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Carroll v. Commissioner of Social Security

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

May 9, 2018


          James L. Graham, Judge



         Plaintiff, Jennifer L. Carroll (“Plaintiff”), 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. This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's Amended Statement of Errors (ECF No. 16), the Commissioner's Memorandum in Opposition (ECF No. 19), Plaintiff's Reply (ECF No. 22), and the administrative record (ECF No. 11.) For the reasons that follow, it is RECOMMENDED that the Court OVERRULE Plaintiff's Amended Statement of Errors and AFFIRM the Commissioner of Social Security's decision.

         I. BACKGROUND

         Plaintiff filed her application for supplemental security income on June 28, 2007, alleging that she had been disabled since June 7, 2007. Administrative Law Judge David B. Daugherty (“ALJ Daugherty”) found Plaintiff to be disabled and awarded benefits in July 2008. ALJ Daugherty relied heavily on evidence provided by Frederic Huffnagle, M.D., however, and, in 2015, the Appeals Council advised Plaintiff that the Office of the Inspector General had discovered fraud in evidence provided by Dr. Huffnagle. The Appeals Council considered Plaintiff's application and the original administrative record without the evidence from Dr. Huffnagle and determined that insufficient evidence remained to support the ALJ Daugherty's decision. Accordingly, the Appeals Council remanded Plaintiff's application for a new hearing and afforded her an opportunity to submit additional evidence prior to that hearing.

         On May 10, 2016, a hearing was held before Administrative Law Judge John M. Dowling (“the ALJ”). Plaintiff, who was not represented by counsel but was assisted by a non-attorney representative, appeared and testified at the hearing. Plaintiff testified as follows about her reasons for not working on a sustained basis during the relevant time period:

I got wore quick to where - I mean, first of all, my back would hurt me so bad to where I physically couldn't go on. I would have to sit down and take breaks, and they're not going to allow you to do that. And, you know, stop to - and another thing is stopping because, you know, you can't be around people . . . .
* * *
But physically, I got to where I couldn't even do that. I got to where I couldn't even like stand on my feet to run the vacuum cleaner for a long time. I couldn't stand to cook. I just couldn't do any of that, any more physically, because of my back. And my legs, I mean, I would be standing, and my legs would give out from under me, or physically the pain - I just couldn't do it.

(ECF No. 11-2 at PAGEID ##116-117.) She further testified that she could not lift “anything” and that her mother assisted her with her children because she could not lift them. (Id. at PAGEID #118.) Plaintiff also testified about psychological symptoms. She stated that she had been in a mental illness treatment program in 2007 because she “had lost touch with reality” and her “mind reverted back to a child.” (Id. at PAGEID #121.)

         Vocational Expert Donald Duffin (the “VE”) also testified at the administrative hearing. The ALJ first observed that Plaintiff had no past relevant work. (Id. at PAGEID #135.) The VE then testified that a hypothetical individual of Plaintiff's age, education, and vocational profile who retained the residual functional capacity (“RFC”)[1] that the ALJ ultimately assessed could perform jobs that exist in significant numbers in the national economy. Although the RFC specified the medium level of exertion, the VE testified that significant numbers exist at both the light and the medium level of exertion and offered representative jobs at each level. (Id. at PAGEID ##137-138.) The ALJ also engaged in the following colloquy with the VE:

Q: If somebody is dealing with a combination of symptoms that are causing symptoms such as pain or other symptoms that are - that on occasion get so bad that the individual can't even get to work - how many of those absences - how many absences, period, are going to be permitted by employees in the unskilled work environment during this time period?
A: Well, there was a recent study presented at a conference I attended last year covering back for a number of years, and my own experience indicates that over 90 percent of employers will tolerate no more than about one day's absence per month on a routine basis.
Q: Okay. What if they get to work - they don't want to lose their job. At the same time, they're still having these symptoms, so it's taking them off-task for periods of the day. How much off-task behavior would be tolerated by those same employers?
A: In my experience and some research indicates about 5 percent of the time or about three minutes an hour is all an employer will tolerate. And even then, it must be spread more or less equally throughout the day.
Q: Okay. So very short breaks. And that's not counting your standard breaks you get, you know, the 15-minute breaks you get every couple of hours and your lunch break?
A: That's correct.

(Id. at PAGEID #138-139.)

         In her follow-up questions, Plaintiff's non-attorney representative engaged in the following colloquy with the VE and the ALJ:

Q: In either of the hypotheticals, if you would include the need to lay down or be off-task for like an hour or two hours a day, would that preclude those jobs?
A: If they were in addition to normal breaks, yes, that would eliminate all -
ALJ: Well, he already said off-task 5 percent is the most -
REP: Yes.
ALJ: -- right, three minutes an ...

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