DAVID A. RUIZ, Magistrate Judge.
Plaintiff Olga Cosme ("Cosme" or "claimant") challenges the final decision of Defendant Commissioner of Social Security ("Commissioner"), denying her application for Supplemental Security Income ("SSI") under Title 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.
The issue before the court is whether the final decision of the Commissioner is supported by substantial evidence and, therefore, conclusive. For the reasons set forth below, the Magistrate Judge recommends that the Commissioner's final decision be affirmed.
On July 30, 2013, Cosme filed an application for SSI benefits, alleging disability beginning July 30, 2013. (R.9, PageID #: 85, 310-317, 318-324, 355-364, 354 (changing disability onset date).) Cosme's application was denied initially and upon reconsideration. (R.9, PageID #: 85, 135-153, 154-163.) Thereafter, Cosme filed a request for a hearing before an administrative law judge. (R.9, PageID #: 177-178.)
The ALJ held a hearing on August 12, 2015. (R.9, PageID #: 103-144.) Cosme appeared at the hearing, was represented by counsel, and testified. (Id. at 105-106, 113-122.) A vocational expert ("VE") also attended the hearing and provided testimony. (Id. at 105-106, 132-143.) A medical expert testified as well. (Id. at 122-131.)
On January 29, 2016, the ALJ issued his decision, applying the standard five-step sequential analysis to determine whether Cosme was disabled. (R.9, PageID #: 85-97; see generally 20 C.F.R. § 416.920(a).) Based on his review, the ALJ concluded Cosme was not disabled. (R.9, PageID #: 85, 97.)
The Appeals Council denied Cosme's request for review, thus rendering the ALJ's decision the final decision of the Commissioner. (R.9, PageID #: 56-59.) Cosme 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.
Cosme presents the following legal issue for the court's review:
(R. 11, PageID #: 653.)
Cosme was born on January 13, 1984, and was 29 years old, which is defined a younger individual age 18-49, on the application date. (R.9, PageID #: 318, 95.) Cosme has at least a high school education, and is able to communicate in English. (R.9, PageID #: 95, 359.) Cosme had past work as a cashier for a brief period in 2006. (R.9, PageID #: 133-135.)
Disputed issues will be discussed as they arise in Cosme's brief alleging error by the ALJ. Cosme applied for SSI on July 30, 2013. (R.9, PageID #: 318-324, 85.) Cosme listed her physical or mental conditions that limit her ability to work as: "thrombophlebitis in leg, severe headaches, chest pains, pain in legs." (R.9, PageID #: 358.)
Results from a May 2, 2009, left leg venous duplex doppler revealed extensive deep venous thrombosis ("DVT") in the left leg extending from the common femoral vein down to the posterior tibial vein. (R. 9, PageID #: 419.) The clot was heterogeneous, with echogenic foci indicating a chronic thrombus. Id. A bilateral leg venous duplex on February 19, 2010, revealed partial thrombosis of the left common femoral vein, superficial femoral vein, deep femoral vein, greater saphenous vein, popliteal vein, and peroneal vein, with echogenic thrombi visualized. Id. at 420. (The right leg was unremarkable. Id.)
Another left leg venous duplex doppler was performed on May 9, 2013, which showed acute DVT involving the common femoral vein and proximal superficial femoral vein, with an incompetent valve producing insufficiency at the superficial and deep venous systems. (R. 9, PageID #: 423.)
On July 29, 2013, Cosme presented to Mercy Medical Center complaining of worsening pain in her left leg, palpitations and chest pain with difficulty breathing. (R. 9, PageID #: 434.) There was no edema of the extremities on examination, and Cosme appeared comfortable with normal affect. Id. at 435. A chest CT showed a calcified right middle lobe nodule, likely a benign granuloma. Id. at 437. Cosme was diagnosed with chest wall pain, and discharged in stable condition. Id. at 438.
