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Hartley v. Commissioner of Social Security

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

August 17, 2017


          Edmund A. Sargus, Jr. Chief Judge.



         Plaintiff, Kimberly Hartley, brings this action under 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her application for supplemental social security income (“SSI”) and disability insurance benefits (“DIB”). This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 12), the Commissioner's Memorandum in Opposition (ECF No. 18), and the administrative record. (ECF No. 11.) For the reasons that follow, the Undersigned RECCOMENDS that the Court OVERRULE Plaintiff's Statement of Errors and AFFIRM the Commissioner's decision.

         I. BACKGROUND

         Plaintiff filed her application for benefits on July 23, 2012, alleging that she had been disabled since June 12, 2012. (R. at 11.) Plaintiff's application was denied initially on January 15, 2013, and upon reconsideration on November 22, 2013. (Id.) Plaintiff sought a hearing before an administrative law judge. On July 23, 2015, Plaintiff, represented by counsel, appeared and testified before Administrative Law Judge Edmund E. Giorgione (“ALJ”). Jerry A. Osheski, Ph. D., the vocational expert (“VE”) also appeared and testified at the hearing. On August 21, 2015, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R at 11-24.) The ALJ's decision became the final Agency decision on May 23, 2016. (R. at 4-7.) Plaintiff then timely commenced the instant action.


         A. Plaintiff's Testimony

         Plaintiff, who was fifty-two during the relevant time period, testified that she is married, and lives in a one story house with her husband. (R. at 501-2.) She graduated from high school and completed an associate's degree in medical assisting. (R. at 502.) She reported that her legs are her most severe problem, testifying “I can't stand, and I can't sit for long periods of time either because they just hurt, and since the knee replacements the pain is better, but it's still there, and I really don't know how to do anything else but jobs that entail standing.” (R. at 505.) Plaintiff said that on a typical day her pain is a five out of ten. (Id.)

         She testified that she is able to stand or sit for ten to fifteen minutes at a time. She testified that she attends church, is able to dress herself, but at times she needs help showering and uses a chair. (R. at 508.) Plaintiff and her husband share household chores. For example, she testified that her husband loads the laundry and she folds. (R. at 508-9.) Plaintiff is a smoker, but she testified she is trying to quit and has gone from smoking a pack of cigarettes a day to smoking a half a pack of cigarettes. (R. at 509.) Plaintiff also testified that she spends the majority of her day lying down. (R. at 513.) When asked why she spends a majority of her day laying down she responded, “[b]ecause it hurts to move, and to stand, and to do things. I mean, I try to do the things I have to do because you have to do things, you have to feed your husband, and, you know.” (R. at 513-14.) However, she testified that when she first stopped working she did not have to lay down all the time. (R. at 514.)

         At the hearing Plaintiff wore a brace on her right hand, which she testified was for her carpal tunnel syndrome. (Id.) Plaintiff's last job was with All Clad Metal Crafters, and involved standing while working and lifting heavy machinery. (R. at 503-4.) She testified that she left in June 2012 because of the pain from standing. Two years after she stopped working she had knee replacement surgery in both knees. (R. at 510.) She testified that it took until 2014 because she no longer had insurance after she stopped working. (Id.)

         B. Vocational Expert Testimony

         The vocational expert (“VE”) testified at the administrative hearing that Plaintiff's past relevant employment as a machine operator at the cookware factory and personal care attendant or nurse's aide are medium semi-skilled positions, and work at the box factory where she worked stacking boxes was a medium unskilled position. (R. at 517.)

         The ALJ proposed a series of hypotheticals regarding Plaintiff's residual functional capacity (“RFC”) to the VE. (R. at 517-20.) Based on Plaintiff's age, education, work experience, and residual functional capacity, the VE testified that a similarly situated hypothetical individual could not perform Plaintiff's past work, but could perform jobs as an assembler, with 3, 000 jobs locally and 500, 000 nationally; an inspector, with 600 jobs locally and 250, 000 nationally; or as a mail clerk, with 130 jobs locally and 255, 000 nationally. (R. at 518.)


         A. Dr. Gregory Cush

         On May 15, 2014, Plaintiff visited Dr. Gregory Cush, an orthopedic surgeon, about her left knee. An examination reveals no erythema, no increased warmth, no fluctuance, no pointing lesions, and no ecchymosis. (R. at 488.) Dr. Cush did find that Plaintiff was tender, a patellofemoral grind test was positive with crepitus noted, and Plaintiff's range of motion was “severely limited.” (Id.) On June 23, 2015, Plaintiff underwent a total knee replacement surgery. (R. at 457.) In her six month postoperative evaluation, Dr. Cush reported Plaintiff's “symptoms are much improved compared to preoperative symptoms. Weight-bearing status: 100% . . . Patient has shown improvement in activity level.” (Id.) On March 30, 2015, Plaintiff attended her pre-operative visit for her right knee replacement surgery. Dr. Cush's notes explain that she was scheduled for surgery on April 20, 2015, three months prior to the hearing. (R. at 452.) Plaintiff testified that she was prescribed a cane by Dr. Cush, however, none of Dr. Cush's treatment notes discuss the use of a cane. (R. at 511.)

         B. Dr. Anna Mathew

         On December 9, 2012, Dr. Mathew examined Plaintiff at the request of Social Security. (R. at 291.) Dr. Mathew reported that Plaintiff has no assistive device and was “able to move about without any difficulties.” (R. at 294.) Upon examination of the left knee she reported tenderness over the joint line and a range of motion of “0 to 140 compared to 0 to 150.” (Id.) Dr. Mathew found that Plaintiff could walk 5-6 hours in an 8 hour workday; sit without limitation; and occasionally bend, kneel, stoop, crouch, balance, and climb. (R. at 297-98.)

         C. Dr. Scott L. Baron

         On June 26, 2012, Dr. Baron observed on exam of Plaintiff that she demonstrated a good range of motion in her wrist and forearm and that her finger motion is good except for a stiff right thumb. (R. at 163.)

         C. Dr. Justin Petrolla

         On August 15, 2012, an electrodiagnostic study (“EMG”) was performed on Plaintiff's bilateral upper limbs. (R. at 161.) Dr. Petrolla reported that the study “is diagnostic for carpal tunnel syndrome, which is in the mild category with some motor findings.” D. Dr. Bradley J. Lewis Dr. Lewis evaluated Plaintiff on November 7, 2013. He found that Plaintiff could stand and/or walk for about six hours in an eight-hour workday; sit about six hours; frequently climb ramps or stairs; frequently stoop; and occasionally balance, kneel, crouch, and crawl. (R. at 428.) He reported that Plaintiff “was able to walk in the room [without] difficulty, squatting, doing heel/toe walk.” (Id.) He also noted Plaintiff had no established hearing limitations. (R. at 430.) He found Plaintiff only “partially credible, ” reasoning that she is not fully credible because she “brought a cane with her but it was not medically necessary.” (Id.)

         E. Dr. Reynaldo Torio

         State agency physician Dr. Torio, reviewed Plaintiff's medical evidence on September 10, 2012. He reported that Plaintiff had severe impairments of osteoarthritis and allied disorders, COPD, and “hearing loss not treated with cochlear implantation.” (R. at 42.) He found Plaintiff had no restrictions of activities for daily living or in social functioning and found only mild limitations in maintaining concentration, persistence or pace. (R. at 43.) He also found Plaintiff to be only partially credible based on the evidence in the record. (Id.)

         IV. ...

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