United States District Court, S.D. Ohio, Eastern Division
Algenon L. Marbley Judge.
REPORT AND RECOMMENDATION
ELIZABETH A. PRESTON DEAVERS UNITED STATES MAGISTRATE JUDGE.
Elizabeth Sue Sanders, 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. 16), the Commissioner's Memorandum in Opposition (ECF
No. 24), and the administrative record (ECF Nos. 10 and 11).
For the reasons that follow, it is
RECOMMENDED that the Court
OVERRULE Plaintiff's Statement of Errors
and AFFIRM the Commissioner's decision.
protectively applied for security disability insurance
benefits and supplemental security income January 2011,
asserting that a back injury causing a herniated disc
constitutes a disability, which began on November 17, 2009.
(R. at 192-200, 248.) After a hearing attended by Plaintiff
and her attorney, an Administrative Law Judge
(“ALJ”), John M. Dowling, denied Plaintiff's
application on October 15, 2012. (R. at 14-23, 32-71.) The
Appeals Council denied Plaintiff's request for review of
the ALJ's decision, making the ALJ's decision the
final decision of the Commissioner. (R. at 1-3.)
Plaintiff filed a civil action in this Court, challenging the
ALJ's decision. Sanders v. Commissioner of Social
Security, No. 2:14-cv-00249. On March 4, 2015, this
Court remanded the Commissioner's decision for further
proceedings. (R. at 1096-1119.) The Appeals Council vacated
the ALJ's decision and remanded the case to an ALJ on
April 27, 2015. (R. at 1121-25.)
represented by counsel, appeared and testified at an
administrative hearing conducted on November 13, 2015. (R. at
1026-50.) Following this hearing, medical interrogatories
were sent to two medical experts, including Ronald E.
Kendrick, M.D., an orthopedic surgeon. (R. at 1615-19,
1625-27.) At Plaintiff's request, ALJ Jason C. Earnhart
conducted a supplemental hearing on May 25, 2016, to examine
the orthopedic medical expert. (R. at 981-87, 991-1003.) A
vocational expert also appeared and testified at the hearing.
(R. at 1006-15.) On June 24, 2016, ALJ Earnhart issued a
decision finding that Plaintiff was not disabled within the
meaning of the Social Security Act at any time since November
17, 2009, her alleged onset date, through June 24, 2016. (R.
at 946-65.) The Appeals Council denied Plaintiff's
request for review, making the ALJ's decision the final
decision of the Commissioner. (R. at 1-3.) Plaintiff then
timely commenced the instant action.
November 2015 administrative hearing, Plaintiff testified
that she was five feet, seven inches tall, and weighed 312
pounds. (R. at 1026.) She has a driver's license and
there has not been a time in the last six years where she did
not drive. (R. at 1027.) She drives to the grocery store and
to doctors' appointments. (Id.) Plaintiff
testified that she drives by braking with her left foot and
pushing her right knee when accelerating with her right foot
on the gas pedal. (Id.)
testified that she had injured her back in November 2009
while raking leaves; she “twisted and herniated two
discs.” (R. at 1030.) She continued that a year after
she initially hurt her back, she fell which then ruptured one
of the discs that is herniated and she herniated another
disc, resulting in two herniated discs and a ruptured disc.
(R. at 1031.) Plaintiff's pain in her legs has worsened
and she testified that she also has nerve pain in [her] left
began using a prescribed cane in 2010. (Id.) She
testified that she has no feeling on the bottom of her right
foot. (R. at 1032.) When asked why she felt she can't
work she replied that she could not sit, stand, or walk for
long periods. (R. at 1032-33.) Plaintiff testified that she
is incontinent, a condition which started after she fell on
the ice. (R. at 1036.)
also testified to her mental impairments, nothing she
suffered from depression, anxiety, posttraumatic stress,
panic attacks, and impaired memory. (R. at 1034-35,
1099-1100.) She said that she had attempted suicide a few
times when she was with her husband and three times since
leaving him. (R. at 1039.)
testified that she has both Facebook and Twitter accounts and
accesses Facebook twice a week. (R. at 1027-28.) Plaintiff
estimated that she had 150 friends on Facebook and said that
she posted photos of her dogs. (R. at 1028.) She attended
three years of college but did not graduate because her
husband at the time interrupted her study. (R. at 1029.)
testified that she vacuums and washes dishes but takes
frequent breaks. (R. at 1033.) She prepares quick meals
because she cannot stand at the stove and monitor the food.
(R. at 1033-34.) She needs to lay down two to three times a
day with a pillow between her knees because of her pain. (R.
at 1041-42.) She testified that steroid injections had not
resulted in reduced pain. (R. at 1042.) She said that a
transcutaneous electrical nerve stimulator
(“TENS”) unit helped with her muscles but she
would have to wear it all day and have in constantly on, so
she did not use it that often. (R. at 1042-43.)
