Grinnell v. Commissioner of Social Security

Filing 15

REPORT AND RECOMMENDATION: Magistrate Judge RECOMMENDS overruling Plaintiff's Statement of Errors and entering judgment in favor of Defendant. Objections to R&R due by 12/4/2017. Signed by Magistrate Judge Kimberly A. Jolson on 11/20/2017. (ew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
BONNIE JO GRINNELL,
Plaintiff,
v.

Civil Action 2:17-cv-270
Judge Algenon L. Marbley
Magistrate Judge Jolson

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
REPORT AND RECOMMENDATION
Plaintiff Bonnie Jo Grinnell filed this action under 42 U.S.C. § 405(g) seeking review of
a partially favorable decision of the Commissioner of Social Security (the “Commissioner”). For
the reasons that follow, it is RECOMMENDED that Plaintiff’s Statement of Errors be
OVERRULED, and that judgment be entered in favor of Defendant.
I.

BACKGROUND
Plaintiff filed her applications for benefits on December 27, 2012, alleging that she has

been disabled since July 28, 2011. (Tr. 230–39, 240–45, PAGEID #: 274–83, 284–89). On May
15, 2015, the ALJ issued a partially favorable decision finding that Plaintiff had not become
disabled until her fifty-fifth birthday on December 6, 2015. (Tr. 15, PAGEID #: 56). On
February 8, 2017, the Appeals Council denied Plaintiff’s request for review and adopted the
ALJ’s decision as the Commissioner’s final decision. (Tr. 1–5, PAGEID #: 42–46).
Plaintiff filed this case on April 5, 2017, and the Commissioner filed the administrative
record on June 9, 2017. (Doc. 9). Plaintiff filed a Statement of Specific Errors on July 31, 2017
(Doc. 12), and the Commissioner responded on August 30, 2017 (Doc. 14).

A. Relevant Hearing Testimony
Administrative Law Judge Peter Boylan (the “ALJ”) held a video hearing on November
24, 2015. (Tr. 32, PAGEID #: 73). Plaintiff was represented by counsel, and Karen Schneider
testified as a vocational expert (the “VE”). (Tr. 34, PAGEID #: 75).
Plaintiff was born on December 7, 1960, and was 54-years-old on the date of the hearing.
(Tr. 36, PAGEID #: 77). Plaintiff testified that she has custody of her nine-year-old grandson,
who has lived with her since he was fifteen-months-old. (Tr. 37, PAGIED #: 78). She does not
have any income but receives state assistance for her grandchild. (Id.).
Plaintiff attended special education classes through the tenth grade. (Id.). She is able to
read and write and maintains a driver’s license. (Tr. 37–38, PAGIED #: 78–79). Plaintiff
testified that, in a typical week, she drives to the store or to a doctor’s appointment. (Tr. 37,
PAGIED #: 78).
Plaintiff’s last job was working as “a home care attendant taking care of an elderly lady
in her home.” (Tr. 38, PAGEID #: 79). Plaintiff had worked intermittently as a home care
attendant since the 1970s, but her last position ended on January 11, 2011, when the woman’s
children opted to put her into a nursing facility. (Id.). Plaintiff also was a fast food worker from
2002 to 2003, a hand packager from 1996 to 1997 and in 2006, and a sewing machine operator in
2005. (Id.).
Plaintiff stated that she was involved in a car accident in July 2011 (Tr. 52, PAGEID #:
93), which led to impairments in her back and neck and which caused headaches (Tr. 38,
PAGEID #: 79). Plaintiff stated that she has pain daily, which “feels like somebody beat [her]
real bad with a club, like a sledgehammer beating [her].” (Tr, 42, PAGEID #: 83). Plaintiff
explained that moving around exacerbates her pain and, for relief, she lies down with an ice pack

