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Hummel v. Commissioner of Social Security

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

January 9, 2018


          Algenon L. Marbley, Judge



         Plaintiff, James Herbert Hummel, brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his applications for supplemental security income benefits. This matter is before the Court for consideration of Plaintiff's Statement of Errors (ECF No. 12), the Commissioner's Memorandum in Opposition (ECF No. 17), Plaintiff's Reply (ECF No. 18), and the administrative record (ECF No. 11). For the reasons that follow,, the Undersigned RECOMMENDS that the Commissioner of Social Security's decision be AFFIRMED and Plaintiff's Statement of Errors be OVERRULED.

         I. BACKGROUND

         On June 11, 2014, Plaintiff protectively filed an application for supplemental security income. (R. at 215.) Plaintiff maintains that he became disabled on January 1, 2001, as a result of chronic obstructive pulmonary disease (COPD), degenerative disc disease, fibromyalgia, and a shoulder problem. (R. at 230.) Plaintiff's application was denied initially and upon reconsideration. Plaintiff sought a de novo hearing before an administrative law judge (“ALJ”). (R. at 173.)

         Plaintiff appeared and testified at the April 4, 2016, hearing, represented by counsel. (R. at 50-93.) A vocational expert also appeared and testified at the hearing. (R. at 85-91.) On May 20, 2015, ALJ Jeffrey Hartranft issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 25-34.) On June 3, 2016, Plaintiff filed a Request for Review of Hearing Decision Order. (R. at 17.) On July 27, 2016, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (R. at 1-3.) Plaintiff then timely commenced the instant action.


         A. Plaintiff's Testimony

         Plaintiff testified at the administrative hearing that he is divorced and lives with his adult son. (R. at 57-58.) Plaintiff also testified that he does not currently have a driver's license because he is not comfortable driving while being treated with narcotic painkillers. (R. at 58.) Plaintiff stated that he has no hobbies due to his pain issues, although he used to play pool, golf, and go bowling. (R. at 82.)

         Plaintiff stated that he is a high school graduate and that he used to work as a barber, although he does not currently have a barber's license. (Id.) According to Plaintiff, he gave up his barber's license two years before the administrative hearing because he did not feel that he was physically able to continue working as a barber. (R. at 58-59.) Plaintiff stated that he last worked as a barber in the 2013-2014, cutting hair approximately six hours per day, four days per week. (R. at 59.) Plaintiff testified that he stopped working after approximately eight months. (Id.) Plaintiff further testified that he worked as a barber at various shops from some time in 2005 anywhere from six to eight hours per day. (R. at 60-66.) According to Plaintiff, he was let go from multiple jobs because he missed too much work due to his physical ailments. (R. at 60, 62.) Plaintiff testified that he currently works for a cleaning company, doing light cleaning at a factory. (R. at 66.) Plaintiff stated, “I basically wipe fingerprints off the cubicles and use the dust bunny and that's about all I do.” (Id.) According to Plaintiff, he can only work approximately seven hours per week because of his physical ailments. (R. at 67.)

         Plaintiff testified that his “biggest problem” is sciatic nerve pain “that shoots down into my knees. It sort of feels like my knee, when it happens . . . like my knees are going to go out completely.” (R. at 70.) Plaintiff also testified that for the last ten years he suffers from “[v]ery high pain levels” in his lower back and the back of his legs to the knees. (R. at 71.) Plaintiff further testified that, in addition to narcotics to manage his pain, he takes heart medication. (Id.) In Plaintiff's opinion, the narcotic pain drugs help his ability to work but also make him tired and sometimes make it difficult to breathe, especially when walking or going up and down stairs. (R. at 71-72.) Plaintiff testified that he suffers pain in his shoulders and that he has two pins in his right shoulder and one pin in his left shoulder because he had frequent shoulder dislocations as a child. (R. at 72.) Plaintiff also testified to painful bunions in both feet. (R. at 73.)

         According to Plaintiff, “[i]t feels like someone's taking a hot knife 80% of my day and just stabbing me in the side” and lower back. (R. at 73.) Plaintiff testified that walking makes the pain worse and that he can only walk about half a block at a time. (Id.) Plaintiff also testified that he can stand for one hour before needing to sit and that he needs to sit for “a couple of hours” before standing again. (R. at 74.) Plaintiff further testified that lifting things makes his back hurt and he, therefore, does not lift anything heavier than a gallon of milk anymore. (R. at 74-75.)

