Pettry v. Commissioner Social Security Administration

Filing 21

REPORT AND RECOMMENDATION that Plaintiff's statement of errors be sustained and that the case be remanded to the Commissioner pursuant to 42 U.S.C. §405(g),sentence four. Objections due within fourteen (14) days. Signed by Magistrate Judge Terence P. Kemp on 2/3/2016. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Heath Allan Pettry,

:

Plaintiff,

:

v.

:

Carolyn W. Colvin, Acting
:
Commissioner of Social Security,
Defendant.

Case No.

2:15-cv-0163

JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Heath Allan Pettry, filed this action seeking
review of a decision of the Commissioner of Social Security
denying his applications for disability insurance benefits and
supplemental security income.

Those applications were filed on

July 4, 2011, and alleged that Plaintiff became disabled on April
28, 2011.
After initial administrative denials of his claim,
Plaintiff was given a hearing before an Administrative Law Judge
on May 28, 2013.

In a decision dated July 10, 2013, the ALJ

denied benefits.

That became the Commissioner’s final decision

on November 24, 2014, when the Appeals Council denied review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on April 20, 2015.

Plaintiff filed his

statement of specific errors on July 27, 2015, to which the
Commissioner responded on October 14, 2015.

Plaintiff filed a

reply brief on November 2, 2015, and the case is now ready to
decide.
II.

The Lay Testimony at the Administrative Hearing

Plaintiff, who was 40 years old at the time of the
administrative hearing and who has a tenth grade education,
testified as follows.

His testimony appears at pages 35-46 of

the administrative record.
Plaintiff first said that he had not worked in over two
years.

He had been a driver for Advanced Auto Parts, and also

did some counter work for that company.

Previously, he had been

a delivery driver for a paint company, and worked as both a
driver and manager for CarQuest.

At the time of the hearing, he

walked with a cane, which a doctor had prescribed for him.

He

needed it due to the effects of his neuropathy.
On a typical day, Plaintiff could walk or stand only 20 or
25 minutes.

Sitting was difficult also due to hip pain, and he

spent most of his time lying down.
pounds.

He did not lift over five

He had left hand numbness and frequent dizzy spells,

often accompanied by blackouts.

He watched television and was

able to follow a program.
Socially, Plaintiff visited with his sisters or his in-laws.
He occasionally became anxious in crowds of people.

He could

take care of his personal needs and drive, but he did no
household chores.

His pain medications made him tired.

Plaintiff testified that his most serious problem was
constant leg pain.
for the pain.

He took oxycodone, Fentanyl, and Neurontin

He also had occasional swelling in his legs.

His

blood sugar was constantly high, and he had recently been
diagnosed with sleep apnea.

A CPAP machine was helping with

that.
III.

The Medical Records

The medical records in this case are found beginning on page
220 of the administrative record.

The Court will summarize only

those records which the parties have focused on in support of
their respective arguments.
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Plaintiff’s statement of errors accurately summarizes the
number of times that, from 2010 to 2013, Plaintiff was either
admitted to the hospital or treated in the emergency room.

The

records shows that he was hospitalized fourteen times and treated
at the emergency room ten times (some of which led to a
subsequent hospitalization).

Most of these admissions or visits

were caused by his diabetes or diabetic neuropathy (and
associated symptoms such as pain and syncope), although some
related to other conditions such as chest pain, shortness of
breath, or a hernia.

See Statement of Errors, Doc. 14, at 4-7.

As Plaintiff construes those records, he was averaging 2.68 days
of hospital treatment per month, and 3.36 days of treatment in a
hospital setting.
In the responsive memorandum, the Commissioner does not
dispute either Plaintiff’s summary of the records or his
calculation of the days of hospital or emergency room treatment,
but points out two facts which the Commissioner deems important
to placing the issue in perspective.

First, the Commissioner

observes that no treating source expressed the opinion that
Plaintiff would miss three days of work per month.

Second, the

Commissioner cites to various statements in the record suggesting
that the frequency and severity of Plaintiff’s need for treatment
arose from his lack of compliance with directives from his
physicians, including failing to monitor his blood sugar levels
and his failure to stop smoking.

There are also notes indicating

that when he was medication-compliant, his diabetes was wellcontrolled.

See Memorandum in Opposition, Doc. 19, at 3-7.
IV.

