Clonch v. Commissioner of Social Security

Filing 19

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Amanda J Clonch. It is RECOMMENDED that the decision of the Commissioner be REVERSED pursuant to Sentence 4 of 42 U.S.C. § 405(g) and that this action be REMANDED for further consideration. Objections to R&R due by 9/3/2015. Signed by Magistrate Judge Norah McCann King on 8/17/2015. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

AMANDA J. CLONCH,
Plaintiff,
vs.

Civil Action 2:14-cv-2327
Judge Watson
Magistrate Judge King

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
This is an action instituted under the provisions of 42 U.S.C. §
405(g) for review of a final decision of the Commissioner of Social
Security denying plaintiff’s application for disability insurance
benefits and supplemental security income.

This matter is now before

the Court for consideration of Plaintiff’s Statement of Errors, ECF 12
(“Statement of Errors”), Defendant’s Memorandum in Opposition, ECF 17
(“Commissioner’s Response”), and Plaintiff’s Reply to the Defendant’s
Memorandum in Opposition, ECF 18 (“Reply”).
I.

Background
Plaintiff Amanda J. Clonch protectively filed her applications

for benefits in January 2011, alleging that she has been disabled
since August 1, 2002.

PAGEID 72, 234-46.

The applications were

denied initially and upon reconsideration and plaintiff requested a de
novo hearing before an administrative law judge.
67, 187-88.
1

PAGEID 133-58, 162-

An administrative hearing was held on May 24, 2013, at which
plaintiff, represented by counsel, testified, as did William J. Kiger,
who testified as a vocational expert.

PAGEID 77-104.

In a decision dated July 5, 2013, the administrative law judge
concluded that plaintiff was not disabled from August 1, 2002, through
the date of the administrative decision.

PAGEID 62-72.

Plaintiff was 28 years of age on the date of the administrative
law judge’s decision.

PAGEID 72, 179.

She has a limited education,

is able to communicate in English, and has past relevant work as a
cashier and telemarketer.

PAGEID 70-71.

Plaintiff met the insured

status requirements of the Social Security Act only through December
31, 2009.

PAGEID 64.

She has not engaged in substantial gainful

activity since August 1, 2002, her alleged disability onset date.
II.

Id.

Evidence of Record1
John R. Ellison, D.O., plaintiff’s family doctor, examined

plaintiff on January 17, 2011, at which time plaintiff weighed 170
pounds.

PAGEID 347-48.

Dr. Ellison diagnosed lumbar spondylosis,

chronic pain, and adjustment disorder with anxiety and depressed mood,
but he noted that plaintiff’s pain and anxiety were controlled through
medication.

Id.

On March 17, 2011, W. Jerry McCloud, M.D., a state agency
physician, reviewed the record and completed a physical residual
functional capacity assessment.

PAGEID 124-25.

According to Dr.

McCloud, plaintiff could lift and/or carry 50 pounds occasionally and

1

The Court’s discussion of the evidence is limited to the issues presented in
plaintiff’s Statement of Errors.

2

25 pounds frequently, could stand and/or walk, or sit, for about 6
hours in an 8-hour workday.

PAGEID 124.

Because of a nonunion of

her right clavicle, plaintiff was limited in her ability to push
and/or pull and to reach overhead with her upper right extremity;
however, plaintiff was not limited in other manipulative abilities,
including her ability to handle, finger, and feel.

PAGEID 125.

Plaintiff had no postural, visual, communicative, or environmental
limitations.

Id.

Louis Goorey, M.D., a state agency physician, later reviewed
additional evidence and affirmed Dr. McCloud’s findings.

PAGEID 153-

54.
On November 4, 2011, Drew C. Apgar, J.D., D.O., F.C.L.M., a state
agency medical consultant, consultatively examined plaintiff.
373.

Plaintiff, at 5’ 1 ½” tall, weighed 186 pounds.

PAGEID

PAGEID 377.

An

x-ray of plaintiff’s right clavicle showed a plate and screw fixation
of a fracture at the distal third of the clavicle that appeared
nonunited or, possibly, chronically angulated.

PAGEID 385.

Dr. Apgar

noted that the fusion plate was chronically elevated by approximately
one centimeter relative to the clavicle at the medical aspect.

Id.

