Williamson v. Commissioner of Social Security

Filing 18

REPORT AND RECOMMENDATION that the decision of the Commissioner be Affirmed. Objections to R&R due by 3/9/2017. Signed by Magistrate Judge Karen L. Litkovitz on 2/23/2017. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

NORMAN WILLIAMSON,
Plaintiff,

Case No. 1: 16-cv-583
Barrett, J.
Litkovitz, M.J.

vs.

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

REPORT AND
RECOMMENDATION

Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final
decision of the Commissioner of Social Security (Commissioner) denying plaintiff's application
for disability insurance benefits (DIB). This matter is before the Court on plaintiff's Statement
of Errors (Doc. 12) and the Commissioner's response in opposition (Doc. 17).
I. Procedural Background

Plaintiff filed an application for DIB on March 11, 2013, alleging disability since January
1, 2013, due to degenerative disc disease, arthritis of the spine and back, spinal stenosis,
spondylosis, a back injury, left femur surgery, and three torn tendons in the left bicep. (Tr. 168).
Plaintiff's application was denied initially and upon reconsideration. Plaintiff requested and was
granted a de novo hearing before ALJ Deanna Sokolski. Plaintiff was represented by a nonattorney representative. Plaintiff and a vocational expert (VE) appeared and testified at the ALJ
hearing. On April 17, 2015, the ALJ issued a decision denying plaintiff's DIB application.
Plaintiff's request for review by the Appeals Council was denied, making the decision of the ALJ
the final administrative decision of the Commissioner.

II. Analysis
A. Legal Framework for Disability Determinations
To qualify for disability benefits, a claimant must suffer from a medically determinable
physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than 12 months. 42 U .S.C. § 423(d)(l )(A).
The impairment must render the claimant unable to engage in the work previously performed or
in any other substantial gainful employment that exists in the national economy. 42 U.S.C. §
423(d)(2).
Regulations promulgated by the Commissioner establish a five-step sequential evaluation
process for disability determinations:
1) If the claimant is doing substantial gainful activity, the claimant is not disabled.
2) If the claimant does not have a severe medically determinable physical or
mental impairment - i.e. , an impairment that significantly limits his or her
physical or mental ability to do basic work activities - the claimant is not
disabled.
3) If the claimant has a severe impairment(s) that meets or equals one of the
listings in Appendix 1 to Subpart P of the regulations and meets the duration
requirement, the claimant is disabled.
4) If the claimant's impairment does not prevent him or her from doing his or her
past relevant work, the claimant is not disabled.
5) If the claimant can make an adjustment to other work, the claimant is not
disabled. If the claimant cannot make an adjustment to other work, the claimant
is disabled.
Rabbers v. Comm 'r ofSoc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citing§§ 404.1520(a)(4)(i)-

(v), 404.1520(b)-(g)).
The claimant has the burden of proof at the first four steps of the sequential evaluation
process. Id.; Wilson v. Comm 'r a/Soc. Sec., 378 F.3d 541, 548 (6th Cir. 2004). Once the
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claimant establishes a prima facie case by showing an inability to perform the relevant previous
employment, the burden shifts to the Commissioner to show that the claimant can perform other
substantial gainful employment and that such employment exists in the national economy.
Rabbers, 582 F.3d at 652; Harmon v. Apf 168 F.3d 289, 291 (6th Cir. 1999).
el,

B. The Administrative Law Judge's Findings
The ALJ applied the sequential evaluation process and made the following findings of
fact and conclusions of law:
1. The [plaintiff] meets the insured status requirements of the Social Security
Act through December 31 , 2018.
2. The [plaintiff] has not engaged in substantial gainful activity since January 1,
2013, the alleged onset date (20 CFR 404.1571 et seq.).
3. The [plaintiff] has the following severe impairments: degenerative disc
disease (20 CFR 404.1520(c)).
4. The [plaintiff] does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments in
20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and
404.1526).
5. After careful consideration of the entire record, the [ALJ] finds that the
[plaintiff] has the residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) except he should not climb ladders, ropes and
scaffolds; occasionally climb ramps and stairs, kneel, crouch, crawl, and
stoop; can perform occasional out-front reaching with the left dominant upper
extremity but no overhead reaching with the left dominant upper extremity; he
should avoid exposure to all work place hazards such as unprotected heights
and dangerous moving machinery; and he should have no concentrated
exposure to temperature extremes.
6. The [plaintiff] is unable to perform any past relevant work (20 CFR
404.1565). 1

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The ALJ relied on the VE's testimony to find that plai ntiff had past relevant work as a truck driver, which was
performed at the medium level of exertion; van driver, which was performed at the light level of exertion; and tire
repairer, which was performed at the very heavy level of exertion. (Tr. 19).