The Vocational Testimony

Dr. Jerry Olsheski was the vocational expert in this case.
His testimony begins on page 47 of the administrative record.
First, Dr. Olsheski was asked to characterize Plaintiff’s
past relevant work.

He said that the delivery driver job was
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medium and semiskilled; the paint sales representative job was
light and skilled; and the same was true for the retail store
manager job.

None of those skills would transfer to sedentary

work.
Next, Dr. Olsheski was asked some questions about a
hypothetical person of Plaintiff’s age, education, and work
experience who could lift and carry at the light exertional
level, but who could only stand or walk for four hours in a
workday, sit for six hours, frequently stoop, kneel, crouch, and
crawl, occasionally climb ramps and stairs and balance, and could
never climb ladders, ropes, or scaffolds.

The person also had to

avoid all exposure to hazards such as unprotected machines and
unprotected heights.

Such a person could not, in Dr. Olsheski’s

opinion, do Plaintiff’s past work, but he or she could work as a
production assembler, production inspector, or hand packer.
Someone who could only occasionally push and pull bilaterally
with the legs could do those jobs, as could someone who was
limited to sedentary work with occasional standing, walking,
bending, pushing, and pulling, and who could do no commercial
driving.

However, a person who could lift only five pounds,

could do no grasping or fingering with the non-dominant hand four
to five days per month, and who would miss three days of work per
month could not be employed.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 1124 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 March 31, 2015.

Second, he found that Plaintiff had not

engaged in substantial gainful activity since his onset date of
April 28, 2011.
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Going to the second step of the sequential evaluation
process, the ALJ determined that Plaintiff had severe impairments
including type II diabetes mellitus, diabetic neuropathy,
congestive heart failure, syncope, hypertension, chronic
obstructive pulmonary disease, and obstructive sleep apnea.

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 sedentary work which did not require more than
occasional standing, walking, bending, pushing, and pulling.

He

also had to avoid all climbing and exposure to unprotected
heights and hazardous machinery and could not perform commercial
driving.
The ALJ found that, with these restrictions, Plaintiff could
not do any of his past relevant work.

However, he could do the

three sedentary jobs identified by Dr. Olsheski.

The ALJ further

found that these jobs existed in significant numbers in the
regional and national economies (2,000 jobs regionally and
310,000 nationally).

Consequently, the ALJ concluded that

Plaintiff was not entitled to benefits.
VI.

Plaintiff’s Statement of Specific Errors

In his statement of specific errors, Plaintiff raises a
single issue, which he phrases as follows: “The Administrative
Law Judge’s decision is not supported by substantial evidence as
the ALJ failed to consider Plaintiff’s absenteeism when assessing
Plaintiff’s residual functional capacity.”
Doc. 14, at 1.

Statement of Errors,

This issue is reviewed under the following legal

standard.
Standard of Review.

Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the

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Commissioner] as to any fact, if supported by substantial
evidence, shall be conclusive. . . ."

Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as
Richardson v. Perales, 402

adequate to support a conclusion'"

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.
NLRB, 305 U.S. 197, 229 (1938)).
scintilla.'" Id.
Cir. 1976).

It is "'more than a mere

LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

The Commissioner's findings of fact must be based

upon the record as a whole.

Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th
Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.
1984).

In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into
account whatever in the record fairly detracts from its weight.'"
Beavers v. Secretary of Health, Education and Welfare, 577 F.2d
383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human
Services, 755 F.2d 495, 497 (6th Cir. 1985).

Even if this Court

would reach contrary conclusions of fact, the Commissioner's
decision must be affirmed so long as that determination is
supported by substantial evidence.

Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).
The difference in the parties’ positions is reflected in the
way they characterize the facts and the significance of those
facts.

Plaintiff’s characterization, and argument, are

straightforward.

He notes that the objective evidence supports

his claim that he was hospitalized for 63 days in 21-month span.
He then argues that the ALJ did not account for this fact in the
RFC finding.

The Commissioner contends that many times,

Plaintiff ended up in the hospital due to non-compliance with
treatment, and that the ALJ reasonably concluded that Plaintiff’s
severe impairments did not, themselves, prevent him from
attending work on a regular basis.
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The Commissioner also argues

that the ALJ properly found Plaintiff not to be fully credible.
However, as Plaintiff notes, he is relying not on his own
testimony about missing work but on the hospital records
themselves.

The Court therefore agrees with Plaintiff that

credibility is not an issue here.
It is, as always, important to scrutinize the ALJ’s decision
to determine the basis for his conclusion on the issue raised by
Plaintiff.

