United States District Court, S.D. Ohio, Eastern Division
Algenon L. Marbley, Judge
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE
Bonnie Jo Grinnell filed this action under 42 U.S.C. §
405(g) seeking review of a partially favorable decision of
the Commissioner of Social Security (the
“Commissioner”). For the reasons that follow, it
is RECOMMENDED that Plaintiff's
Statement of Errors be OVERRULED, and that
judgment be entered in favor of Defendant.
filed her applications for benefits on December 27, 2012,
alleging that she has been disabled since July 28, 2011. (Tr.
230-39, 240-45, PAGEID #: 274-83, 284-89). On May 15, 2015,
the ALJ issued a partially favorable decision finding that
Plaintiff had not become disabled until her fifty-fifth
birthday on December 6, 2015. (Tr. 15, PAGEID #: 56). On
February 8, 2017, the Appeals Council denied Plaintiff's
request for review and adopted the ALJ's decision as the
Commissioner's final decision. (Tr. 1-5, PAGEID #:
filed this case on April 5, 2017, and the Commissioner filed
the administrative record on June 9, 2017. (Doc. 9).
Plaintiff filed a Statement of Specific Errors on July 31,
2017 (Doc. 12), and the Commissioner responded on August 30,
2017 (Doc. 14).
Relevant Hearing Testimony
Law Judge Peter Boylan (the “ALJ”) held a video
hearing on November 24, 2015. (Tr. 32, PAGEID #: 73).
Plaintiff was represented by counsel, and Karen Schneider
testified as a vocational expert (the “VE”). (Tr.
34, PAGEID #: 75).
was born on December 7, 1960, and was 54-years-old on the
date of the hearing. (Tr. 36, PAGEID #: 77). Plaintiff
testified that she has custody of her nine-year-old grandson,
who has lived with her since he was fifteen-months-old. (Tr.
37, PAGIED #: 78). She does not have any income but receives
state assistance for her grandchild. (Id.).
attended special education classes through the tenth grade.
(Id.). She is able to read and write and maintains a
driver's license. (Tr. 37-38, PAGIED #: 78-79). Plaintiff
testified that, in a typical week, she drives to the store or
to a doctor's appointment. (Tr. 37, PAGIED #: 78).
last job was working as “a home care attendant taking
care of an elderly lady in her home.” (Tr. 38, PAGEID
#: 79). Plaintiff had worked intermittently as a home care
attendant since the 1970s, but her last position ended on
January 11, 2011, when the woman's children opted to put
her into a nursing facility. (Id.). Plaintiff also
was a fast food worker from 2002 to 2003, a hand packager
from 1996 to 1997 and in 2006, and a sewing machine operator
in 2005. (Id.).
stated that she was involved in a car accident in July 2011
(Tr. 52, PAGEID #: 93), which led to impairments in her back
and neck and which caused headaches (Tr. 38, PAGEID #: 79).
Plaintiff stated that she has pain daily, which “feels
like somebody beat [her] real bad with a club, like a
sledgehammer beating [her].” (Tr, 42, PAGEID #: 83).
Plaintiff explained that moving around exacerbates her pain
and, for relief, she lies down with an ice pack three to four
times a day for approximately thirty to forty-five minutes.
(Tr. 43, PAGEID #: 84). Plaintiff's medications include
Percocet for pain, and she has received injections and
engaged in physical therapy, including the use of a TENS
unit, for her back. (Tr. 39-41, 47, PAGEID #: 80-82, 88).
testified that she can sit for thirty minutes before she has
to move, can stand for approximately fifteen or twenty
minutes at a time, and can lift five pounds “if
[she's] lucky.” (Tr. 43, PAGEID #: 84). Plaintiff
indicated that she could walk only approximately 500 feet
without difficulty. (Tr. 48, PAGEID #: 89). A typical day for
Plaintiff includes “get[ting] [her] grandson off to
school, ” “do[ing] what [she] can around the
house, ” and “in the evening[, ] …
see[ing] that he's fed and got his shower and stuff for
bed.” (Tr. 44, PAGEID #: 85). Plaintiff shops for
groceries, cooks, washes dishes, cleans, and does laundry
when she is able. (Tr. 44- 45, PAGEID #: 85-86). Plaintiff
testified that her grandson helps her by vacuuming, taking
out the trash, and doing laundry occasionally. (Tr. 49,
PAGEID #: 90). Plaintiff plays games and uses Facebook on her
tablet. (Tr. 46, PAGEID #: 87).
testified that a hypothetical individual with Plaintiff's
age, education, and work experience who is limited to light
levels of exertion and can occasionally stoop, crouch, crawl,
climb ramps and stairs, but can never climb ladders, ropes,
or scaffolds, and must avoid concentrated exposure to fumes,
odors, dust, gases, and poor ventilation could perform
Plaintiff's past job as a fast food worker and other
light unskilled work, such as inspector, sorter, and
merchandise marker. (Tr. 54-56, PAGEID #: 95-97). The VE
further testified that if that hypothetical individual were
limited to simple work-related decisions, superficial
interaction with others, and tolerating occasional changes in
a work setting, the individual could still be a fast food
worker and perform other work, such as inspector, sorter, and
merchandise marker. (Tr. 56-57, PAGEID #: 98-99). Conversely,
the VE stated that the hypothetical individual with those
functional limitations and vocational factors would be
precluded for competitive employment if she were off task 20
percent of the workday, will miss two days of work in a
month, and needs to lie down and/or take a break three to
four times a day. (Tr. 57, PAGEID #: 98).
closing remarks of Plaintiff's counsel included that,
although she is “not arguing the listing here in this
case, ” the record reflects an individual with
“rather significant lumbar issues….” (Tr.
60, PAGEID #: 101) (indicating that she opted not to argue
for a ...