Muncey v. Commissioner of Social Security

Filing 19

REPORT AND RECOMMENDATION that the Plaintiff's statement of errors be overruled and that judgment be entered in favor of the Defendant Commissioner. Objections due within fourteen (14) days. Signed by Magistrate Judge Terence P. Kemp on 1/12/2016. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Sharon M. Muncey,

:

Plaintiff,

:

v.

:
:

Carolyn W. Colvin, Acting
Commissioner of Social
Security,

Case No.

2:15-cv-0893

JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp

:

Defendant.

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Sharon M. Muncey, filed this action seeking
review of a decision of the Commissioner of Social Security
denying her application for social security disability benefits.
That application was filed on September 26, 2011, and alleged
that Plaintiff became disabled on April 7, 2011.
After initial administrative denials of her claim,
Plaintiff was given two video hearings before an Administrative
Law Judge, the first on April 16, 2013, and the second on
September 12, 2013.

In a decision dated October 18, 2013, the

ALJ issued a decision denying benefits.

That became the

Commissioner’s final decision on January 21, 2015, when the
Appeals Council denied review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on May 26, 2015.

Plaintiff filed her

statement of specific errors on June 29, 2015, to which the
Commissioner responded on October 16, 2015.

Plaintiff filed a

reply brief on November 4, 2015, and the case is now ready to
decide.
II.

The Lay Testimony at the Administrative Hearing

Plaintiff, who was 60 years old at the time of the first

administrative hearing and who has a high school education,
testified as follows.

Her testimony appears at pages 45-64 and

pages 31-34 of the administrative record.
At the first hearing, Plaintiff testified that she did not
work from April 7, 2011 until September, 2012, when she began a
part-time job.

She was a cashier four hours a day, four or five

days a week, getting paid ten dollars an hour.

She was able to

sit or stand as needed, and did not lift more than five pounds.
She had initially tried to work full-time but was unable to do
so.
Plaintiff said her symptoms included being able to walk or
stand for only ten or fifteen minutes, and having difficulty
getting up after sitting for a while.

She had pain in her legs,

hips, and back which varied in intensity, but she had bad days
about half the time.

She did not like to sit for more than an

hour, and she could lift ten pounds.

She had been prescribed a

cane and used it daily.
On a typical day, Plaintiff ate, watched television, got
ready for work, worked, helped with laundry, did dishes, and took
turns cooking with her husband, who was also disabled.
did some cleaning but it took longer than it used to.
husband did the grocery shopping.

She still
Her

Plaintiff also described pain

and weakness in her right shoulder and tingling in her hands and
feet.

She could climb a flight of stairs using her cane, but it

was painful to do.

Her treatment consisted of medication and a

heating pad.
In response to additional questions from the ALJ, Plaintiff
said that she had been laid off from her prior job, and that it
involved some standing and walking as well as lifting up to 35pound boxes.

Before that, she was a mail or shipping clerk, a

job with a 50-pound lifting requirement.

She had been missing

one day a month of work due to her illness before she was laid
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off.
At the second administrative hearing, Plaintiff said she was
working twelve hours per week.
time was totally exhausting.

Working four or five hours at a

She also visited the restroom about

ten times during a typical shift.
stooping and bending.

She continued to have trouble

Finally, she had arthritis in her hands

which caused her occasionally to drop objects.
III.

The Medical and Educational Records

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

Because neither of Plaintiff’s

claims of error relate directly to the medical records, the Court
provides only a brief overview of them here.
Plaintiff’s treating physician was Dr. Sleesman.

He had

seen her for a variety of ailments, including asthma, depression,
diabetes, hyperlipidemia, hypertension, obesity, overactive
bladder, peripheral neuropathy, GERD, fibromyalgia, and fatigue.
Shortly after she lost her job she said that it had fatigued her
to the point where she could no longer work.

Prior to that she

had reported back pain radiating into her legs.

She had been

taking various pain medications since at least 2005.

He

completed a medical assessment form on April 4, 2013, finding
that due to multiple medical problems, Plaintiff could lift only
five pounds, stand for only one or two hours in a workday, and
sit for only two to three hours.

She also had a number of

postural limitations and some reaching restrictions.

(Tr. 561-

64).
Dr. Kroger was the consultative medical examiner.
report is based on seeing Plaintiff on May 3, 2013.

His

Plaintiff

described pain in her low back, hips, and knees, which she had
experienced for 20 years, as well as a history of fibromyalgia.
She had a short-strided shuffling gait and walked with a cane.
She had 14 of 18 trigger points positive for fibromyalgia and
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showed tenderness to palpation in her legs and knees.
and range of motion were normal.

