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Stout v. Commissioner of Social Security

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

December 5, 2019

PENNY SUE STOUT, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Magistrate Judge Chelsey M. Vascura

          OPINION AND ORDER

          SARAH D. MORRISON, UNITED STATES DISTRICT JUDGE

         Penny 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 Commissioner's decision.

         I. BACKGROUND

         A. Procedural History

         Plaintiff 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 105).

         Administrative 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).

         Plaintiff filed this case on May 17, 2018 (ECF No. 3), [1] 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).

         B. Relevant Record Evidence

         1. Hearing Testimony

         Plaintiff, 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).

         Plaintiff 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).

         Vocational 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”)[2] 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).

         2. Medical Opinions

         After 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 ...


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