State agency physician Phyllis Sandell, M.D., completed a Physical RFC Assessment on October 26, 2013. (R. 9, PageID #: 148-150.) Dr. Sandell found Cosme capable of lifting fifty pounds occasionally, and twenty pounds frequently. Id. at 149. She could stand or walk for a total of two hours, and sit for a total of six hours, of an eight-hour workday. Id. Cosme could occasionally push or pull with the left leg, and should alternate sitting and standing for five minutes hourly. Id. Dr. Sandell opined that Cosme could occasionally climb ramps or stairs, and occasionally kneel, crouch, or crawl, but she could never climb ladders, ropes or scaffolds. Id. She could frequently balance. Id. Dr. Sandell explained that the postural limitations resulted from Cosme's leg pain, and "chronic anticoagulation" (medication) meant she should avoid heights. Id. at 149-150. Dr. Sandell opined that Cosme should also avoid concentrated exposure to hazards such as machinery. Id. at 150. Dr. Sandell's RFC assessed that, because of claimant's recurrent or chronic DVT, she would do best in a sedentary vocation. Id.
On reconsideration, State agency physician S. Ram Upadhyay, M.D., concurred with Dr. Sandell's Physical RFC Assessment, on January 31, 2014. (R. 9, PageID #: 158-160.)
Cosme presented to Gundumalla Goud, M.D., as a new patient on September 4, 2014. (R. 9, PageID #: 453-455.) Cosme reported that her active problems included DVT and right shoulder pain. Id. at 453. The doctor increased her Coumadin dosage, and advised her to apply moist heat to her shoulder. Id. at 455.
On April 11, 2015, Cosme presented to the emergency room with a complaint of lower abdominal pain. (R. 9, PageID #: 499-504.) Musculoskeletal and neurological exams were negative. Id. at 500, 513. A CT scan showed a large amount of complex fluid compatible with hemorrhage. Id. at 502. Cosme had a gynecology consultation for concern about a possible ruptured hemorrhagic ovarian cyst. Id. at 502-503, 515-516. The gynecologist, Samir Ahuja, M.D., decided to stop her Coumadin temporarily to reverse her anticoagulation. Id. at 516. Dr. Ahuja noted "it is impossible to obtain a history from the patient as she speaks minimal English," and had no one with her who could help translate. Id. Cosme was discharged on April 13, 2015. Id. at 533.
Cosme had a left leg venous ultrasound on April 22, 2015, that showed "echogenic material consistent with nonocclusive thrombus within the common femoral vein." (R. 9, PageID #: 446.)
Cristina Canella, psychiatric nurse practitioner, completed a Mental RFC Assessment on June 25, 2015. (R. 9, PageID #: 600-602.) NP Canella diagnosed Cosme with adjustment disorder, with mixed anxiety and depressed mood. Id. at 600. She opined that, "from a mental health standpoint only," Cosme was generally capable of sustaining an 8-hour workday, five days per week. Id.
Linda Spahr, R.N., completed a Medical Source Statement on July 1, 2015. (R. 9, PageID #: 608-610.) Nurse Spahr diagnosed Cosme with recurrent DVT, with symptoms of pain in her legs and abdominal pain from recurring clots. Id. at 608. She wrote that Cosme was unable to walk long distances, or stand. Id. The prescribed medications Coumadin upset her stomach, and Percocet caused dizziness and fatigue. Id.
Nurse Spahr opined that Cosme could sit, stand, and walk only thirty minutes at a time for a total of only one hour each per workday. (R. 9, PageID #: 609.) The nurse stated that Cosme would need to take "multiple" unscheduled breaks throughout a workday, because she is unable to stand for more than one hour, and on average she will need to rest 45 minutes before returning to work. Id. Nurse Spahr estimated that Cosme would be absent from work three to four days per month, due to blood draws, pain, swelling of her legs and recurrent DVTs. Id. at 610.
On July 14, 2015, Cosme had a functional capacity assessment by a physical therapist, Karin Kleppel, with the assistance of a Spanish-language interpreter. (R. 9, PageID #: 612-622.) The therapist noted normal range of motion and strength in the spine, arms, and right leg, but found decreased strength in the left leg due to pain and swelling. Id. at 614. Kleppel assessed that Cosme would have a low tolerance to all weight-bearing activities, which "would eliminate her ability to perform any job that includes standing or walking for any length of time." Id. Cosme's ability to sit for any length of time would also be affected by left leg pain and swelling. Id. Kleppel recommended further rehabilitation such as exercising and walking in her community pool. Id.
