Shonebarger

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CINDY S.,1

Plaintiff,

v. Civil Action 2:25-cv-293

Judge Michael H. Watson

Magistrate Judge Chelsey M. Vascura

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

REPORT AND RECOMMENDATION

Plaintiff, Cindy S. (“Plaintiff”), brings this action under 42 U.S.C. § 405(g) for review of

a final decision of the Commissioner of Social Security (“Commissioner”) denying her

application for supplemental social security income (“SSI”). This matter is before the

undersigned for a Report and Recommendation on Plaintiff’s Statement of Errors (ECF No. 14),

the Commissioner’s Memorandum in Opposition (ECF No. 15), and the administrative record

(ECF No. 7). For the reasons that follow, it is RECOMMENDED that Plaintiff’s Statement of

Errors be OVERRULED and that the Commissioner’s decision be AFFIRMED.

I. BACKGROUND

Plaintiff filed her SSI application on January 15, 2022, alleging that she became disabled

beginning on October 17, 2020. After her application was denied initially and on reconsideration,

an Administrative law Judge (“ALJ”) held a telephonic hearing on March 7, 2024, at which

1 Pursuant to this Court’s General Order 22-01, any opinion, order, judgment, or other

disposition in Social Security cases shall refer to plaintiffs by their first names and last initials.

Plaintiff, who was represented by counsel, appeared and testified. (R. at 48–84.) A vocational

expert (“VE”) also appeared and testified. On April 22, 2024, the ALJ issued an unfavorable

determination. (Id. at 14–47.)

Plaintiff seeks judicial review of that unfavorable determination. She raises two related

contentions of error. First, she contends that the ALJ committed reversible error by failing to

include in her residual functional capacity2 (“RFC”) an accommodation for her need to elevate

her legs. (Pl.’s Statement of Errors 14–17, ECF No. 14.) Second, she contends that the ALJ

reversibly erred when evaluating medical opinion evidence about that alleged limitation. (Id. at

17–18.) Defendant correctly argues that neither of these contentions of error have merit. (Def.’s

Mem. in Opp’n 3–8, ECF No. 15.)

2 A claimant’s RFC is an assessment of “the most [she] can still do despite [her] limitations” “on

a regular and continuing basis.” 20 C.F.R. § 416.945(a)(1), (b)–(c).

II. THE ALJ’S DECISION

The ALJ issued the unfavorable determination on April 22, 2024. (R. at 14–47.) At step

one of the sequential evaluation process,3 the ALJ found that Plaintiff had not engaged in

substantial gainful activity since her January 15, 2022 application date. (Id. at 22.) At step two,

the ALJ found that Plaintiff had the following severe medically determinable impairments:

degenerative disease joint disease/arthritis of the right knee status post remote surgical

intervention; status post remote left foot fracture and dislocation; bilateral lower extremity

venous insufficiency with varicose veins; asthma; obesity; degenerative joint disease of the right

foot; plantar fasciitis bilateral feet; anemia; degenerative disc disease of the thoracic spine; an

affective disorder (depression/dysthymic); an anxiety disorder; a posttraumatic stress disorder

(PTSD); and borderline intellectual functioning (BIF). (Id. at 23.) At step three, the ALJ found

3 Social Security Regulations require ALJs to resolve a disability claim through a five-step

sequential evaluation of the evidence. See 20 C.F.R. §§ 404.1520(a)(4). Although a dispositive

finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th

Cir. 2007), if fully considered, the sequential review considers and answers five questions:

1. Is the claimant engaged in substantial gainful activity?

2. Does the claimant suffer from one or more severe impairments?

3. Do the claimant’s severe impairments, alone or in combination, meet or equal the

criteria of an impairment set forth in the Commissioner’s Listing of Impairments, 20

C.F.R. Subpart P, Appendix 1?

4. Considering the claimant’s residual functional capacity, can the claimant perform his

or her past relevant work?

5. Considering the claimant’s age, education, past work experience, and residual

functional capacity, can the claimant perform other work available in the national

economy?

