Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Killoran v. Commissioner of Social Security

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

July 29, 2019

BRANDON S. KILLORAN, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Sarah D. Morrison, Chief Judge

          REPORT AND RECOMMENDATION

          ELIZABETH A. PRESTON DEAVERS, CHIEF UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Brandon S. Killoran (“Plaintiff”), brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his application for Social Security Disability Insurance benefits (“SSDI”). This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 9), the Commissioner's Memorandum in Opposition (ECF No. 16), Plaintiff's Reply (ECF No. 19), and the administrative record (ECF No. 7). For the following reasons, it is RECOMMENDED that the Court OVERRULE Plaintiff's Statement of Errors and AFFIRM the Commissioner's decision.

         I. BACKGROUND

         Plaintiff initially filed for disability insurance benefits on June 4, 2013, alleging disability beginning April 4, 2008. (R. at 93.) The claim was denied initially on October 24, 2013, and upon reconsideration on February 3, 2014. (Id.) Upon request, a hearing was held on March 19, 2014, in which Plaintiff, who was not represented by counsel, appeared and testified. (Id.) Kathryn A. Atha, a vocational expert, also appeared and testified at the hearing. (Id.) On July 24, 2014, Administrative Law Judge Earl Cates issued a decision finding that Plaintiff was not disabled at any time from April 4, 2008, the alleged onset date, through the date of the decision. (R. at 90-103.)

         Plaintiff then again applied for disability benefits on December 22, 2015, alleging disability beginning October 1, 2015. (R. at 248-49.) On February 19, 2016, Plaintiff changed his alleged disability onset date to July 25, 2014. (R. at 250-51.) Plaintiff's claim was denied initially and upon reconsideration. (R. at 128.) Upon request, a hearing was held on September 19, 2016, in which Plaintiff, who was not represented by counsel, appeared and testified. (R. at 32-65.) Connie O'Brien, a vocational expert, also appeared and testified at the hearing. (R. at 58-63.) On November 18, 2016, Administrative Law Judge Paul Yerian issued a decision finding that Plaintiff was not disabled at any time from July 25, 2014, the alleged onset date, through December 31, 2014, the date last insured. (R. at 125-142.) On February 28, 2017, Administrative Law Judge Yerian's decision was vacated by the Appeals Council, which found that the date last insured was December 31, 2015, not December 31, 2014, meaning the decision did not adjudicate the period between January 1, 2015 and December 31, 2015. (R. at 146-48.)

         Plaintiff then appeared and testified, without representation by counsel, at a supplemental hearing before of Administrative Law Judge Yerian on May 10, 2017. (R. at 67-89.) Carl Hartung, a vocational expert, also appeared and testified at the hearing. (R. at 86-89.) Before Administrative Law Judge Yerian issued a decision, he retired, and Administrative Law Judge Jeannine Lesperance was assigned to Plaintiff's case. (R. at 244.) On November 22, 2017, Administrative Law Judge Lesperance issued a decision finding that Plaintiff was not disabled at any time after July 25, 2014, the alleged onset date. (R. at 6-26.) On March 9, 2018, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (R. at 1.) Plaintiff then timely commenced the instant action. (ECF No. 1.)

         II. HEARING TESTIMONY

         A. Plaintiff's Testimony

         At the September 19, 2016 hearing in front of Administrative Law Judge Paul Yerian, Plaintiff, who was not represented by counsel, testified that he was born in 1978, was right-handed, was about six feet tall, and weighed approximately two-hundred pounds. (R. at 39-40.) Plaintiff further testified that he was not married and did not have children. (R. at 40.) Plaintiff stated he lived in a one-story house by himself. (Id.) He further stated his brother helps him and that his brother is “staying permanently for the most part to help [him] around the house.” (Id.) Plaintiff testified that he has a driver's license, owns a vehicle, and drives it on average two to three times a week. (R. at 40-41.) Plaintiff further testified that the farthest distance he typically drives at one time is “maybe” twenty miles. (R. at 41.)

         Plaintiff testified that he was a high school graduate and has a Veterans Affairs (“VA”) pension for disability. (Id.) In discussing his job history, Plaintiff testified that he worked at Staples in 2000 for “about five months” as a merchandiser, which involved “stocking shelves, helping customers, [and] work[ing] the cash registers to check out the customers.” (R. at 42.) Plaintiff further testified that he would unload delivery trucks and the maximum weight he lifted at the job was “probably roughly 50 pounds.” (Id.)

