Brogan v. Comm'r of Soc. Sec., Case No. 3:14CV714

CourtUnited States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
Writing for the CourtVernelis K. Armstrong United States Magistrate Judge
Docket NumberCase No. 3:14CV714
PartiesRita R. Brogan, Plaintiff, v. Commissioner of Social Security, Defendant.
Decision Date31 December 2014

Rita R. Brogan, Plaintiff,
v.
Commissioner of Social Security, Defendant.

Case No. 3:14CV714

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO WESTERN DIVISION

December 31, 2014


Judge James G. Carr

REPORT AND RECOMMENDATION

I. INTRODUCTION

This case was referred to the undersigned Magistrate Judge for Report and Recommendation pursuant to Local Rule 72.2(b)(2). Plaintiff Rita R. Brogan ("Plaintiff") seeks judicial review pursuant to 42 U.S.C. § 405(g) of Defendant Commissioner's ("Defendant") final determination denying her claim for Social Security Income ("SSI") under Title XVI of the Social Security Act (the Act), 42 U.S.C. § 1381, et. seq. Pending are briefs on the merits filed by both parties (Docket Nos. 14 & 17), and Plaintiff's Reply (Docket No. 18). For the reasons set forth below, the Magistrate recommends that this Court reverse the Commissioner's decision.

II. PROCEDURAL HISTORY

On May 24, 2011, Plaintiff filed her application for SSI, alleging disability beginning November 2, 2006 (Docket No. 12, pp. 164-169 of 337). Plaintiff's claim for SSI was denied initially on August 4, 2011, and upon reconsideration on November 30, 2011 (Docket No. 12, pp. 131-133; 137-139 of 337). Plaintiff filed a written request for a hearing on January 16, 2012 (Docket No. 12, pp. 140-142 of 337). On February 27, 2013,

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Administrative Law Judge (ALJ) Melissa Warner presided over a hearing in Toledo, Ohio, at which Plaintiff, represented by counsel Mary Meadows, and Vocational Expert (VE) Charles H. McBee appeared and testified (Docket No. 12, pp. 23; 42 of 337). The ALJ issued an unfavorable decision on March 26, 2013 (Docket No. 12, pp. 23-35 of 337). The Appeals Council denied review of the ALJ's decision on January 31, 2014, thus rendering the ALJ's decision the final decision of the Commissioner (Docket No. 12, p. 5 of 337).

III. FACTUAL BACKGROUND

A. ADMINISTRATIVE HEARING

1. PLAINTIFF'S TESTIMONY

Plaintiff testified that she was 44 years old, single, weighs approximately 232 pounds, and lives with her aunt (Docket No. 12, pp. 46-47 of 337). Plaintiff is the mother of four children, all of whom live with other family members (Docket No. 12, p. 56, 268-281 of 337). Plaintiff is a high school graduate and can read, write and perform basic math (Docket No. 12, pp. 47-48 of 337). Plaintiff testified that she last worked in 2010, has no current source of income or medical insurance, relies on her aunt to pay bills, and receives food stamps (Docket No. 12, p. 48 of 337). Plaintiff detailed her past employment history including work in the food service industry, for a plastics company removing items from an assembly line and packaging them and in a factory soldering small parts (Docket No. 12, pp. 49-52 of 337).

Since she stopped working, Plaintiff noted that she has not been as stressed, experienced decreased pain, nervousness, and anxiousness (Docket No. 12, p. 53 of 337). Plaintiff opined that she could walk between five and ten minutes before experiencing pain in her knees, back and feet (Docket No. 12, p. 53 of 337). Plaintiff testified about her history of physical issues, indicating that her knee pain began five years ago, that she has suffered from back problems since 2004, and issues with her feet for four or five years, although she conceded that no doctor had diagnosed the nature of her foot problems (Docket No. 12, p. 53 of 337). Plaintiff reported

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that she is unable to stand or walk more than 15 to 30 minutes and cannot sit longer than an hour due to her pain (Docket No. 12, p. 54 of 37). Plaintiff also explained that she is unable to carry a gallon of milk in either of her hands due to issues she has gripping and sharp pains in her wrists, which cause her to drop things (Docket No. 12, p. 54 of 337). Plaintiff noted that the problems with her hands had existed for years and are the result of carpel tunnel syndrome (Docket No. 12, p. 55 of 337).

