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Walters v. Commissioner of Social Security

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

May 1, 2018

DANIEL WALTERS, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Chief Judge Edmund A. Sargus, Jr.

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE

         Plaintiff, 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.

         I.BACKGROUND

         Plaintiff 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).

         Administrative 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).

         Plaintiff 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 consideration.

         A. Relevant Hearing Testimony

         Plaintiff 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).

         Plaintiff 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).

         Medical 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 #: 106-08).

         Vocational 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.).

         The VE 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).

         The VE 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).

         B. Relevant ...


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