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three to four times a day for approximately thirty to forty-five minutes. (Tr. 43, PAGEID #: 84).
Plaintiff’s medications include Percocet for pain, and she has received injections and engaged in
physical therapy, including the use of a TENS unit, for her back. (Tr. 39–41, 47, PAGEID #:
80–82, 88).
Plaintiff testified that she can sit for thirty minutes before she has to move, can stand for
approximately fifteen or twenty minutes at a time, and can lift five pounds “if [she’s] lucky.”
(Tr. 43, PAGEID #: 84). Plaintiff indicated that she could walk only approximately 500 feet
without difficulty. (Tr. 48, PAGEID #: 89). A typical day for Plaintiff includes “get[ting] [her]
grandson off to school,” “do[ing] what [she] can around the house,” and “in the evening[,] …
see[ing] that he’s fed and got his shower and stuff for bed.” (Tr. 44, PAGEID #: 85). Plaintiff
shops for groceries, cooks, washes dishes, cleans, and does laundry when she is able. (Tr. 44–
45, PAGEID #: 85–86). Plaintiff testified that her grandson helps her by vacuuming, taking out
the trash, and doing laundry occasionally. (Tr. 49, PAGEID #: 90). Plaintiff plays games and
uses Facebook on her tablet. (Tr. 46, PAGEID #: 87).
The VE testified that a hypothetical individual with Plaintiff’s age, education, and work
experience who is limited to light levels of exertion and can occasionally stoop, crouch, crawl,
climb ramps and stairs, but can never climb ladders, ropes, or scaffolds, and must avoid
concentrated exposure to fumes, odors, dust, gases, and poor ventilation could perform Plaintiff’s
past job as a fast food worker and other light unskilled work, such as inspector, sorter, and
merchandise marker. (Tr. 54–56, PAGEID #: 95–97). The VE further testified that if that
hypothetical individual were limited to simple work-related decisions, superficial interaction
with others, and tolerating occasional changes in a work setting, the individual could still be a
fast food worker and perform other work, such as inspector, sorter, and merchandise marker.

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(Tr. 56–57, PAGEID #: 98–99). Conversely, the VE stated that the hypothetical individual with
those functional limitations and vocational factors would be precluded for competitive
employment if she were off task 20 percent of the workday, will miss two days of work in a
month, and needs to lie down and/or take a break three to four times a day. (Tr. 57, PAGEID #:
98).
The closing remarks of Plaintiff’s counsel included that, although she is “not arguing the
listing here in this case,” the record reflects an individual with “rather significant lumbar
issues….” (Tr. 60, PAGEID #: 101) (indicating that she opted not to argue for a listing “because
[she] think[s] [they] don’t have enough established ongoing”).
B. The ALJ’s Decision
The ALJ found that Plaintiff met the insured status requirements of the Social Security
Act through March 31, 2014, and had not engaged in substantial gainful activity since the alleged
onset of her disability. (Tr. 17, PAGEID #: 58). The ALJ found that Plaintiff suffers from the
severe impairment of degenerative disc disease, obesity, and a pulmonary disorder. (Id.).
Concerning Plaintiff’s obesity, the ALJ stated:
The claimant, who is 63 inches tall, has weighed approximately 180 to 190
pounds since her alleged onset date (See, e.g., Exhibits C7F, p. 5, 11, 13, 39–41;
C14F, p. 2). This equates to a BMI range between 31.9 and 33.7, which places
the claimant into the mildest range of clinical obesity as defined by the diagnostic
medical criteria discussed in Social Security Ruling 02-1p.
(Tr. 21, PAGEID #: 62, n.4). The ALJ noted recurrent findings of a “mild level of clinical
obesity” (Tr. 21, PAGEID #: 62), addressed numerous ailments exacerbated by obesity, such as
breathing difficulties, an inability to stand for long periods of time, and knee pain (see generally
Tr. 17–24, PAGEID # 58–65), and relied on medical opinions noting Plaintiff’s weight (Tr. 19–
20, PAGEID #: 60–61).

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The ALJ found Plaintiff does not have an impairment or combination of impairments that
meets or equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1.

(Tr. 19–20, PAGEID #: 60–61).