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7. The [plaintiff] was born [in] 1961 and was 51 years old, which is defined as an
individual closely approaching advanced age, on the alleged disability onset
date (20 CFR 404.1563).
8. The [plaintiff] has at least a high school education and is able to communicate
in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the [plaintiff] is ' not disabled,' whether or not the [plaintiff] has
transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P,
Appendix 2).
I 0. Considering the [plaintiff's] age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the [plaintiff] can perform (20 CFR 404.1569 and
404. I 569(a)). 2
11 . The [plaintiff] has not been under a disability, as defined in the Social
Security Act, from January 1, 2013, through the date of [the ALJ ' s] decision
(20 CFR 404.1520(g)).
(Tr. 14-20).

C. Judicial Standard of Review
Judicial review of the Commissioner' s determination is limited in scope by 42 U.S.C. §
405(g) and involves a twofold inquiry: (1) whether the findings of the ALJ are supported by
substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley v.

Comm 'r ofSoc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also Bowen v. Comm 'r ofSoc. Sec.,
478 F.3d 742, 745-46 (6th Cir. 2007).
The Commissioner' s findings must stand if they are supported by "such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales,
402 U.S. 389, 401 (1971) (citing Consolidated Edison Co. v. N.L.R.B. , 305 U.S . 197, 229

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The ALJ relied on the VE' s testimony to find that plaintiff would be able to perform the requirements of
representative, unskilled occupations such as furniture rental consultant (70,000 jobs nationally), usher
(I 0,000 jobs nationally), and children's attendant (5,000 jobs nationally). (Tr. 20).

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( 1938)). Substantial evidence consists of "more than a scintilla of evidence but less than a
preponderance. .. ." Rogers v. Comm 'r ofSoc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). In
deciding whether the Commissioner's findings are supported by substantial evidence, the Court
considers the record as a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978).
The Court must also determine whether the ALJ applied the correct legal standards in the
disability determination. Even if substantial evidence supports the ALJ's conclusion that the
plaintiff is not disabled, "a decision of the Commissioner will not be upheld where the SSA fails
to follow its own regulations and where that error prejudices a claimant on the merits or deprives
the claimant of a substantial right." Rabbers, 582 F.3d at 651 (quoting Bowen, 478 F.3d at 746).
See also Wilson, 378 F.3d at 545-46 (reversal required even though ALJ' s decision was
otherwise supported by substantial evidence where ALJ failed to give good reasons for not
giving weight to treating physician's opinion, thereby violating the agency' s own regulations).

D. Specific Errors
On appeal, plaintiff alleges two assignments of errors: (I) the ALJ improperly determined
that part-time work plaintiff performed was indicative of a capacity to engage in full-time work;
and (2) the ALJ failed to include a sit/stand option in the RFC finding. (Doc. 12 at 7-8).
1. The ALJ's consideration of plaintifrs part-time work history

