United States District Court, N.D. Ohio, Eastern Division
REPORT AND RECOMMENDATION
A. Ruiz, United States Magistrate Judge
William Richardson (hereinafter “Plaintiff”),
challenges the final decision of Defendant Carolyn W. Colvin,
Acting Commissioner of Social Security (hereinafter
“Commissioner”), denying his applications for a
Period of Disability (“POD”) and Disability
Insurance Benefits (“DIB”) under Title II of the
Social Security Act, 42 U.S.C. §§ 416(i), 423, 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.
March 20, 2012, Plaintiff filed his application for POD and
DIB, alleging a disability onset date of May 18,
2009. (Transcript (“Tr.”)
188-189). The application was denied initially and upon
reconsideration, and Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”). (Tr. 129-145).
Plaintiff participated in the hearing, was represented by
counsel, and testified. (Tr. 41-96). A vocational expert
(“VE”) and a medical expert (“ME”)
also participated and testified. (Id.) On November
4, 2014, the ALJ found Plaintiff not disabled. (Tr. 35). On
April 25, 2016, the Appeals Council declined to review the
ALJ's decision, and the ALJ's decision became the
Commissioner's final decision. (Tr. 1). On June 23, 2016,
Plaintiff filed a complaint challenging the
Commissioner's final decision. (R. 1). The parties have
completed briefing in this case. (R. 12 & 13).
asserts the following assignments of error: (1) the ALJ erred
in the evaluation of and weight assigned to the opinion of
Social Security's consultative, examining physician; and
(2) even if [Plaintiff] has the [RFC] for sedentary work, the
ALJ's decision is not supported by substantial evidence
and he erred in finding that the Plaintiff can return to past
relevant work as a safety area manager. (R. 12).
Personal and Vocational Evidence
was born in 1950 and was 60-years-old on the alleged
disability onset date as amended. (Tr. 188). He obtained a
GED while in the military and attended community college
without obtaining a degree. (Tr. 45-46). He had past relevant
work as an area manager, purchasing officer, and plant
manager. (Tr. 34).
. Relevant Medical Evidence
11, 2012, Dorothy A. Bradford, M.D., performed a consultative
examination of Plaintiff. (Tr. 348-355). Plaintiff underwent
manual muscle testing, which yielded “normal”
results in all categories. (Tr. 348). Dr. Bradford indicated
the testing was reliable and that Plaintiff had
“normal” ability to pick up a coin, write, hold a
cup, open a jar, and button his clothing. (Tr. 348-349).
Plaintiff had decreased range of motion in his cervical spine
and dorsolumbar spine. (Tr. 349-350). Conversely, range of
motion was normal bilaterally in Plaintiff's shoulders
and arms. (Id.) Plaintiff also had decreased range
of motion in his hips and knees, but range of motion in his
ankles was normal bilaterally. (Tr. 351).
Bradford recounted Plaintiff's “History of Present
Illness, ” which included Plaintiff's statement
that he has low back pain stemming from a birth defect, he
has been told surgery was “too dangerous, ” he
can stand/walk for only fifteen (15) minutes, and he never
uses an ambulatory aid, and never falls. (Tr. 352). Plaintiff
also indicated he had a torn meniscus in both knees for at
least ten years, but never underwent surgery.
Bradford noted that Plaintiff was 6'1” tall, and
weighed 379 pounds with a Body mass Index (“BMI”)
of 50. (Tr. 353). She noted Plaintiff was in no acute
distress. (Id.) With respect to gait/station, Dr.
Bradford observed that Plaintiff's station and posture
were normal, his R omberg sign was negative, and he did not
use an assistive device for walking. (Tr. 354). Movement in
Plaintiff's neck was severely restricted in all
directions, but he had normal stability, strength, and tone.
(Id.) In his upper extremities, Plaintiff had the
full range of motion, normal stability, normal strength, and
normal tone with no misalignment or tenderness. (Tr.
