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Waters v. Commissioner of Social Security

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

August 25, 2017

WILLIAM A. WATERS, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER

          KIMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, William A. Waters, filed this action seeking review of a decision of the Commissioner of Social Security (“Commissioner”) denying his application for Supplemental Security Income. For the reasons that follow, Plaintiff's Statement of Errors is OVERRULED, and judgment shall be entered in favor of Defendant.

         I. BACKGROUND

         A. Prior Proceedings

         Plaintiff filed for Supplemental Security Income on December 20, 2012, alleging disability beginning on July 4, 2012, due to a heart attack, angina, high blood pressure, high cholesterol, and gastroesophageal reflux disease. (See Doc. 15 at 1). His application was denied initially on April 20, 2013, and upon reconsideration on July 23, 2013. (Id.). Administrative Law Judge Edmund E. Giorgione (the “ALJ”) held a hearing on November 25, 2014 (Tr. 11, PAGEID #: 74), after which he denied benefits in a written decision on January 30, 2015 (Doc. 15 at 1). That decision became final when the Appeals Council denied review on May 25, 2016. (Id. at 2).

         Plaintiff filed this case on July 28, 2016 (Doc. 1), and the Commissioner filed the administrative record on January 6, 2017 (Doc. 11). Plaintiff filed a Statement of Specific Errors on February 21, 2017 (Doc. 15), the Commissioner responded on April 7, 2017, (Doc. 16), and Plaintiff filed a reply on April 24, 2017 (Doc. 17).

         B. The Administrative Hearing

         In September 2014, Plaintiff requested a telephone interview in lieu of attending the administrative hearing because he is the caregiver for his elderly mother, who does not travel much, and they had no transportation. (Tr. 122, PAGEID #: 180; Tr. 127, PAGEID #: 185). The ALJ denied Plaintiff's request, stating that there are “transportation alternatives” for travel between Groveport, Ohio (where Plaintiff lives) and Columbus, Ohio (where the hearing was to be held). (Tr. 128, PAGEID #: 186). Consequently, the hearing occurred on November 25, 2014, without Plaintiff present. (Tr. 32, PAGEID #: 90).

         Plaintiff's attorney, Justin Zutell, appeared on his behalf. (Id.). Mr. Zutell requested that Plaintiff be granted a telephone hearing due to his lack of transportation and the need to care for his elderly mother. (Tr. 35, PAGEID #: 93). The ALJ denied the request, stating that “telephone hearings are problematic.” (Id. (elaborating that he doesn't “know who [he's] really talking to and it's always very beneficial to be able to observe the claimant”)).

         Mr. Zutell offered a new piece of evidence, a residual functional capacity questionnaire dated January 11, 2013, from Plaintiff's primary care doctor, Dr. Rita Konfala. (Tr. 36, PAGEID #: 94 (referring to Ex. 9F)). Mr. Zutell noted that Dr. Konfala characterized Plaintiff's prognosis as guarded but stable and limited Plaintiff to sedentary work due to his hypertension, heart attack, hyperlipidemia, GERD, tobacco abuse, dyspnea, and fatigue. (Id.). Dr. Konfala also noted that he was still experiencing shortness of breath and chest pain, despite taking his medication. (Tr. 37, PAGEID #: 95). Mr. Zutell acknowledged certain evidence reflects that Plaintiff walks his dog three times per day for 20 minutes, but other evidence reflects that Plaintiff takes the dog out four times per day, but “he doesn't really walk him much.” (Tr. 38, PAGEID #: 96). Finally, Mr. Zutell noted that Plaintiff was fifty years old at the time of filing on December 20, 2012, has a high school education, and past work that includes working as a security guard at Radio Shack and a cashier at Kroger. (Tr. 36-37, PAGEID #: 94-95).

         Vocational Expert Lynne Kaufman (the “VE”) also testified at the hearing. (Tr. 38, PAGEID #: 96). The VE testified that a hypothetical individual with Plaintiff's age, education, work experience, and RFC could not perform Plaintiff's past work. (Tr. 40-41, PAGEID #: 98- 99). However, she testified that there are other jobs the hypothetical individual could do, such as mail sorter, packer, and “some types of cashier jobs….” (Tr. 41, PAGEID #: 99). Limiting the same hypothetical individual to sitting 60 minutes at a time for eight hours out of an eight-hour workday, standing and walking for 10 minutes at a time for one hour out of an eight-hour workday, lifting and carrying only ten pounds occasionally, and carrying no weight frequently, the ALJ found that the individual would be limited to less than a full range of sedentary work. (Tr. 42, PAGEID #: 100).

         C. Relevant Medical Background

         Plaintiff was hospitalized and treated with medical therapy for a myocardial infarction from July 4, 2012 to July 6, 2012. (Tr. 203, PAGEID #: 261). Although his discharge summary anticipated compliance problems, Plaintiff subsequently underwent diagnostic testing (see id.), cardiological treatment, and physical examinations.

         During an examination on August 10, 2012, Dr. Konfala noted that Plaintiff was worried about not being healthy enough to care for his elderly mother. (Tr. 261, PAGEID #: 319). His symptoms included chest pain, which Dr. Konfala referred to as “slight twinges.” (Id.) In terms of exercise, Plaintiff stated that he walked his dog a couple of minutes per day several times per week. (Id.). Dr. Konfala noted that Plaintiff was “currently able to do activities of daily living without limitations and able to do housework without limitations.” (Id.). She also stated that Plaintiff smokes half a pack of cigarettes per day for stress relief. (Id.). Plaintiff had normal chest, lung, and cardiovascular exams. (Tr. 262, PAGEID #: 320). However, Dr. Konfala noted that Plaintiff would “likely need cardiology referral once records from hospital are reviewed.” (Id.).

         Dr. Konfala examined Plaintiff again on October 10, 2012. (Tr. 257, PAGEID #: 315). Plaintiff reported chest pain described as “slight twinges” and some palpitations, but stated that he was “feeling well.” (Id.). He also noted some dyspnea, which he felt may be caused by his medication. (Id.). Plaintiff was still smoking a half a pack of cigarettes per day, but he was able to do activities of daily living and his housework without limitations. (Id.). Plaintiff again had normal chest, lung, and cardiovascular exams, and Dr. Konfala again noted that Plaintiff would “likely need cardiology referral once records from hospital are reviewed.” (Tr. 258, PAGEID #: 316).

         Dr. Konfala examined Plaintiff a third time on January 11, 2013. (Tr. 255-56, PAGEID #: 313-14). She described Plaintiff's symptoms as shortness of breath (with exertion and rest) and chest pain and noted “good compliance with treatment, good tolerance of treatment and good symptom control.” ...


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