         Plaintiff testified that he can brush his teeth and feed himself. (R. at 75.) According to Plaintiff, his son does the grocery shopping because of his back and knee pain. (Id.) Plaintiff also testified that he sleeps in a reclining chair because lying in bed puts too much pressure on his lower back. (R. at 76.) Plaintiff further testified that after his back surgery two years prior, his pain medication no longer has the previous effect. (R. at 77.)

         Plaintiff testified that he stopped drinking two years before the administrative hearing, but that he smoked marijuana once, approximately one year before the hearing. (R. at 78.) Plaintiff also testified that he used to use cocaine, but had not used for two and half years. (Id.) Plaintiff further testified that one of his previous providers stopped providing pain medication because Plaintiff took something that was not prescribed. (R. at 79.) Plaintiff stated that he had an overdose approximately five years before the administrative hearing when he took a non-prescribed Ambien with his prescribed Methadone. (R. at 83-84.) Plaintiff testified that he is not taking medication for depression, although he used to. (R. 84.) Plaintiff explained, “[i]t just made me feel really-just kind of spaced me out and I didn't like that.” (Id.) Plaintiff said that he has never received counseling or seen a psychiatrist. (Id.)

         Plaintiff stated that he had been under the care of several doctors for pain management and that he was dismissed from one treatment because he missed an injection appointment. (R. at 81.) Under that treatment program, Plaintiff received two Methadone 10s and one Percocet per day before transitioning to Vicodin and Methadone. (Id.) Plaintiff also reported that he has received physical therapy, heat and cold treatments, injection treatment, and “burning” of his nerves. (R. at 82.) According to Plaintiff, the nerve “burning” gives temporary relief for “a couple of weeks, ” but that the other treatments have little effect. (R. at 83.) Plaintiff stated that he also uses a TENS unit and a cane 8-10 times a month “when I'm having bad days.” (R. at 83.)

         B. Vocational Expert Testimony

         The vocational expert (“VE”) testified at the administrative hearing that Plaintiff's past jobs include barber, a light exertion, skilled job and cleaner, a light exertion, unskilled job. (R. at 85-86.)

         The ALJ proposed a series of hypotheticals regarding Plaintiff's residual functional capacity (“RFC”) to the VE. (R. at 86-91.) Based on Plaintiff's age, education, and work experience and the RFC ultimately determined by the ALJ, the VE testified that Plaintiff could perform his past jobs as a barber and cleaner. (R. at 86.)

         The VE also testified that if the hypothetical individual had additional limitations to work only at the sedentary level, he could still perform several jobs in the local and national economy, including table worker, circuit board assembler, and tube operator. (R. at 87.) The VE further testified that the job of cleaner could be performed without the sedentary restriction, but with the further restriction of working only in a structured environment where duties and goals are set by supervisors rather than independently. (R. at 88.)


         A. Marc E.W. Miller, Ph.D.

         On October 8, 2014, Plaintiff saw Marc E.W. Miller, Ph.D., an independent consultative examiner. Plaintiff reported anxiety and depression over the prior couple of years due to his pain. (R. at 422.) Plaintiff told Dr. Miller that his son makes the meals, does laundry, cleaning, and grocery shopping, although Plaintiff manages his own finances. (R. at 423.) Plaintiff reported no mental health treatment. (R. at 422.) Dr. Miller observed “a great deal of pain behaviors, ” and noted a “rather blunted affect.” (R. at 422, 423.) Plaintiff reported no use of antidepressants, but Dr. Miller observed that he “appeared to be depressed.” (R. at 423.)

         Plaintiff told Dr. Miller, “I get depressed about all this pain and having MRSA. I don't have any money. I worry about my future.” (Id.) Dr. Miller noted that Plaintiff has fair concentration, although he has difficulty staying on task, “possibly as a result of his pain.” (Id.) According to Dr. Miller, Plaintiff has good problem solving and moderate organizational abilities, and he can follow two-step commands. (Id.) Dr. Miller made the following functional assessment:

James abilities and limitations in regard to understanding, remembering, and carrying out one and two step job instructions indicate no difficulty.
His abilities and limitations in regard to his interaction with co-workers, supervisors, and the public indicate no significant impairment. . . .
James abilities and limitations in regard to maintaining attention span and concentration indicate some difficulty. This may be a result of his pain and anxiety.
His abilities and limitations in regard to dealing with stress and pressure in a work setting indicate some issues. He does suffer from anxiety. However, no panic attacks are indicated. He is in a great deal of pain and this makes him irritable. He currently has difficulty dealing with people.

(R. at 425.) Dr. Miller diagnosed Plaintiff with moderate dysthymic disorder and moderate to severe generalized anxiety disorder. (Id.)

         B. ...

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