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Taylor v. Berryhill

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

February 20, 2018


          George C. Smith Judge.



         Plaintiff, Patricia A. Taylor, brings this action under 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her 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. 12) (“SOE”), the Commissioner's Memorandum in Opposition (ECF No. 15) (“Opposition”), and the administrative record (ECF No. 9). For the reasons that follow, it is RECOMMENDED that the the Court OVERRULE Plaintiff's Statement of Errors and AFFIRM the Commissioner's decision.

         I. BACKGROUND

         Plaintiff protectively filed her application for benefits on June 19, 2013, alleging that she has been disabled since July 3, 2008. (R. at 204-12.) Plaintiff's application was denied initially and upon reconsideration. (R. at 98-128.) Plaintiff sought a de novo hearing before an administrative law judge. (R. at 102-04.) Administrative Law Judge Christopher S. Tindale (“ALJ”) held a video hearing on October 20, 2015, at which Plaintiff, who was represented by counsel, appeared and testified. (R. at 40-77.) A vocational expert also appeared and testified at the hearing. (R. at 67-76.) On November 30, 2015, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 19-31.) On September 25, 2016, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (R. at 1-6.) Plaintiff then timely commenced the instant action.


         A. Plaintiff's Testimony

         Plaintiff testified at the October 20, 2015, administrative hearing that she is forty-seven years old, married, and lives with her husband. (R. at 44.) She is five feet, five inches tall and weighs 172 pounds, which has gone up and down in the last two to three years. (R. at 45.)

         Plaintiff knows how to read and write. (R. at 45.) She wears glasses to read and sometimes has difficulty spelling words she does not know. (Id.)

         Plaintiff last worked at a restaurant in 2012 where she was on her feet all day, washing dishes and peeling potatoes. (R. at 46-47.) She would also lift boxes of potatoes that weighed thirty to forty pounds, possibly up to fifty pounds. (R. at 49-50.) She was fired from this fulltime job because she could not lift the potatoes and had trouble keeping up with the dishes. (R. at 47-48.) She testified that another reason she was fired was because the restaurant was “mad” when she asked for her paycheck. (R. at 48.)

         In 2007 and 2008, Plaintiff worked full-time as a custodian at a school. (R. at 48.) She emptied trashcans, cleaned chalkboards and desks, and did a lot of lifting. (Id.) Some of the trash cans in the art room were very heavy because they contained cement. (R. at 50.) She was on her feet all day. (R. at 51.) She got injured on the job in 2008, sustaining a skull fracture. (R. at 48-50.)

         Plaintiff testified that she has been having “really bad headaches.” (R. at 51.) Over the last two to three years, she experiences headaches twice weekly. (R. at 51-52.) These headaches last approximately one to two hours, sometimes longer, sometimes shorter. (R. at 52- 53.) According to Plaintiff, dizziness is a symptom of the headaches. (R. at 52.) She is afraid she will fall and uses a cane for balance. (Id.) She also cries when she gets the headaches because “[t]here's nothing I can do about it. It just keeps going.” (Id.) On a scale of one to ten with ten being the most severe pain, Plaintiff rated her pain level from headaches at around a seven or an eight. (R. at 56.)

         When she gets headaches, Plaintiff has to curl up in a ball, lie down on a bed, and put ice on her neck and head. (R. at 52.) While she takes ibuprofen, sometimes it works and sometimes it does not. (Id.) She also takes Topamax, Gabopentin, Tramadol. (R. at 53.) She takes Trazodone to prevent pain so that she can sleep at night. (R. at 53, 61.) At one point she received injection treatment for her headaches, but it has been a while since she received them. (R. at 53.) She testified that her pain and medicine doctor, Michael Shramowiat, M.D., sought approval for additional injections, but “Workman's Comp denied the injections.” (Id.)

         Plaintiff testified that her medications give her a dry mouth and made it difficult for her to talk at the hearing. (R. at 61.) She is not aware of any other side effects from the medications. (Id.)

         Plaintiff also has neck pain. (R. at 51, 53-54.) Her neck feels tight and she has gone to therapy, but it has not loosened up at all. (R. at 54.) The neck pain is always there and goes down her left arm on a daily basis with a stabbing or tingling feeling and then it goes away. (Id.) As a result of this arm pain, she sometimes drops things. (R. at 54-55.)

         Plaintiff testified that she has constant lower back pain every day, which feels like someone stabbing her. (R. at 55-56.) Assuming that her medications are working, Plaintiff still rated her pain level at about a seven, with ten being the most severe pain. (R. at 56.) She has difficulty climbing the stairs in her house because her back and neck hurt when she does so. (R. at 44-45.)

         Plaintiff appeared at the hearing with a cane and explained that Kimberly Spencer, a nurse practitioner, prescribed the cane. (R. at 56.) Plaintiff started using the cane when she had cellulitis and for balance. (Id.) Plaintiff does not use the cane all of the time; only when she knows she will be on her feet for a long period of time. (R. at 57.) In a typical week, she probably uses the cane two to three times a week. (Id.) She does not use it around the house because she usually holds on to things there. (Id.) Sometimes she uses it in public, such as when she goes out shopping. (Id.)

         Plaintiff explained that balance has been a problem for her since she was injured. (Id.) She has fallen in the last two or three years. (Id.) She cannot remember the last time she fell, but she hurt her shoulder and right arm. (R. at 57-58.) Plaintiff continues to have difficulties with that shoulder. (R. at 58.)

