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Sanders v. Commissioner of Social Security

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

February 16, 2018


          Algenon L. Marbley Judge.



         Plaintiff, 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.

         I. BACKGROUND

         Plaintiff 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.)

         Thereafter, 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.)

         Plaintiff, 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.[1]


         A. Plaintiff's Testimony

         At the 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.)

         Plaintiff 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 leg. (Id.)

         Plaintiff 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.)

         Plaintiff 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.)

         Plaintiff 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.)

         Plaintiff 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.)

         B. Medical expert

         Ronald 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 functional deficiency.

(R. at 1627.)

         At the 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.)

         Dr. 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.)

         When 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.)

         Dr. 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.)

         Plaintiff's 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.
A Yes.
Q Which led me to believe that you gave credence to her reports of pain.
A Absolutely.
Q Okay. So her reports of pain are credible?
A Yes.
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 credible?
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.
A Yes.
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 pain, yes.

(R. at 1000.)

         C. Vocational Expert Testimony

         The 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.)

         The ALJ 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.)

         The VE 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 competitive employment?
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?
A Yes.
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 tolerated?
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 ...

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