Foss v. Comm'r of Soc. Sec.
| Decision Date | 20 June 2017 |
| Docket Number | Case No. 1:16CV1907 |
| Parties | BARBARA J. FOSS, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant. |
| Court | U.S. District Court — Northern District of Ohio |
Plaintiff Barbara J. Foss (hereinafter, "Foss" or "claimant") challenges the final decision of Defendant Commissioner of Social Security (hereinafter, "Commissioner"), denying her applications for Disability Insurance Benefits ("DIB"), a Period of Disability ("POD"), and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381 et seq. ("Act"). This court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned United States Magistrate Judge pursuant to an automatic referral under Local Rule 72.2(b) for a Report and Recommendation. For the reasons set forth below, the Magistrate Judge recommends that the Commissioner's final decision be AFFIRMED.
On October 23, 2012, Foss protectively filed applications for DIB, POD, and SSI benefits. (R. 10, PageID #: 67, 259-260.) Foss's applications were denied initially and upon reconsideration. (Id. at 158-164, 173-183, 118-137, 138-157.) Foss filed a written request for a hearing before an administrative law judge ("the ALJ"). (Id. at 185.) The ALJ convened a hearing on November 6, 2014, to hear Foss's case. (Id. at 78-110.) Foss appeared at the hearing, was represented by counsel, and testified. (Id. at 80.) A vocational expert ("VE") attended the hearing and provided testimony. (Id. at 80, 100-109.)
On January 13, 2015, the ALJ issued his decision, applying the standard five-step sequential analysis to determine whether Foss was disabled. (R. 10, PageID #: 67-73; see generally 20 C.F.R. §§ 404.1520(a), 416.920(a).) Based on his review, the ALJ concluded Foss was not disabled. (R. 10, PageID #: 67, 73.) The Appeals Council denied Foss's request for review, thus rendering the ALJ's decision the final decision of the Commissioner. (Id. at 56-58.) Foss now seeks judicial review of the Commissioner's final decision pursuant to 42 U.S.C. § 405(g). The parties have completed briefing in this case. Foss briefs several issues for review:
(R. 11, PageID #: 411-412.)
Foss was born on April 16, 1959, and was 53 years old as of her alleged disability onset date. (R. 10, PageID #: 259, 218, 225.) She completed twelfth grade, and is able to communicatein English. (Id. at 265, 263.) She has past relevant work as a sales clerk and a home health aide. (Id. at 265, 101, 73.)
Disputed issues will be discussed as they arise in Foss's brief alleging errors by the ALJ. Foss applied for DIB, POD, and SSI benefits on October 23, 2012. (R. 10, PageID #: 67, 259-260.) Foss listed her physical or mental conditions that limit her ability to work as "COPD [chronic obstructive pulmonary disease]; [emphysema]; arthritis- swelling/weakness hands." (Id. at 264.) At issue in the claimant's brief are her obesity, visual impairments, bursitis of right hip and clubbing of her fingers. See generally R. 11.
The claimant had a consultative physical exam with Dr. Khalid Darr on March 14, 2013. (R. 10, PageID #: 322-325.) At the exam, Foss weighed 231 pounds, and measured five feet, five inches. The doctor noted that Foss walked with a normal gait, and did not require the use of a cane. (Id. at 323.) The claimant's grip strength was normal, and she was able to write and pick up coins. (Id. at 324.) Dr. Darr diagnosed claimant with COPD, and clubbing of the fingers, etiology undetermined. Her functions of reaching, handling, and fine and gross movements were intact. Foss is able to sit, stand, carry and lift 20 to 50 pounds frequently, and over 50 pounds occasionally. (Id. at 324.)
Rannie Amiri, M.D., reviewed the medical records on April 25, 2013, and noted that Foss had been diagnosed with COPD. (R. 10, PageID #: 130.) Dr. Amiri noted her obesity, observed that she had clubbing of the fingers, but normal grip strength in her hands, with normalmanipulative abilities, and no treatment history for COPD. (Id. at 132.) Dr. Amiri noted that her pulmonary function exam showed only mild obstruction. (Id. at 132, see also PageID #: 335.) Postural limitations, due to her obesity and COPD, were limited to frequent climbing of ladders, ropes, and scaffolds, and frequent crawling, but otherwise unlimited. There were no manipulative limitations found. (Id. at 132.)