On clinical examination, plaintiff had intact grasp strength; intact
coordination, pinch, and manipulation; and no joint abnormality.
PAGEID 388.
bearing.

Id.

Plaintiff’s gait was steady, deliberate, and weightShe had no significant compromise in her range of

motion except for the hips bilaterally, although Dr. Apgar noted that
plaintiff, when distracted, had no difficulty sitting cross-legged and
3

putting on her sneakers.

Id.

According to Dr. Apgar, plaintiff would

have some difficulty with sitting, standing, walking, traveling,
lifting, carrying, pushing, and pulling.

Id.

However, Dr. Apgar

noted that plaintiff’s effort during his examination was “fair;” he
viewed the test results as “possibly suspect.”

Id.

Dr. Apgar further

noted that plaintiff was able to get on and off the examination table
without difficulty and showed good posture while seated and standing.
PAGEID 377.

She was able to move around the room and dress and

undress without difficulty.

Id.

He diagnosed, inter alia, chronic

pain syndrome, anxiety with panic features by history, history of
cancer with colon resection and chronic diarrhea, and obesity.
384.

PAGEID

He noted further that she was “obese with no mechanical

limitations and dyspnea due to obesity.”

PAGEID 377.

On February 17, 2012, Dr. Ellison examined plaintiff, recording
plaintiff’s weight at 183 pounds.

PAGEID 404, 406.

In March and

April 2012, plaintiff complained of poor control of low back pain; Dr.
Ellison prescribed additional medication.

PAGEID 407-12.

During a

follow-up visit on July 9, 2012, plaintiff reported that her pain was
controlled.
pounds.

PAGEID 413.

PAGEID 414.

Plaintiff’s weight was recorded at 168

In April 2013, Dr. Ellison reported that

plaintiff had normal movement in all extremities; and she weighed 169
pounds.

PAGEID 859.

III. Administrative Hearing and Decision
Plaintiff testified that she was 28 years old at the time of the
administrative hearing and that she was five feet one inch tall and
4

weighed 160 pounds.

PAGEID 82.

Plaintiff identified her back pain,

chronic diarrhea, right shoulder impairment, and anxiety as the
conditions that prevent her from working.

PAGEID 84-85.

Plaintiff

sees her family doctor every month and her oncologist every six
months.

PAGEID 85-86.

She takes Percocet for her shoulder and back

pain, which sometimes helps to reduce her pain.

PAGEID 86.

She

underwent back surgery in 2001 and three shoulder surgeries, including
the most recent surgery in 2007.

PAGEID 87-88.

Plaintiff underwent physical therapy for one year after her back
surgery and physical therapy for her shoulder after her most recent
shoulder surgery.

PAGEID 88.

She had used braces for her back and

shoulder, but was not using a brace or any assistive device at the
time of the hearing.

PAGEID 88-89.

Plaintiff testified that she

experiences daily, constant shoulder and back pain.

PAGEID 89-90.

Although pain medication and lying down relieve the pain, the pain
returns when she gets up and walks.

PAGEID 90.

She estimated that

her medications reduce her pain level to a six or seven on a ten-point
scale.

Id.

Plaintiff testified that she can sit for up to ten minutes before
needing to stand up and move; she was not sure how many total hours
she could sit in an eight-hour work day.

PAGEID 90-91.

She could

stand for about five or ten minutes at a time for a total of 1 to 1
1/2 hours in a total eight-hour work day.

PAGEID 91.

Lifting a

gallon of milk bothers her right shoulder; she has difficulty reaching
with her right arm.

Id.
5

The vocational expert was asked to assume a claimant with
plaintiff’s vocational profile and a capacity for light work with the
following additional restrictions:

only occasional over-the-head

right reaching; no working around unprotected heights; no commercial
driving; no climbing ropes, ladders, and scaffolds; only occasional
climbing of ramps and stairs; an ability to understand, remember, and
carry out simple, routine, repetitive tasks using judgment permitting
simple, routine-related decisions; and able to interact with the
public on only a superficial basis.

PAGEID 98-99.

The vocational

expert testified that such a claimant could not perform any of
plaintiff’s past jobs but could perform such light, unskilled jobs as
cleaner (approximately 325,000 such jobs in the national economy) and
hand packager (approximately 275,000 such jobs in the national
economy).

