United States District Court, N.D. West Virginia
MATTHEW M. LEE, Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
P. MAZZONE, UNITED STATES MAGISTRATE JUDGE.
case arises from the denial of Plaintiff, Matthew Lee's
(“Plaintiff”) Title II application for a period
of disability and disability insurance benefits
(“DIB”). After Plaintiff's application
proceeded through the administrative process, United States
Administrative Law Judge, Karl Alexander (“ALJ”),
concluded that, for the period from July 30, 2003 through the
date last insured, September 30, 2015 (the period at issue or
the relevant period), Plaintiff was not under a disability
within the meaning of the Social Security Act. The Appeals
Council denied Plaintiff's request for review in January
2018. Plaintiff now brings this civil action pro se.
Magistrate Judge has considered the parties' briefs and
the record on appeal. The facts and legal arguments are
adequately presented, and the decisional process would not be
significantly aided by oral argument. Accordingly, the
recommendation of the Magistrate is set forth below.
Plaintiff's Motion for Summary Judgment and Memorandum in
Support [ECF Nos. 13 and 13-1].
Commissioner's Motion for Summary Judgment and Memorandum
in Support [ECF Nos. 14 and 15].
Plaintiff's Motion for Summary Judgment be
DENIED because substantial evidence supports
the ALJ's finding that Mr. Lee was not disabled as
defined in the Social Security Act during the relevant period
from July 30, 2003 to September 30, 2015.
Commissioner's Motion for Summary Judgment be
GRANTED for the reasons set forth herein.
February 8, 2014, Plaintiff filed for DIB, which application
alleged a disability beginning July 30, 2003. R. 154.
Plaintiff's claim was denied initially on May 6, 2014 and
upon reconsideration on August 20, 2014. R. 60-71; 72-84.
Plaintiff filed a written request for a hearing pursuant to
20 CFR 404.929, et seq. R. 94. On August 10, 2016,
Karl Alexander, Administrative Law Judge (hereinafter
“ALJ”), held a video hearing pursuant to 20 CFR
404.936(c) wherein the Plaintiff appeared and testified
before the ALJ in Morgantown, West Virginia. Larry Ostrowski,
Ph.D., an impartial vocational expert, also appeared and
testified at the hearing. Plaintiff's parents, Kristin
Willard and Charles Willard, appeared at the hearing but did
not testify. Plaintiff was advised of his right to
representation, but chose to appear and testify without the
assistance of an attorney or other representative. R. 36-59.
The ALJ issued his decision in an opinion dated December 29,
2016, which found that Plaintiff was not under a disability
under sections 216(i) and 223(d) of the Social Security Act
at any time from July 30, 2003, the alleged onset date,
through September 30, 2015, the last date insured. R. 12-28.
filed the instant action on March 26, 2018. ECF No. 1.
Defendant filed an Answer on May 23, 2018. ECF no. 9. A copy
of the Social Security Administrative Record was filed on May
23, 2018. ECF No. 10. Plaintiff filed his Motion for Summary
Judgment on June 25, 2018, and Defendant filed its Motion for
Summary Judgment with Memorandum in Support on July 24, 2018.
ECF Nos. 13 & 14, respectively.
maintains that the following medical conditions render him
disabled pursuant to the Social Security Act: post-traumatic
changes to hips and pelvis following a July 30, 2003 motor
vehicle accident in which Plaintiff sustained a
hemi-pelvectomy, and which includes a gross anatomical
deformity of the pubic symphysis and the left sacroiliac
joint; disc bulge at ¶ 3-4 and L4-5; leftward disc
herniation at ¶ 5-S1 with impingement on the lateral
recess and displacement of the descending sacral nerve roots;
chemical dependency on opiate pain medication; chronic pain;
anxiety and panic disorders. ECF No. 13-1 at 1-2.
was taken at the ALJ hearing held on 08/10/16. The following
portions of the testimony are relevant to the disposition of
Matthew Morrison Lee
an opening statement by Mr. Lee's representative, Kristen
Willard, Mr. Lee testified as follows. In 2008, Mr. Lee
worked for Miller and Anderson, performing commercial HVAC
service work. He was employed as an apprentice tech. He was
on his feet approximately four (4) hours a day and lifted a
maximum of 35-40 pounds. R. 46-47.
stated that he had to have his femur replaced with a steel
rod following the 2003 motorcycle accident. R. 47-48. Mr. Lee
experiences pain throughout his back, his hip, and in his
pelvis. His entire body is affected. He has undergone
injections to dull the pain but the pain keeps getting worse.
While sitting, he must change positions every 15 minutes to
obtain relief. He cannot stand for any length of time because
it's too painful. While he can walk, he cannot do so for
any distance as it causes him pain. He must lay down the day
after walking any distance to recover. R. 48. At most, he can
walk two city blocks. He spends most of his days in bed. R.
testified that he is addicted to narcotic medications. He
takes Suboxone for his addiction. R. 49. He has had extensive
treatment for his back. While he has not had surgery, he has
received the maximum amount of cortisone you can get in a
lifetime. Mr. Lee testified that he has three herniated discs
in his lower back: S-1, L-5 and L-4. R. 50.
Dr. Larry Ostrowski - Vocational Expert
Ostrowski testified that Plaintiff's position with Miller
and Anderson, which he held in 2008, is classified, according
to the DOT, as heating and air conditioning installer,
servicer. That job is further classified as medium skilled
with an SVP of 7. The DOT is 637.261-014. However, given
Plaintiff's testimony that he was working as an
apprentice, Dr. Ostrowski adjusted the skill level to 5. That
is still medium level. R. 52-53.
asked Dr. Ostrowski to
assume a hypothetical individual of Claimant's age,
educational background, and work history, who would be able
to perform a range of sedentary work, but would require the
ability to change positions about every 15 minutes. There
should be postural movements occasionally, but no climbing of
ladders, ropes, or scaffolds, and should work in a low stress
environment with no production line or assembly line type of
pace, no independent decision-making responsibilities, and
minimal changes in the daily work routine. Should have no
interaction with the general public, and no more than
occasional interaction with co-workers and supervisors, and
would be limited to unskilled work involving only routine and
repetitive instructions and tasks. Would there be any work in
the regional or national economy that such a person could
Dr. Ostrowski identified three (3) unskilled and sedentary
positions in the local economy that Plaintiff could perform:
surveillance system monitor (SVP 2), table worker (SVP 2),
and ampoule sealer (SVP 2). Dr. Ostrowski further testified
that if the person had to lie down to achieve comfort, that
would not be acceptable in most if not all competitive
employment. An individual can be off task for up to 10% of a
workday or work period, and still generally be able to
maintain levels of productivity required by employers.
Anything more, however, the individual would lose the job.
The jobs identified by Dr. Ostrowski had a sit/stand option.
Dr. Ostrowski did qualify his choice of ampoule sealer - that
it cannot always be performed sitting and/or standing, so he
reduced the numbers of available jobs to account for this
distinction. R. 55-56.
representative questioned Dr. Ostrowski vis-à-vis
whether prospective employers, particularly for the position
of surveillance system monitor, would require pre-employment
drug testing and whether the drug testing would be applicable
to drugs prescribed by physicians. Dr. Ostrowski could not
state definitively whether drug testing would be required in
each instance, but testified that if there were behaviors
which made employers suspicious of drug use, drug testing
could be conducted. Dr. Ostrowski ...