United States District Court, S.D. Ohio, Eastern Division
ROBERT N. SULLIVAN, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
A. Sargus, Jr. Chief Judge
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE
Robert N. Sullivan, filed this action seeking review of a
decision of the Commissioner of Social Security
(“Commissioner”) denying his applications for
Title II Social Security Disability Benefits
(“DIB”) and Title XVI Supplemental Security
Income (“SSI”). For the reasons that follow, it
is RECOMMENDED that Plaintiff's
Statement of Errors (Doc. 13) be OVERRULED,
and that judgment be entered in favor of Defendant.
filed applications for DIB and SSI on February 12, 2014,
alleging disability beginning November 9, 2012. (Tr. 115,
126, PAGEID #: 156, 167). After Plaintiff's application
was denied initially and on reconsideration (see Tr.
115-64, PAGEID #: 156-205), Plaintiff filed a Request for
Hearing by an Administrative Law Judge (Tr. 200, PAGEID #:
241). Administrative Law Judge John M. Wood (the
“ALJ”) held a hearing on June 22, 2016. (Tr. 91-
112, PAGEID #: 132-53). On July 27, 2016, the ALJ issued a
decision finding that Plaintiff was not disabled as defined
in the Social Security Act. (Tr. 8-21, PAGEID #: 49-62). The
Appeals Council denied review, making the ALJ's decision
the final decision of the Commissioner. (Id., Tr.
1-4, PAGEID #: 42-45).
filed this case on December 5, 2017 (Doc. 3), and the
Commissioner filed the administrative record on February 8,
2018 (Doc. 7). Plaintiff filed a Statement of Specific Errors
(Doc. 13), the Commissioner responded (Doc. 14), and
Plaintiff filed a Reply (Doc. 15).
Relevant Testimony at the Administrative Hearing
hearing, Plaintiff amended his alleged onset date to February
12, 2015. (Tr. 94, PAGEID #: 135). In her opening remarks,
Plaintiff's attorney explained that Plaintiff had a
history of diabetes and neuropathy in his lower extremities,
but due to difficultly tolerating nerve testing, the testing
was unable to be completed. (Id.). Plaintiff's
attorney noted, however, that the testing summary stated
“that the presenting history [was] consistent with
small fiber sensory generalized peripheral neuropathy, and
possibly meralgia paresthetica.” (Tr. 94-95, PAGEID #:
135-36). Finally, Plaintiff's counsel explained that
Plaintiff experienced problems with his knees, thoracic
lumbar, cervical spine, hearing, and suffered from headaches.
(Tr. 95, PAGEID #: 136).
testified that he was fifty-one years old, lived alone, and
had completed high-school and a two-year vocational program.
(Tr. 96, PAGEID #: 137). Although Plaintiff stated that he
could drive, he testified that he does not go very far, and
his girlfriend drove him to the hearing. (Id.). When
asked by the ALJ why he can no longer work, Plaintiff
responded as follows:
Well, Your Honor, I just can't do it no more, my feet and
stuff just kill me so bad, my hands draw up on me, and I
just, my lower back hurts me, the arthritis and stuff it just
comes and goes. I just can't do it no more like I used to
. . . My feet hurts me awful bad, I've got diabetic nerve
pains, and my hands will draw up quite often.
(Tr. 97, PAGEID #: 138). Plaintiff described his foot pain as
“a cold burning [with] tingling sharp stabbing
pains” and numbness. (Tr. 101, PAGEID #: 142).
Plaintiff testified that his feet cause problems standing and
walking. (Id.). Further, Plaintiff stated that his
toenails “rot, they turn yellow, and they fall off, and
they grow backwards on [his] toes.” (Id.). In
talking about his feet and toenails, Plaintiff explained that
his doctor “put [him] on medication for three months
and they didn't, nothing seemed to work, ” but it
was not clear whether the medication was for his toenails or
terms of other impairments, Plaintiff testified that his back
hurts when he sits or stands for periods of time, but offered
no definitive amount of time. (Tr. 101-02, PAGEID #: 142-43).