See 20 C.F.R. §§ 404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir.

2009); Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).

that Plaintiff did not have an impairment or combination of impairments that met or medically

equaled one of the listed impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1.

(Id. at 25.)

The ALJ then set forth Plaintiff’s RFC as follows:

After careful consideration of the entire record, I find that the claimant has the residual

functional capacity to perform sedentary work as defined in 20 CFR 416.967(a) except the

claimant should avoid climbing ladders, ropes, and scaffolds. She should avoid exposure

to hazards including unprotected heights and dangerous machinery. The claimant could

frequently crouch or crawl. She could occasionally stoop, climb ramps and stairs, or kneel.

The claimant could tolerate occasional exposure to dusts, fumes, odors, gases or poorly

ventilated areas. The claimant could tolerate occasional exposure to extreme temperatures

and humidity. The claimant could perform simple, routine 1-3 step tasks, in a relatively

static/predictable environment where there were occasional changes in work

duties/processes, not involving a fast assembly line pace or strict production quotas.

(Id. at 27.)

At step four, the ALJ determined that Plaintiff had no past relevant work. (Id. at 1635.)

Relying on the VE’s testimony, at step five, the ALJ determined that considering her age,

education, work experience, and RFC, there were jobs that existed in significant numbers in the

national economy that Plaintiff could perform including the representative jobs of routing clerk,

sorter, and tester. (Id. at 1636.) Accordingly, the ALJ determined that during the relevant time

frame, Plaintiff was not disabled as defined in the Social Security Act. (Id. at 1637.)

III. STANDARD OF REVIEW

When reviewing a case under the Social Security Act, the Court “must affirm a decision

by the Commissioner as long as it is supported by substantial evidence and was made pursuant to

proper legal standards.” DeLong v. Comm’r of Soc. Sec., 748 F.3d 723, 726 (6th Cir. 2014)

(cleaned up); see also 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security

as to any fact, if supported by substantial evidence, shall be conclusive . . . .”). While this

standard “requires more than a mere scintilla of evidence, substantial evidence means only such

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Moats

v. Comm’r of Soc. Sec., 42 F.4th 558, 561 (6th Cir. 2022) (cleaned up) (quoting Biestek v.

Berryhill, 139 S. Ct. 1148, 1154 (2019)).

Although the substantial evidence standard is deferential, it is not trivial. The Court must

“examine[ ] the record as a whole and take[ ] into account whatever in the record fairly detracts

from the weight” of the Commissioner’s decision. Golden Living Ctr.-Frankfort v. Sec’y Of

Health And Hum. Servs., 656 F.3d 421, 425 (6th Cir. 2011) (citing Universal Camera Corp. v.

NLRB, 340 U.S. 474, 487 (1951)).

Nevertheless, where “substantial evidence supports the Secretary’s determination, it is

conclusive, even if substantial evidence also supports the opposite conclusion.” Emard v.

Comm’r of Soc. Sec., 953 F.3d 844, 849 (6th Cir. 2020) (quoting Crum v. Sullivan, 921 F.2d 642,

644 (6th Cir. 1990)). Finally, even if the ALJ’s decision meets the substantial evidence standard,

“a decision of the Commissioner will not be upheld where the SSA fails to follow its own

regulations and where that error prejudices a claimant on the merits or deprives the claimant of a

substantial right.” Rabbers v. Comm’r Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting

Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).

IV. ANALYSIS

As previously explained, Plaintiff contends that the ALJ erred by failing to accommodate

her need to elevate her legs and by improperly evaluating related medical opinion evidence. The

undersigned addresses each contention of error, although not in the order that Plaintiff has

presented them and concludes that neither has merit.

A. The Purported Medical Opinion Evidence

Plaintiff contends that the ALJ when evaluating opinions from her medical providers.

Specifically, she contends that the ALJ was required to explain how he considered the

supportability and consistency of her providers’ purported opinions that she needed to elevate

her legs. This contention of error lacks merit.

