United States District Court, S.D. Ohio, Eastern Division
ALGENON L. MARBLEY JUDGE
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE
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.
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).
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).
Relevant Testimony at the Administrative Hearing
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 #:
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).
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 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?
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