Plaintiff alleges that the ALJ improperly determined that part-time work activity plaintiff
engaged in during the period of alleged disability evidenced a capacity to perform full-time
work. Plaintiff testified at the ALJ hearing that he worked up to 3.5 hours a day as a van driver
for Ohio Valley Goodwill until August 2014, approximately 20 months after the alleged
disability onset date. (Tr. 36-37, 61). Plaintiff testified that he was forced to stop working at that
time because he was denied medical clearance based on the medications he was taking. (Tr. 37).
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Plaintiff notes that the ALJ correctly found in her written decision that his part-time work did not
constitute substantial gainful activity and that he had not engaged in substantial gainful activity
since the alleged onset date of January 1, 2013. (Doc. 12 at 7, citing Tr. 14). However, plaintiff
alleges that the ALJ erred at subsequent steps of the sequential evaluation process by deducing
from his ability to work part-time during the period of alleged disability that he could have
performed full-time work and that his allegations of debilitating pain and other symptoms were
not fully credible. (Id.). Plaintiff acknowledges that he may have been able to continue working
part-time but for his failure to obtain medical clearance; however, he alleges that his ability to
work part-time is not indicative of his capacity to perform sustained work activity. (Id.).
Plaintiff suggests that the ALJ ' s finding that he could work full-time is inconsistent with Social
Security Ruling 96-8p, which defines RFC as "an assessment of an individual's ability to do
sustained work-related physical and mental activities in a work setting on a regular and
continuing basis," which means "8 hours a day, for 5 days a week, or an equivalent work
schedule." SSR 96-8p, 1996 WL 374184 (July 2, 1996).
Plaintiff has not shown that the ALJ erred by drawing improper and unsubstantiated
inferences from the part-time work activity he performed during the period of alleged disability.
Contrary to plaintiffs position, the ALJ did not simply infer from plaintiffs ability to work a
reduced number of hours that he could perform work on a sustained, full-time basis. Rather, the
ALJ determined that plaintiffs part-time work activity was one of several factors that negatively
impacted plaintiffs credibility because that activity was inconsistent with his allegations
regarding the extent of his pain and limitations. (Tr. 19). The ALJ properly took plaintiffs daily
work activity into account when assessing his credibility under the Social Security regulations
and rulings, which provide that the ALJ is to consider the following factors in assessing a
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claimant's credibility: (1) daily activities; (2) the location, duration, frequency, and intensity of
pain or other symptoms; (3) precipitating and aggravating factors ; (4) the type, dosage,
effectiveness, and side effects of any medication taken to alleviate pain or other symptoms; (5)
treatment, other than medication, received for relief of pain or other symptoms; (6) any measures
used to relieve pain or other symptoms; and (7) other factors concerning functional limitations
and restrictions due to pain or other symptoms. See 20 C.F .R. § 404.1529; SSR 96-7p, 1996 WL
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374186 (July 2, 1996). See also Miller v. Com 'r of Soc. Sec., 524 F. App' x 191 , 194 (6th Cir.
2013)(ALJ did not error by considering ability to maintain part-time employment as one factor
relevant to disability determination). The ALJ reasonably determined that plaintiffs part-time
work activity was inconsistent with his allegations that he spent the bulk of his day "lying down
and watching television" and that he was restricted to sitting for approximately 1.5 hours and
standing for 20-30 minutes before having to change positions and to walking for 20 minutes total
in an 8-hour workday. (Tr. 19; see Tr. 49-50). The ALJ' s finding that plaintiffs part-time work
activity was inconsistent with his allegations of debilitating pain and functional restrictions is
supported by substantial evidence, and the Court must therefore defer to it. Walters v. Comm 'r.

ofSoc. Sec., 127 F.3d 525, 531 (6th Cir. 1997) (the ALJ's credibility findings "are to be
accorded great weight and deference, particularly since an ALJ is charged with the duty of
observing a witness' s demeanor and credibility," but must be supported by substantial evidence).

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Effective March 28, 2016, SSR 96-7p has been superseded by SSR 16-3p, 2016 WL 1119029, which "provides
guidance about how [the SSA] evaluate[s] statements regarding the intensity, persistence, and limiting effects of
symptoms." See 2016 WL 1237954 (clarifying effective date ofSSR 16-3p). There is no indication in the text of
SSR 16-3p that the SSA intended to apply SSR 16-3p retroactively, and the Ruling therefore does not apply here.
Accord Cameron v. Colvin , No. 1:15-cv- 169, 2016 WL4094884, at *2 (E.D. Tenn. Aug. 2, 2016).