The relevant regulations require an ALJ to articulate how he considered the supportability

and consistency of medical opinions. 20 C.F.R. §§ 404.1520c(b)(2); 416.920c(b)(2). But a

medical opinion is defined as “a statement from a medical source about what [a claimant] can

still do despite [her] impairment(s) and whether [she has] one or more impairment-related

limitations or restrictions” in the ability to perform the physical, mental, or other demands of

work activities. Id. at §§ 404.1513(a)(2); 416.913(a)(2). Thus, the essence of a medical opinion is

a statement describing a claimant’s functional abilities or work-related functional limitations.

The records on which Plaintiff relies do not constitute medical opinions. Plaintiff points

to two treatment notes. The first, dated January 13, 2022, was authored by a physician assistant

(“PA”) who worked with Plaintiff’s podiatrist. (R. at 407.) That note reflects findings of

moderate bilateral lower extremity edema without pitting or calf tenderness and indicates that

discussions were had about “good edema control with compression, low salt, and elevation when

[not weight bearing] and at night/rest.” (Id. at 406–07.) The second note, dated May 31, 2022,

was authored by Plaintiff’s cardiologist, Dr. Bardales, who noted Plaintiff’s reports of bilateral

lower extremity edema and wrote: “Elevate feet while sitting, avoid salty foods.” (Id. at 694–95.)

Neither note contain a statement about Plaintiff’s functional capabilities or work-related

limitations. Neither specifies how often, how long, or to what height Plaintiff would need to

elevate her legs. Accordingly, both notes constitute routine treatment records rather than medical

opinions. See Tina D. v. Comm’r of Soc. Sec., No. 3:22-CV-152, 2023 WL 2759861, at *5–6

(S.D. Ohio Apr. 3, 2023) (finding treatment note recommending leg elevation did not constitute a

medical opinion where note made no statements about the plaintiff’s abilities or functional work-

related limits); Bobbie N. E. v. Comm’r of Soc. Sec. Admin., No. 3:20-CV-524, 2022 WL

4151752, at *4 (S.D. Ohio Sept. 13, 2022) (finding that stray recommendations to elevate legs in

treatment records were too vague to constitute medical opinions where recommendations did not

indicate when or how long the plaintiff should elevate legs).

Although the ALJ was required to consider these treatment notes as part of the record

when assessing Plaintiff’s RFC, he was not required to articulate findings about their

supportability or consistency because they were not medical opinions. Plaintiff’s contention to

the contrary lacks merit.

B. Failure to Include a Leg Elevation Limit in Plaintiff’s RFC

Plaintiff also contends that the ALJ erred by failing to include in her RFC a limitation to

accommodate her need to elevate her legs due to her edema. This contention of error is also

unavailing.

In Sorrell v. Comm’r of Soc. Sec., the Sixth Circuit Court of Appeals held that an ALJ did

not err by omitting a leg-elevation limitation in a plaintiff’s RFC. 656 F. App’x 162, 170 (6th

Cir. 2016). The Sixth Circuit explained that “[i]t [was] clear from the record that the ALJ

considered [the claimant’s leg] swelling and the need for her to elevate her legs.” Id. Further,

although “some treatment records mentioned leg elevation as a treatment for edema, no

physician indicated that [the claimant’s] edema caused work-related functional limitations, and

no medical expert opined that [the claimant] would need to elevate her feet to waist level during

the workday or even every day.” Id. Moreover, the claimant’s own testimony indicated that the

swelling was intermittent and that it reduced with medication. Id.

The same is true here. First, like the ALJ in Sorrell, the ALJ here explicitly considered

Plaintiff’s lower extremity swelling. The ALJ noted Plaintiff’s testimony about “ongoing leg

edema” and her use of conservative treatment measures such as leg elevation, a low salt diet, and

intermittent use of compression stockings. (R. at 30.) He also cited treatment records

documenting Plaintiff’s reports of swelling, occasional findings of edema in her legs, and

counseling on conservative management measures such as leg elevation when sitting, weight

reduction, ambulation, and compression stockings. (Id.) But as was the case in Sorrell, no

medical provider opined that Plaintiff’s edema caused work-related functional limitations or that

she needed to elevate her feet to waist level during the workday or even that she needed to

elevate her legs daily. Sorrell, 656 F. App’x at 162.