Relevant to this case, the ALJ’s decision

specifically addressed disorders of the spine in Listing 1.04. (Tr. 19, PAGEID #: 60). The ALJ
found that:
[m]edical evidence does not support a finding that the claimant meets or equals
the criteria set out in listing 1.04. There is no radiological or clinical evidence of
nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis resulting in
pseudoclaudication. Medical imaging has instead characterized the claimant’s
degenerative changes as mild to moderate in nature and neuromotor findings have
remained largely unremarkable throughout the vast majority of the record.
(Tr. 19–20, PAGEID #: 60–61) (citations omitted). The ALJ also found that record evidence
failed to demonstrate that Plaintiff satisfied Listing 3.02, which concerns chronic pulmonary
insufficiency. (Tr. 20, PAGEID #: 61).
After consideration of the entire record, the ALJ determined that Plaintiff had the residual
functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. 404.1567(b) and
416.976(b), except for Plaintiff can only occasionally climb ramps and stairs, stoop, crouch, and
crawl and can never climb, ladders, ropes, or scaffolds. (Tr. 20, PAGEID #: 61). The ALJ also
found that Plaintiff must avoid concentrated exposure to fumes, dusts, gases, and poor
ventilation. (Id.).
The ALJ found that Plaintiff has been unable to perform any past relevant work, and her
age category changed from closely approaching advanced age to an individual of advanced age
on December 6, 2015. (Tr. 24, PAGEID #: 65). The ALJ determined that Plaintiff has a limited
education, is able to communicate in English, and that transferability of job skills was not
material to the disability determination. (Id.).

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Ultimately, the ALJ denied Plaintiff’s application for a period of disability and disability
insurance benefits because she was not disabled under the Social Security Act through March 31,
2014, the date last insured. (Tr. 25, PAGEID #: 66). Concerning Plaintiff’s application for
supplemental security income, the ALJ determined Plaintiff was disabled beginning on
December 6, 2015, when her age category changed. (Tr. 25–26, PAGEID #: 66–67). The ALJ
found that, prior to December 6, 2015, considering Plaintiff’s age, education, work experience,
and RFC, there were jobs that existed in significant numbers in the national economy that
Plaintiff could have performed. (Tr. 24, PAGEID #: 65).
II.

STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), “[t]he findings of the [Commissioner] as to any fact, if

supported by substantial evidence, shall be conclusive. . . .” “[S]ubstantial evidence is defined as
‘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.’” Rogers v. Comm’r of Soc.
Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec’y of HHS, 25 F.3d 284, 286 (6th
Cir. 1994)). The Commissioner’s findings of fact must also be based upon the record as a whole.
Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). To that end, the Court must “take into
account whatever in the record fairly detracts from [the] weight” of the Commissioner’s
decision. Rhodes v. Comm’r of Soc. Sec., No. 1:13-cv-1147, 2015 WL 4881574, at *2 (S.D.
Ohio Aug. 17, 2015).
III.

DISCUSSION
Plaintiff alleges two errors. (See generally Doc. 12). First, Plaintiff asserts that the ALJ

erred at step three of the disability evaluation process in failing to give sufficient consideration to
whether her impairments met or equaled Listing 1.04(A) prior to December 6, 2015. (Id. at 7).