Strength

Dr. Kroger said she could lift

20 pounds and stand for two hours at a time.

(Tr. 565-67).

Finally, two state agency physicians reviewed the records,
both concluding that Plaintiff could do a limited range of medium
work.
IV.

The Vocational Testimony

Vocational testimony was taken at both administrative
hearings.

At the first hearing, Nancy Borgeson was called to

testify.

She summarized Plaintiff’s work history as consisting

of payroll clerk and mail clerk.

The first was semiskilled and

sedentary although Plaintiff performed it at the medium level.
The second was light and unskilled, but Plaintiff also did that
job at the medium exertional level.

Ms. Borgeson was then asked

about jobs available to someone of Plaintiff’s age, education,
and work experience who could work at the sedentary level, walk
or stand for only ten minutes at a time, could occasionally climb
ramps and stairs but never climb ladders, ropes, or scaffolds,
could occasionally stoop but rarely kneel or crouch, and could
never crawl.

According to Ms. Borgeson, those limitations were

consistent with the job of payroll clerk as it was ordinarily
performed.

Being off-task for fifteen percent of the day would

preclude employment, however, as would missing one day of work
per month on a consistent basis or being unable to sit, stand,
and walk for a total of eight hours in a day.

The payroll clerk

job would not be affected by a restriction on overhead reaching
or on exposure to environmental hazards, however.

(Tr. 64-68).

At the second hearing, a different vocational expert, Dr.
Richard Oestreich, was called to testify.
at page 35 of the administrative record.

His testimony begins
He described

Plaintiff’s past employment slightly differently than did Dr.
Borgeson, but did identify one sedentary job, credit clerk or
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receptionist.

He agreed with Dr. Borgeson that someone who could

not sit, stand, or walk for a total of eight hours in a workday
could not be employed.

He was then given a different

hypothetical which described someone who could sit for eight
hours, stand and walk for four (two hours at a time), lift up to
20 pounds, used a cane to walk, could not balance, could rarely
stoop, could not kneel, crouch, or crawl, and had some other
restrictions as well.

Dr. Oestreich said that such a person

could, if use of a cane was eliminated from the hypothetical, do
Plaintiff’s past sedentary work.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 1121 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 December 31, 2016.

Next, the ALJ determined that

Plaintiff had not engaged in substantial gainful activity since
her alleged onset date of April 7, 2011.

Going to the second

step of the sequential evaluation process, the ALJ concluded that
Plaintiff had severe impairments including degenerative disc
disease, fibromyalgia, obesity, and related diabetes,
hypertension, and hyperlipidemia.

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 work at the sedentary exertional level with certain
restrictions.

She could occasionally lift and carry ten pounds,

could stand and walk for no more than ten minutes at a time, used
a cane to ambulate, could occasionally climb ramps and stairs and

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occasionally stoop, could rarely kneel or crouch, and could never
crawl and could never climb ladders, ropes, or scaffolds.

The

ALJ found that, with these limitations, Plaintiff could do her
past relevant job as a payroll clerk.

Consequently, the ALJ

determined that Plaintiff was not entitled to benefits.
VI.

Plaintiff’s Statement of Specific Errors

In her statement of specific errors, Plaintiff raises two
issues: (1) the ALJ’s step four finding was inconsistent with the
vocational expert’s testimony and therefore not supported by
substantial evidence; and (2) the ALJ improperly applied
fibromyalgia ruling SSR 12-2p in evaluating Plaintiff’s claim.
These issues are evaluated 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
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
adequate to support a conclusion'"

Richardson v. Perales, 402

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).

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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).
A.

Inconsistency with the Vocational Testimony

Plaintiff first argues that the ALJ’s finding, at step four
of the sequential evaluation process, that Plaintiff could still
perform her past relevant work is not supported by the vocational
testimony.

She contends that the testimony of the two different

vocational experts was not consistent and that the ALJ erred by
not addressing and resolving those inconsistencies.

She also

asserts that neither vocational expert was actually asked a
question which incorporated all of the limitations contained in
the ALJ’s residual functional capacity finding.
In response, the Commissioner argues that the first
vocational expert, Ms. Borgeson, was asked an appropriate
hypothetical question; as the Commissioner puts it, “the
hypothetical question posed to this vocational expert ...
incorporated limitations the ALJ set forth in his RFC finding
....”

Memorandum in Opposition, Doc. 17, at 7.

Because this is

so, says the Commissioner, there was no error in the ALJ’s
decision to rely upon the answer to that question, and no need to
explain why the ALJ chose not to credit Dr. Oestreich’s testimony
on essentially the same issue.

