United States District Court, S.D. Ohio, Eastern Division
Judge Edmund A. Sargus, Jr.
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE
Daniel Walters, brings this action under 42 U.S.C. §
405(g) seeking review of a final decision of the Commissioner
of Social Security (“Commissioner”) denying his
application for disability insurance benefits
(“DIB”) and supplemental security income
(“SSI”). For the reasons set forth below, it is
RECOMMENDED that Plaintiff's Statement
of Errors be DENIED, and that judgment be
entered in favor of Defendant.
filed his applications for DIB and SSI on October 22, 2013
(Tr. 203-11, PAGEID #: 248-56), claiming he was unable to
work due to a neck impairment, anxiety, and depression (Tr.
247, PAGEID #: 293). His amended onset disability date is May
1, 2013. (Tr. 286, PAGEID #: 332). After his applications
were denied initially (Tr. 128-33, PAGEID #: 172-77) and on
reconsideration (Tr. 140-45, PAGEID #: 184-89), Plaintiff
filed a request for a hearing by an administrative law judge
(Tr. 149-50, PAGEID #: 193-94).
Law Judge Patricia Witkowski Supergan (the “ALJ”)
held a video hearing on February 3, 2016. (Tr. 38-81, PAGEID
#: 80-123). On June 2, 2016, the ALJ issued a decision
denying Plaintiff's applications for benefits. (Tr.
20-32, PAGEID #: 62-74). The Appeals Council denied
Plaintiff's request for review, making the ALJ's
decision the final decision of the Commissioner. (Tr. 1-3,
PAGEID #: 43-45).
filed the instant case seeking a review of the
Commissioner's decision on August 24, 2017. (Doc. 1).
Plaintiff filed his Statement of Errors on January 8, 2018
(Doc. 12), Defendant filed an Opposition on March 8, 2018
(Doc. 16), and Plaintiff filed a Reply Brief on March 22,
2018 (Doc. 17). Thus, this matter is now ripe for
Relevant Hearing Testimony
was born in 1963 (Tr. 204, PAGEID #: 249), and has a high
school education (Tr. 30, PAGEID #: 72). He has past work as
a union carpenter. (Tr. 45, PAGEID #: 87). Plaintiff
testified that he has a driver's license but rarely
drives. (Tr. 46-47, PAGEID #: 88-89). At the hearing,
Plaintiff acknowledged a past alcohol problem but testified
that he has not had a drink since November 15, 2014. (Tr. 49,
PAGEID #: 91).
has never been married, does not have any children, and lives
alone in an apartment. (Tr. 46, PAGEID #: 88). Plaintiff
cooks and cleans to the extent he is able. (Tr. 51, PAGEID #:
93). Plaintiff shops for groceries and can carry them into
his apartment in small bags. (Tr. 57, PAGEID #: 99).
Plaintiff used to enjoy riding horses, hunting, and shooting
guns, but he no longer engages in those activities. (Tr. 50,
PAGEID #: 92).
Expert Dr. Charles W. Metcalf (the “ME”)
testified at the hearing as an impartial witness. (Tr. 58,
PAGEID #: 100). He noted that Plaintiff had “four
physical areas to examine, ” namely “[t]he
cervical spine, the lumbar spine, the left shoulder, and the
left knee.” (Tr. 59, PAGEID #: 101). After discussing
evidence of those impairments, Dr. Metcalf opined on
Plaintiff's residual functional capacity
(“RFC”). (Tr. 64, PAGEID #: 106). The relevant
exchange is as follows:
Q. Do you have an opinion as to [RFC]?
A. Yes, I have an opinion. I've had some difficultly in
trying to sort. I don't have any problems with limiting
him to lifting no more than 10 pounds on an occasional basis
and five pounds on a frequent basis, and his doing postural
activities with the lower extremities such as stooping,
crawling, kneeling, crouching, no more than occasional.
Staying away from ladders and scaffolding, unpredicted
heights. I don't know about upper extremity using. You
know, raising arms and so forth. This arthroscopic repair of
the left shoulder is just too recent to give an opinion on
whether that's going to be limiting or not. It may be,
but at this time I wouldn't say so. It's too early.
The biggest problem in assessing physical function then is
standing. Whether he's physically able to stand up for up
to six hours in a day with some [INAUDIBLE] sit/stand option.
And sit for six hours. Clearly, the history that he relates
to his doctors would say that he can't, but they're
at a loss to explain why he can't. I don't see
physical evidence that I would have to limit him to
sedentary. I think it's quite possible that's where
he belongs, but from the physical alone, I would put him at a
light level. Six hours standing and six hours sitting.
The-it's sustaining the-
Q. Why the lifting to 10 pounds? I guess that's the other
question that I have in terms of why you would go with a 10
pounds lifting then?
A. Well, I think, you know, there's no doubt he has
cervical [INAUDIBLE] spondylosis. I mean there's pretty
good evidence of that. And the lumbar area, it's more
limited just on the bottom of L5, S1, but yeah-no, he has
lumbar spondylosis also. So he's got that and lifting, I
think, is one of the things that bothers those. Standing may
or may not bother it. Standing and moving around, and doing
light exercises may be good for you. It may be bad for you.
This will vary from one patient to the next. And I can't
say on this particular gentleman. He's not a patient of
mine, of course. I'm only looking at the imaging evidence
and what his doctors are saying, and his doctors are puzzled
by it. So that's where I have a difficulty of just
standing. How long he can stand, but I don't have any
problem limiting the lifting. Now, I have no doubt that he
could lift 50 pounds, but I don't think he should lift as
much as 25 on a one-third of a day basis. He probably could,
but I think after the second or third day, he'd probably
suffer some ill-effects from that. So that's why I limit
the lifting and kind of waffle a little bit on the standing.
That's about as good as I can get. (Tr. 64-66, PAGEID #:
Expert Lee Knutson (the “VE”) also testified as
an impartial witness. (Tr. 69, PAGEID #: 111). The ALJ asked
the VE to assume an individual of Plaintiff's age,
education, and work history who has the ability to perform
light work as defined in the relevant regulations. (Tr. 70,
PAGEID #: 112). The ALJ specified that this individual could
occasionally climb ramps and stairs, but never ladders,
ropes, or scaffolds. (Id.). The individual, the ALJ
explained, could occasionally balance, stoop, kneel, crouch,
and crawl and can frequently reach in all directions, handle,
finger, and feel with both upper extremities. (Id.).
The individual could tolerate occasional exposure to and work
around vibration and hazard such as moving machinery or
unprotected heights. (Id.).
testified that, although the individual could not perform
Plaintiff's past relevant work, the individual could
perform other jobs such as assembler,
inspector/checker/weigher, garment sorter, or information
clerk. (Tr. 70-71, PAGEID #: 112-13). The VE testified that
those opportunities remained available even if the individual
were limited to performing simple routine tasks requiring no
more than short, simple instructions and simple work-related
decision-making with few workplace changes. (Tr. 71, PAGEID
#: 113). The VE stated that the individual would need to be
on task at least 85% of the time. (Tr. 72, PAGEID #: 114).
also testified that, even if the ME's lifting restriction
were accepted, there would still be a significant number of
jobs that Plaintiff could perform. (Tr. 72-74, PAGEID #: 114-
16). More specifically, Plaintiff would still be able to
perform the job of assembler (5, 000 statewide jobs, 181, 000
nationally), inspector/checker/weigher (2, 200 state-wide
jobs, 49, 000 nationally), and information clerk (2, 800
state-wide jobs and 116, 000 jobs nationally). (Tr. 73- 74,
PAGEID #: 115-16).