United States District Court, S.D. Ohio, Eastern Division
JUDGE EDMUND A. SARGUS, JR.
REPORT AND RECOMMENDATION
CHELSEY M. VASCURA, UNITED STATES MAGISTRATE JUDGE
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
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.)
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.)
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.
RELEVANT HEARING TESTIMONY
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).
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.)
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.
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.)
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.
Testimony of the Vocational Expert
asked to classify Plaintiff's past work, the VE testified
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.)
asked to classify the Specific Vocational Preparation
(“SVP”) level 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.)
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
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