Popper v. Colvin
| Decision Date | 10 March 2016 |
| Docket Number | Case No. 2:15-cv-1116 |
| Parties | Zachary Joshua Popper, Plaintiff, v. Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
Plaintiff, Zachary Joshua Popper, filed this action seeking review of a decision of the Commissioner of Social Security denying his applications for social security disability benefits and supplemental security income. Those applications were filed on April 8, 2011, and alleged that Plaintiff became disabled on January 1, 2009.
After initial administrative denials of his claim, Plaintiff was given a hearing before an Administrative Law Judge on December 20, 2012, and a second hearing on August 29, 2013. In a decision dated October 21, 2013, the ALJ issued a decision denying benefits. That became the Commissioner's final decision on February 5, 2015, when the Appeals Council denied review.
After Plaintiff filed this case, the Commissioner filed the administrative record on June 22, 2015. Plaintiff filed his statement of specific errors on August 26, 2015, to which the Commissioner responded on November 24, 2015. No reply brief was filed, and the case is now ready to decide.
Plaintiff, who was 35 years old at the time of the first administrative hearing and who has a GED, testified as follows. His testimony appears at pages 41-53 and 79-85 of the administrative record.
Plaintiff testified at the December, 2012 hearing that he had last worked in August of 2010, when he was employed for two weeks at a candle warehouse. He was forced to quit due to pain. He had worked on a part-time basis for a pizza shop earlier that year. Due to severe hip and back pain, he did not look for work afterward. He said those problems also affected his ability to do his basic daily activities and also made it hard for him to concentrate and remember. He had problems sitting or standing for more than half an hour and also had trouble sleeping. He had gotten slightly better since having hip surgery several months before the hearing.
At the second hearing, Plaintiff testified that he still had severe pain despite the surgery. Additionally, his pain medications affected his ability to remember things and to concentrate. He had been experiencing pain of that severity since 2010. At that time, he was taking Dilaudid every six hours. It made him sleepy and dizzy. He could walk without a cane although he had used one for four or five months after his hip surgery. He was still having problems sleeping, although he was able to sleep all night two nights out of three.
As far as physical activities were concerned, Plaintiff said he could sit for about fifteen minutes at a time, stand for half an hour, and walk fifteen to twenty minutes. He was most comfortable lying down. He could care for himself and do some limited household chores such as washing dishes and folding clothes, but he was unable to transfer laundry from the washer to the dryer, to mow the grass, or to run the vacuum. Twice a week, he experienced "bad days" where his medication was ineffective and he had to stay in bed all day.
The medical records in this case are found beginning on page343 of the administrative record. The pertinent records - which, in this case, are only the records concerning Plaintiff's alleged mental impairments - can be summarized as follows.
The primary record concerning Plaintiff's claimed mental impairment is the consultative report from Dr. Donaldson, a psychologist who conducted a clinical interview on July 7, 2011. Plaintiff told Dr. Donaldson at the outset of the interview that he was applying for disability benefits not only due to back and hip pain but also because he had memory issues, anxiety, and panic attacks. He said that he found it hard to talk to people in public settings and did not have a good relationship with teachers and other students when in school. Dr. Donaldson observed that Plaintiff's affect was flat and his mood was agitated. Eye contact was inadequate. Plaintiff frequently felt hopeless and worthless and said he was depressed most of the time, had decreased interest in activities, and suffered from insomnia, psychomotor retardation, fatigue, a sense of worthlessness, and lack of concentration. He was also anxious in social situations and had panic-like symptoms in the past. Based on the interview, Dr. Donaldson diagnosed major depressive disorder, generalized anxiety disorder, and panic disorder with agoraphobia. He rated Plaintiff's GAF at 45 and found impairments in the areas of maintaining attention and concentration, interpersonal relationships, and dealing with work pressure. Dr. Donaldson also thought that, if granted benefits, Plaintiff might need help managing his day-to-day and long-range financial affairs. (Tr. 621-24).