Plaintiff described a typical day, explaining that she wakes up between six or eight with back pain, gets dressed, eats breakfast, cleans up, relaxes her back, watches television, prepares her remaining meals and does appropriate clean up(Docket No. 12, p. 56 of 337). Plaintiff listed her medications as Depakote, Wellbutrin, Seroquel, Risperdal, Ibuprofin, Tylenol, and Mobic (Docket No. 12, p. 56 of 337). Plaintiff added that her medications make her drowsy and give her "the shakes" (Docket No. 12, pp. 56-57 of 337). Plaintiff testified that taking Tylenol or Ibuprofin, lying down, elevating her legs and stretching all help, but do not eliminate her pain (Docket No. 12, p. 57 of 337). Plaintiff estimated that she lies down two to three times a day for approximately 30 minutes to one-hour because her back hurts or because of problems with her knees (Docket No. 12, pp. 57-58 of 337). When describing her pain, Plaintiff explained that sometimes it prevents her from sleeping and that she usually sleeps about six hours a night (Docket No. 12, p. 58 of 337). In her free time, Plaintiff indicated that she prefers to watch television over reading, noting that she watches game shows, soap operas, the news, and occasionally a movie. She noted that she gets distracted watching movies and finds herself unable to follow the story (Docket No. 12, p. 58-59 of 337). Plaintiff is able to shower, dress, and feed herself (Docket No. 12, p. 59 of 337). She also smokes a half pack of cigarettes a day (Docket No. 12, p. 59 of 337).

During direct examination by her attorney, Plaintiff indicated that her knee and back pain and mental health have been about the same since September, 2010 (Docket No. 12, pp. 59-60 of 337). Plaintiff described

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having problems remembering what to do, keeping up with the pace and having urinary frequency during a vocational program that she participated in (Docket No. 12, pp. 60-61 of 337). Plaintiff testified that her pain causes her difficulty getting out of bed and moving around. She is easily distracted and does not go to the grocery store alone because she unable to lift items from the shelves or to monitor her spending (Docket No. 12, pp. 62-63 of 337). Despite being on a good medication regime, Plaintiff still reported feeling nervous, anxious, and depressed about not being able to see her youngest son (Docket No. 12, p. 63 of 337). According to Plaintiff, her depression is sometimes so severe that she does not get out of bed, which she estimated occurs two or three times per month (Docket No. 12, p. 64 of 337). Plaintiff opined that her stress affects her mental health and makes her symptoms worse, explaining that she gets aggravated and irritated more easily (Docket No. 12, p. 64 of 337). Plaintiff also explained that she gets overwhelmed and cannot do things she would ordinarily be able to do (Docket No. 12, p. 65 of 337).

2. VE TESTIMONY

The VE described Plaintiff's past relevant work as solder assembly work, DOT1 813.684-022, with a specific vocational preparation (SVP)2 of 2, listed at the light exertion level, but performed by Plaintiff at a sedentary exertion level, inspector and hand packager, DOT 559.687-074, with an SVP of 2, listed and performed by Plaintiff at a light exertion level; and assembly line work, DOT 706.684-018, with an SVP of 3, listed and performed at a medium exertion level (Docket No. 12, p. 70 of 337). The ALJ then posed the first of two hypothetical questions:

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Let's assume we have a hypothetical individual who can perform all the functions of light work except occasional climbing of ladders and the like, occasional kneeling, frequent crouching, no crawling. Work with an SVP of 1 to 2 where the pace of productivity is not dictated by an external source over which the individual has no control such as an assembly line or conveyor belt. Occasional contact with the general public, occasional contact with supervisory authority. Would such a person be able to perform the claimant's past relevant work?

(Docket No. 12, pp. 70-71 of 337). After considering the hypothetical question the VE testified that all but Plaintiff's past work as hand packager would be eliminated (Docket No. 12, p. 72 of 337). The ALJ then asked whether there would be any other work that such an individual could perform (Docket No. 12, p. 72 of 337). The VE answered affirmatively, providing the occupations of folder of laundry products, DOT 369.687-018, with an SVP of 2, listed at a light exertion level, having at least 75,000 jobs in the national economy and 2,000 in the State of Ohio; machine operator DOT 207.685-014, with an SVP of 2, listed at light exertion, having at least 135,000 jobs in the national economy and 2,000 in Ohio; and palletizer, DOT 929.687-054, with an SVP of 2, listed at a light exertion level, having at least 90,000 jobs in the national economy and 1,500 in Ohio (Docket No. 12, pp. 72-73 of 337).

The ALJ then posed her second hypothetical question, asking the VE:

Let's assume that we added the work needed to be . . . done in a seated or standing position. How would that change your answer first as to the past relevant work and second to the other work you've identified?

(Docket No. 12, p. 73 of 337). The VE indicated that both Plaintiff's past work and the other jobs could be performed sitting or standing with the exception of the palletizer job, which the VE replaced with the position of hand trimmer, DOT 781.687-070, with an SVP of 2, listed at a light exertion level, having at least 60,000 jobs in the national economy and 1,000 in Ohio (Docket No. 12, p. 73 of 337). The VE did, however, clarify his testimony that the DOT does not account for a sit or stand option and that the his testimony was based upon his experience and education (Docket No. 12, pp. 73-74 of 337).

The ALJ next inquired as to whether there was any allowance for lying down over the course of a work

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day (Docket No. 12, p. 74 of 337). The VE responded to the ALJ's question, noting that there is no such allowance (Docket No....

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