United States District Court, Middle District of Tennessee, Nashville Division
Aleta A. Trauger, United States District Judge
REPORT AND RECOMMENDATION
Joe B. Brown U.S. Magistrate Judge
For the reasons explained below, the Magistrate Judge RECOMMENDS that Plaintiff’s Motion for Judgment on the Administrative Record (the record) (Docket Entry 14) be DENIED, and the Commissioner’s decision be AFFIRMED.
I. Procedural History
Plaintiff filed for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) on July 27, 2010. (Docket Entry 10, pp. 77-78). He claimed an onset date of September 30, 2009 and disability due to: constant pain, nerve damage in his leg, a bad back, high blood pressure, and high cholesterol. (Docket Entry 10, pp. 157; 164). The Commissioner denied his claims on initial review and reconsideration. (Docket Entry10, pp. 81; 93-99). Plaintiff timely requested a hearing before an Administrative Law Judge (ALJ). (Docket Entry 10, p. 100). On January 11, 2013, Plaintiff appeared before ALJ, David Ettinger. (Docket Entry 10, p. 35). Also appearing were Plaintiff’s attorney, Lindsey Ralston and the vocational expert (VE), Michelle McBroom-Weiss. (Docket Entry 10, p. 35).
At the hearing, the ALJ clarified that Plaintiff’s date last insured was September 30, 2009. (Docket Entry 10, p. 38). The ALJ also clarified that Plaintiff had filed a prior claim for DIB and SSI, which another ALJ denied on June 28, 2010. (Docket Entry 10, pp. 62-76). Therefore, Plaintiff could not claim that his disability began before June 28, 2010 and, in light of his 2009 date last insured, Plaintiff withdrew his request for a hearing on his Title II DIB claim. (Docket Entry 10, p. 39). However, since a SSI claim is not dependent on date last insured, the ALJ proceeded with Plaintiff’s Title XVI SSI claim, although he ultimately found that Plaintiff was not disabled under Title II or Title XVI of the Social Security Act (the Act). (Docket Entry 10, pp. 24; 39; See 20 C.F.R. § 416.335). Finally, the Appeals Council denied Plaintiff’s request for review. (Docket Entry 10, p. 1).
On September 04, 2014, Plaintiff, proceeding in forma pauperis, timely brought the instant action. (Docket Entry 1). The District Judge referred this case to the Magistrate Judge. (Docket Entry 3). Defendant filed its Answer and the record. (Docket Entry 9-10). On January 13, 2015, Plaintiff filed a Motion for Judgment on the Record seeking review of the final decision of the ALJ pursuant to 42 U.S.C. §§ 405(g) and 1383(c). (Docket Entry 14). Defendant has filed a Response. (Docket Entry 15). Therefore, the matter is properly before the Court.
II. Review of the Record
The medical evidence consists of almost 500 pages of records, reports, and Medical Source Statements. (Docket Entry 10, pp. 240-733). In light of this and the nature of Plaintiff’s claims of errors, the relevant evidence is incorporated directly into the Analysis below.
A. Plaintiff and Witness Testimony
Plaintiff’s attorney gave an opening statement to the ALJ and stated that Plaintiff “has had several MRIs which showed pretty severe findings.” (Docket Entry 10, p. 40). Then, Plaintiff proceeded to testify that he has not been able to work because of problems in his back, leg, and hip. (Docket Entry 10, p. 41). He testified that his doctors prescribe him pain medication and that his mother helps him with household chores. (Docket Entry 10, p. 42). He testified that he would not be able to stand at a job due to pain and that he would not be able to sit at a job because of problems in his back and his leg. (Docket Entry 10, p. 44). He testified that he could sit for fifteen to twenty minutes and that during a three hour school performance in which his daughter participated, he alternated sitting and standing. (Docket Entry 10, p. 44).
