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Trusler v. Commissioner of Social Security

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

May 31, 2018

ELIZABETH TRUSLER, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ALGENON L. MARBLEY JUDGE

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Elizabeth Trusler, filed this action seeking review of a decision of the Commissioner of Social Security (“Commissioner”) denying her Title II Social Security Disability Benefits. For the reasons that follow, it is RECOMMENDED that Plaintiff's Statement of Errors (Doc. 11) be OVERRULED, and that judgment be entered in favor of Defendant.

         I. BACKGROUND

         A. Prior Proceedings

         Plaintiff filed an application for Title II Social Security Disability Benefits on October 23, 2013, alleging disability beginning October 8, 2012. (Tr. 88, PAGEID #: 143). After Plaintiff's application was denied initially and on reconsideration (Tr. 88-96, 98-114, PAGEID #: 143-51, 153-69), Plaintiff filed a Request for Hearing by an Administrative Law Judge (Tr. 175, PAGEID #: 231). Administrative Law Judge Christopher Tindale (the “ALJ”) held a hearing on August 11, 2016. (Tr. 50-87, PAGEID #: 104-141). On September 29, 2016, the ALJ issued a decision finding that Plaintiff was not disabled as defined in the Social Security Act. (Tr. 11-24, PAGEID #: 65-78). The Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. (Id., Tr. 1, PAGEID #: 55).

         Plaintiff filed this case on December 1, 2017 (Doc. 2), and the Commissioner filed the administrative record on February 8, 2018 (Doc. 10). Plaintiff filed a Statement of Specific Errors (Doc. 11), the Commissioner responded (Doc. 12), and Plaintiff filed a Reply (Doc. 13).

         B. Relevant Testimony at the Administrative Hearing

         Plaintiff testified that she stopped working as a rental clerk for a car rental agency in 2012, due to her left foot surgery. (Tr. 55, 57, PAGEID #: 109, 111). Plaintiff explained that although she tried to avoid surgery “for a number of years, ” she couldn't get any relief from her pain. (Tr. 59, PAGEID #: 113). Following surgery, her left foot “was slow healing, and that's when [she] lost [her] job of 25 years.” (Tr. 57, PAGEID #: 109). Plaintiff testified that despite the surgery, she still experiences pain in her feet almost immediately upon standing; however, she experiences relief when walking. (Tr. 60-61, PAGEID #: 114-15). Plaintiff described her pain as “feel[ing] like a very bad stone bruise in my heels.” (Tr. 61, PAGEID #: 115). Plaintiff estimated that she could walk for forty-five minutes before the pain increased to the point where she feels as if she might fall. (Tr. 61-62, PAGEID #: 115-16).

         Plaintiff also testified that she began experiencing back problems in 1994, and she described her current back conditions as “the same” as they were in the 1990s. (Tr. 62-63, PAGEID #: 116-17). Plaintiff and her attorney had the following exchange regarding her back:

Plaintiff: [I]f I do sweeping, vacuuming, raking, shoving [sic], when I first do any of that I start feeling pain. And then I will keep going until it's to where I can't take it, which is really sharp. And I'll just stand up and just stop for a few minutes, and do a little bit more, and then stop, you know, until I can hopefully try to attempt to do my - whatever I'm doing, you know.
Atty: So activity causes your back to get worse? Is that what you were saying?
Plaintiff: Yeah. And it's the leaning over that, I mean it's instant. If I lean over to go try to pick up something like, you know, some potatoes or something. You know, I mean I just feel it. So but when I stand up, okay, then the sharp pain, you know, just subsides until I'm doing something else again. And then, again, you know, like if I'm standing at the kitchen sink, and then, you know, chopping onions, chopping bell peppers, you know, shredding carrots or something, I am like uh, you know. It's like I try to do what I can a little at a time, so that I don't have to feel all that at one time.
Atty: All right [sic]. Now what sort of timeframe are we looking at here? How long are you able to stand and do these activities before you need to take a rest?
Plaintiff: [I]t depends on the activity. I am good for like two hours and then for two and a half.

(Tr. 63-64, PAGEID #: 117-18). As an example, Plaintiff testified that she was able to organize her RV for two hours, while only needing to sit down “maybe once or twice just for a few minutes.” (Tr. 64, PAGEID #: 118). However, Plaintiff stated that when she helped her stepdaughter shovel debris or took dishes “to the church to clean them up and scrub them, ” she wasn't able to do those activities for two hours because it required constant movement. (Id.). Plaintiff later testified that she thought she could stand or sit for approximately an hour and then needs to “get up and kind of move around.” (Tr. 66, PAGEID #: 120).

         Plaintiff also stated that she suffered from headaches. (Tr. 73, PAGEID #: 127). When asked by her attorney to describe her headaches and discuss the frequency in which she experiences headaches, she testified as follows:

Plaintiff: They, actually, they've gotten a little better. I used to have them absolutely every day, and two or three times a day I was constantly taking stuff. So I just feel like now it, it's some, of course, stress headaches. And sometimes, just like yesterday, I had a really bad one. I don't know. Sometimes you try to figure out why you have a headache, and I just couldn't figure it out. I don't know. It just happens. And - Atty: How often do you have them now?
Plaintiff: I am probably now just having them about three or four times a week.
Atty: How long do they last?
Plaintiff: Probably until I can take something strong. Well, to me, it's like a BC powder[1] that works three minutes until I can get it nipped in the bud. But if it doesn't help nip it in the bud, I'll take another BC powder in about another 30 minutes, you know, in there.
Atty: Okay. So 30 minutes to an hour they're lasting?
Plaintiff: Uh-huh.
Atty: All right. How severe are they?
Plaintiff: They're not as bad as they used to be.
***
Atty: Okay. When you're having these headaches, are you able to do what you're normally doing, or do you need to stop, take breaks?
Plaintiff: Well, no. Yeah, I can do. I just feel nauseated. I just need some relief, you know, to do whatever and doing it ...

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