Id. The claimant could also perform such sedentary,

unskilled jobs as production worker (approximately 35,800 such jobs in
the national economy) and machine operator, tender feeder
(approximately 29,100 such jobs in the national economy).

PAGEID 99-

100.
In his written decision, the administrative law judge found that
plaintiff’s severe impairments consist of status post right clavicle
fracture, lumbar disc disease, and affective and anxiety disorders.
PAGEID 64.

The administrative law judge also found that plaintiff’s

impairments neither meet nor equal a listed impairment and leave
plaintiff with the residual functional capacity (“RFC”) to perform
light work with the following abilities and limitations:
6

she is

limited to occasional overhead reaching with the right upper
extremity; no exposure to unprotected heights, commercial driving, or
climbing ladders, ropes or scaffolds; occasional climbing ramps and
stairs; performing simple, routine, and repetitive tasks with only
simple work-related decisions; and only superficial interaction with
the public.

PAGEID 65-67.

The administrative law judge relied on the

testimony of the vocational expert to find that, with this RFC,
plaintiff is able to perform a significant number of jobs in the
national economy.

PAGEID 71-72.

Accordingly, the administrative law

judge concluded that plaintiff was not disabled within the meaning of
the Social Security Act from August 1, 2002, through the date of this
decision.
IV.

PAGEID 72.

Discussion
Pursuant to 42 U.S.C. § 405(g), judicial review of the

Commissioner’s decision is limited to determining whether the findings
of the administrative law judge are supported by substantial evidence
and employed the proper legal standards.

Richardson v. Perales, 402

U.S. 389 (1971); Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595
(6th Cir. 2005).

Substantial evidence is more than a scintilla of

evidence but less than a preponderance; it is such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.
See Buxton v. Haler, 246 F.3d 762, 772 (6th Cir. 2001); Kirk v. Sec’y
of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981).

This

Court does not try the case de novo, nor does it resolve conflicts in
the evidence or questions of credibility.
7

See Brainard v. Sec’y of

Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
In determining the existence of substantial evidence, this Court
must examine the administrative record as a whole.
536.

Kirk, 667 F.2d at

If the Commissioner’s decision is supported by substantial

evidence, it must be affirmed even if this Court would decide the
matter differently, see Kinsella v. Schweiker, 708 F.2d 1058, 1059
(6th Cir. 1983), and even if substantial evidence also supports the
opposite conclusion.

Longworth, 402 F.3d at 595.

In her Statement of Errors, plaintiff argues that the
administrative judge improperly failed to consider plaintiff’s obesity
at every step of the sequential evaluation.

Id. at 10; Reply, pp. 1-

2. This Court agrees.
Social Security Ruling 02-01p, 2002 SSR LEXIS 1 (Sept. 12, 2002)
(“the Ruling”), explains the Commissioner’s policy and protocol in
connection with the evaluation of obesity.

Obesity may be considered

a severe impairment alone or in combination with another medically
determinable impairment.

Id.

The Commissioner must perform “an

individualized assessment of the impact of obesity on an individual’s
functioning when deciding whether the impairment is severe.”

Id.

Moreover, an administrative law judge must also consider the impact of
a claimant’s obesity on her RFC and, at step five of the sequential
analysis, on her ability to perform other jobs that exist in
significant numbers in the economy.

Id.; Coldiron v. Commissioner of

Social Security, 391 F. App’x. 435, *442-43 (6th Cir. Aug. 12, 2010).
8

However, the Rule does not “offer[] any particular procedural mode of
analysis for obese disability claimants.”

Bledsoe v. Barnhart, 165

F.App’x 408, *412 (6th Cir. Jan. 31, 2006).
In the case presently before the Court, the administrative law
judge’s opinion did not assess plaintiff’s obesity in the manner
contemplated by the Ruling.

Indeed, the administrative law judge made

no reference to plaintiff’s diagnosed obesity or to the Ruling. He
clearly failed to consider the impact of her obesity in combination
with her severe impairments.

This is especially significant in light

of the fact that the administrative law judge included lumbar disc
disease in plaintiff’s severe impairments; certainly, some analysis is
necessary to determine whether plaintiff’s obesity aggravates or
compounds this severe impairment.