Plaintiff disputes the factual

premise of this argument, again asserting that “[n]either
vocational expert testified that [Plaintiff] could perform her
past relevant work, given the specific limitations the ALJ found
in the RFC.”

Plaintiff’s reply, Doc. 18, at 2.

The ALJ’s decision is not a model of clarity on the issue of
which vocational expert’s testimony was relied on.

Rather, the

ALJ said simply that “[t]he vocational expert testified that an
individual with the same residual capacity as the claimant would

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be able to complete the claimant’s past work as a payroll clerk
as generally performed.”

Given that it was Ms. Borgeson who

identified that job as payroll clerk (Dr. Oestreich characterized
it as credit clerk/receptionist), it is logical to assume that it
was her testimony to which the ALJ referred.
It is true that Ms. Borgeson was first asked a hypothetical
question which did not completely match the ALJ’s residual
functional capacity finding.

(Tr. 66).

The only difference was

that the question did not include the need to use a cane when
walking, which, under the hypothetical posed, was limited to ten
minutes at a time and no more than two hours total in a workday.
Plaintiff’s counsel later asked that very question, however: “I
just wanted to add ... with the sitting and walking for two
hours, if she had to use a cane or any other type of assistance
device, would that change?”

(Tr. 68).

Dr. Borgeson replied:

“Well if she had a sedentary job, that wouldn’t necessarily
prevent her from doing that work.”

Id.

This excerpt from the

transcript confirms the Commissioner’s argument that, indeed, Ms.
Borgeson was asked a hypothetical question (actually a
combination of two questions) which incorporated all of the
limitations imposed by the ALJ’s residual functional capacity
finding.

Additionally, the Court finds that a reasonable

interpretation of Ms. Borgeson’s testimony in response to the
series of questions she was asked is that the sedentary job
Plaintiff previously performed, whatever it was labeled, could be
done by someone who needed to use a cane whenever he or she stood
up to walk.

Thus, considering only Ms. Borgeson’s testimony, the

ALJ had a substantial basis for his finding that Plaintiff could
do at least one of her past relevant jobs even if she had to use
a cane.
Plaintiff’s other argument, however, is that the ALJ erred
by neither recognizing nor resolving the conflict between Ms.

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Borgeson’s testimony and the responses given by Dr. Oestreich at
the second administrative hearing.

Without citing to any

relevant case law, Plaintiff argues that this represents
impermissible “cherry-picking” of the evidence and requires a
remand for an explanation about why the ALJ credited Ms.
Borgeson’s testimony over that of Dr. Oestreich, whom Plaintiff
describes as “better credentialed ....”

Statement of Errors,

Doc. 10, at 14 n.4.
The Court does not find merit in this argument.

First, Dr.

Oestreich did not testify unequivocally that use of a cane was
inconsistent with the ability to perform Plaintiff’s past
sedentary work.

Rather, he said that “an employer would not hire

her with a cane except by accommodation.”

(Tr. 38).

The ALJ

then distinguished between hiring factors and physical ability to
do the work, saying “I’m not looking at hiring factors, I want to
know if they can do the job or not.”
“Yes.”

Id.

Dr. Oestreich responded

While that is an ambiguous response, it also

indicates that there is not a direct conflict between what he
said and what Ms. Borgeson said.

Plaintiff’s counsel had the

opportunity to clarify the record at that point, but, although
Dr. Oestreich was asked several questions by counsel about his
testimony, none of them touched on this point.

The law appears

clear that use of a cane, by itself, is not work-preclusive.
SSR 96-9p:

See

“Since most unskilled sedentary work requires only

occasional lifting and carrying of light objects such as ledgers
and files and a maximum lifting capacity for only 10 pounds, an
individual who uses a medically required hand-held assistive
device in one hand may still have the ability to perform the
minimal lifting and carrying requirements of many sedentary
unskilled occupations with the other hand.”

Consequently, a

reasonable person could also have concluded that Dr. Oestreich
did not testify that Plaintiff could not do her past relevant
work if she had to use a cane, and simply said that it would make
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it hard for her to get hired.

Without there being a direct

conflict, the ALJ had no duty to explain why he chose to rely on
Ms. Borgeson’s testimony, and, as the Court has already held, it
was given in response to a hypothetical question which
incorporated all of the relevant limitations and supported the
factual finding that Plaintiff, with those limitations, could do
her past work.

That is enough to sustain the ALJ’s decision on

this point.
B.