The ALJ gave great weight to the opinion of Dr.

Grodner, a consultative examiner, who concluded that Plaintiff’s
neuropathy would hinder his ability to engage in weight-bearing
activities such as walking, standing, bending, pushing, or
pulling.

(Tr. 17).

The ALJ found this opinion generally

consistent with the evidence and with Plaintiff’s activities of
daily living.

(Tr. 18).

The ALJ gave only some weight to the

state agency physicians’ opinions, finding that they overstated
Plaintiff’s physical abilities.

Id.

The ALJ then rejected, as

not fully credible, Plaintiff’s claim that he could not work
because “he could pass out on the job due to his diabetes and
because he is in the hospital a lot.”

(Tr. 19).

That decision

was based in large part on the absence of objective symptoms of
debilitating weakness or dizziness, and also on the fact that
Plaintiff’s daily activities were inconsistent with an inability
to work because Plaintiff took care of his personal needs, took
medication without the need for reminders, cared for a pet, fixed
simple meals, drove, took walks, put together models, and
socialized.

(Tr. 20-21).

The ALJ also mentioned the fact that

Plaintiff still smoked, a fact deemed inconsistent with any claim
of disabling COPD.

(Tr. 22).

However, when speaking to the

primary argument advanced by the Commissioner in this Court, the
ALJ said only that there was “evidence that the claimant has not
been entirely compliant in taking prescribed medications” and
that this “non-compliance would not be expected were his physical
impairments and related symptoms severe within the meaning of the
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Regulations, and strongly suggests that these conditions are
stable, tolerable and adequately controlled without the need to
comply with prescribed treatment recommendations.”

(Tr. 21).

The ALJ emphasized, however, that non-compliance was “not a basis
for denying his claim” but rather was “a basis for heavily
discounting his overall credibility.”

Id.

The Commissioner has, in the opposing memorandum, attributed
a reasoning process to the ALJ which cannot be found in the
administrative decision.

The ALJ did not conclude that, but for

being non-compliant with treatment recommendations, Plaintiff
would not have been hospitalized with the frequency which is
documented in the record, or that he would not have had to seek
emergency room treatment as often as he did.

In fact, the ALJ

did not engage in any meaningful discussion of the frequency of
Plaintiff’s hospital stays, or reach any conclusion about how
that evidence might have impacted Plaintiff’s ability to work on
a sustained basis.
The finding made by the ALJ - that Plaintiff could work but
not at his past occupations - is a step-five finding, a step
where the Commissioner has the burden of proof.

As one court has

observed, “[i]t is far from plain that a person requiring
hospitalization as frequently as Plaintiff — 69 days in less than
three years (about two days per month) — would be able to
maintain substantial gainful employment.”

Hawke-Dingman v.

Comm’r of Social Security, 2012 WL 5328674, *12 (E.D. Mich. Sept.
11, 2012), adopted and affirmed 2012 WL 5306218 (E.D. Mich. Oct.
29, 2012).

That observation applies equally here, and it is also

“far from plain” that the ALJ adequately analyzed the evidence
about the frequency of Plaintiff’s hospitalization for diabetic
neuropathy - a condition the ALJ found to be severe - or advanced
any reviewable rationale for discounting that evidence.

See,

e.g., Diaz v. Chater, 55 F.3d 300, 307 (7th cir. 1995)(“An ALJ's
failure to consider an entire line of evidence falls below the
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minimal level of articulation required”).
Additionally, as Plaintiff points out, the ALJ made no
finding of the type of failure to follow prescribed treatment
which would justify outright denial of the claim, nor did he
purport to.

His decision cannot be characterized in that way in

light of his own statement to the contrary and the failure to
cite to or follow required procedures on that issue.
230.0.005; SSR 82-59.

See POMS

Consequently, the case must be remanded

for further consideration of the evidence.
VII.

Recommended Decision

Based on the above discussion, it is recommended that the
Plaintiff’s statement of errors be sustained and that the case be
remanded to the Commissioner pursuant to 42 U.S.C. §405(g),
sentence four.
VIII.

Procedure on Objections

If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection
is made, together with supporting authority for the objection(s).
A judge of this Court shall make a de novo determination of those
portions

of the report or specified proposed findings or

recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
waiver of the right to appeal the decision of the District
Court adopting the Report and Recommendation.
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See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge

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