United States District Court, S.D. Ohio, Eastern Division
Magistrate Judge Chelsey M. Vascura
OPINION AND ORDER
D. MORRISON, UNITED STATES DISTRICT JUDGE
Sue Stout (“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 her application for
Social Security Disability Insurance Benefits. This matter is
before the Court on the Plaintiff's Objection (ECF No.
34) to the Report and Recommendation (R&R) issued by the
United States Magistrate Judge on June 19, 2019 (ECF No. 32),
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
protectively filed an application for Title II Social
Security Disability Benefits on April 17, 2014. (Admin.
Record, 157-58, ECF No. 22). Plaintiff's claims were
denied initially on June 25, 2014, and upon reconsideration
on August 11, 2014. (Id. at 93-96, 98-99). She filed
a Request for Hearing on September 11, 2014. (Id. at
Law Judge Thuy-Anh Nguyen (“ALJ”) held an
administrative hearing on May 24, 2016. (Id. at
48-67). On August 3, 2016, the ALJ issued an unfavorable
decision. (Id. at 33-42). Plaintiff requested review
of the administrative decision to the Appeals Council, which
denied her request on October 24, 2017, and adopted the
ALJ's decision as the Commissioner's final decision.
(Id. at 11-17).
filed this case on May 17, 2018 (ECF No. 3),  and the
Commissioner filed the administrative record on February 1,
2019 (ECF No. 22). Plaintiff filed a Statement of Specific
Errors (ECF No. 27), the Commissioner responded (ECF No. 30),
and Plaintiff filed a Reply (ECF No. 31). On June 18, 2019,
the Magistrate Judge issued her Report and Recommendation.
(ECF No. 32). After a thorough analysis, the Magistrate Judge
recommended affirming the Commissioner's non-disability
finding. On July 2, 2019, Plaintiff timely filed an Objection
to the Magistrate's R&R. (ECF No. 34).
Relevant Record Evidence
represented by counsel, appeared and testified at the
administrative hearing. She testified that she had not worked
since February 13, 2014, and that she was unable to return to
work because of unpredictable headaches and fatigue.
(Id. at 55). Plaintiff stated that she has headaches
and fatigue every day that vary in levels of degree and
require medicine and immediate rest upon onset.
(Id.). She also testified that she has tremors and
weakness in her hands approximately every other day.
(Id. at 55-56). The tremors affect Plaintiff's
ability to “get the grasp on things.”
(Id. at 56). Plaintiff informed the ALJ that she
also suffers from depression and anxiety but that medicine
successfully alleviates symptoms caused by these illnesses.
(Id. at 60-61).
stated that since her last bout of meningitis in 2014, she
“sometimes  just can't get the memory of
things” or she'll “say the wrong words that
go with something.” (Id. at 58). Plaintiff
testified that she tries to do chores, like vacuuming, around
the house but it often causes pain in her head and she has to
lie down. (Id. at 58). She also testified that she
has trouble lifting or carrying anything over five pounds,
laundry often takes her several days to complete, and grocery
shopping leaves her exhausted. (Id. at 59).
Plaintiff recalled that in her previous work at the daycare,
she was able to lift up to 75 pounds. (Id. at 59).
Expert Robert Breslin (“VE”) also testified. The
VE classified Plaintiff's past relevant work experience
as a daycare worker as semiskilled, light work, but noted
that Plaintiff described it as medium work, lifting
occasionally up to 50 pounds. (Id. at 62). The ALJ
proposed a hypothetical regarding Plaintiff's residual
functional capacity (“RFC”) to the VE, which
limited Plaintiff to light work but she would be off task for
five percent of the workday. (Id. at 62-63). The VE
testified that Plaintiff could return to her most recent
position as a daycare worker, although not as she performed,
and she would also be capable of her previous cleaner or
housekeeper job. (Id. at 63). When asked to alter
the hypothetical to also limit Plaintiff to understanding,
remembering, and carrying out simple routine tasks and
instructions, the VE testified that Plaintiff would still be
capable of performing a cleaner or housekeeping position.
(Id. at 63-64). When asked to alter the hypothetical
again and limit Plaintiff's off-task time to ten percent
of the workday, the VE testified “that would make it
difficult to maintain employment, if not impossible.”
(Id. at 64). When asked to alter the hypothetical a
fourth time to add that Plaintiff was capable of fingering
and handling, the VE testified that the cleaner or
housekeeping positions would still be available.
(Id. at 64-65). However, when the hypothetical was
altered a fifth time to limit Plaintiff to only sedentary
work, the VE testified that no past work would be available
and Plaintiff would have no transferable skills to sedentary
work. (Id. at 65). The VE also testified that there
were a number of light, unskilled positions that Plaintiff
could perform, including cashier II, assembler of small
products, and unskilled packing. (Id. at 63).
two episodes of bacterial meningitis in February 2013 and
February 2014, respectively, Plaintiff was referred to
Subinoy Das, M.D., an ENT-otolaryngologist at Ohio ENT.
(Id. at 268, 282). On March 6, 2014, Dr. Das noted
that Plaintiff was found to have an inverting papilloma of
her right middle turbinate and sphenoethmoid region.
(Id. at 265). He noted that although Plaintiff
reported a history of active cerebrospinal fluid
(“CSF”) leaking prior to her first episode of
meningitis, she had no obvious CSF leak or skull base defect
at the time of the examination. (Id.). Dr. Das
opined that Plaintiff would likely ...