Cf. Stone v. Comm’r of Soc. Sec.,

No. 3:12cv197, 2013 U.S. Dist. LEXIS 138841, at *7 (S.D. Ohio Sept.
26, 2013) (“[S]ome analysis of the aggravating tendencies on function
caused by obesity, in conjunction with and upon all other severe
impairments found by the Hearing Officer [including chronic low back],
must be performed.”).

See also Heighton v. Comm’r of Soc. Sec., No.

1:12-cv-38, 2013 U.S. Dist. LEXIS 7783, at *34-35 (S.D. Ohio Jan. 18,
2013).
Noting that the administrative law judge limited plaintiff to a
restricted range of light work with postural and environmental
limitations, the Commissioner contends that any such oversight on the
part of the administrative law judge is immaterial in light of
plaintiff’s failure to identify evidence in the record showing that
9

her obesity caused greater functional limitations than those provided
for in the administrative law judge’s RFC assessment.

Commissioner’s

Response, pp. 4-5 (citing Essary v. Comm’r of Soc. Sec'y, No. 03-6233,
114 F.App’x 662, at *667 (6th Cir. Oct. 28, 2004) (“The absence of
further elaboration on the issue of obesity likely stems from the fact
that Essary failed to present evidence of any functional limitations
resulting specifically from her obesity.”)).

The Court is

not

persuaded.
First, the Commissioner’s reliance on Essary is misplaced.

In

Essary, the administrative law judge expressly considered the
claimant’s obesity as one of several conditions that “‘can reasonably
be expected to result in some degree of functional . . .
limitations.’”

Essary, 114 F.App’x 662, at *667.

In this case, the

administrative law judge made no reference whatsoever to plaintiff’s
obesity.

Essary is therefore inapposite.

Moreover, the Court is not persuaded that the record establishes
that the administrative law judge’s RFC limitations adequately
accounted for plaintiff’s obesity.

Even where “there is no medical

opinion of record that plaintiff is significantly limited as a result
of her obesity, the complete exclusion of any mention of plaintiff[’]s
obesity makes it impossible for the Court to tell if the
[administrative law judge] actually considered this condition in
formulating the RFC.”
35.

Heighton, 2013 U.S. Dist. LEXIS 7783, at *34-

See also Sparks v. Colvin, No. 3:14cv00280, 2015 U.S. Dist. LEXIS

64046, at *16 (S.D. Ohio May 15, 2015) (“More than a passing reference
10

[to obesity] is required.”), adopted by, remanded by Sparks v. Colvin,
No. 3:14cv00280, 2015 U.S. Dist. LEXIS 75758 (S.D. Ohio June 11,
2015); Crooks v. Comm’r of Soc. Sec., No. 12-13365, 2013 U.S. Dist.
LEXIS 119532, at *48 (E.D. Mich. July 8, 2013) (“While there is no
medical opinion of record that plaintiff is significantly limited as a
result of his obesity, the complete exclusion of any mention of
plaintiff’s obesity makes it impossible for the undersigned to tell if
the ALJ actually considered this condition in formulating the RFC.”),
adopted by, remanded by Crooks v. Comm'r of Soc. Sec., No. 12-cv13365, 2013 U.S. Dist. LEXIS 119086 (E.D. Mich. Aug. 22, 2013).
It is therefore RECOMMENDED that the decision of the Commissioner
be REVERSED pursuant to Sentence 4 of 42 U.S.C. § 405(g) and that this
action be REMANDED for further consideration of plaintiff’s obesity
consistent with SSR 02-01p, 2002 SSR LEXIS 1.
Having concluded that the action must be remanded, the Court need
not and does not address plaintiff’s remaining arguments.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object
11

to the Report and Recommendation will result in a waiver of the right
to de novo review by the District Judge and waiver of the right to
appeal the judgment of the District Court.

See, e.g., Pfahler v.

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that
“failure to object to the magistrate judge’s recommendations
constituted a waiver of [the defendant’s] ability to appeal the
district court’s ruling”); United States v. Sullivan, 431 F.3d 976,
984 (6th Cir. 2005) (holding that defendant waived appeal of district
court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation).

Even when timely

objections are filed, appellate review of issues not raised in those
objections is waived.

Robert v. Tesson, 507 F.3d 981, 994 (6th Cir.

2007) (“[A] general objection to a magistrate judge’s report, which
fails to specify the issues of contention, does not suffice to
preserve an issue for appeal . . . .”) (citation omitted).

August 17, 2015

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

12