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Next, Plaintiff argues that the ALJ erred in failing to consider the impact of her severe
impairment of obesity at each step of the sequential evaluation. (Id.).
A. Step-Three Analysis
The Court first considers Plaintiff’s argument that the ALJ erred in failing to give
sufficient consideration to whether her impairments met or equaled Listing 1.04(A) prior to
December 6, 2015. Stated simply, Plaintiff asserts the record evidence establishes that she
satisfies the listing. This Court disagrees.
The third step of the disability evaluation process asks the ALJ to compare the claimant’s
impairments with an enumerated list of medical conditions found in the Listing of Impairments
within 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. § 416.920(a)(4)(iii); Turner v.
Comm’r of Soc. Sec., 381 F. App’x 488, 491 (6th Cir. 2010). The Listing of Impairments recites
a number of ailments which the Social Security Administration has deemed “severe enough to
prevent an individual from doing any gainful activity, regardless of his or her age, education, or
work experience.” 20 C.F.R. § 416.925(a). Each listing describes “the objective medical and
other findings needed to satisfy the criteria of that listing.” 20 C.F.R. § 416.925(c)(3). The
claimant bears the burden of showing that her impairment meets or medically equals a listing.
See Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997).
Listing 1.04(A), which concerns spinal disorders, provides:
1.04 Disorders of the spine (e.g. herniated nucleus pulposus, spinal arachnoiditis,
spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral
fracture), resulting in compromise of a nerve root (including the cauda equina) or
the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy
with associated muscle weakness or muscle weakness) accompanied by
sensory or reflex loss and, if there is involvement of the lower back, positive
straight-leg raising test (sitting and supine)[.]
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20 C.F.R. Pt. 404, Sbpt P, App. 1, § 1.04. Thus, for Plaintiff to have been found disabled at step
three, she must have had a spinal disorder that resulted in compromise of a nerve root with
neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (muscle
weakness) accompanied by a sensory or reflex loss, and, to the extent Plaintiff’s impairment
involves her lower back, a positive straight-leg raising test. Id.
Here, the ALJ stated explicitly that he considered whether Plaintiff’s impairments met or
equaled the requirements for the listings, despite the fact that “claimant’s representative did not
argue that any of the listings were applicable during the hearing….” (Tr. 19, PAGEID #: 60);
(see also Tr. 60, PAGEID #: 101) (closing remarks of Plaintiff’s counsel, indicating that she is
“not arguing the listing here in this case” because she didn’t believe they “ha[d] enough”)). The
ALJ’s decision provides, in relevant part:
Medical evidence does not support a finding that the claimant meets or equals the
criteria set out in listing 1.04. There is no radiological or clinical evidence of
nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis resulting in
pseudoclaudication. Medical imaging has instead characterized the degenerative
changes as mild to moderate in nature and neuromotor findings have remained
largely unremarkable throughout the cast majority of the record.
(Tr. 19–20, PAGEID #: 60–61) (citing Exhibits C1F, p. 3–4; C2F, p. 4–5, 26; C3F, p. 13–16, 39–
40, 51–56, 83–86, 132, 166–67; C4F, p. 18–31; C5F, p. 2–3; C10F, p. 26–31; C12F, p. 36–42,
50; C15F, p. 16). The ALJ also relied upon physicians at the initial and reconsideration levels
who found Plaintiff not disabled after considering Plaintiff’s impairments in conjunction with,
inter alia, Listing 1.04. (See Tr. 65–116, PAGEID #: 107–58).
The evidence supports the ALJ’s finding. Plaintiff presents no evidence of a compromise
of a nerve root with neuro-anatomic distribution of pain and, as Defendant explains, Plaintiff’s
subjective complaints alone may not form the basis for such a finding. See 20 C.F.R. Pt. 404,

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Sbpt P, App. 1, § 1.04(D) (“[P]hysical findings must be determined on the basis of objective
observation during the examination and not simply a report of the individual’s allegation.”); (see
also Tr. 21, PAGEID #: 62, n.3 (the ALJ noting that “[t]he January 2013 MRI of the lumbar
spine indicated the disc protrusion abutted the left L5 nerve root, but there was no evidence of
any definitive impingement or compression”)). Plaintiff’s range of motion of the spine often
went untested (see, e.g., Tr. 346, PAGEID #: 392 (July 19, 2012 exam); Tr. 345, PAGEID #: 391
(September 25, 2012 exam); Tr. 341, PAGEID #: 387 (November 21, 2012 exam)), and
examinations revealed generally normal or almost normal strength in her extremities (see, e.g.,
Tr. 346, PAGEID #: 392 (noting upper extremity strength is normal at 5/5 and, in the lower
extremities, strength is 4+ on the left, 4+ to 5- on the right); Tr. 345, PAGEID #: 391 (finding
bilateral upper extremity strength is 5/5); Tr. 341, PAGEID #: 387 (noting bilateral upper and
lower extremity strength is 5/5)).
Although there is some evidence that Plaintiff has sensory or reflex loss (see, e.g., Tr.
346, PAGEID #: 392 (finding upper extremity sensation was intact but decreased sensation in
Plaintiff’s left lateral thigh)) and some positive straight-leg raising tests (see, e.g., Tr. 343,
PAGEID #: 389), Plaintiff fails to satisfy all of requirements for the listing. Blanton v. Soc. Sec.
Admin., 118 F. App’x 3, 6 (6th Cir. 2004); (see Doc. 12 at 10 (acknowledging that “perhaps”
Plaintiff did not satisfy the requirements of the listing “simultaneous[ly]”).

