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Cottrill v. Commissioner of Social Security

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

January 17, 2018


          Michael H. Watson Chief Judge.



         Plaintiff, Tamee Lynn Cottrill, 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 her applications for social security disability insurance benefits and supplemental security income. This matter is before the Chief United States Magistrate Judge for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 26), the Commissioner's Memorandum in Opposition (ECF No. 28), Plaintiff's Reply (ECF No. 29), the administrative record (ECF No. 11) and supplemental administrative record (ECF No. 25). For the reasons that follow, it is RECOMMENDED that the Court OVERRULE Plaintiff's Statement of Errors and AFFIRM the Commissioner's decision.

         I. BACKGROUND

         Plaintiff applied for security disability insurance benefits and supplemental security income in January 2011, asserting disability from Multiple Sclerosis (“MS”), fibromyalgia, chronic fatigue syndrome, hormone imbalance, and a transitional right hip, with an onset date of January 15, 2005. (R. at 206, 311.) An Administrative Law Judge (“ALJ”) denied Plaintiff's application on January 16, 2013. (R. at 11-25.) She then brought the current case, challenging the ALJ's decision. The Commissioner requested remand because a portion of the hearing held on November 13, 2012 was not recorded. (ECF No. 19) Upon remand the Appeals Council vacated the ALJ's decision. (R. at 1126.) During the pendency of her appeal, Plaintiff filed a second application for supplemental security income on August 22, 2014, which was denied initially. The new application was subsequently consolidated with the remanded claims, and a supplemental hearing was held on July 21, 2015, in which Plaintiff, represented by counsel, appeared and testified. (R. at 1093; 1136-59.) A vocational expert also appeared and testified at the hearing. (R. at 1159-65.) On November 23, 2015, ALJ Irma J. Flottman issued a partially favorable decision finding that Plaintiff was not disabled prior to May 1, 2011, but became disabled on that date. In addition, the ALJ found Plaintiff to not be disabled within the meaning of the Social Security Act at any time through June 30, 2009, the date last insured. (R. at 1093-1113.) On June 24, 2016, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (R. at 1084-86.) In February 2017, the Commissioner moved this Court to reinstate the case, following completion of remand proceedings under sentence six of 42 U.S.C. § 405(g). (ECF Nos. 23& 24.)


         A. Plaintiff's Testimony

         At the July 2015 administrative hearing, Plaintiff testified that she lived with her husband and two children, ages 16 and 13. (R. at 1136.) She has a driver's license and went to college but did not obtain a degree. (R. at 1137.)

         Plaintiff last worked in 2009 at a substitute aide at a school, but she was asked to leave after becoming unsteady on her feet and because she kept dropping things. (R. at 1138.) In 2010 Plaintiff was diagnosed with MS, noting that an MRI from 2007 showed lesions on the white matter of her brain. (R. at 1139-40.)

         Plaintiff testified that she was unable to walk in a straight line and could not maintain balance. (R. at 1140.) Plaintiff also testified that she lost her grip strength and dropped objects. (Id.) Plaintiff described her MS as “relapsing remitting . . . it comes and goes and like I was in a flare a couple of years ago where I ended up on a cane and my voice was unsteady.” (Id.) Plaintiff testified that she took steroidal medication when she had flare-ups of multiple sclerosis and that the last time that she took the medication her heart began racing and she required emergency medical treatment, though she could not recall when that was. (R. at 1141.) Plaintiff testified that she was unable to recall phone numbers, retain new information, or recall recent or remote events. (Id.) Plaintiff testified that her cognitive problems began in 2005 to 2007. (R. at 1142.)

         Plaintiff also testified that she has had fibromyalgia since age 18, that it caused “searing hot” pain in her back and shoulder, and that stress and stormy weather aggravated the condition. (R. at 1143.) Plaintiff testified that bathing was painful and that a shower felt like “little electrical bolts going into my muscles.” (R. at 1144.)

         Plaintiff testified that she suffers migraine headaches when she has a flare-up of MS. (R. at 1144-45.) Plaintiff testified that her pain has not been below a 3 on the analog pain scale in more than 10 years. She described that most days her pain level is at ¶ 7 or 8, and if she is “lucky, at ¶ 4 or 5.” (R. at 1146.) Plaintiff testified that she took two medications for multiple sclerosis and non-prescription pain medication, although she used to receive injections through pain management before losing her insurance coverage. (R. at 1142, 1145.) At the time of the hearing, Plaintiff was taking Neurontin for her fibromyalgia. (R. at 1154.)

