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Moore v. Commissioner of Social Security

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

August 1, 2019

BRANDI L. MOORE, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          George C. Smith Chief Judge.

          REPORT AND RECOMMENDATION

          Elizabeth P. Deavers Magistrate Judge

         Plaintiff, Brandi L. Moore (“Plaintiff”), brings this action under 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her application for Social Security Disability Insurance benefits (“SSDI”) and Supplemental Security Income benefits (“SSI”). This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 14), the Commissioner's Memorandum in Opposition (ECF No. 18), Plaintiff's Reply (ECF No. 19), and the administrative record (ECF No. 9). 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 applied for disability benefits and supplemental security income on May 19, 2014.[1] (R. at 196-209.) Plaintiff's claim was denied initially and upon reconsideration. (R. at 127-32, 137-48.) Upon request, a hearing was held on November 30, 2016, during which Plaintiff, represented by counsel, appeared and testified. (R. at 37-72, 149-50.) A vocational expert also appeared and testified at the hearing. (R. at 62-71.) On March 22, 2017, Administrative Law Judge Thomas L. Wang (“the ALJ”) issued a decision finding that Plaintiff was not disabled at any time after June 12, 2008, the alleged onset date. (R. at 12-29.) On March 26, 2018, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (R. at 1-6.) Plaintiff then timely commenced the instant action. (ECF No. 6.)

         II. HEARING TESTIMONY

         A. Plaintiff's Testimony

         Plaintiff testified that she was involved in a car accident on June 12, 2008 which affected her ability to work. (R. at 40-43.) Plaintiff also testified that she was married and had two daughters, ages ten and five. (R. at 45.) Plaintiff stated that the cane she was using at the administrative hearing was prescribed to her “about six months after the [car] accident.” (Id.) Before using the cane, she testified she was using a walker and wheelchair during those six months. (Id.)

         Plaintiff testified that she worked in 2010 for a college doing “phone work and telemarketing.” (R. at 47.) She further testified that the job “let her go” after a couple of months. (Id.) When asked why she is unable to work, Plaintiff testified that in 2010 and 2011 when she was pregnant she “gained over 200 pounds in eight months.” (R. at 50.) She also testified that she experienced convulsions at that time and emergency services were called. (R. at 50-51.) She further testified that she continues to have problems with standing and walking. (R. at 51-52.) Plaintiff also testified that getting dressed takes her “about three-and-a-half hours.” (R. at 52.)

         Plaintiff testified that she has difficulty with her memory sometimes such as not being able to think of certain words. (R. at 56.) Regarding her ability to maintain attention and concentration, she testified she loses her concentration a lot. (R. at 56-57.) She testified that she gets two-and-a-half hours to four hours of sleep a night and naps four days a week. (R. at 58- 59.) She further testified that she cannot walk the length of a city block without taking a break. (R. at 60.)

         B. Vocational Expert Testimony

         Connie O'Brien testified as the vocational expert (“VE”) at the November 2016 hearing. (R. at 62-71.) The VE testified that Plaintiff's past work included office manager and customer representative. (R. at 64.) The ALJ asked the VE to assume a hypothetical individual with the Plaintiff's age, education, and past jobs who can lift and/or carry twenty pounds occasionally; can lift and/or carry ten pounds frequently; can stand and/or walk four hours out of an eight hour work day and sit six hours out of an eight hour work day; with pushing and pulling limited as per exertional weight limits; who can never climb ladders, ropes, or scaffolds; can occasionally climb ramps or stairs; can occasionally balance, stoop, kneel, crouch, or crawl; can do goal-based production work measured by end result, not pace work; with work limited to simple, routine, and repetitive tasks; who is off task five percent of the work day; who must work in a low stress job defined as only having occasional decisionmaking required and only occasional changes in the work setting; with only occasional interaction with the public, coworkers, and supervisors. (R. at 65.) Assuming those limitations, the VE testified that the hypothetical individual could not perform any of Plaintiff's past work, but could work as an office helper, photocopy machine operator, and route clerk. (R. at 65-66.)

