Ashley v. Comm'r of Soc. Sec., Case No. 17-11821
| Decision Date | 23 August 2018 |
| Docket Number | Case No. 17-11821 |
| Parties | SHARON RENEE ASHLEY, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
REPORT AND RECOMMENDATION CROSS-MOTIONS FOR SUMMARY JUDGMENT (Dkts. 16, 17)
On June 8, 2017, plaintiff Sharon Renee Ashley filed the instant suit. (Dkt. 1). Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(b)(3), District Judge George Caram Steeh referred this matter to the undersigned for the purpose of reviewing the Commissioner's unfavorable decision denying plaintiff's claim for a period of disability, disability insurance benefits, and supplemental security income benefits. (Dkt. 4). This matter is before the Court on cross-motions for summary judgment. (Dkt. 16, 17).
Plaintiff filed an application for a period of disability, disability insurance benefits, and supplemental security income on March 6, 2015, alleging disability beginning on June 15, 2014. (Tr. 28).1 The claims were initially disapproved by the Commissioner on August 7, 2015. (Id.). Plaintiff requested a hearing and on December 14, 2016, plaintiff appeared with counsel, before Administrative Law Judge ("ALJ") Patricia S. McKay, who considered the case de novo. (Tr. 28-37). In a decision dated January 19, 2017, the ALJ found that plaintiff was not disabled. (Tr. 37). Plaintiff requested a review of this decision. (Tr. 23-24). The ALJ's decision became the final decision of the Commissioner when the Appeals Council, on April 24, 2017, denied plaintiff's request for review. (Tr. 1-5); Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004).
For the reasons set forth below, the undersigned RECOMMENDS that plaintiff's motion for summary judgment be DENIED, that defendant's motion for summary judgment be GRANTED, and that the findings of the Commissioner be AFFIRMED.
Plaintiff, born October 27, 1960, was 53 years old on the alleged disability onset date. (Tr. 51). She has past relevant work as a sales marketing representative, administrative clerk, and customer service representative. (Tr. 36). The ALJ applied the five-step disability analysis and found at step one that plaintiff had not engaged in substantial gainful activity since June 15, 2014, the alleged onset date. (Tr. 30). At step two, the ALJ found that plaintiff's morbid obesity, sleep apnea, degenerative joint disease of the bilateral hips and sacroiliac joints, and asthma were "severe" within the meaning of the second sequential step. (Tr. 30). However, at step three, the ALJ found no evidence that plaintiff's impairments singly or in combination met or medically equaled one of the listings in the regulations. (Tr. 32).
Thereafter, the ALJ assessed plaintiff's residual functional capacity ("RFC") as follows:
After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) with the following additional limitations: She can occasionally climb stairs, crouch, crawl, kneel, stoop or bend. She cannot work near hazards such as dangerous moving machinery or unprotected heights. She cannot climb ladders, ropes orscaffolds. She must avoid exposure to pulmonary irritants so she must work in a clean air environment.
(Tr. 32-33). At step four, the ALJ found that plaintiff is capable of performing past relevant work as generally performed. (Tr. 36). At step five, the ALJ denied plaintiff benefits because she found that plaintiff had not been under a disability from June 15, 2014, through the date of the decision. (Tr. 36).
Plaintiff raises three issues on which she seeks remand of the Commissioner's decision: (1) that the ALJ improperly evaluated the effects of her obesity on her impairments, (2) that the ALJ did not include any limitations due to sleep apnea in the RFC, and (3) that the matter should be remanded under sentence six of 42 U.S.C. § 504(g) to consider new and material evidence. (Dkt. 16).
As to the first argument, plaintiff notes that the regulations require the ALJ to analyze the effect of obesity on a person's RFC and to consider the effects of obesity at every step of the sequential evaluation. (Id. at p. 13-14). Plaintiff contends that it is not clear that the ALJ considered obesity in the RFC finding. (Id. at p. 14). For example, plaintiff avers that because of the weight on her knees due to obesity, her legs will buckle and she feels she cannot support herself. (Id. at p. 14). According to plaintiff, the ALJ failed to analyze how obesity effected plaintiff's other impairments and did not address plaintiff's overactivebladder/urinary incontinence anywhere in the decision. (Id. at p. 15). Plaintiff was diagnosed with overactive bladder and was prescribed Detrol XL, but at the time of the hearing she was still having significant problems, such as needing to use the restroom every hour and needing to wear a diaper. (Id., citing Tr. 370). Plaintiff described her incontinence as a product of her weight. As another example of the ALJ's failure to consider obesity along with her impairments, the ALJ emphasized plaintiff's normal gait and station despite her weight, but plaintiff contends that had the ALJ given more consideration to her testimony that her weight makes her feel like her legs will give out, the ALJ might have found her testimony more credible. (Id. at p. 16).