He testified that his right knee has “been bothering
[him] for quite a while, ” and he experiences swelling
and “sharp stabbing pains.” (Tr. 102, PAGEID #:
143). Plaintiff stated that he received Cortisone injections
in his knee that helped for about a month or two. (Tr.
102-03, PAGEID #: 143-44). Plaintiff also testified that he
has some degeneration in his neck that causes chronic
headaches. (Tr. 103, PAGEID #: 144). Plaintiff stated he had
difficulty hearing, and although he had hearing aids, he
“got so much feed with them” and they made the
inside of his ears swell, that he stopped wearing them. (Tr.
103-04, PAGEID #: 144-45). Finally, Plaintiff explained that
he was taking Lyrica but it made him “kind of like
zombify[, ]” which affected his ability to concentrate.
(Tr. 105, PAGEID #: 146).
stated he was able to take care of his needs on a daily
basis, except that he could not do yard work. (Tr. 98, PAGEID
#: 139). Plaintiff testified that he eats “a lot of
microwave stuff, ” uses paper plates so he does not
have to do dishes, sometimes does laundry, tries to sweep the
floor, and takes care of his dog. (Tr. 98-100, PAGEID #:
139-41). His girlfriend goes grocery shopping for him and
helps him clean. (Tr. 98-99, PAGEID #: 139-40). Plaintiff
testified that he seldom goes anywhere, but if he does leave
the house, he goes to his mailbox or to his mom and dad's
house. (Tr. 100, PAGEID #: 141).
Expert Robert Malik (the “VE”) also testified at
the hearing. (Tr. 106, PAGEID: # 147). The ALJ posed the
following hypothetical to the VE:
Q: . . . Assume the past work activity is the same as the
Claimant's, the exertion capacity is limited to light
work. No. climbing of ladders, ropes, or scaffolds, other
postural functions could be performed occasionally. He needs
to avoid hazards, need to be able to alternate between a
standing position and a seated position periodically during
the course of the day, not necessarily at will, but as
circumstances will allow, so by the end of the day as
desired, one could sit or stand equally in the aggregate,
manipulative functions performed frequently, and the need to
avoid moderate exposure to noise, and also because of chronic
headaches, a limitation of performance to simple and
repetitive tasks involving little or no change in work
routine. I assume the past work would be out, right?
Q: For the other vocational factors, assume the hypothetical
is of the Claimant's age, and education and work history.
In your opinion would there be unskilled light jobs such a
person could perform?
A: Yes, sir. Unskilled jobs that would meet the hypothetical
would include . . . a packager . . . a router . . . [and] an
(Tr. 106-07, PAGEID #: 147-48). Plaintiff's attorney then
questioned the VE:
Q: In terms of the hypothetical the judge asked, with the
jobs you listed and the sit/stand option, in your experience
in those jobs, what kind of sitting is tolerated in those
workplaces in terms of how many hours would they allow a
person to sit in total throughout the work day before it
would potentially become an issue?
A: Well, actually in the packaging position that I listed, I
adjusted the numbers to get to the jobs that are typically
done in a seated position. The individual could stand to do
them, so I made an adjustment there to take care of that. In
the routing clerk, or the routing position, there again, the
individual, just by the nature of the job sits and stands
approximately half of the time, based upon what they're
sorting, and routing, and getting ready. Part of it is
getting the paperwork at the desk ready, and soring certain
items. The other part is standing and putting it - so, due to
the nature of the job, based upon my experience, it happens
already at about a 50/50. The order caller there again is a
job that's typically done where the individual sits part
of the time, gets it ready and then walks out and gives the
order to the production floor. So, based upon my experience
again, that one is approximately a 50/50 that the individual,
it's just the nature of the job.
Q: Okay. In terms of the router and the order caller
position, you said that those were about 50/50. If an
individual were only able to stand and walk about three hours
of an eight-hour work day, would that affect the ability to
maintain those jobs?
A: Some of them, it would reduce the numbers. I can't
give you a good estimate on it.
(Tr. 109-10, PAGEID #: 150-51).