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Smith v. Commissioner of Social Security

United States District Court, Sixth Circuit

May 10, 2013

Martha Strother Smith, Plaintiff,
v.
Commissioner of Social Security, Defendant,

REPORT AND RECOMMENDATION

VERNELIS K. ARMSTRONG, Magistrate Judge.

I. INTRODUCTION

Plaintiff Martha Strother Smith ("Plaintiff") seeks judicial review pursuant to 42 U.S.C. § 405(g) of Defendant Commissioner's ("Defendant" or "Commissioner") final determination denying her claim for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 416(i), and 423 (Docket No. 1). Pending are the parties' Briefs on the Merits (Docket Nos. 13 and 14) and Plaintiff's Reply (Docket No. 15). For the reasons that follow, the Magistrate recommends that the decision of the Commissioner be affirmed.

II. PROCEDURAL BACKGROUND

On September 13, 2007, Plaintiff filed an application for a period of DIB under Title II of the Social Security Act, 42 U.S.C. §§ 416(i) and 423 (Docket No. 11, p. 115 of 601).[1] In her application, Plaintiff alleged a period of disability beginning June 1, 2006 (Docket No. 11, p. 115 of 601). Plaintiff's claim was denied initially on November 26, 2007 (Docket No. 11, p. 80 of 601), and upon reconsideration on January 29, 2008 (Docket No. 11, p. 89 of 601). Plaintiff thereafter filed a timely written request for a hearing on February 27, 2008 (Docket No. 11, p. 96 of 601).

On March 11, 2010, Plaintiff appeared with counsel for a hearing before Administrative Law Judge Traci M. Hixson ("ALJ Hixson") (Docket No. 11, pp. 28-60 of 601). Also appearing at the hearing was an impartial Vocational Expert ("VE") (Docket No. 11, pp. 50-60 of 601). ALJ Hixson found Plaintiff to have a severe combination of status/post right acetabular fracture (hip fracture), status/post right ankle fracture, seizure disorder, and degenerative disc disease of the lumbar spine with an onset date of June 1, 2006 (Docket No. 11, p. 17 of 601).

Despite these limitations, ALJ Hixson determined, based on all the evidence presented, that Plaintiff had not been disabled within the meaning of the Social Security Act at any time from the alleged onset date through the date of her decision, April 13, 2010 (Docket No. 11, p. 22 of 601). ALJ Hixson found Plaintiff had the residual functional capacity to perform light work with the following limitations:

1. Plaintiff can lift and carry twenty pounds occasionally and ten pounds frequently
2. Plaintiff can stand and walk for six hours during a typical eight-hour workday
3. Plaintiff can sit for six hours during a typical eight-hour workday
4. Plaintiff must have a sit/stand option every hour
5. Plaintiff can occasionally climb stairs and ramps with handrails
6. Plaintiff can bend, balance, stoop, reach in all directions, handle, finger, and feel
7. Plaintiff cannot kneel or crawl
8. Plaintiff must avoid vibration and hazardous conditions

(Docket No. 11, p. 18 of 601). Plaintiff's request for benefits was therefore denied (Docket No. 11, p. 22 of 601).

On August 7, 2012, Plaintiff filed a Complaint in the Northern District of Ohio, Eastern Division, seeking judicial review of her denial of DIB (Docket No. 1). In her pleading, Plaintiff alleged that the ALJ failed to: (1) reasonably assess Plaintiff's credibility; and (2) pose a reasonable hypothetical question to the VE (Docket No. 13). Defendant filed its Answer on November 2, 2012 (Docket No. 14).

III. FACTUAL BACKGROUND

A. ADMINISTRATIVE HEARING

An administrative hearing convened on March 11, 2010, in Cleveland, Ohio (Docket No. 11, pp. 28-60 of 601). Plaintiff, represented by counsel Lawrence Friedlander, appeared and testified (Docket No. 11, pp. 32-50 of 601). Also present and testifying was VE Brett Salkin (Docket No. 11, pp. 50-60 of 601).

1. PLAINTIFF'S TESTIMONY

At the time of the hearing, Plaintiff was a fifty-three-year-old female who was separated from her husband (Docket No. 11, p. 32 of 601). Plaintiff has two grown children, ages thirty-four and thirty-seven, and four grandchildren (Docket No. 11, pp. 32, 35 of 601). Plaintiff testified that she resided with another individual (Docket No. 11, p. 32 of 601). Plaintiff testified that she completed eleventh grade but never earned her GED (Docket No. 11, pp. 32-33 of 601). Plaintiff also indicated that she has a valid driver's license, but, at the time of the hearing, had not driven in about a year (Docket No. 11, p. 32 of 601). When asked what prevented her from working, Plaintiff indicated that she experienced numbness in her right foot (Docket No. 11, p. 40 of 601).

With regard to her past employment, Plaintiff stated that she last worked as a full-time cashier at Tops Market in 2006, a position she held for eleven or twelve years (Docket No. 11, p. 37 of 601). Plaintiff testified that she occasionally had to bag groceries and carry them to the customers' cars (Docket No. 11, p. 37 of 601). Plaintiff indicated that she was lifting heavy things "most of the time" (Docket No. 11, p. 38 of 601). Plaintiff was terminated from this job (Docket No. 11, p. 38 of 601). Simultaneous to this cashier position, Plaintiff worked for the City of Cleveland Heights as a fry cook/assistant cook manager in the school system (Docket No. 11, pp. 38-39 of 601). She held this position for fourteen years, but eventually left because the pay was better at Tops Market (Docket No. 11, p. 39 of 601).

