daily living and moderate limitations in abilities
to maintain social functioning, concentration, persistence, and pace. (Tr. 309,
316). Then, Dr. Tangeman adopted the prior ALJ’s October 2009 mental RFC
determination under Drummond, supra, which limited Plaintiff to work that
entailed only routine, repetitive instructions and tasks within a low-stress
environment without production line type of pace or independent decision making
responsibilities, no interaction with the general public, and no more than
occasional interaction with co-workers and supervisors. (Tr. 74, 322).
Consultative examiner Gabriel E. Sella, M.D., examined Plaintiff on
March 9, 2010, and reported generally normal findings concerning strength,
grasp, manipulation, pinch, fine coordination, and range of motion in all
extremities. (Tr. 367-70). In an accompanying report, Dr. Sella recounted
Plaintiff’s symptoms of back pain, migraine headaches, bipolar disorder,
depression, and asthma. (Tr. 371). Dr. Sella said Plaintiff was a heavy smoker up
until one year ago, heavy caffeine drinker, and denied use of alcohol. (Tr. 372,
374). Plaintiff did not use a cane and walked in and out of the exam office without
difficulty. (Tr. 372). She had no trouble getting on and off the exam table or
getting dressed. (Tr. 372). Plaintiff had normal judgment, insight, memory, and
mental status but testing revealed severe anxiety. (Tr. 373). Dr. Sella concluded
Plaintiff was capable of sitting without restrictions, standing and walking for
twenty minutes at a time several times per day, lifting and carrying light weights
several times a day, handling light objects, hearing, speaking, and traveling. (Tr.
On April 20, 2010, state agency reviewing physician Leslie Green, M.D.,
reviewed Plaintiff’s records and adopted the October 2009 RFC finding under
Drummand, supra, which determined Plaintiff was capable of a range of medium
work except no climbing of ladders, ropes, or scaffolds, and no exposure to
temperature extremes, hazards, or environmental pollutants. (Tr. 74, 376-83).
David Brock, D.O., affirmed Dr. Green’s findings on September 8, 2010. (Tr.
A second mental RFC assessment and psychiatric review technique was
completed by state agency reviewing psychologist Todd Finnerty, Psy.D., on July
20, 2010. (Tr. 390, 394). There, Dr. Finnerty found Plaintiff was either not
significantly limited or moderately limited in all areas of mental functioning due
to major depressive and bipolar disorders. (Tr. 390-91, 397, 404). He concluded
Plaintiff maintained the ability to work in an environment with infrequent,
superficial social interaction with supervisors, co-workers, or the general public
and without frequent changes or fast-paced production quotas. (Tr. 392).
The ALJ found Plaintiff had severe impairments of major depressive
disorder, bipolar disorder, generalized anxiety disorder, migraine headaches, back
pain/strain, and asthma. (Tr. 15). The ALJ then concluded Plaintiff did not meet
or medically equal any listed impairment. (Tr. 16). Based on Plaintiff’s
impairments and the record, the ALJ found Plaintiff had the RFC to perform a
range of light work but with the following nonexertional limitations: entails no
climbing of ladders, ropes, or scaffolds; could occasionally climb ramps or stairs,
balance, stoop, crouch, kneel, or crawl; entails no exposure to temperature
extremes, hazards, or environmental pollutants; must be afforded the opportunity
for brief, one-to-two minute changes of position at intervals not to exceed fifteen
minutes without being off task; entails only routine, repetitive instructions, and
tasks within a low-stress environment; entails no production line type of pace or
independent decision making responsibilities; and entails no interaction with the
general public and no more than occasional interaction with co-workers and
supervisors. (Tr. 17).
Then, after considering VE testimony and Plaintiff’s age, education, work
experience, and RFC, the ALJ found Plaintiff could perform work in the national
economy as a laundry folder and garment maker and sorter. (Tr. 25-6). Therefore,
the ALJ concluded Plaintiff was not disabled. (Tr. 26).
Report and Recommendation at pp. 2-10. (Footnotes omitted).
Report and Recommendation
Plaintiff filed her Complaint with this Court on September 20, 2013, challenging the final
decision of the Commissioner. (Docket #1.) On November 24, 2014, the Magistrate Judge
issued his Report and Recommendation. (Docket #21.) The Magistrate Judge found the
Commissioner’s decision denying Supplemental Security Income benefits to be supported by
substantial evidence. On December 5, 2014, Plaintiff filed her Objection to the Report and
Recommendation. (Docket #22.) On December 16, 2014, the Commissioner filed a Response to
Plaintiff’s Objection. (Docket #23.)
Standard of Review for a Magistrate Judge’s Report and Recommendation
The applicable district court standard of review for a magistrate judge’s report and
recommendation depends upon whether objections were made to the report. When objections
are made to a report and recommendation of a magistrate judge, the district court reviews the
case de novo. FED. R. CIV. P. 72(b) provides:
The district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to. The district judge may accept,
reject, or modify the recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions.
The standard of review for a magistrate judge’s report and recommendation is distinct
from the standard of review for the Commissioner of Social Security’s decision regarding
benefits. Judicial review of the Commissioner’s decision, as reflected in the decisions of the
ALJ, is limited to whether the decision is supported by substantial evidence. See Smith v.
Secretary of Health and Human Servs., 893 F.2d 106, 108 (6th Cir. 1989). “Substantial evidence
exists when a reasonable mind could accept the evidence as adequate to support the challenged
conclusion, even if that evidence could support a decision the other way.” Casey v. Secretary of
Health and Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993) (citation omitted).
This Court has reviewed the Magistrate Judge’s Report and Recommendation de novo
and has considered all of the pleadings, transcripts, and filings of the parties, as well as the
objections to the Report and Recommendation filed by Plaintiff. After careful evaluation of the
record, this Court adopts the findings of fact and conclusions of law of the Magistrate Judge as
Magistrate Judge Knepp thoroughly and exhaustively reviewed this case, and correctly
found the Commissioner’s decision denying Supplemental Security Income benefits to be
supported by substantial evidence. Accordingly, the Report and Recommendation of Magistrate
Judge Knepp (Document # 21) is hereby ADOPTED. The Commissioner’s final determination
denying Plaintiff’s application for Supplemental Security Income benefits is hereby
This case is hereby TERMINATED.
IT IS SO ORDERED.
s/Donald C. Nugent
DONALD C. NUGENT
United States District Judge
DATED: January 9, 2015
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