E. Kendrick, M.D., the medical expert, responded to
interrogatories and testified at the May 25, 2016
administrative hearing. (R. at 976-1014.) In his
interrogatory responses, Dr. Kendrick concluded as follows:
The claimant's subjective to pain is the primary
determinant in her level of function. In other words, absent
her experience of pain she would be capable of medium work.
In view of her pain complaints, she would be restricted to
sedentary work, lifting and carrying 10 lbs. occasionally and
less than 10 lbs. frequently; [standing and walking two of
eight hours]; sitting [six of eight] hours; bending,
stooping, kneeling and crawling occasionally; climbing stairs
occasionally[, ] but no ladders, ropes or scaffolds; no
restrictions apply to the upper extremities. It is noted in
the record that she uses a cane on some occasions but it is
not medically necessary as a substitute for any structural or
(R. at 1627.)
May 25, 2016 administrative hearing, Dr. Kendrick testified
that he did not see anything in the record that anyone
referred to a problem with her balance and that he did not
see a need for a cane. Dr. Kendrick explained that canes are
used to provide additional support if there is a loss of
structure or function. (R. at 985.) He testified that he did
not see any such loss in the record. (Id.) Dr.
Kendrick continued that Plaintiff had normal strength
throughout and that was nothing wrong with the structural
integrity of her extremities. (R. at 985-86.)
Kendrick opined that Plaintiff does not meet or equal any
listing. (R. at 986.) He further testified that he did not
“see anything in the record where she had both motor
and sensory loss as a result of anything going on in her back
compromising a nerve, and there's no evidence that she
has any significant compromise of a nerve. She's been
seen by two neurosurgeons indicating that there's no
significant compromise in the record that contributed to any
motor and sensory loss.” (R. at 987.)
examined by Plaintiff's counsel, Dr. Kendrick noted that
Dr. Singh used an “unsound thought process” when
he diagnosed Plaintiff with right lower extremity neuropathy
when there is no evidence and when he said that Plaintiff
needed a cane. (R. at 991.)
Kendrick testified that Plaintiff had an appropriate
neurological motor test with the EMG and it was normal. He
explained that it was not a diagnosis just because it was
suggestive of something wrong. (R. at 999-1000.)
counsel questioned Dr. Kendrick about Plaintiff's claims
of pain and missing work:
Q I did notice that you give Elizabeth some fairly
significant physical restrictions based on her pain.
Q Which led me to believe that you gave credence to her
reports of pain.
Q Okay. So her reports of pain are credible?
Q [O]ne of the things that, in addition of course to the pain
issue, and I think we've covered that ad nauseam, but her
treating physician also opined that she would suffer from
absenteeism, have difficulty adhering to a 40 hour work week
due to fluctuating pain. Would you also find that to be
A I think she would miss some days, yes.
Q Would she miss several a month, do you think?
A There's no way to predict it.
Q Okay. But you think missing some days is reasonable.
Q And does that date back to her alleged onset date or some
later point in time?
A I'd say it would go back to the entire period that she
was under pain management, or being treated for her chronic
(R. at 1000.)
Vocational Expert Testimony
vocational expert (“VE”) testified at the
administrative hearing that Plaintiff's past jobs include
an administrative clerk, and an administrative assistant,
both at the light exertion, semi-skilled level; and an
automobile assembler, medium in exertion and unskilled. (R.
at 1006- 10.)
proposed a series of hypotheticals regarding Plaintiff's
residual functional capacity (“RFC”) to the VE.
(R. at 1010-11.) Based on Plaintiff's age, education, and
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 557, 000
unskilled, sedentary exertional jobs in the national economy
such as a machine tender-feeder, bench assembly-table worker,
and surveillance system monitor. (R. at 1011.)
was questioned about tolerance for absenteeism generally and
absenteeism during a probationary period at work:
Q Absence from the work place?
A A day to a day and a half a month. 18 days out of the year
for at-will employment.
Q A person in excess of those tolerances, can they sustain
A Excuse me?
Q A person in excess of those tolerances that you just said
to me, can they sustain competitive employment?
A No .
(R. at 1013)
Q The types of jobs that you described in response to the
Judge's first hypothetical, would those types of
unskilled jobs typically have some kind of a probationary
period at the beginning? Maybe 60-90 days?
Q And during that 60 to 90, well, how long would the
probationary period be?
A It can vary. It could be as little as 30 days, could be as
much as six months. It really depends on the work place.
Q And during that probationary period is any absenteeism
A Good question. Generally not. Not when a person is not
vested. When he's vested then it's 18 days out of the
year, but during the probationary period generally no.
Q So your response to the Judge's fourth hypothetical
about absenteeism assumes that the person would be able to
survive that 30 day to six month probationary period.
A I'm sorry, what was the question?
Q The absenteeism rate, I think this is what you just stated.
But the 18 days ...