Based on the

foregoing, Plaintiff failed to satisfy her burden at step three, and her first statement of error is
without merit.

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B. Consideration of Plaintiff’s Obesity
Plaintiff next argues the ALJ did not consider her obesity as required by the regulations.
Social Security Ruling 02-01p, 2000 WL 628049 (Sept. 12, 2002), explains the Administration’s
policy and protocol on evaluating obesity. “Obesity is a complex, chronic disease characterized
by excessive accumulation of body fat.” SSR 02-01p. The Ruling further recognizes obesity as
“a risk factor that increases an individual’s chances of developing impairments in most body
systems” and notes that obesity “commonly leads to, and often complicates, chronic diseases of
the cardiovascular, respiratory, and musculoskeletal body symptoms.” Id. at *3. Additionally,
“obesity may also cause or contribute to mental impairments such as depression.” Id. Despite
obesity being a risk factor, the Ruling cautions that it “does not mean that individuals with
obesity necessarily have any of these impairments.” Id. The Ruling directs ALJs to consider
obesity in determining (1) whether a claimant has a medical impairment, (2) whether that
medical impairment is severe, (3) whether the claimant’s impairment meets or equals a listed
impairment, and (4) whether the claimant could perform her past work or other work existing in
significant numbers. Id.
Here, the ALJ considered Plaintiff’s obesity more than once. The ALJ found it to be a
severe impairment (Tr. 17, PAGEID #: 58), and further remarked:
The claimant, who is 63 inches tall, has weighed approximately 180 to 190
pounds since her alleged onset date (See, e.g., Exhibits C7F, p. 5, 11, 13, 39–41;
C14F, p. 2). This equates to a BMI range between 31.9 and 33.7, which places
the claimant into the mildest range of clinical obesity as defined by the diagnostic
medical criteria discussed in Social Security Ruling 02-1p.
(Tr. 21, PAGEID #: 62, n.4). The ALJ also considered the numerous ailments that obesity can
exacerbate, like breathing difficulties, an inability to stand for long periods of time, and knee
pain. (See generally Tr. 17–24, PAGEID # 58–65). Finally, the ALJ noted recurrent findings of

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a “mild level of clinical obesity” (Tr. 21, PAGEID #: 62), and cited medical opinions noting
Plaintiff’s weight (Tr. 19–20, PAGEID #: 60–61 (citing e.g., Exhibit C1F, Tr. 341, PAGEID #:
387 (noting height of 5’3” and weight of 178); Tr. 343, PAGEID #: 389 (same); Tr. 345,
PAGEID #: 391 (same); Tr. 347, PAGEID #: 393 (noting height of 5’3” and weight of 183)).
The Sixth Circuit has found such reliance relevant when analyzing an ALJ’s consideration of
obesity. See Bledsoe v. Barnhart, 165 F. App’x 408, 411–12 (6th Cir. 2008) (upholding denial
of benefits where ALJ “made explicit mention of [plaintiff’s] obesity in his finding of facts” and
credited the opinions of experts who considered plaintiff’s obesity). Accordingly, the ALJ’s
consideration of obesity was sufficient.
IV.

CONCLUSION
For the foregoing reasons, it is RECOMMENDED that Plaintiff’s Statement of Errors

be OVERRULED, and that judgment be entered in favor of Defendant.
V.

PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s).

A judge of this Court shall make a de novo

determination of those portions of the report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made herein, may receive further
evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C.
§ 636(b)(1). Failure to object to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and Recommendation de novo, and also

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operates as a waiver of the right to appeal the decision of the District Court adopting the Report
and Recommendation. See Thomas v. Arn, 474 U.S. 140, 152–53 (1985).
IT IS SO ORDERED.

Date: November 20, 2017

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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