         Plaintiff next discussed working at Global Trade Alliance in 2003. (R. at 43.) Plaintiff testified that he worked in the body shop but had “some issues with management” and was transferred to the maintenance department which he ran “for a number of months.” (Id.) Plaintiff testified that he worked at Showcase Motors in Arizona in 2004 and 2005 where he was hired “to open a reconditioning shop for reconditioning automobiles.” (Id.) In that role Plaintiff stated that he was the manager and had hire and fire authority as well as ordering supplies and “set[ting] up the entire shop from the ground up for the dealership.” (R. at 44.) Plaintiff then discussed working for Wells Fargo in 2010 for three to four months. (R. at 44-45.) Plaintiff testified that he worked as a phone banker and “took care of customer accounts over the phone.” (R. at 45.) Plaintiff further testified that in this job he was seated most of the day and did not do any lifting. (Id.) Plaintiff next discussed working for both ADS[1] and Autozone in 2015, though not at the same time. (R. at 46.) At Autozone, Plaintiff testified that he worked as a commercial delivery driver. (Id.)

         Plaintiff testified that he could not work from July 2014 to December 2014 because of the “same issues [he is] dealing with today.” (R. at 46-47.) Plaintiff further testified that he has lower back pain on both sides, shooting pains down his legs, a “fire sensation” down his legs, back, and neck, a sensation “like bugs crawling on [his] skin, ” a ringing in the ears called tinnitus, a traumatic brain injury, and a PTSD diagnosis. (R. at 47.) Plaintiff stated that the low back pain is present all the time. (Id.) Plaintiff further stated that yard work would aggravate his back pain. (R. at 48.) Plaintiff also stated that the shooting pain in his legs happens every day. (Id.) Plaintiff stated that yard work, doing dishes, and general housework aggravates his leg pain. (Id.) Plaintiff testified that the tinnitus occurs “on average 5-6 times a day in either ear.” (R. at 49.) Plaintiff also testified that doctors have told him he gets confused “especially in very extreme situations” due to his traumatic brain injury. (R. at 50.) Plaintiff further testified that his depression and PTSD can interfere with his ability to interact with other people. (R. at 50- 51.)

         Plaintiff testified that he has been using a cane for approximately six months on the VA's suggestion. (R. at 53-54.) He also testified that he wears a back brace. (R. at 54.) Plaintiff stated that when he first moved into his apartment in Ohio in, approximately, October 2014 he had to do “a little bit of extra cleaning and yard work” because the property “wasn't the best.” (R. at 54-55.) Plaintiff further stated that he did his own shopping but occasionally would go with his sister or brother to the store. (R. at 55.) Plaintiff indicated that his brother was helping him and did most of the shopping. (Id.)

         At the May 10, 2017 supplemental hearing in front of Administrative Law Judge Paul Yerian, Plaintiff, who was not represented by counsel, again testified that he worked at Staples for about five months in 2000 as a merchandiser. (R. at 76.) Plaintiff further testified that he was on his feet the whole day in that job and would typically have lifted boxes of paper weighing fifty to sixty pounds. (R. at 77.) Plaintiff next testified that he worked full-time for Global Trade Alliance doing work on cars. (Id.) Plaintiff stated he worked at Wells Fargo in 2010 for three to four months doing customer service over the phone. (R. at 78.) Plaintiff further stated that for that job he sat most of the day and did computer work. (Id.) Plaintiff next testified that in 2015 he worked for Autozone for about four months where he did delivery of auto supplies and sometimes loaded the truck himself. (Id.) Plaintiff further testified that he had problems with coworkers at Autozone including “several instances where it almost came down to a fight within the workplace.” (R. at 84.) Plaintiff testified that he also worked at ADS where he handled collections. (R. at 78.) He indicated that at ADS he did not have problems with coworkers and did not really socialize inside or outside the workplace. (R. at 84.) Plaintiff stated that his biggest problem was dealing with the customers “cussing at [him] and trying to refrain from cussing back.” (Id.) Plaintiff confirmed that he has not worked since then. (R. at 78.)

