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Lee v. Berryhill

United States District Court, N.D. West Virginia

January 28, 2019

MATTHEW M. LEE, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          JAMES P. MAZZONE, UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         A. Background

         This 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.

         The 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.

         B. The Pleadings

         1. Plaintiff's Motion for Summary Judgment and Memorandum in Support [ECF Nos. 13 and 13-1].

         2. The Commissioner's Motion for Summary Judgment and Memorandum in Support [ECF Nos. 14 and 15].

         C. Recommendation

         I recommend that:

         1. 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.

         2. The Commissioner's Motion for Summary Judgment be GRANTED for the reasons set forth herein.

         II. Facts

         A. Procedural History

         On 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.

         Plaintiff 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.

         B. Medical History

         Plaintiff 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.

         C. Testimonial Evidence

         Testimony was taken at the ALJ hearing held on 08/10/16. The following portions of the testimony are relevant to the disposition of this case.

         1. Matthew Morrison Lee

         Following 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.

         Mr. Lee 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. 49.

         Mr. Lee 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.

         2. Dr. Larry Ostrowski - Vocational Expert

         Dr. 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.

         The ALJ 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 perform?

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.

         Plaintiff's 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 ...


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