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Kontos v. Commissioner of Social Security

United States District Court, Sixth Circuit

September 4, 2013

SPIROS KONTOS, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

MEMORANDUM DECISION AND ORDER

VERNELIS K. ARMSTRONG, Magistrate Judge.

I. INTRODUCTION.

In accordance with the provisions of 28 U.S.C. ยง 636(c) and FED. R. CIV. P. 73, the parties consented to have the undersigned Magistrate Judge conduct all proceedings in this case and order the entry of final judgment. Plaintiff seeks judicial review of Defendant's final determination denying his claim for Disability Insurance Benefits (DIB) under Title II of the Social Security Act (Act). Pending for review are the Briefs filed by the parties (Docket Nos. 11 & 12). For the reasons that follow, the Magistrate Judge affirms the Commissioner's decision.

II. PROCEDURAL BACKGROUND.

On October 17, 2008, Plaintiff completed an application for DIB, in which he alleged that he became unable to work because of his disabling condition due to back problems beginning on May 21, 2004 (Docket No. 7, pp. 121-122 of 507). The application was denied initially and upon reconsideration (Docket No. 7, pp. 104; 106; 108 of 507). Plaintiff made a timely request for hearing before an Administrative Law Judge (ALJ) and on December 14, 2010, ALJ Pamela E. Loesel conducted a hearing in Cleveland, Ohio, at which Plaintiff, represented by counsel, and Vocational Expert (VE) Deborah Lee appeared (Docket No. 7, pp. 21; 68 of 507). On April 25, 2011, the ALJ issued her decision finding that Plaintiff had not been disabled within the meaning of the Act at any time from the alleged onset date through the date of the decision (Docket No. 7, pp. 22-31 of 507). The Appeals Council denied Plaintiff's request for review of the ALJ's decision on September 11, 2012, and the ALJ's decision became the final decision of the Commissioner (Docket No. 7, pp. 6-8 of 507).

A. THE ADMINISTRATIVE HEARING.

At the hearing before ALJ Loesel, Plaintiff and the VE testified.

1. PLAINTIFF'S TESTIMONY

Plaintiff completed the sixth grade in Greece. He could speak English but he could not read English. During the past thirty years, Plaintiff resided in the same home with his wife and daughters. Although he was able to drive, Plaintiff had not driven in two to three weeks prior to the hearing. His daughter drove him to the hearing (Docket No. 7, pp. 77, 85 of 507).

Plaintiff and his brother owned a Farmer Boy Restaurant for 23 years. Plaintiff cooked all day, ordered supplies and planned menus, while also supervising 20 to 23 employees. In 2004, Plaintiff's doctor advised him that he could no longer meet the physical demands associated with the restaurant; therefore, he sold the business (Docket No. 7, pp. 78-79; 86 of 507). Plaintiff applied for work at Applebee's but after orientation with the manager, he left because his back pain was so intense (Docket No. 7, p. 87 of 507). For fourteen or sixteen months, Plaintiff volunteered his services at his brother's restaurant by advising the cook for up to fifteen hours weekly (Docket No. 7, p. 91 of 507).

After selling the restaurant which he co-owned with his brother, Plaintiff underwent surgery in 2004. However, he continued to experience very sharp pain in his back which radiated down his right leg. He occasionally experienced numbness in his right leg (Docket No. 7, pp. 80-81 of 507). In an effort to stop and/or reduce his pain, Plaintiff had undergone acupuncture and received cortisone shots. Now, he took Advil every six hours and exercised at a recreational center for approximately 30 minutes (Docket No. 7, pp. 77, 81, 89 of 507). Plaintiff had called t\Chisle

Between 2004 and October 2008, Plaintiff estimated that he could stand up for approximately fifteen minutes before he had to change positions. Because the pain radiated from his back to his leg and he couldn't walk "right" or stay on his feet, Plaintiff used a cane to ambulate. He lifted "absolutely nothing, " did not help out around the house and was in the bed up to five hours per day. The pain interrupted his ability to sleep (Docket No. 7, pp. 82, 83, 84, 85 of 507).

2. THE VE'S TESTIMONY.

VE Lee, a vocational rehabilitation counselor, stated that her testimony was consistent with the DICTIONARY OF OCCUPATIONAL TITLES (DOT) and its companion publication SELECTED CHARACTERISTICS OF OCCUPATIONS (Docket No. 7, pp. 93, 98 of 507).

Initially, the VE categorized Plaintiff's past work as an owner and predominately a cook at a restaurant. The job of cook, described at DOT 313.361-014, was a skilled, medium demand occupation with a Specific Vocational Preparation (SVP) of seven. SVP describes the amount of time the typical worker could learn the techniques, acquire the information, and develop the facility needed for average performance in the specified job. The level seven denotes that to learn, and develop skills as an average cook required a period of time that exceeded two years up to and including four years (Docket No. 7. pp. 94-95 of 507; www.onetonline.org/help/online/svp.)

From 1980 through 2004, Plaintiff was also the owner of the restaurant. The VE classified this occupation as a food service manager, described in DOT 187.167-106. Such job was skilled and required a light level of exertion. The SVP for this job was also seven. The managerial skills did not transfer to sedentary work; however, there were some light cooking jobs that would accommodate these skills (Docket No. 7, p. 95 of 507).