         Plaintiff explained that since the September 2016 hearing he had undergone neck surgery for spinal stenosis. (R. at 79.) Plaintiff further testified that he had a “bulging disk that was pressing up against [his] spinal cord causing all kind[s] of muscle spasms and nerve irritation causing the pain shooting down [his] left arm and shoulder.” (Id.) Plaintiff stated this problem was present before January 1, 2016 and that it made it “nearly impossible” to use the left side of his body. (Id.) Plaintiff testified that he was able to go back to work in 2015 by “work[ing] through the pain as much as [he] could” but he “can't do it anymore.” (R. at 80.)

         Plaintiff testified that in his lower back he has “sharp pains shooting” around his sides and down his legs. (Id.) Plaintiff further testified the pain comes from strenuous work or walking for a long period of time. (Id.) Plaintiff stated that night terrors make him twist and turn in his sleep, so he wakes up feeling like he has “been hit by a truck” because of the low back pain. (Id.) Plaintiff testified that because of his PTSD he experiences flashbacks to his time in Iraq when he was in the military, night terrors, and problems with fireworks. (R. at 81.) Plaintiff further testified that he is single and does not “have much of a social life.” (Id.)

         Plaintiff stated that the only thing that had changed since the first ALJ's decision on July 24, 2014 was his neck and shoulder issue. (R. at 82.) Plaintiff further stated that from July 2014 to January 2015[2] his neck condition did not get worse, but that he “had the same problems the entire time.” (Id.) Between July 2014 and January 2016, Plaintiff testified that the biggest problem that would have prevented him from working was his neck, but all his problems are “so close.” (R. at 83.)

         B. Vocational Expert Testimony

         Connie O'Brien testified as the vocational expert (“VE”) at the September 2016 hearing. (R. at 58-63.) The VE testified that Plaintiff's past work included composite, cashier stocker, light; pallet jack operator, medium; auto body repairer, medium; auto body repair along with auto body shop manager, light; and phone solicitor, sedentary. (R. at 60.) ALJ Paul Yerian asked the VE to assume an individual with Plaintiff's age, education, and past work experience who could perform the requirements of sedentary work except that they cannot climb ladders, ropes, and scaffolds, cannot work around hazards such as unprotected heights or dangerous machinery, can occasionally climb ramps and stairs, can occasionally stoop, kneel, crouch, and crawl, can have exposure to moderate noise, can perform simple, repetitive tasks as well as some moderately complex tasks where there are infrequent changes in work duties or processes that do not involve a fast assembly line pace, strict production quotas, or more than occasional contact with others. (R. at 61.)

         The VE testified that the hypothetical individual could perform the work of an addresser, sedentary; document specialist, sedentary; and inspector, sedentary. (R. at 61-62.) The VE further testified than a typical employer's tolerance for absenteeism is less than one day per month, including such factors as tardiness and early departure. (R. at 62.) The VE also testified that a typical employer's tolerance for time spent off task is that if an individual is off task for ten percent or more of the time that would be work preclusive. (Id.)

         The ALJ asked the VE to assume the first hypothetical again, but in addition to assume that the individual could have contact with supervisors or coworkers no more than twenty percent of the workday and could have no direct interaction with the public. (Id.) The VE testified that assuming those limitations, the individual would be precluded from work. (R. at 62-63.) The ALJ asked the VE to assume the first hypothetical again, but in addition to assume the individual can only maintain attention and concentration for one-hour segments before being off task and would be off task for at least five minutes at a time. (R. at 63.) The VE testified that assuming those limitations, there would be no impact on the ability to do competitive work because workers get a break every two hours. (Id.) The ALJ asked the VE to assume the first hypothetical again, but in addition to assume the individual requires redirection from supervisors daily in order to return to task or follow instructions or procedures. (Id.) The VE testified that assuming those limitations, the individual would be precluded from work. (Id.)

         Cart Hartung testified as the vocational expert (“VE”) at the May 2017 supplemental hearing in front of ALJ Paul Yerian. (R. at 86-89.) The VE testified that Plaintiff's job at Staples would be considered sales attendant, light/medium. (R. at 87.) The VE also testified that he would put Plaintiff's auto body work at the heavy level because quarter panels weigh more than fifty pounds, as do bumpers. (R. at 87-88.) The VE further testified that he did not think there was enough supervision in the auto body work position to raise it to the level of a managerial position. (R. at 88.)

