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Grinnell v. Commissioner of Social Security

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

November 20, 2017

BONNIE JO GRINNELL, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Algenon L. Marbley, Judge

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         I. BACKGROUND

         Plaintiff 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 #: 42-46).

         Plaintiff 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).

         A. Relevant Hearing Testimony

         Administrative 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).

         Plaintiff 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.).

         Plaintiff 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).

         Plaintiff's 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.).

         Plaintiff 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).

         Plaintiff 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).

         The VE 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).

         The 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 ...


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