Fibromyalgia Ruling 12-2p

Plaintiff’s other argument is that the ALJ did not properly
evaluate her most significant impairment, fibromyalgia.

She

points out that under SSR 12-2p, an ALJ must take into account
both the exertional and non-exertional restrictions caused by
fibromyalgia, and argues that the ALJ improperly found her
testimony about such restrictions not to be credible.

In her

reply, she changes the nature of her argument somewhat,
contending that the ALJ impermissibly based his findings on the
lack of objective medical evidence supporting Plaintiff’s claim
of debilitating symptoms.

The Commissioner argues, on the other

hand, that the additional symptoms which Plaintiff testified to
did not have any support in the record.

To that extent, the

Commissioner would appear to be arguing that the ALJ properly
discounted Plaintiff’s testimony to the extent that it was
inconsistent with the ability to do a limited range of sedentary
work.
When analyzing this issue, the ALJ first commented that
Plaintiff’s treatment for her various ailments was conservative
in nature.
her pain.

He next noted that she had been able to work despite
He discounted her claim that she had to elevate her

legs throughout the day because she did not have a medical
condition requiring that.

He also expressed skepticism that she

provided no care to her disabled husband because she was working
part-time, and said that her receipt of unemployment benefits
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also undercut her credibility because she held herself out as
ready, willing, and able to work.

Finally, he pointed out that

when she went back to work in 2012, she worked 70 hours every two
weeks for some time, and although she was unable to keep up that
pace, it did indicate abilities beyond those she testified to.
After assessing Plaintiff’s credibility, the ALJ turned to
the medical evidence.

First, he gave great weight to Dr.

Kroger’s consultative evaluation, stating that it was consistent
with the medical evidence.

He gave lesser weight to Dr.

Sleesman’s opinion, concluding that it was both unsupported by
objective evidence and that it contained restrictions greater
than those to which Plaintiff herself testified and which were
involved in her work and daily activities.

Finally, he gave some

weight to the opinions of the state agency reviewers, although he
found that due to additional medical evidence and testimony, they
overstated Plaintiff’s abilities.
It is true, as Plaintiff argues, that fibromyalgia patients
do not usually present with many objectively-measurable symptoms
of pain or restrictions.

As the Court of Appeals noted in Rogers

v. Comm’r of Social Security, 486 F.3d 234, 243 (6th Cir. 2007),
“fibromyalgia can be a severe impairment and that, unlike medical
conditions that can be confirmed by objective testing,
fibromyalgia patients present no objectively alarming signs.”
Consequently, it is not proper for an ALJ to reject a claimant’s
assertion of disabling symptoms solely on the basis of an absence
of such objective evidence.

SSR 12-2p directs an ALJ, in such

cases, to consider a variety of evidence concerning the extent of
the claimant’s functional capacity:
If objective medical evidence does not substantiate the
person's statements about the intensity, persistence,
and functionally limiting effects of symptoms, we
consider all of the evidence in the case record,
including the person's daily activities, medications or
other treatments the person uses, or has used, to
alleviate symptoms; the nature and frequency of the
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person's attempts to obtain medical treatment for
symptoms; and statements by other people about the
person's symptoms.
Overall, the ALJ is directed to evaluate the credibility of this
evidence in the same way as is done in other cases, taking into
account the fact that fibromyalgia may cause both exertional and
non-exertional limitations.
Here, the Court does not agree with Plaintiff’s contention
that the ALJ failed to examine all of the evidence of record
concerning her fibromyalgia or that he made his decision solely
on the basis that objective medical evidence did not confirm the
degree of disability which she alleged.

The ALJ looked at the

medical evidence, but also considered Plaintiff’s activities of
daily living, including her part-time work activity, and took
into account various factors which legitimately affected her
credibility.

Plaintiff has not made a direct attack on the ALJ’s

credibility finding, and it appears to be reasonable based upon
the deference which is owed to that finding.

An ALJ has a

substantial amount of discretion to make judgments about a
claimant's credibility, and a reviewing Court must give those
judgments a substantial amount of deference. In the final
analysis, the Court must give heed to the proposition that an
ALJ's credibility finding is something that a reviewing court
“may not disturb absent compelling reason.”
F.3d 377, 379 (6th Cir. 2001).

Smith v. Halter, 307

Plaintiff has given none here.

Consequently, the Court finds no merit in her second claim of
error.
VII.

Recommended Decision

Based on the above discussion, it is recommended that the
Plaintiff’s statement of errors be overruled and that judgment be
entered in favor of the Defendant Commissioner.
VIII.

Procedure on Objections

If any party objects to this Report and Recommendation,
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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.

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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