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Smallwood v. Commissioner of Social Security

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

January 22, 2018

KENNETH EDWARD SMALLWOOD, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          CHIEF JUDGE EDMUND A. SARGUS, JR.

          REPORT AND RECOMMENDATION

          CHELSEY M. VASCURA, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Kenneth Edward Smallwood (“Plaintiff”), brings this action under 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his application for supplemental security income (“SSI”). This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 10), Defendant's Memorandum in Opposition (ECF No. 16), Plaintiff's Reply to Defendant's Memorandum in Opposition (ECF No. 17), and the administrative record (ECF No. 9). For the reasons that follow, it is RECOMMENDED that the Court OVERRULE the Plaintiff's Statement of Errors and AFFIRM the Commissioner's decision.

         I. BACKGROUND

         Plaintiff protectively filed his application for SSI on December 31, 2013, and alleges that he became disabled on June 30, 2012. He later amended his alleged disability onset date to December 31, 2013. On February 8, 2016, following initial administrative denials of his claim, Plaintiff was given a hearing before Administrative Law Judge Jason C. Earnhart (the “ALJ”) (ECF No. 9-2, at PAGEID# 80-118.) At the hearing, Plaintiff, represented by counsel, appeared and testified. Vocational Expert Richard Astrike (the “VE”) also appeared and testified. On March 15, 2016, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (Id. at PAGEID# 59-73.)

         On November 2, 2016, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (Id. at PAGEID# 46-49.) Plaintiff then timely commenced the instant action. (ECF No. 1.)

         In his Statement of Errors, Plaintiff raises a single contention of error. Specifically, Plaintiff maintains that the ALJ erred in relying upon the VE's testimony that he was capable of performing his past relevant work. The undersigned's discussion of the record evidence focuses on evidence relevant to consideration of this contention of error.

         II. RELEVANT HEARING TESTIMONY

         A. Plaintiff's Testimony

         During the February 2018 hearing, Plaintiff testified that he last worked in 2013 and said that since the alleged onset of his disability at the end of 2013, he had “junked, ” which he explained meant taking stuff to the scrapyard. (Id. at PAGEID# 89).

         Plaintiff indicated that it had been “a couple years” since he had worked as a manager at Cleveland Dreamers. (Id.) When asked what he did, Plaintiff said that as the manager, he would “sit down in a chair . . . or [go] into the office and sit back there and laid . . . [his] head on the desk and rested for a little bit then [he'd] come out and walk around and check and make sure everybody was doing what they were supposed to do.” (Id. at PAGEID# 93-94). Plaintiff stated that he worked eight-hour shifts and that during those shifts, he would get up and walk around because if he did not, he would “be stiff and couldn't move.” (Id. at PAGEID# 94). Plaintiff elaborated that he “would sit for a while and then . . . get up and then . . . walk around and check things and make sure everybody was doing and then . . . go back and sit down and … play a video game they had there.” (Id.) He added that he sometimes sat at the bar, but also would go to his office where he could stretch out and be left alone. (Id. at PAGEID# 95.) He further explained that he would sit for “for a while” and then “get up and move around” so that he did not become stiff. (Id. at PAGEID# 95.) Plaintiff said that he did not have to do much lifting. He indicated that the job ended when the business “wanted new management.” (Id.)

         Plaintiff testified that his job “was to make sure everybody did their job and then at the end of the night that the bar was closed and everybody went home.” (Id. at PAGEID# 105.) By way of example, Plaintiff said he would make sure that people were paying for their drinks instead of the bartender giving them away.

         When Plaintiff's counsel asked Plaintiff why he could not return to his former job, Plaintiff responded, “Well, I don't know if I couldn't do it.” (Id. at PAGEID# 101.) He added that the job “drove him crazy, ” and explained “It was a go-go bar and I had to listen to 20 different crazy women every day.” (Id.) He said that it was a lot of hassle to put up with everyone's problems. Plaintiff indicated that his old job was “not something [he] want[s], ” explaining that “listening to music all night long . . . [and] [c]razy women that were driving [him] nuts.” (Id. at PAGEID# 103-04.) He said “just having to put up with that . . . was just a lot of stress on [him].” Upon later questioning, Plaintiff reiterated that his old position is “not what [he] want[s] to do” because he does not “want to be in that scene anymore” because “it's just not for [him].” (Id. at PAGEID# 107.)

         From an exertional standpoint, Plaintiff said that he not been required to do much lifting with that job and did not identify any reason that he could not physically perform the demands of his past manager job at Cleveland Dreamers.

         B. Testimony of the Vocational Expert

         When asked to classify Plaintiff's past work, the VE testified as follows:

Your honor, he's a - the DOT code is retail manager. It's, it's skilled, SVP 7, and light. I think he did it at semi-skilled, I don't think he did it long enough to learn anything that would be - raise it to a skill level. So, it's 185.167-046. And I think he did it at the sedentary level. As long as you have the option to sit as you need to, I think it's classified as sedentary. So those would be two deviations from the DOT your honor.

(Id. at PAGEID# 111-112.)

         When asked to classify the Specific Vocational Preparation (“SVP”) level[1] at which he thought Plaintiff performed the job, the VE opined that it was a level four, reasoning as follows: “I think it's a 4. The bartender job in the DOT is an SVP 3. I think it was more than that, but less than the manager. So I think it's a 4. (Id. at PAGEID# 112.) The VE further opined that Plaintiff performed his job at the sedentary level of exertion. (Id.)

         The ALJ then asked the VE to consider a hypothetical individual with Plaintiff's vocational profile and the residual functional capacity (“RFC”) the ALJ ultimately assessed. The VE testified that such an individual could perform Plaintiff's past work as a manager at Cleveland Dreamers as he actually performed the position. The VE concluded that the individual could not, however, perform that position as it is generally performed, explaining that the individual lacked the background, training, and skill to perform the job. The VE stated that his testimony was consistent with the DOT and also the companion publication, the Selected Characteristics of Occupations (“SCO”).

         On cross-examination, Plaintiff's attorney questioned the VE about one of the DOT deviations he identified, namely, the VE's opinion that Plaintiff performed the position at the sedentary level as contrasted with the light-level at which the position is generally performed. Plaintiff's attorney directed the VE's attention to Exhibit 2E, the Adult Disability Report Form that Plaintiff completed in which Plaintiff indicated that in his manager position, he walked for three hours per day, stood for three hours per day, and sat for two hours per day. (Id. at PAGEID# 114, 210.) The VE stated that this delineation would constitute light work that an individual limited to the sedentary level of exertion could not perform. The ALJ then pointed out and the VE agreed that the delineation reflected in Exhibit 2E was not consistent with the testimony Plaintiff had just offered concerning the exertional demands of his prior position.

         III. RELEVANT ...


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