A medical expert, Dr. Krosky, testified at the hearing. (R. 9, PageID #: 122-131.) Dr. Krosky testified that the medical evidence of record that she reviewed supported a finding that Cosme had severe impairments of chronic deep vein thrombosis in her left leg, as well as chronic venous insufficiency in her left leg. Id. at 124. Dr. Krosky testified that, since July 30, 2013, Cosme has not had any impairment that met or medically equaled the criteria for any listing. Id. at 126. The doctor opined that Cosme would probably fall into the sedentary RFC level. Id.
Counsel for Cosme asked Dr. Krosky whether she would recommend that Cosme elevate her leg to relieve the pain and swelling in her left leg, and the doctor responded that, "It could be possibly be that she will need to do it," "probably at least on a stool." (R. 9, PageID #: 129.) Counsel asked if it was "reasonable" that "she has to elevate her leg about four hours throughout a day, at least straight up but preferably heart level," and the doctor responded, "It's possible." Id. at 130.
The ALJ made the following findings of fact and conclusions of law in his January 29, 2016, decision:
(R.9, PageID #: 87-89, 95-97.)
A claimant is entitled to receive SSI benefits only when she establishes disability within the meaning of the Social Security Act. See 42 U.S.C. §§ 423, 1381. A claimant is considered disabled when she cannot perform "substantial gainful employment by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve (12) months." 20 C.F.R. § 416.905(a).
Social Security Administration regulations require an ALJ to follow a five-step sequential analysis in making a disability determination. See 20 C.F.R. § 416.920(a); Heston v. Commissioner of Social Security, 245 F.3d 528, 534 (6th Cir. 2001). The Sixth Circuit has outlined the five steps as follows:
Wilson v. Commissioner of Social Security, 378 F.3d 541, 548 (6th Cir. 2004); see also 20 C.F.R. § 416.920(a)(4).
Judicial review of the Commissioner's benefits decision is limited to a determination of whether the ALJ applied the correct legal standards, and whether the findings of the ALJ are supported by substantial evidence. Blakley v. Commissioner of Social Security, 581 F.3d 399, 405 (6th Cir. 2009); Richardson v. Perales, 402 U.S. 389, 401 (1971). "Substantial evidence" has been defined as more than a scintilla of evidence, but less than a preponderance of the evidence. Wright v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003); Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981). Thus, if the record evidence is of such a nature that a reasonable mind might accept it as adequate support for the Commissioner's final benefits determination, then that determination must be affirmed. Wright, 321 F.3d at 614; Kirk, 667 F.2d at 535.
The Commissioner's determination must stand if supported by substantial evidence, regardless of whether this court would resolve the issues of fact in dispute differently, or substantial evidence also supports the opposite conclusion. Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986). This court may not try the case de novo, resolve conflicts in the evidence, or decide questions of credibility. Wright, 321 F.3d at 614; Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). The court, however, may examine all the evidence in the record, regardless of whether such evidence was cited in the Commissioner's final decision. See Walker v. Sec'y of Health & Human Servs., 884 F.2d 241, 245 (6th Cir. 1989); Hubbard v. Commissioner, No. 11-11140, 2012 WL 883612, at *5 (E.D. Mich Feb. 27, 2012) (quoting Heston, 245 F.3d at 535).
Cosme's appeal presents one legal issue with two sub-parts for the court's review. She challenges the ALJ's residual functional capacity determination, asserting the ALJ failed to incorporate Cosme's need to elevate her leg, and Cosme's inability to communicate in English. (R. 11, PageID #: 653.)
Cosme argues that, when the ALJ assessed her RFC, he "unreasonably failed to include Ms. Cosme's need to elevate her left [leg]." (R. 11, PageID #: 662.) The ALJ addressed the issue as follows:
(R. 9, PageID #: 93.)
Cosme notes that the ALJ found severe impairments of chronic venous insufficiency in the left leg, and residuals of DVTs. (R. 11, PageID #: 662; R. 9, PageID #: 88, 90.) Cosme's brief asserts that, during the hearing, Cosme testified that she needs to sit down and elevate her leg after doing things around the house. Id., citing R. 9, PageID #: 120. She contends that the ALJ "did not consider Ms. Cosme's testimony regarding her need to elevate her leg." Id., citing R. 9, PageID #: 90. Cosme's assertion is incorrect, however. The ALJ specifically stated, in considering claimant's daily activities: "She watched television, did things at home, and elevated her legs." (R. 9, PageID #: 92.) The ALJ determined that Cosme's medically determinable impairments could reasonably be expected to cause her alleged symptoms, but her statements concerning the intensity, persistence, and limiting effects of the symptoms were not entirely credible for the reasons explained in the decision. Id. at 90.
Whenever a claimant's complaints regarding symptoms, or their intensity and persistence, are not supported by objective medical evidence, the ALJ must determine the claimant's credibility based on a consideration of the entire case record. Rogers v. Commissioner, 486 F.3d 234, 247 (6th Cir. 2007). To the extent that the ALJ's findings are based on the credibility of the claimant, those findings are accorded great weight and deference. Walters v. Commissioner, 127 F.3d 525, 531 (6th Cir. 2004); Gonzalez v. Commissioner, No. 1:06CV687, 2008 WL 584927, at *5 (W.D. Mich. Jan. 17, 2008). The ALJ is not permitted to make credibility determinations based solely upon intangible or intuitive notions about an individual's credibility, but rather the ALJ's credibility determinations must be "based on a consideration of the entire case record," and "must find support in the record." Rogers, 486 F.3d at 247-248. The ALJ's assessment of the claimant's credibility must be supported by substantial evidence.
Cosme's brief argues that "the ALJ's decision is devoid of any discussion as to why he finds Ms. Cosme's need to elevate her leg not credible." (R. 11, PageID #: 663.) Again, this is an inaccurate assertion. As quoted above, the ALJ stated that he gave no weight to Dr. Krosky's testimony (that it was "possible" that Cosme might need to elevate her leg to relieve pain and swelling), because he found no medical evidence in the file in which anyone treating Cosme recommended or prescribed that she elevate her leg. (R. 9, PageID #: 93; see generally R. 9, PageID #: 129-130.) Cosme concedes that "there is not an examining source who recommended that Ms. Cosme elevate her leg," but contends this is not a sufficient reason to reject Dr. Krosky's testimony. (R. 11, PageID #: 663.) Cosme argues that "Dr. Krosky's opinion is consistent with the medical literature." (R. 11, PageID #: 663, citing a Johns Hopkins medical website which stated chronic venous insufficiency treatment "may . . . include elevating the legs to reduce pressure in the leg veins.")
Cosme asserts that Dr. Krosky gave an opinion that Cosme "should elevate her leg throughout the day." (R. 11, PageID #: 664.) A review of Dr. Krosky's testimony does not support this assertion. Dr. Kronsky testified that various options were "possible."
Although the Commissioner does not raise the issue, Dr. Krosky's testimony that "it could possibly be that she [Cosme] will need to" elevate her leg (R. 9, PageID #: 129), falls short of a medical opinion as contemplated by the regulations. A medical "opinion" under the regulations describes not only the nature and severity of the claimant's impairments, but also what the claimant is capable of doing despite her impairments, and what her physical restrictions are in the workplace. See 20 C.F.R. § 416.927(a)(2); see, e.g., Dunlap v. Commissioner, No. 11-5633, 2012 WL 6700319, at *3 (6th Cir. Dec. 27, 2012). Dr. Krosky does not opine a definite workplace restriction for Cosme of elevating her leg, only that she "could possibly" have a need to elevate her leg.
In addition, the ALJ reasonably discounted Cosme's testimony concerning elevating her legs because a workplace restriction based on her comments was not supported by a physician's express medically-supported physical restriction, and was inconsistent with the medical evidence in the record. See 20 C.F.R. § 416.929(a); Temples v. Commissioner, No. 12-5816, 2013 WL 600218, at *2 (6th Cir. Feb. 15, 2013) (per curiam).