354-355). In his right lower extremity, Plaintiff had the
full range of motion, normal stability, normal strength, and
normal tone with no misalignment or tenderness. (Tr. 355). In
his left lower extremity, Plaintiff had full hip abduction
and rotation, normal strength, and normal tone, but reduced
hip extension, hip flexion, knee extension, and knee flexion.
Bradford's psychiatric review revealed that Plaintiff
exhibited appropriate judgment and insight; that he was
oriented to person, place, and time; that his recent and
remote memory were normal; that his mood and affect were
appropriate; and that his language was normal with normal
rate, articulation, and spontaneity of speech. (Tr. 355).
Bradford's “Assessment/Plan” affirmed
Plaintiff's statement that he can stand/walk for only
fifteen (15) minutes continuously. (Tr. 355). She noted that
Plaintiff did “continuous pursed lip breathing and
resting pulse ox was 96%.” (Id.) She opined
that Plaintiff was “unable to perform active or
sedentary work mainly due to his COPD and he probably has
Relevant Hearing Testimony
November 27, 2013 hearing, the VE characterized
Plaintiff's past relevant work as follows: area manager,
Dictionary of Occupational Titles (“DICOT”)
183.117-010, which is skilled, sedentary, with an SVP of
8; purchasing agent, DICOT 162.157-038,
which is skilled, light, with an SVP of 7; and plant manager,
DICOT 183.117-014, which is skilled, light, with an SVP of 8.
(Tr. 79-81) (emphasis added).
posed the following hypothetical question to the VE:
Now, hypothetical number one -- our hypothetical person could
or can do work at the sedentary and light exertional levels
only, with all that implies with respect to exertional and
postural limitations, and see 20 CFR 404.1567 for further
details about what those are, subject to the following
Our hypothetical person could or can stand and/or walk up to
and no more than a total of four hours per eight-hour work
day. Our hypothetical person would have needed and would need
a sit-stand option.
Our hypothetical person could and can bend, stoop, crouch,
squat, kneel, and crawl up to and no more than occasionally.
Our hypothetical person could and can climb steps and ramps
up to and no more than occasionally.
Our hypothetical person could not and cannot climb ladders,
ropes, or scaffolds at all. Our hypothetical person could not
and cannot perform work in an environment where there is
exposure to fumes, chemicals, dusts, or agricultural or
landscaping pollens in concentrations that exceed what would
be in the environment outside of or away from the work place.
Hypothetical person could not and cannot perform work in an
environment where [t]here is exposure to extremes of heat,
cold, humidity, or dryness. Our hypothetical person could not
and cannot work in proximity to unprotected heights,
dangerous moving machinery, or other work place hazards.
And our hypothetical person could not and cannot operate a
motor vehicle as part of a job.
(Tr. 82-83) (emphasis added).
response, the VE testified that such an individual could
perform Plaintiff's past relevant work as an area manager
position, but could not perform Plaintiff's other past
relevant work as a purchasing agent or plant manager, because
such jobs included standing, sitting, and lifting beyond the
abilities identified in the hypothetical. (Tr. 83).
posed a second hypothetical, which assumed the same
limitations as the first but added the following limitations:
“[o]ur hypothetical person could not and cannot turn
his head, to the left or right, more than 45 degrees; and
could and can push and pull, with his upper extremities, up
to and no more than occasionally. And that's upper
extremities, plural.” (Tr. 84). The VE testified that
his answer remained unchanged (i.e. hypothetical person could
perform past relevant work as an area manager, but not the
other positions). (Id.)
posed a third hypothetical, which assumed the same
limitations as the first but limited the individual to only
sedentary work-the first hypothetical included sedentary and
light work. (Tr. 84). Again, the VE testified that his
previous answer would remain unchanged. (Id.)
posed a fourth hypothetical, which assumed the same
limitations as the second hypothetical but limited the
individual to only sedentary work. (Tr. 84). The VE