         III. RECORD EVIDENCE

         A. State Agency Review

         On February 17, 2016, after reviewing the record, William Bolz, M.D. found that there was insufficient evidence to evaluate Plaintiff's claim. (R. at 107-15.) On April 19, 2016, Anne Prosperi, D.O. reviewed the record and affirmed Dr. Bolz's assessment. (R. at 116-24.)

         B. Department of Veterans Affairs

         On May 8, 2009, based on a claim for military service connected compensation received on January 15, 2009, the Department of Veterans Affairs (“VA”) assigned a thirty percent service connection to Plaintiffs PTSD and a ten percent service connection to Plaintiffs traumatic brain injury. (R. at 354-55.) The VA further determined that Plaintiffs following conditions were not related to his military service, so no service connection could be granted: shoulder pain, back pain, hearing loss, tinnitus claimed as ringing in the ears, and stroke. (R. at 355.) Finally, the VA determined that Plaintiffs overall or combined rating was forty percent.[3]

         On February 25, 2012, based on a claim for military service connected compensation received on January 7, 2012, the VA assigned a forty percent service connection to Plaintiffs chronic lumbar strain, a thirty percent service connection to Plaintiffs migraine headaches, and a ten percent service connection to Plaintiffs tinnitus claimed as ringing in the ears. (R. at 360-61.) The VA further determined that Plaintiffs service connected condition of PTSD with traumatic brain injury to include syncope had worsened, so the VA granted an increase to seventy percent.[4] (R. at 361.) The VA also determined that Plaintiffs stroke remained unrelated to his military service, and no new or material evidence had been submitted for the medical condition, so no service connection could be granted.[5] (Id.) Finally, the VA determined that Plaintiffs overall or combined rating was ninety percent. (R. at 362.)

         On March 10, 2016, the Department of Veterans Affairs reported to Plaintiff that he was entitled to individual unemployability, effective beginning on October 1, 2015, because he “is unable to secure or follow a substantially gainful occupation as a result of service-connected disability.” (R. at 568.) The effective date starts the day after a claimant has last been employed. (Id.) Because Plaintiff had worked at ADS until September 30, 2015, his individual unemployability benefit became effective on October 1, 2015. (Id.) The VA indicated that Plaintiff's PTSD and major depressive disorder were found to cause deficiencies in most areas, including work, and that he was “unable to tolerate mediocrity, easily develop interpersonal conflicts, [ ] [has] a loss of motivation and energy to perform[, ] . . . [has] strained concentration, social alienation, suspicion of others, and panic.” (Id.)

         The VA also assigned a new service-connected percentage to Plaintiff's lumber strain of twenty percent.[6] (R. at 569.) The VA indicated that “[a] higher evaluation of 40 percent is not warranted for lumbosacral strain unless the evidence shows: favorable ankylosis of the entire thoracolumbar spine; or, forward flexion of the thoracolumbar spine 30 degrees or less.” (R. at 570.) The VA's assignment of seventy percent service connection to Plaintiff's PTSD with traumatic brain injury to include syncope and major depressive disorder remained the same. (Id.) The VA's assignment of thirty percent service connection to Plaintiff's migraine headaches also remained the same. (R. at 572.) Finally, the VA's assignment of ten percent service connection to Plaintiff's tinnitus claimed as ringing in the ears also remained the same. (Id.)

         C. Plaintiff's Letter

         After the May 10, 2017 hearing, Plaintiff sent a handwritten letter to Administrative Law Judge Paul Yerian which stated the following:

         Dear Mr. Yerian,

I am disappointed and feeling misled by the letter and evidence that I have received from you recently. At the end of the hearing on May 10th, 2017 you had stated that I would be given a decision by the beginning of August 2017. What you have sent is not a decision, but rather an opinion of an individual that I have never met nor had any medical care from. I have already established that a major issue with my case was the fact that the Department of Veterans Affairs had not kept thorough records of my medical impairments. What I do have documented is the fact that, as per my March 10, 2016 decision letter from the VA, stated that because of my multiple impairments the Dept. of Veterans Affairs have determined individual unemployability effective date October 1st, 2015. The evidence I submitted at my May 10th, 2017 hearing with you. Though maybe not one individual impairment would qualify me to be disabled the combination of my impairments do qualify me to be considered disabled by the Social Security Administration according to the Code of Federal Regulations 416.920(D). The combination of my impairments has and will prevent me from obtaining gainful employment, and practicing healthy social relations, not to mention the pain and suffering I have ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.