Plaintiff gave testimony concerning a number of her alleged impairments, including right hip pain, right leg pain, seizures, acid reflux, sleep apnea, back pain, and a goiter (Docket No. 11, pp. 40-48 of 601). Plaintiff indicated that she broke her ankle and still experiences pain and swelling in her right leg (Docket No. 11, p. 43 of 601). She wears support hose and elevates her leg during the day (Docket No. 11, pp. 43, 45 of 601). Plaintiff later indicated that she experiences swelling in both legs (Docket No. 11, p. 48 of 601). Plaintiff testified that she experiences pain in her right hip, which she also broke (Docket No. 11, p. 40 of 601). She indicated that she cannot go up or down stairs without using the railing, and stated that she has to lead with the same foot every time and take stairs one stair at a time (Docket No. 11, pp. 40-41 of 601).

With regard to her seizures, Plaintiff testified that she has seizures periodically, usually once every two to three months (Docket No. 11, p. 41 of 601). Plaintiff indicated that she can feel the seizures coming on when she is awake, but stated that the seizures often occur during her sleep (Docket No. 11, p. 41 of 601). Plaintiff testified that she does not remember what happens during these nighttime seizures, but she can wake up and know that she has had one (Docket No. 11, p. 41 of 601). Plaintiff indicated that her last seizure occurred a couple of months prior to the hearing (Docket No. 11, p. 42 of 601).

Plaintiff stated that she also suffers from back pain and muscle spasms (Docket No. 11, p. 43 of 601). She claimed that the pain is so intense she cannot stand up straight some mornings (Docket No. 11, p. 43 of 601). Plaintiff indicated that she has a touch of arthritis and is in constant pain (Docket No. 11, p. 48 of 601). Plaintiff also testified that she suffers from acid reflux, for which she takes prescription medication (Docket No. 11, p. 43 of 601), sleep apnea, for which she uses a continuous positive airway pressure ("CPAP") machine (Docket No. 11, p. 43 of 601), and has plans to have a goiter surgically removed (Docket No. 11, p. 44 of 601).

2. VOCATIONAL EXPERT TESTIMONY

Having familiarized himself with Plaintiff's file and vocational background prior to the hearing, the VE described Plaintiff's past work as a cashier as medium and unskilled as performed, and her past work as a cook as medium and unskilled (Docket No. 11, pp. 52-53 of 601).

ALJ Hixson then posed her first hypothetical question:

Assuming we had a person of the same age, education, and employment background as [Plaintiff] and this person is able to... lift and carry [twenty] pounds occasionally, [ten] pounds frequently. This person is standing and walking for six hours and sitting for six hours, but we're going to let them have a sit/stand option every hour. This person is occasionally climbing stairs and ramps with handrails, occasionally bending and balancing and stooping. This person is not kneeling or crawling. This person is reaching in all directions. This person can handle, finger, and feel. We're not going to expose this person to vibration or hazardous conditions. Would this person be able to return to [Plaintiff's] past work?

(Docket No. 11, pp. 54-55 of 601). Taking into account these limitations, the VE testified that such an individual would not be able to return to Plaintiff's past work (Docket No. 11, p. 55 of 601). The VE stated that there was other work that such an individual could perform, including: (1) watch guard, listed under Dictionary of Occupational Titles ("DOT") Number 372.667-010, for which there are 212, 000 positions nationally and 1, 393 locally; (2) vending attendant, listed under DOT 319.464-014, for which there are 79, 000 positions nationally and 668 locally; and (3) office helper, listed under DOT 209.587-026, for which there are 918, 000 positions nationally and 7, 100 locally (Docket No. 11, p. 55 of 601).

ALJ Hixson then amended her hypothetical, stating, "instead of a sit/stand option this person needs to elevate their leg... we'll say below waist level, so when they're seated they need to elevate that leg - would that change the availability of these positions" (Docket No. 11, p. 55 of 601). VE Salkin indicated that the other work possibilities would remain unchanged (Docket No. 11, p. 56 of 601). The ALJ then questioned whether "if a person were only lifting and carrying [ten] pounds occasionally and only standing and walking for two hours and sitting for six, would that be considered a sedentary position?" (Docket No. 11, p. 56 of 601). The VE responded in the affirmative (Docket No. 11, p. 56 of 601).

During cross-examination, Plaintiff's counsel expanded upon the ALJ's hypothetical, adding, "if you introduced into the hypothetical that the hypothetical person had sleep apnea with bots [sic] of falling asleep during the day and restlessness at night, would that change the availability of the [watch guard] occupation?" (Docket No. 11, p. 56 of 601). VE Salkin indicated that, with that limitation, the hypothetical person could not perform the watch guard job (Docket No. 11, p. 57 of 601).

Plaintiff's counsel went on to ask if, "in the vending attendant and the office helper job... even though it's a light job, does that involve flexibility in terms of bending down and picking up items and putting them into racks or filing items in file folders and file cabinets and things of that nature?" (Docket No. 11, p. 57 of 601). The VE indicated that no more than one-third of the day is ...


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