For the above reasons, the court finds that the ALJ's decision on this matter was supported by substantial evidence.
Cosme contends the ALJ failed to include findings "limiting [her] inability to communicate in English." (R. 11, PageID #: 653.) Cosme argues that the ALJ's RFC found that Cosme can communicate with the public, coworkers and supervisors fluently in Spanish, but not fluently in English. (R. 11, PageID #: 664.) But when considering Cosme's vocational factors, the ALJ found that Cosme is able to communicate in English. Id., citing R. 9, PageID #: 95. Cosme argues that "there is simply nothing in the record to support the ALJ's finding that Ms. Cosme if capable of communicating in English." (R. 11, PageID #: 664.) As such, she argues there is not substantial evidence to support the ALJ's finding. Id.
The ability to communicate in English is relevant to the ALJ's education determination. Garcia v. Secretary, HHS, 46 F.3d 552, 554 (6th Cir. 1995). One of the vocational considerations that the regulations require an ALJ to address is the claimant's "ability to communicate in English" when evaluating what work may be available. 20 C.F.R. § 416.964(b)(5). The ALJ considered plaintiff's argument that the RFC should have included Cosme "was totally unable to communicate in English" and the VE's testimony that a complete inability to communicate in English would reduce the U.S. job base to insignificance. (R. 9, PageID#: 92, 97.) But the ALJ determined, "I found insufficient evidence in the record considered as a whole to persuade me that Ms. Cosme is totally unable to communicate in English." Id. at 92. As such, the ALJ determined that Cosme is able to communicate in English. (R. 9, PageID #: 95.) The ALJ reasonably weighed the evidence in the record and the RFC findings included the following language limitation: "Ms. Cosme could and can communicate with the public, coworkers, and supervisors fluently in Spanish but not fluently in English." Id. at 89.
Plaintiff has the burden of showing further limitations. The record, however, contains a Disability Report that Cosme filed with the Commissioner, which substantially undermines the plaintiff's contention. That Disability Report indicates that she can speak and understand English. (R. 9, PageID #: 357-358, responses 1.G and 2.E.) The Report, which her previous attorney completed, also indicated that there was no other language preference, although it indicated that she could not read and understand English. Id. at 357-358.
The court notes a distinction between the ability to communicate in a language, and being fluent in a language. To be fluent
Courts have noted that the ability to communicate in English is not dispositive to the determination of disability:
Rivera v. Commissioner, No. 3:13CV772, 2014 WL 4956224, at *13 (N.D. Ohio Sept. 30, 2014) (quoting Deaton v. Commissioner, No. 08-5249, 2009 WL 585788, at *5 (6th Cir. Mar. 5, 2009)); see also Medina v. Berryhill, No. 1:16CV02524, 2017 WL 3601917, at *7 (N.D. Ohio Aug. 22, 2017) (quoting 20 C.F.R. pt. 404, subpt. P, app. 2, § 201.00(i)). In this case, the VE testified at the hearing that in unskilled, sedentary level jobs there was minimal need to communicate with other people. (R. 9, PageID #: 140.)
The ALJ reasonably weighed the evidence in the record, which although limited, does not support Cosme's contention that she is unable to communicate in English. Rather, the ALJ reasonably determined that the record as a whole demonstrated that she can communicate in English in a meaningful, although not proficient manner. As such, the ALJ recognized and accounted for Cosme's limited proficiency in the English language by assigning an RFC that reasonably accommodated her limitations. At Step Five, the ALJ considered Cosme's RFC, age, education and work experience and then relied upon the VE's testimony when determining that she could perform a significant number of available jobs, namely she
(R. 9, PageID #: 96, see also 89, 136-138); see generally Medina, 2017 WL 3601917, at *7 (ALJ's RFC reasonably accommodated language limitations); Rivera, 2014 WL 4956224, at *14 (same).
For the above reasons, the court finds that the ALJ's decision on this matter was supported by substantial evidence.
For the foregoing reasons, the court finds that the decision of the Commissioner is supported by substantial evidence. The decision of the ALJ should be affirmed.
