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Krieger v. Commissioner of Social Security

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

August 22, 2019

LARRY T. KRIEGER, Plaintiff,

          Chelsey M. Vascura Magistrate Judge.


          Sarah D. Morrison United States District Judge.

         Larry Krieger (“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. This matter is before the Court on the Plaintiff's Objection (ECF No. 13) to the Report and Recommendation (R&R) issued by the United States Magistrate Judge on March 13, 2019 (ECF No. 12), recommending that the Court overrule Plaintiff's Statement of Errors and affirm the Commissioner's decision. For the reasons set forth below, the Court OVERRULES Plaintiff's Objection, ADOPTS the Magistrate Judge's Report and Recommendation, and AFFIRMS the Commissioner's decision.

         I. BACKGROUND

         A. Procedural History

         Plaintiff protectively filed an application for Title II Social Security Disability Benefits on September 24, 2014. (Admin. Record, 355-61, ECF No. 6) Plaintiff's claims were denied initially on February 2, 2015, and upon reconsideration on May 15, 2015. (Id. at 218-48). He filed a Request for Hearing on June 2, 2015. (Id. at 268-69).

         Administrative Law Judge Jeanine Lesperance (“ALJ”) held an administrative hearing on April 18, 2017. (Id. at 103). On August 2, 2017, the ALJ issued an unfavorable decision. (Id. at 79-98). Plaintiff requested review of the administrative decision to the Appeals Council, which denied his request on June 17, 2018, and adopted the ALJ's decision as the Commissioner's final decision. (Id. at 2-8; 353-54).

         Plaintiff filed this case on August 15, 2018 (ECF No. 1), and the Commissioner filed the administrative record on October 29, 2018 (ECF No. 6). Plaintiff filed a Statement of Specific Errors (ECF No. 7), the Commissioner responded (ECF No. 10), and Plaintiff filed a Reply (ECF No. 11). On March 13, 2019, the Magistrate Judge issued her Report and Recommendation. (ECF No. 12). After a thorough analysis, the Magistrate Judge recommended affirming the Commissioner's non-disability finding. On March 27, 2019, Plaintiff timely filed an Objection to the Magistrate's R&R. (ECF No. 13).

         B. Relevant Record Evidence [1]

         1. Hearing Testimony

         Plaintiff, represented by counsel, appeared and testified at the administrative hearing. He testified that he had not worked since 2010, and that he was unable to return to work because of a constant dull ache in his knee. (Id. at 114, 121-22). Plaintiff stated that he had a “partial knee joint put in” in October 2014. (Id. at 121). Several months later, a doctor “went in and scrapped” his ankle and he began getting injections in his left hip. (Id.). Thereafter, he was able to sit for three to four hours at a time with his left leg elevated and could lift about 25 pounds. (Id. at 123). Plaintiff testified that he could walk around for approximately 45 minutes before he needed to sit again. (Id.). Plaintiff recalled getting a cane in 2011 when a doctor mentioned to him “you know, maybe you need to go get a cane.” (Id. at 124). However, Plaintiff acknowledged that he was never given a prescription for a cane. (Id.). Plaintiff also testified that there were about six months after his ankle surgery where he did not use a cane. (Id.). Plaintiff testified that he drives about eight times a week and can take trips without stopping for at least 45 minutes. (Id. at 112- 13). Plaintiff also testified that he was able to help feed and water his rat terriers, vacuum the floors, and load and unload the dishwasher for short periods of time with adequate rest between each activity. (Id. at 133-137).

         Vocational Expert Eric Walter Pruitt (“VE”) also testified. The VE classified Plaintiff's past relevant work experience as electronics solderer (semiskilled, light work), production solderer (unskilled, light work), forklift operator (semiskilled, medium work), and plastic injection mold setter (skilled, medium work). (Id. at 144-46). The ALJ proposed a hypothetical regarding Plaintiff's residual functional capacity (“RFC”)[2] to the VE, which limited Plaintiff to a range of work between sedentary and light. (Id. at 147). The VE testified that, assuming the limitations of the ALJ's hypothetical, Plaintiff could return to either of his previous soldering jobs. (Id. at 148). When asked to alter the hypothetical, the VE testified that there were a limited number of other light, unskilled occupations that Plaintiff would be capable of performing, including facility rental clerk, garment tacking machine tender, and label coder. (Id. at 148-49). The VE also testified that were a number of sedentary, unskilled occupations that Plaintiff could perform, including film touchup inspector, document preparer, and circuit board touchup screener. (Id. at 149-50).

         2. Medical Opinions

         On September 3, 2014, Dr. Jason Hurst, M.D., a physician at Joint Implant Surgeons, Inc., saw Plaintiff for a left knee follow-up assessment due to complaints of a two-year history of pain and sliding occurring intermittently. (Id. at 454). Dr. Hurst noted that Plaintiff used a knee brace given by the Veterans Association (“VA”). (Id.). Dr. Hurst observed that Plaintiff could ascend and descend stairs with the assistance of the handrail and that he “requires the use of a cane to ambulate.” (Id.). Dr. Hurst noted Plaintiff's primary ...

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