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The ALJ also found that presumably plaintiff would have still been working as of the
date of her decision had his employer medically cleared him, which further called his credibility
into question. (Tr. 19, citing Tr. 510). This aspect of the ALJ's credibility finding is likewise
substantially supported by the record. Plaintiff testified at the ALJ hearing that he stopped
working because he was unable to get medical clearance, but he vaguely added he was "not sure"
if he could have continued to perform the job because it was "getting pretty tiring getting in and
out of the van" and pulling himself up was "working on [his] shoulder more than it should have."
(Tr. 37). Insofar as plaintiff meant to suggest that a worsening of his symptoms played a role in
ending his part-time employment, the record does not support plaintiffs allegation. Plaintiff
treated with Dr. John E. Beresh, M.D., and other providers at Dr. Beresh' s pain management
practice beginning in March 2012. (Tr. 406-55, 458-64, 465-501 , 502-521, 527-35). The
treatment notes reflect that on July 31 , 2014, less than three weeks before plaintiff stopped
working, plaintiff complained of only "mild" pain (2-3 out of 10 on the analog pain scale)4 and
reported that he was "happy with his care." (Tr. 513-14). Plaintiff stated that his medications
provided 40% relief for 24 hours and allowed him to perform his activities of daily living and
have a better quality oflife with no somnolence or driving impairment. (Id. at 514). On
September 29, 2014, approximately one month after he stopped working, plaintiff continued to
complain of only mild pain (4 out of I 0) and he reported that his medications gave him 60%
relief for 3 to 4 hours. (Tr. 509). Plaintiff reported that he was off work until he was off
methadone because of work regulations. (Id.). The treatment notes document that plaintiffs
employer had not accepted a letter from Dr. Beresh giving plaintiff medical permission to drive;

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The treatment records characterize pain in the 1-4 range as " mild." (Tr. 51 3).

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therefore, a medical plan was formulated to wean plaintiff from methadone. (Id.). When
plaintiff was seen two months later on November 24, 2014, he reported that his pain was 4-6 out
of 10, his pain medications (methadone and narcotics) provided 40% relief for 24 hours and
allowed him to perform his activities of daily living and have a better quality oflife with no
somnolence or driving impairment, and he felt the best he had felt in 12 years with these
medications. (Tr. 506-07). There is no indication in the treatment notes that plaintiff's pain or
other symptoms were precluding him from working as of this date. To the contrary, the notes
report that plaintiff was encouraged to work elsewhere in light of his medication prohibitions,
but plaintiff's response to the suggestion was he had submitted 315 applications before landing
the Goodwill job. (Id. at 507).
These treatment records provide substantial support for the ALJ 's findings that plaintiff's
part-time work activity was inconsistent with his self-reported complaints and limitations, and
that plaintiff presumably would have continued to perform that work but for his failure to obtain
medical clearance. The ALJ did not err by taking these factors into account when assessing
plaintiff's credibility. Plaintiff's first assignment of error should be overruled.

2. The ALJ's failure to include a sit/stand option in the RFC fmding
Plaintiff alleges as his second assignment of error that the ALJ erred by failing to include
a sit/stand option in the RFC finding. (Doc. 12 at 7-8). Plaintiff contends that a sit/stand
requirement was consistent with his testimony that he could sit for 1 to 1.5 hours at a time or 4
hours total, stand for 20 to 30 minutes, and walk for 20 minutes in an 8-hour workday. (Id. at 7,
citing Tr. 19). Plaintiff suggests that the ALJ erred by discounting his testimony regarding these
limitations on the ground the restrictions were inconsistent with the physical demands of his
part-time driving job. Plaintiff alleges there was no inconsistency between the limitations he
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testified about and the functional requirements of his job because the driving job allowed him to
shift from a sitting to a standing position. Plaintiff further argues that his need to alternate
positions is " reasonable" because he had complained to his medical providers about "sharp pain"
that radiated through his buttocks and into his legs, causing numbness in his lower extremities.
(Id. at 8).
Plaintiff has not identified any medical evidence from a treating, examining or nonexamining physician or other medical source that documents a restriction on his ability to sit and
stand for any period of time as he alleges. Plaintiff cites to numerous treatment records from Dr.
Beresh and other providers at his pain management clinic documenting complaints of pain and
symptoms that plaintiff believes support these limitations. (Doc. 12 at 3, citing Tr. 410, 413,
416,423,426,429,432, 449,463,467,473,479,485,487,490, 493,506,509,513, 516).
However, plaintiff relies almost exclusively on his subjective statements about these limitations
as set forth in the treatment records, which the ALJ did not fully credit. In fact, Dr. Beresh
opined in a questionnaire he completed in June 2013 that plaintiff's "[lower back] pain is
subjective," and he did not identify any abnormal findings supporting those complaints. (Tr.
458-59). Plaintiff has not cited to any other medical opinion that supports a different conclusion
and assesses functional restrictions that the ALJ ignored. Nor has plaintiff explained why the
ALJ' s finding that he can perform a range of light work is not supported by substantial evidence.
Even if the evidence in the record could arguably support a different RFC finding, that is not a
basis for reversal here given that the evidence substantially supports the ALJ's conclusion. See

