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Richardson v. Colvin

United States District Court, N.D. Ohio, Eastern Division

March 3, 2017

WILLIAM RICHARDSON, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Comm'r of Social Security, Defendant.

          SARA LIOI, JUDGE

          REPORT AND RECOMMENDATION

          David A. Ruiz, United States Magistrate Judge

         Plaintiff, 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.

         I. Procedural History

         On March 20, 2012, Plaintiff filed his application for POD and DIB, alleging a disability onset date of May 18, 2009.[1] (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).

         Plaintiff 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).

         II. Evidence

         A. Personal and Vocational Evidence

         Plaintiff 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).

         B . Relevant Medical Evidence[2]

         On June 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).

         Dr. 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.[3] (Id.)

         Dr. 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. (Id.)

         Dr. 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).

         Dr. 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 spondylolisthesis” (Id.)

         C. Relevant Hearing Testimony

         At the 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;[4] 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).

         The ALJ 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 additional limitations.
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).

         In 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).

         The ALJ 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.)

         The ALJ 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.)

         The ALJ 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 ...


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