         Plaintiff testified that she began having difficulty ten years prior to the hearing carrying a large tote full of sheets and cleaning supplies at her job cleaning cabins. (R. at 1147.) Plaintiff estimated that 10 years prior to the hearing, she could lift ten pounds in each hand, and could walk 100 paces before needing to stop and rest. (R. at 1147-48.) She further testified that walking caused sciatic pain. (R. at 1148.) Plaintiff testified that even ten years ago she was unable to sit for eight hours a day and that she always had problems reaching and climbing stairs due to fibromyalgia. (Id.) Plaintiff also testified that her hands become numb when she holds them at chest level. She said that she has severe wrist pain and untreated carpal tunnel syndrome. (R. at 1157.)

         As to her daily activities, Plaintiff testified that she has been sleeping in a recliner for ten to twelve years. (R. at 1149.) She reported that she cooks dinner every night. (R. at 1150.) Plaintiff testified that she goes to the grocery store about once every two weeks and she “pays” for it by being in pain the following three to five days. (Id.)

         Plaintiff also testified to her mental impairments, noting she has suffered from depression for years and has never been on medications that helped. At the time of the hearing, she was on better medications but still depressed. She commented, “My life has been taken from me and that is something no pill is going to fix.” (R. at 1151.) Plaintiff testified that she felt guilty and worthless. (R. at 1152.) Plaintiff also testified that she has impaired concentration and no friends or family support, except for her husband and children. (Id.) Plaintiff testified that she has not had friends in five years or more. (R. at 1153.)

         B. Vocational Expert Testimony

         The vocational expert (“VE”) testified at the administrative hearing that Plaintiff's past jobs include a teacher's aide, a light exertion, semi-skilled position; a cashier, a light exertion, unskilled position that Plaintiff performed at a heavy level of exertion; a pharmacy technician, at the light exertion, semi-skilled level; and a housekeeper, a light exertion, unskilled position. (R. at 1160.)

         The ALJ proposed a series of hypotheticals regarding Plaintiff's residual functional capacity (“RFC”) to the VE. (R. at 1160-63.) Based on Plaintiff's age, education, work experience, and the RFC ultimately determined by the ALJ, the VE testified that Plaintiff could not perform her past relevant work, but could perform approximately 675, 000 unskilled, light exertional jobs in the national economy such as a hand packer, inspector, and packing and filling machine operator. (R. at 1161.) The VE also testified that if the hypothetical individual were to miss over one day of work a month as an unskilled worker, it would lead to disciplinary action and termination eventually. (R. at 1163.) The VE further testified that if the individual would be off tasks 10% of the workday “which it sounds like they would be, ” she would be eventually disciplined and terminated unless an accommodation was made. (R. at 1164.)


         Plaintiff's husband, James Cottrill prepared a third-party function report on Plaintiff's behalf on January 16, 2007. (R. at 253-60.) In this report, Mr. Cottrill described Plaintiff's ability to perform activities and get along with family, friends, neighbors or others depending on her mood, depression and pain level. (R. at 255-56.) According to Mr. Cottrill, Plaintiff's activities of daily living consist of the following;

Wakes up children, help them prepare for school. Depending on mood may go back to sleep or if able, do light housework, watch TV/listen to music. In evening, children take a lot of time. I help her get dinner made, help with kids. I usually give our daughter baths.

         (R. at 253.) Mr. Cottrill reported that Plaintiff is unable to drive without worry and pain and that she can no longer enjoy her previous hobbies or do yardwork at home. (R. at 254.) He also reported that Plaintiff has difficulty sleeping, doesn't change her clothes often, does not bathe often, does not often do her hair, and eats only one meal per day. (Id.) Mr. Cottrill further reported that Plaintiff is able to help with dishes, laundry, and light cleaning but requires a “long time” because of pain. (R. at 255.) Mr. Cottrill stated that Plaintiff can shop for groceries with help but only does so once or twice per month and requires up to four hours to do so. (R. at 256.) Mr. Cottrill also stated that Plaintiff can pay attention only in “short spans. 30 min maybe.” (R at. 258.) He further states that Plaintiff can follow written instructions “okay with no distractions and is in a good mood without a lot of depression.” (Id.) Mr. Cottrill reported that Plaintiff can follow spoken instructions “ok if moderately simple.” (Id.)


         A. Consultative ...

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