Her v. Comm 'r ofSoc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999).
Further, plaintiff has not shown that the ALJ erred by rejecting his allegations about the
severity of his physical impairments and the debilitating nature of his symptoms as less than
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fully credible. The ALJ discounted plaintiffs subjective complaints of pain and debilitating
symptoms for the following reasons: ( 1) the treatment records documented "relatively normal
findings on examination," which the ALJ thoroughly discussed in her written decision; (2)
treatment records showed that plaintiffs pain was "generally well controlled with treatment
intervention, including medication"; (3) plaintiffs complaints were inconsistent with his own
reports of his activities of daily living, including hi s part-time work as a van driver after the
alleged onset date; and (4) plaintiff stopped working as a part-time driver only because his
employer refused to certify him based on his pain medications. (Tr. 18-19). Plaintiff challenges
only the ALJ' s finding that his complaints were inconsistent with his part-time work activity. As
the Court has determined in connection with plaintiffs first assignment of error, the ALJ
reasonably found that plaintiffs part-time work activity was inconsistent with his testimony that
he spent the bulk of his day lying down watching television and that he was limited to sitting for
1 to 1.5 hours, standing for 20 to 30 minutes, and walking for 20 minutes in an 8-hour workday.
(See p. 7, supra). Plaintiff has shown no error in this regard.

The records plaintiff cites do not show that the ALJ's credibility finding was deficient in
any other respect. The treatment records document that plaintiff consistently complained of only
mild pain (Tr. 410- 11, 413-14, 416-17, 423-24, 426-27, 429-30, 449-50, 462-64, 467-68, 479-80,
485, 509-10, 513-14), and he only occasionally rated his pain as slightly more intense at 4-5 or 5
out of 10 (Tr. 432-33, 487-88, 490-91 , 493-94, 506-07, 516-17). These treatment notes show
that plaintiff consistently reported that his medications gave him significant relief for 3 to 4 hour
periods, they enabled him to perform his activities of daily living and work part-time, and they
improved his quality of life, function and sleep. The records do not reflect that plaintiffs
condition significantly deteriorated at any point, including around the time that plaintiff stopped
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working, or that his symptoms made it difficult for him to sit and stand without alternating
positions. The ALJ reasonably relied on medical records showing that plaintiff obtained
substantial relief from his medications to discount his testimony regarding his pain and his
limitations. See Smith v. Commr. of Soc. Sec. Admin., 564 F. App' x 758, 764 (6th Cir. 2014)
(citing White v. Commr. ofSoc. Sec. , 572 F.3d 272, 287 (6th Cir. 2009) (upholding credibility
determination where the medical records showed that the plaintiff responded well to medications
and therapy, contrary to her assertions).
Plaintiff has not shown that the ALJ erred by failing to include a sit/stand option in the
RFC finding. Plaintiffs second assignment of error should be overruled.

IT IS THEREFORE RECOMMENDED THAT:
The decision of the Commissioner be AFFIRMED.

Date:

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United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
NORMAN WILLIAMSON,
Plaintiff,

Case No. 1: 16-cv-583
Barrett, J.
Litkovitz, M.J.

vs.

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report
objected to and shall be accompanied by a memorandum oflaw in support of the objections. If
the Report and Recommendation is based in whole or in part upon matters occurring on the
record at an oral hearing, the objecting party shall promptly arrange for the transcription of the
record, or such portions of it as all parties may agree upon, or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise directs. A party may respond to another
party's objections WITHIN 14 DAYS after being served with a copy thereof. Failure to make
objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn,
474 U.S . 140 (1985); United States v. Walters, 638 F.2d 94 7 (6th Cir. 1981 ).

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