Plaintiff testified that he has carpal tunnel syndrome, that he can pick up a coffee cup, and that he does not use a computer. (Docket Entry 10, p. 45). He denied problems with his medications. (Docket Entry 10, p. 47). He testified that he receives Prozac at Centerstone. (Docket Entry 10, p. 47). He testified that he also has sleep apnea and experiences depression. (Docket Entry 10, pp. 48-50).
B. Vocational Expert Testimony
The ALJ reviewed the past work of Plaintiff. (Docket Entry 12, pp. 51-52). The ALJ then asked the VE to consider a hypothetical person of the same age as Plaintiff, with an eleventh grade education and the same work experience as Plaintiff. (Docket Entry 10, p. 52). The hypothetical person would be limited to light work and would need to avoid respiratory irritants or extreme temperatures. (Docket Entry 10, p. 52). The VE testified that Plaintiff could possibly perform past work as a grill cook and could perform past work as a server under this hypothetical. (Docket Entry 10, p. 53). The VE also listed other available jobs under this hypothetical, including a cashier, sales attendant, and inspector. (Docket Entry 10, p. 53).
Then, the ALJ asked the VE to consider the additional limitations of someone who:
[C]ould not stand or walk for more than four hours during the workday; could not more than frequently push, pull, handle, or finger with the left arm and hand; could not climb ladders; could not more than occasionally climb stairs, balance, stoop, kneel, crouch, or crawl; and needed to avoid concentrated exposure to hazardous work environments.
(Docket Entry 10, pp. 53-54). The VE testified that the position of cashier and inspector would still be available, albeit at reduced numbers. (Docket Entry 10, p. 54). Finally, the ALJ asked the VE to consider a hypothetical person with the same limitations already mentioned but “limited to no more than sedentary work.” (Docket Entry 10, p. 54). The VE testified that there would be available jobs under this hypothetical, including an operator, a food and beverage clerk, and a security systems monitor. (Docket Entry 10, pp. 54-55).
Then, the ALJ asked the VE to consider the limitations of being unable to “carry out complex or detailed instructions; being unable to . . . maintain attention or concentration for more than two hours . . .; and [being] unable to have more than frequent interaction with the public, supervisors, or co-workers.” (Docket Entry 10, p. 55). The VE testified that the position of inspector and security system monitor would still be available. (Docket Entry 10, p. 56).
Plaintiff’s attorney then presented a hypothetical to the VE in which the person would be able to sit, stand, and walk for one hour each at a time; would be unable to perform any postural activities; and would need a cane throughout the day. (Docket Entry 10, pp. 56-57). The VE testified that the Plaintiff could not perform past work with those limitations, but the positions of a security system monitor, an operator, and a food and beverage clerk would still be available. (Docket Entry 10, p. 57). However, if a person was off task twenty percent of the day due to standing and stretching, those jobs would be unavailable. (Docket Entry 10, p. 58).
Finally, the ALJ and the VE discussed the term, “stooping” and whether sitting requires the ability to stoop, i.e. bend forward at the waist. (Docket Entry 10, pp. 58-59). The VE clarified that under the hypotheticals, a person who could not sit could not perform the jobs listed. (Docket Entry 10, p. 59). The VE noted that the security monitor job would be available even if an individual needed to stand every hour. (Docket Entry 14-1, pp. 58-59).
A. Standard of Review
The issue before the Court, pursuant to 42 U.S.C. §§ 405(g) and 1383(c), is limited to whether there is substantial evidence in the record to support the ALJ’s findings of fact and whether the ALJ applied the correct legal standards. Carrelli v. Comm'r of Soc. Sec., 390 F.App'x 429, 434 (6th Cir. 2010) (unpublished opinion) (quoting Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir.1994)). “Substantial evidence” is “more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Carrelli, 390 F.App'x at 434 (quoting Cutlip, 25 F.3d at 286). The Court “may not try the case de novo, resolve conflicts in evidence, or decide questions of credibility.” Carrelli, 390 F.App'x at 434. If there is “substantial evidence” in the record that supports the ALJ’s decision and the ALJ applied the correct legal standard, then the Court must affirm the ...