Leanne M. Bertani, M.D., reviewed the medical records on reconsideration on July 28, 2013, and noted that Foss had been diagnosed with COPD, with obesity as a secondary impairment. (R. 10, PageID #: 151.) Postural limitations, due to her obesity and COPD, were modified to frequent climbing of ramps and stairs, and occasional climbing of ladders, ropes, and scaffolds. There were no manipulative limitations found. (Id. at 151-152.)
On August 30, 2013, the claimant reported to her treating physician, Mushtaq Mahmood, M.D., that her visit to the ER was prompted by chronic backache. The doctor noted mild tenderness at her right hip joint. He ordered an MRI of the hip joint and her back. (R. 10, PageID #: 355.) Her weight was 232 pounds, with a BMI of 39.61. (Id. at 356.)
The subsequent MRI of the right hip, done on September 12, 2013, showed "Mild right greater trochanteric bursitis." (R. 10, PageID #: 359.) The MRI of the back showed L4-5 right subarticular disc herniation, with some nerve compression, and at L5-S1, right foraminal stenosis. (Id. at 362.)
The claimant had an appointment with Dr. Mahmood to review the MRIs on September 30, 2013, where she mentioned that she had noticed a change in her fingernails, with more pronounced clubbing. (R. 10, PageID #: 352.) Her weight was 229 pounds, with a BMI of 39.09. (Id. at 353.)
The claimant visited Dr. Mahmood for a follow-up on her hip pain on March 3, 2014. Foss reported increased depression, and the doctor prescribed an anti-anxiety drug. He also recommended she see an orthopedist. (R. 10, PageID #: 347.)
Foss reported to the ER at University Hospitals-Amherst on October 10, 2014, complaining of a weeklong moderate cough and moderate congestion. (R. 10, PageID #: 364-365.) A chest X-ray was ordered, which showed "underlying chronic pulmonary obstruction, no acute, active disease." (Id. at 367, 379, 368-369.)
At an October 13, 2014, visit with Dr. Mahmood, the claimant reported that she had visited the ER for "acute shortness of breath." At the October 13 visit, however, she had no chest congestion or shortness of breath. (R. 10, PageID #: 341.) Her weight was 219 pounds, with a BMI of 37.59. (Id. at 342.)
Laura M. Chonko, O.D., a treating source, wrote an opinion concerning claimant's vision on October 22, 2014. She noted that claimant's most recent eye exam was "approximately 3 years ago." (R. 10, PageID #: 340.) Dr. Chonko stated that Foss had cataracts in both eyes, but stated that a stronger prescription would substantially correct her vision to near normal. She had recommended that Foss consult a cataract surgeon for evaluation and possible cataract surgery, which would likely result in her vision being correctable to 20/20. (Id. at 340.)
At the hearing, the VE provided testimony. (R. 10, PageID #: 80, 100-109.) The VE determined that Foss had past relevant work as a sales clerk, DOT number 290.477-014, SVP 3, light level, but as performed medium; and home health aide, DOT 354.377-014, SVP 3, medium level. (Id. at 101.)
The ALJ posed a hypothetical question concerning an individual of Foss's age, education, and vocational background, who can work at the light level, with some limitations. The person could only frequently climb ramps and stairs, and cannot climb ladders, ropes, or scaffolds. The person would need to avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation. The hypothetical individual is limited to frequent fine and gross manipulation, that is, fingering and handling. (R. 10, PageID #: 103-104.) The hypothetical question posed was whether such a hypothetical individual would be able to perform any of the claimant's past work. (Id. at 104.)
The VE responded that such a person would be able to perform only the position of sales clerk. The answer remained the same when the ALJ modified the hypothetical to medium work, and included the identical limitations. (R. 10, PageID #: 104.)
Counsel for the claimant modified the first hypothetical, to change the frequent fine and gross manipulation aspect to occasional fine and gross manipulation. The VE responded that, under the modified (second) hypothetical, the person would not be able to perform the sales clerk position. (R. 10, PageID #: 105.)
The ALJ next asked whether there were jobs that such a person (under the second hypothetical) could perform? The VE responded that there would be, and provided examples. The pertinent jobs included a ticket seller, DOT number 211.467-010, SVP 2, light level, which has 1,100,000 positions in the national economy, and 40,000 in the state. Another position would be a furniture retail clerk, DOT 295.357-018, SVP 2, light level, approximately 140,000 positions in the national economy, and 5,500 in the state. (R. 10, PageID #: 106.)
Counsel for the claimant then returned to the first hypothetical, and asked the VE if it would make any difference if the person would simply need to avoid moderate...
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