Two state agency reviewers also commented on Plaintiff's mental impairments. Dr. Dietz stated that Plaintiff had both affective and anxiety disorders and that he had a marked impairment in dealing with detailed tasks, a moderate impairment in maintaining concentration and attention for extended periods,a moderate limitation in his ability to work in proximity to others, a moderate limitation in dealing with work stress which would limit him to an environment with flexible production standards and schedules, difficulty in adapting to changes in routine, and a marked impairment in his ability to deal with the public. Dr. Dietz based this assessment not only on Dr. Donaldson's evaluation but the fact that Plaintiff "was tearful at his 3/11 pain mgmt. exam." (Tr. 132-37). Dr. Voyten made essentially the same findings. (Tr. 165-67).
Carl Hartung was called to testify as a vocational expert. His testimony begins at page 53 of the administrative record, and, after testimony was taken from the medical expert, resumes again at page 69.
Mr. Hartung first testified that Plaintiff's past employment included work as an injection mold machine tender, a light, unskilled occupation; as a cashier/checker, a light, semi-skilled job; and as a fast food service manager, a job which is usually skilled and light. Because Plaintiff was only an assistant manager, however, Mr. Hartung classified this last position as semi-skilled.
Mr. Hartung, after hearing testimony that Plaintiff was limited to sedentary work, confirmed that someone so limited could not do any of Plaintiff's past work. He was then given a hypothetical question which asked him to identify any jobs which could be done by someone who could do sedentary work and, from a psychological standpoint, had problems getting along with others and with maintaining attention and concentration, and who could do only simple, repetitive tasks without production quotas. Mr. Hartung responded that such a person could not do any other work, either, because the issue with concentration even on simple, repetitive tasks would rule out competitive employment.
Dr. Ronald Kendrick, a physician and board-certified orthopedic surgeon, testified at both administrative hearings. The Court will summarize his testimony from the second hearing since that testimony is more comprehensive.
Dr. Kendrick said that Plaintiff suffered from Legg-Perthes disease of both hips, with the right hip being more severely involved, and also osteoarthritis of the right hip leading to total hip replacement. He was also status post osteotomy of the left femur. Dr. Kendrick also testified that the record contained diagnoses of lumbar spondylosis and chrondromalacia of the patellofemoral joints bilaterally.
The ALJ asked Dr. Kendrick for an opinion as to Plaintiff's residual functional capacity as of the onset date of January 21, 2009. Dr. Kendrick responded that up to the date of surgery, Plaintiff would have been limited to sedentary work with the need to change positions every 45 minutes. After that, he was limited to less than sedentary work for a period of about six weeks, and then again became capable of sedentary work. This residual functional capacity, according to Dr. Kendrick, took chronic pain into account.
Dr. Kendrick was then asked about Plaintiff's pain medication. He said that the dose which Plaintiff was taking fell in the moderate range, and that patients taking that medication usually reported drowsiness and psychological detachment. Dr. Kendrick did not take those side effects into account in making his determination. He also said that Plaintiff's description of good days and bad days was typical of patients that Dr. Kendrick had treated who had similar conditions.
The Administrative Law Judge's decision appears at pages 20-20 of the administrative record. The important findings in that decision are as follows.
The Administrative Law Judge found, first, that Plaintiff met the insured status requirements of the Social Security Act through September 30, 2015. Next, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since the onset date of January 1, 2009. Going to the second step of the sequential evaluation process, the ALJ concluded that Plaintiff had severe impairments including Legg-Perthes disease of both hips; osteoarthritis of the right hip; status post total hip replacement; status post osteotomy of the left femur; lumbar spondylosis; and chrondromalacia of the patellofemoral joints of both knees. The ALJ also found that these impairments did not, at any time, meet or equal the requirements of any section of the Listing of Impairments (20 C.F.R. Part 404, Subpart P, Appendix 1).
Moving to step four of the sequential evaluation process, the ALJ found that Plaintiff had the residual functional capacity to perform a full range of sedentary work. Although that precluded Plaintiff...
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