United States District Court, S.D. Ohio, Eastern Division
JENNIFER L. CARROLL, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
L. Graham, Judge
REPORT AND RECOMMENDATION
CHELSEY M. VASCURA, UNITED STATES MAGISTRATE JUDGE
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.
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.
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
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”) 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.)
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 -
ALJ: -- right, three minutes an ...