The ALJ asked the VE to consider a hypothetical individual who was the same age, had the same educational background, had the same past work experience as Plaintiff and had these limitations that could restrict work activities:

1. Occasionally lifting 20 pounds.
2. Frequently lifting 10 pounds.
3. Standing and walking six hours out of an eight-hour workday.
4. Unlimited pushing and pulling.
5. Occasionally climbing ramps and stairs.
6. Never climbing a ladder, rope or scaffolds.
7. Occasionally balancing, stooping, kneeling, crouching and crawling.
8. Avoiding all exposure to hazards such as machinery and heights.

With respect to whether this hypothetical individual could perform Plaintiff's past relevant work as those occupations were generally performed in the national economy, the VE explained that Plaintiff performed this work at the medium level of exertion and he could no longer perform at that level. His past work as a cook/restaurant owner would exceed the exertional demands for light work. Furthermore, the VE explained that several of the food service director positions, i.e., manager of fast food, were considered light exertion and semiskilled work. The typical worker could learn the techniques, acquire the information, and develop the facility needed for average performance as a food service director at a level of time that exceeded six months up to an including one year (Docket No. 7, pp. 95-96 of 507; www.onetonline.org/help/online/svp).

Under the statistical category of food service manager, these are the titles of jobs identified under DOT as light work, their SVP and the numbers of jobs available in the economy that would accommodate the limitations of this hypothetical plaintiff:

JOB/DOT SVP CLEVELAND METROPOLITAN STATISTICAL AREA (MSA)/OHIO/USA MANAGER OF FAST FOOD 5. OVER SIX MONTHS UP TO AND 1, 500/8, 400/196, 000 DOT 185.137-010 INCLUDING ONE YEAR MANAGER OF INDUSTRIAL 6. OVER ONE YEAR UP TO AND CAFETERIA INCLUDING TWO YEARS DOT 319.137-018 MANAGER OF FOOD SERVICE 7. OVER TWO YEARS UP TO AND DOT 187.167-106 INCLUDING FOUR YEARS

Under light-type cooking positions, there would be the following position available in the economy that would accommodate the limitations of this hypothetical plaintiff:

JOB/DOT SVP CLEVELAND MSA/OHIO/USA Short order cook 3. Over one month up to and including 950/6, 900/168, 700 DOT 313.374-014 3 months

(Docket No. 7, p. 97 of 507).

III. TREATMENT HISTORY.

The ALJ must consider Plaintiff's subjective testimony about symptoms and the inability to work and perform activities and the VE's objective testimony. In addition, the ALJ must also consider and weigh all of the medical evidence that tends to prove disability within the meaning of the Act. A summary follows of medical evidence presented by Plaintiff that was material to the ALJ's determination of disability.

Dr. Stephen J. Schnell, M.D., an internal medicine specialist, removed compacted earwax on June 1, 2001 (Docket No. 7, pp. 223 of 507).

On August 21, 2001, Dr. John Collis, M. D., a neurosurgeon, diagnosed Plaintiff with degenerated L4 disc with herniation and/or stenosis (Docket No. 7, p. 321 of 507).

On September 25, 2001, Dr. Collis supplemented his earlier diagnosis of lumbar canal stenosis with a recommendation that Plaintiff undergo a lumbar decompressive laminectomy and foraminotomy, a surgical procedure that is performed on the lower spine to relieve pressure on one of the nerve roots, enlarging the intervertebral foramen, allowing ample space for the nerves and eliminating compression (Docket No. 7, p. 322 of 507; STEDMAN'S MEDICAL DICTIONARY 152820; 103990; 222280 (27th ed. 2000)).

Dr. Schnell treated the symptoms of pharyngitis on April 12, 2002 (Docket No. 7, pp. 223 of 507).

Plaintiff presented to Dr. Schnell with complaints that he became dizzy when bending. From blood samples collected on May 16, 2003, Dr. Schnell determined that Plaintiff's blood urea nitrogen, cholesterol and potassium levels exceeded the reference range for healthy individuals (Docket No. 7, pp. 223; 246 of 507).

On February 18, 2004, Plaintiff presented to Dr. Schnell with complaints of right chest wall and abdominal pain. The chest xrays showed eventration (protrusion of omentum and/or intestine through an opening in the abdominal wall) of the right hemidiaphragm and increased interstitial markings in the left lower lung that could represent infiltrate as opposed to atelectasis (decreased or absent air in the entire or part of the lung) and/or fibrotic changes. Results from the xrays of the lateral rib area suggested gallstones causing Dr. Schnell to order an ultrasound (Docket No. 7, p. 245, 246, 247 of 507; STEDMAN'S MEDICAL DICTIONARY 141700; 36120 (27th ed. 2000)).

The transabdominal screening ordered by Dr. Schnell was conducted on March 24, 2004. The results showed a normal liver, gallbladder, pancreas and spleen. The results also showed a 7mm cyst on the middle pole of the right kidney (Docket No. 224; 244 of 507).

On April 28, 2004, Dr. Michael T. Barkoukis, M.D., a urologist, examined Plaintiff's right flank pain that was localized over Plaintiff's lower rib cage in the mid-axillary line. The ultrasound revealed a larger cyst projecting off the left kidney that appeared benign except for the septation (Docket No. 7, p. 236 of 507; www.healthgrades.com/physician.dr-michael-barkoukis-xc5fd).

Dr. Collis examined Plaintiff on May 4, 2004, focusing on the episodic severe pain. A repeat magnetic resonance imaging (MRI) was ordered to confirm Dr. Collis' suspicions that Plaintiff had a lumbar disc ...


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