Plaintiff also contends that her obesity was not considered in assessing her treating physician, Dr. Alsaadi's, opinions, to which the ALJ gave very little weight. (Id. at p. 17). Both of Dr. Alsaadi's opinions list plaintiff's obesity as a diagnosis. However, the ALJ found that Dr. Alsaadi's opinions were inconsistent with his treatment notes. Plaintiff contends that this finding is incorrect because Dr. Alsaadi's treatment notes repeatedly make clear that plaintiff was morbidly obese. (Id.). Plaintiff argues that Dr. Alsaadi's opinion that plaintiff is morbidly obese is also supported by the record: plaintiff herself attributed her incontinence to obesity and Dr. Alsaadi opined that plaintiff would need help bathing and toileting because of incontinence. (Id. at p. 18). The ALJ did not discuss Dr.Alsaadi's opinion that plaintiff would need assistance, which, according to plaintiff, demonstrates that the ALJ did not consider her incontinence and obesity in weighing the opinions. Therefore, the ALJ did not provide good reasons for discounting Dr. Alsaadi's opinion.
As to plaintiff's second argument—that the ALJ failed to include limitations in the RFC due to sleep apnea—plaintiff argues that the evidence establishes limitations that should have been included in the RFC. Plaintiff points to her testimony demonstrating that her sleep apnea causes her to be drowsy during the day, unable to think clearly, and needing to take naps. (Id. at p. 19-20).2 Plaintiff says her obesity and sleep apnea are "intrinsically tied," and the ALJ's failure to consider sleep apnea when assessing the RFC indicates a lack of compliance with the obesity regulations. (Id. at p. 21-22).
In her third argument, plaintiff asserts that she is entitled to a sentence six remand because of new evidence from Dr. Laker that became available in February 2017, after the ALJ's January 2017 decision. She asserts that Dr. Laker's new evidence is material because the findings include significant tricompartmental osteoarthritis in both knees, along with joint space narrowing and other abnormalities. Dr. Laker also observed that, even though plaintiff was using arolling walker, she was ambulating with a limp. (Id. at p. 23). These findings suggest that plaintiff could not stand for six hours in an eight-hour workday, precluding light work. Plaintiff also contends that the imaging results present a "reasonable possibility" that her condition meets Listing 1.02. Plaintiff states that she had good cause for not submitting the evidence sooner: the evidence did not exist at the time the ALJ made her decision.
The Commissioner argues first that the ALJ properly determined plaintiff's RFC. The Commissioner contends that the ALJ did evaluate plaintiff's obesity, discussing it throughout the opinion. (Dkt. 17, at p. 4-5). To the extent plaintiff is arguing that the RFC should have greater limitations due to her obesity, plaintiff fails in her burden of establishing that she had additional restrictions because the only evidence in the record plaintiff uses to support her arguments is her own testimony. (Id. at p. 5-6). Further, the Commissioner notes that the ALJ incorporated restrictions from plaintiff's obesity because the ALJ relied on State agency physician, Dr. Khalid, who considered obesity in determining the degree of plaintiff's functioning. (Id. at p. 7).
As to plaintiff's incontinence, the Commissioner points out that there is no objective evidence in the record demonstrating functional limitations due to incontinence. (Id. at p. 8). Further, the ALJ found plaintiff's own statements notentirely supported by the record. Dr. Khalid considered plaintiff's bladder disorder, but indicated that there were no concerns raised by plaintiff's June 2015 pelvic ultrasound. (Id. at p. 8-9); Tr. 135).
In response to plaintiff's argument that the ALJ did not properly assess her treating physician's opinion in light of her obesity, the Commissioner contends that the ALJ gave good reasons for discounting the opinion: the ALJ found that the functional limitations assessed in the doctor's opinion were inconsistent with the state agency's assessment, plaintiff's conservative treatment, her unremarkable performance on physical examinations, and...
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