         She also has chronic obstructive pulmonary disease (COPD) and has difficulty breathing. (Id.) Plaintiff testified that this condition is “hard on” her because it is hard to breathe when walking and she sleeps with oxygen at night. (Id.) She has used oxygen at night for about three years and does not use it at all during the day time. (R. at 59.) She takes Spiriva in the morning and carries an emergency inhaler with her. (R. at 58.) Plaintiff also has an inhaler that she uses on a regular schedule throughout the day as well as a rescue inhaler that she uses only when she needs it. (R. at 58-59.) She explained that she uses the rescue inhaler when she starts hyperventilating or gets anxiety and cannot breathe. (R. at 59.)

         Plaintiff testified that she has some urinary incontinence problems. (R. at 59-60.) She wears Depends, because when she stands up, it is out of her control and “just pours[.]” (R. at 60.) Plaintiff explained that this condition is aggravating and embarrassing and sometimes makes her not want to go out in public. (Id.)

         Plaintiff experiences emotional ups and downs. (R. at 61.) During the day, she has trouble with her mind racing. (R. at 61-62.) Plaintiff cries a couple of times a week. (R. at 62.) She is receiving mental health treatment from a counselor whom she sees twice a month. (R. at 64.)

         She is able to get along with people and has one good friend that she usually visits. (R. at 62-63.)

         With medication, Plaintiff is able to sleep six or seven hours a night. (R. at 62.)

         Plaintiff has difficulties with her memory. (R. at 63.) If she does not write something down, she will forget. (R. at 63-64.)

         In the course of a typical day, Plaintiff will get up and have coffee with her husband before he leaves for work. (R. at 64-65.) She will sometimes try and do dishes and then sit down. (R. at 65.) She tries to sweep in the kitchen, but has to sit down because she becomes aggravated and cannot finish it all. (Id.) When she tries to do other rooms, she will work for about fifteen minutes and then have to take a break, alternating like this until she is finished. (Id.) Her lower back and neck pain requires her to sit down and take breaks, which last approximately twenty to thirty minutes. (Id.) During the breaks, she will put an ice pack on her lower back. (R. at 65-66.) A couple of days a week, she visits with her girlfriend who lives a couple of miles away. (R. at 66.) Plaintiff will go to her friend's house and visit with her. (Id.)

         Plaintiff denies drinking alcohol or using street drugs. (Id.) She has been smoking since the age of thirteen and still smokes half a pack a day. (Id.) She has unsuccessfully tried to quit several times. (R. at 67.)

         B. Vocational Expert Testimony

         “Ms. Trent” testified as a vocational expert (“VE”) at the October 20, 2015, administrative hearing. (R. at 78-89.) The VE testified that Plaintiff's past jobs include cleaner, a medium exertion, unskilled job, and kitchen helper, a medium exertion, unskilled job. (R. at 69.) The ALJ proposed a hypothetical that presumed an individual with Plaintiff's age, education, [2] and work experience, capable of performing light work with the following limitations:

the standing and walking would be limited to four hour in an eight-hour day, sitting would be six hours in an eight-hour day, could occasionally climb ramps and stairs, never climb ladders, ropes or scaffolds, occasionally balance, stoop, kneel, crouch, crawl. Must avoid concentrated exposure to extreme cold, extreme heat, humidity, and pulmonary irritants, such as fumes, odors, dust, gases and poor ventilation. Must avoid even moderate exposure to hazards and can have no exposure to unprotected heights. Work would be limited to simple, routine, repetitive tasks, and a work environment free of production rate or pace work. Can only have occasional contact with the public, coworkers or ·supervisors, must work -- or work must be in a low stress environment defined as having only occasional changes in the work setting and only occasional decision-making required. Also be limited to frequent handling and fingering and feeling with the left upper extremity, and frequent reaching with the right upper extremity.

(R. at 69 -70.) The VE testified that the hypothetical individual could not perform Plaintiff's past work. (R. at 70.) Assuming “those occasional functions and limitations[, ]” the VE testified that the hypothetical individual could perform work as a mail clerk and collator operator, both of which were light, unskilled positions that were available nationally and regionally. (R. at 70- 71.)

         Assuming the additional limitation of use of a handheld assistive device for prolonged ambulation, with bilateral upper extremity could be used to lift and carry up to the exertional limit, the VE testified that use of an assistive walking device would eliminate light jobs. (R. at 71.) If the exertional level was changed from light to sedentary, the VE testified that the hypothetical individual could perform work as an inspector, sorter, and bench assembler, which were sedentary, unskilled positions that were available nationally and regionally. (Id.)

         Assuming the additional limitation of being off task 20% of the work day, the VE testified that such limitation would be work preclusive. (R. at 71-72.) The VE testified that any level of being off task beyond 10% is work preclusive. (R. at 72.)

         Plaintiff's counsel asked the VE whether there was any competitive work available, assuming Plaintiff was expected to miss two days of work per month on an unpredictable, ongoing basis because of migraine headaches, pain and other symptoms. (R. at 72-73.) The VE testified that such absenteeism would be work preclusive. (R. at 73.) When asked what absences were tolerated in the unskilled work settings, the VE testified two to three times per month over a couple of months. (Id.)

         Plaintiff's counsel then asked the VE whether there is any competitive work setting in the unskilled level, presuming the same limitations at the sedentary level that were previously given as well as the additional limitation that the Plaintiff would need at least two or three breaks during the work day (in addition to the regularly schedule lunch and breaks) and restroom breaks when needed because of pain and psychiatric symptoms. (Id.) The VE testified that there would not be any competitive work that would accommodate two to three additional unscheduled breaks. (Id.)

         Finally, Plaintiff's counsel asked the VE to assume the same hypothetical with the additional limitation that Plaintiff would require, for a third of a normal workday, direct supervision and redirection in order to stay on task and complete tasks. (R. at 73-74.) The VE testified that such a limitation would be work preclusive. (R. at 74.)


         A. Camden-Clark ...

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