         The ALJ asked the VE to take the first hypothetical but to assume the sedentary level and that a cane would be required for ambulation. (R. at 68.) Assuming those limitations, the VE testified that the hypothetical individual could not perform any of Plaintiff's past work, but could work as an addresser, inspector, and document specialist. (Id.) The ALJ asked the VE to take the second hypothetical but add the limitation that frequent supervision would be required for both mental and physical reasons and that the individual would have memory problems or would need additional help perhaps in constant reminders to stay on task and to be on time. (R. at 69.) Assuming those limitations, the VE testified that the hypothetical individual would be precluded from competitive work. (Id.) The VE further testified that if the additional limitation of the hypothetical individual being consistently late to work three times a month were added to any of the previous hypotheticals this would preclude the hypothetical individual from work. (Id.) The VE also testified that if the additional limitation of the hypothetical individual being off task ten percent of the day were added to any of the previous hypotheticals this would preclude the hypothetical individual from work. (Id.)

         III. MEDICAL RECORDS

         A. William Michael Johnson, M.D.

         Dr. Johnson wrote a letter regarding Plaintiff on May 5, 2014. (R. at 604.) Dr. Johnson indicated that Plaintiff had been seen in his office since September 2008 for management of her chronic medical conditions and pain control. (Id.) Dr. Johnson also wrote:

[Plaintiff] has a past medical history complicated by a [motor vehicle accident] in June 2008. She suffered extensive injuries requiring a prolonged hospital stay at Mount Carmel West. The Orthopedic Trauma physicians performed a right acetabulum reconstruction with placement of hardware. This has been her primary source of longterm [sic] disability and pain. She has been treated with pain medications and physical rehabilitation. Most recent work has been with water aerobics. [Plaintiff] is typically dependent of a cane for ambulation outside her residence. She has not worked due to this disability and has been a stay [at] home mother.
[Plaintiff] had her second pregnancy in July 2011 complicated by blood pressure and blood sugar problems. She had significant weight gain that has been difficult to manage due to her physical limitations. The weight gain has added stress to her lower back and knees.
[Plaintiff] has been a reliable and motivated patient but has physical limitations secondary to her hip pathology.

(Id.) On March 23, 2015, Dr. Johnson wrote an almost identical letter adding that Plaintiff has attempted to return to work but was unable secondary to her physical limitations and that she has plans to investigate surgical weight loss. (R. at 614.)

         On November 14, 2016, Dr. Johnson wrote a substantially similar letter to his first two, writing:

[Plaintiff] has been seen in our practice since September 2008. [She] is seen regularly for management of her chronic medical conditions and pain control.
[Plaintiff] has a past history of a [motor vehicle accident] in June 2008. She suffered extensive injuries requiring a prolonged hospital sta[y] at Mt. Carmel [W]est Medical Center. The Orthopedic Trauma service performed a right acetabulum reconstructions with placement of hardware to stabilize the socket wall. This has been her primary source of long term pain and disability. She has recently been re[-]evaluated by the Orthopedic Trauma service for hip injections due to premature arthritis of both hips. That being said, she has also experienced extensive weight gain, anxiety, depression and sleep deprivation due to limitations in ambulating, whether at home or at work. For this reason, patient is a stay at home mother.
[Plaintiff] had her second pregnancy in 2011 complicated by more weight gain and a new diagnosis of blood sugar “issues”. Patient has been struggling with her weight gain for awhile now and is experiencing unbearable symptoms due to her on going [sic] and worsening symptoms.
[Plaintiff] has been a reliable and motivated patient, however, it is within my opinion, that patient is unable to hold employment indefinitely because of her many physical limitations.

(R. at 766.)

         Throughout Plaintiff's visits with Dr. Johnson, the doctor indicated the following regarding Plaintiff: mild left hip degenerative change with spurring at the femoral head-neck junction, no acute osseous abnormality (R. at 431); complaints of left hip, knee, and back pain (R. at 435, 443-44, 487, 490, 494); numbness of the feet (R. at 435); complaints of anxiety (R. at 436, 444, 487, 505); use of a cane for ambulation (R. at 436, 444, 506, 509), as well as attending appointments and ambulating without the cane (R. at 439, 769, 776, 783); reports of ambulation tolerance improved with water aerobics (R. at 439, 443, 486); ability to do housework with the use of pain medications (R. at 439); reports of improvement in mood and pain due to increased physical activity (R. at 475); weight issues (R. at 486); medication changes (R. at 486); complaints of fatigue (R. at 490); substance dependence issues (R. at 540, 550, 582-83); discontinuing water aerobics (R. at 809, 862); normal reflexes (R. at 783, 810); normal mood and affect (R. at 810, 816, 848); pelvic pain (R. at 815); and decreased range of motion of bilateral hips (R. at 848).

         B. ...


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