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Sullivan v. Commissioner of Social Security

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

June 22, 2018

ROBERT N. SULLIVAN, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Edmund A. Sargus, Jr. Chief Judge

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, 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.

         I. BACKGROUND

         A. Prior Proceedings

         Plaintiff 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).

         Plaintiff 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).

         B. Relevant Testimony at the Administrative Hearing

         At the 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).

         Plaintiff 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 neuropathy. (Id.).

         In 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).

         Plaintiff 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).

         Vocational 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?
A: Correct.
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 order caller[.]”

(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).

         C. Relevant ...


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