In addition, other evidence demonstrates that Plaintiff’s edema was intermittent. From

October 2020 through September 2021, Plaintiff denied edema or had none during examinations.

(R. at 709, 386, 389, 706, 1228, 392, 395, 398, 1227, 403, 701.) Between January 2022 and May

2022, Plaintiff reported, or edema was noted at some visits (id. at 406–07, 696, 694–95) but not

at all visits (id. 699). There were no findings or reports of edema during almost all of Plaintiff’s

examinations in 2023. (Id. at 1168, 1178, 1020, 836–37.) Indeed, edema was not present or

reported during examinations during the eighteen-month period from May 31, 2022, until it was

noted on her right lower extremity in December 2023 and January 2024. (Id. at 876, 882, 878,

879.) But edema was absent again in early February 2024 (id. at 981), present only in Plaintiff’s

right lower extremity later that month (id. at 1321, 1323) and entirely absent again in March

2024 (id. at 1417).

Plaintiff’s testimony during the following exchange at the March 7, 2024 hearing further

demonstrates the intermittent nature of her edema.

Q. And I had mentioned doctors noticing the swelling in your legs.

A. Yeah.

Q. Are you still experiencing that?

A. Yes, I got swelling in my lets (sic) and feet. Yes.

Q. How often are you experiencing that with your legs?

A. I’m not really sure. I really - - I mean, because I really don’t look down on my

legs all the time. But I do look down on my feet. But my feet has been swollen for

a few months now. My legs seem to go off and on, the swelling. [emphasis added]

(R. at 63.) As this passage shows, Plaintiff testified that she had swelling in her feet for only a

short period and that her leg swelling was irregular. Accordingly, under Sorrell, the ALJ did not

err by failing to include in Plaintiff’s RFC a leg-elevation limitation.

Even if Sorrell were not dispositive, Plaintiff’s contention of error would still lack merit.

Plaintiff notes that the VE testified that a need to elevate one’s legs to heart level outside of work

breaks would be work-preclusive. (Id. at 81.) And Plaintiff testified that “they want me to elevate

my feet and legs above my heart.” (Id. at 64.) But the treatment notes do not indicate that she

was recommended to elevate her legs to this level. They simply recommend leg elevation

without specifying height, duration, or frequency. The ALJ was not required to accept Plaintiff’s

testimony about this height requirement in the absence of corroborating treatment records.

Moreover, VEs routinely testify that there are a significant number of sedentary jobs in

the national economy that allow for footstool-level elevation. See e.g. Brown v. Comm’r, 1 F.

App’x 445, 448 (6th Cir. 2001) (Although the “full range of sedentary work was reduced by the

need to elevate his right leg to footstool level . . . there are a significant number of jobs in the

national economy that [Brown] can perform, including bench-type work such as visual

inspection, sorting, simple assembly, machine operation, as well as working as a lobby or

information clerk.”); Anderson v. Comm’r, No. 2:14-CV-1222, 2015 WL 965667, at *5–6 (S.D.

Ohio Mar. 4, 2015) (Although Anderson “should be allowed to elevate her right foot on a

footstool at various times throughout the workday,” she can perform jobs such as “order clerk,

addresser, and surveillance systems monitor.”) Therefore, even if a heart-level leg-elevation limit

would be work-preclusive, other leg-elevation limits might not be. Plaintiff has not demonstrated

that the ALJ erred by failing to find that she required any leg-elevation limit, let alone a heart-

level leg-elevation limit. For all these reasons, the undersigned finds no reversible error.

V. DISPOSITION

For all the foregoing reasons, it is RECOMMENDED that the Court OVERRULE

Plaintiff’s Statement of Errors and AFFIRM the Commissioner’s determination.

VI. 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 District 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 District 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).

The parties are specifically advised that 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 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

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

/s/ Chelsey M. Vascura

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE