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Dix v. Commissioner of Social Security

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

May 22, 2017

GARY DIX, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM OPINION AND ORDER

          James R. Knepp II United States Magistrate Judge.

         Introduction

         Plaintiff Gary Dix (“Plaintiff”) filed a complaint against the Commissioner of Social Security (“Commissioner”) seeking judicial review of the Commissioner's decision to deny supplemental security income (“SSI”) and disability insurance benefits (“DIB”). (Doc. 1). The district court has jurisdiction under 42 U.S.C. §§ 1383(c) and 405(g). The parties consented to the jurisdiction of the undersigned in accordance with 28 U.S.C. § 636(c) and Civil Rule 73. (Doc. 11). For the reasons stated below, the undersigned reverses the Commissioner's decision and remands for further proceedings.

         Procedural Background

         Plaintiff filed applications for SSI and DIB in October 2012 (Tr. 177, 183), alleging disability as of May 19, 2010 (Tr. 206). His claims were denied initially (Tr. 123, 132) and upon reconsideration (Tr. 140, 147). Plaintiff (represented by counsel) and a vocational expert (“VE”) testified at a hearing before the ALJ on August 19, 2014. (Tr. 39-65). On October 7, 2014, the ALJ issued a written decision finding Plaintiff not disabled. (Tr. 22-33). The Appeals Council denied Plaintiff's request for review, making the hearing decision the final decision of the Commissioner. (Tr. 1); 20 C.F.R. §§ 404.955, 404.981, 416.1455, 416.1481. Plaintiff filed the instant action on April 21, 2016. (Doc. 1).

         Factual Background

         Personal and Vocational Background

         Plaintiff was born on August 18, 1964, and was 48 years old on the alleged date of disability. (Tr. 66). He has a high school education and prior work as a driver, housekeeper, motor operator, and sandblaster. (Tr. 207). At the time of the hearing, he lived with his sister and nephew. (Tr. 48-49).

         Hearing Testimony

         Plaintiff's Testimony

         Plaintiff testified he is right-handed (Tr. 48) and has two adult children (Tr. 49). His medications at that time included meloxicam, gabapentin, hydrocodone, and hydrochlorothiazide, all which caused drowsiness. Id. A year prior he was prescribed Celexa for depression, but only took it for “[m]aybe three months because it was just too much for [him].” (Tr. 50). Plaintiff testified depression affected his daily activity, resulting in irritability. (Tr. 55). When the ALJ asked him how he spent a typical day, he responded: “ESPN.” Id. His sister cooked, cleaned the apartment, and washed laundry. (Tr. 55-56). Plaintiff stated he had trouble dressing himself because he was not able to “bend over to pick up anything.” (Tr. 57). He also had assistance showering, but had no trouble getting in and out of the tub. Id. Plaintiff did not drive a car because he had difficulty sitting for an extended period of time (Tr. 57) and no longer had a valid driver's license (Tr. 48).

         He testified he had pain in his lower back, front of his leg, thighs, calves, and foot. (Tr. 50). Plaintiff stated he underwent back surgery in 2009. (Tr. 53). The pain interfered with his sleep, for which he reported using a CPAP machine. (Tr. 52). Plaintiff stated he could stand, but was unable to walk for long periods of time, estimating he could walk for five or ten minutes at a time. (Tr. 50-51). He also experienced pain when sitting in a chair and estimated he spent seven hours a day in a recliner. (Tr. 51). Plaintiff stated he had been using a doctor-prescribed cane for a year and a half due to weakness in his legs. (Tr. 51-52). He testified his left hand was “just real numb and dead to [him].” (Tr. 54). Plaintiff stated he lacked strength in his left hand “[o]ff and on” for two or three years. Id. He testified he stopped attending school in 2011 due to back pain, and last worked in 2010.[1] (Tr. 56).

         VE's Testimony

         The VE presented a series of hypothetical scenarios to the VE. The first hypothetical scenario consisted of an individual of the same age, education, and work experience as Plaintiff with the following limitations: lift, carry, push, and pull twenty pounds occasionally and ten pounds frequently; sit, stand, or walk for six hours in an eight-hour workday; cannot climb ladders, ropes, or scaffolds; occasionally climb ramps and stairs; occasionally stoop, kneel, and crawl; frequently handle and finger with the non-dominant left upper extremity; must avoid workplace hazards such as unprotected heights or exposure to dangerous, moving machinery; limited to simple, routine tasks that do not involve arbitration, negotiation, or confrontation; cannot direct the work of others or be responsible for the safety or welfare of others; cannot perform work that requires strict production quotas; cannot perform piece rate work or assembly line work; and limited to occasional interaction with others. (Tr. 59-60). The VE stated the individual would be able to perform jobs in the regional and national economy, such as cleaner/housekeeper, mail clerk, and marker. (Tr. 60-61).

         In the second hypothetical scenario, the individual had the same limitations as in the first hypothetical, except that he was further restricted to lift, carry, push, and pull ten pounds occasionally and five pounds frequently; and stand and walk for two hours in an eight-hour workday. (Tr. 61-62). The VE stated there would be jobs available the individual could perform, such as addresser, document preparer, and touch-up screener (printed circuit board assembly). (Tr. 62).

         In the third hypothetical, the ALJ added a limitation that the individual would be off-task 33% of the time. (Tr. 62-63). The VE stated there would not be any jobs the individual could perform. (Tr. 63).

         The fourth hypothetical was also the same as the first expect that the individual would be absent from work more than four days a month. Id. The VE stated there would not be any jobs available the individual could perform. Id. The VE added that even if the individual would be absent from work two days on average per month, he would be precluded from work. (Tr. 63-64).

         ALJ Decision

         On October 7, 2014, the ALJ issued a written a decision in which he made the following findings of fact and conclusions of law:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2015.
2. The claimant has not engaged in substantial gainful activity since May 19, 2010, the alleged onset date.
3. The claimant has the following severe impairments: lumbar degenerative disc disease, left carpal tunnel syndrome, obstructive sleep apnea, depression, and panic disorder.
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that he cannot climb ladders, ropes, or scaffolds, but can occasionally stoop, kneel, and crawl. He can frequently handle and finger with his non-dominant left upper extremity. Moreover, the claimant must avoid workplace hazards such as unprotected heights or dangerous moving machinery. He is limited to simple routine tasks that do not involve arbitration, negotiation, confrontation, directing the work of others or being responsible for the safety of others. The claimant cannot perform work requiring strict production quotas, and cannot perform piecework or assembly line work. Finally, he is limited to only occasional interaction with others.
6. The claimant is unable to perform any past relevant work.
7. The claimant was born on August 18, 1964 and was 45 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date.
8. The claimant has at least a high school education and is able to communicate in English.
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled, ” whether or not the claimant has transferable job skills.
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform.
11. The claimant has not been under a disability, as defined in the Social Security Act, from May 19, 2010, through the date of this decision.

(Tr. 19- 38) (internal citations omitted).

         Relevant Medical Evidence

         Physical Impairments

         Prior to May 19, 2010, Alleged Onset Date of Disability

         On February 16, 2009, Plaintiff complained of left hip pain for approximately one week and lumbar pain three weeks after lifting something heavy at work. (Tr. 298). It was noted he was having trouble ambulating and bending over. Id. A physical examination revealed moderate tenderness to palpation over the lower back and left hip, a negative straight leg raise test, and no evidence of swelling, effusion, or contusion. (Tr. 299). A lumbar spine x-ray revealed degenerative changes of the lower lumbar spine. (Tr. 317). Plaintiff was diagnosed with a hip sprain and back pain of unknown etiology. (Tr. 299). He was given a Tordal injection, advised to perform back exercises at home, and prescribed muscle relaxants and anti-inflammatory pain medication. (Tr. 301-02).

         Dr. Anthony J. Ventimiglia's impression of an April 1, 2009 MRI of Plaintiff's lumbar spine was as follows:

L3[-]L4, L4[-] LS, and LS-Sl disc protrusions as described above more prominent at ¶ 4-LS where it measures up to 3.5 mm at the left lateral recess and up to 4 mm at the left lateral recess at LS-Sl with associated annular tear. Disc material appears to contact the left sided intracanalicular nerve roots in these regions. There is mild spinal canal stenosis at ¶ 4-L5 and mild neural foraminal narrowing at ¶ 4 LS and LS-Sl.

(Tr. 314).

         On May 8, 2009, Plaintiff underwent surgery (“micro laminectomy with discectomy L4-5, L5-S1, left”). (Tr. 283, 338-39). He was diagnosed with a herniated nucleus pulposus, stenosis of the lumbar spine, and “status post microlaminectomy, discectomy, L4-L5, L5-S1 on the left.” (Tr. 288). Also on ...


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