Boone v. Comm'r of Soc. Sec.

NANCY CHRISTINE BOONE, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

No. 1:21-CV-01453-PAB

United States District Court, N.D. Ohio, Eastern Division

January 13, 2023

PAMELA A. BARKER UNITED STATES DISTRICT JUDGE

REPORT AND RECOMMENDATION

Jennifer Dowdell Armstrong U.S. Magistrate Judge

I. INTRODUCTION

Plaintiff Nancy Christine Boone (“Boone”) seeks judicial review of the final decision of the Commissioner of Social Security denying her applications for Disability Insurance Benefits (“DIB”), Period of Disability (“POD”), and Social Security Income (“SSI”). This matter is before me pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3), and Local Rule 72.2(b). (See ECF non-document entry dated 09/02/2022). For the reasons set forth below, I RECOMMEND that the Court AFFIRM the Commissioner's decision.

II. PROCEDURAL HISTORY

On January 7, 2020, Boone filed applications for DIB, POD, and SSI, alleging a disability onset date of November 21, 2018. (ECF Doc. No. 5, Exhibit 1D, PageID # 195; id. at Exhibit 2D, PageID # 199). Boone's applications related to her conditions of multiple sclerosis (“MS”), Crohn's disease, and vertigo. (See ECF Doc. No. 5, Exhibit 3A, PageID # 93). The Social Security Administration (“SSA”) denied Boone's applications initially and upon reconsideration, and Boone requested a hearing before an administrative law judge (“ALJ”). (ECF Doc. No. 5, Exhibit 4B, PageID # 125; id. at Exhibit 5B, PageID # 130; id. at Exhibit 7B, PageID # 136; id. at Exhibit 8B, PageID # 141; id. at Exhibit 10B, PageID # 144). On August 25, 2020, an ALJ held a hearing via telephone during which Boone, represented by counsel, and an impartial vocational expert (“VE”) testified. (ECF Doc. No. 5, PageID # 51-81). On September 28, 2020, the ALJ issued a written decision finding that Boone is not disabled. (Id. at PageID # 32-45). The ALJ's decision became final on June 1, 2021, when the Appeals Council declined further review. (Id. at PageID # 21).

On July 28, 2021, Boone filed her Complaint to challenge the Commissioner's final decision. (ECF Doc. No. 1). The parties have completed briefing in this case. (ECF Doc. Nos. 9, 10, and 11). Boone asserts the following four assignments of error:

(1) The appointment of Andrew Saul as Commissioner of the Social Security Administration violated the separation of powers. As such, the decision in this case by an ALJ who derived his authority from Andrew Saul was constitutionally defective.

(2) The ALJ erred when he failed to find that Boone's additional medically determinable impairments were severe at Step Two of the Sequential Evaluation.

(3) The ALJ committed harmful error when he failed to find that Boone satisfied the criteria of Listing 11.09 at Step Three of the Sequential Evaluation. In the alternative, the ALJ erred when his RFC failed to consider the effect of the combination of Boone's severe impairments on her ability to engage in substantial gainful activity on a sustained and full-time basis.

(4) The ALJ erred in that his evaluation of Boone's symptoms was in violation of Social Security Ruling 16-3p.

(ECF Doc. No. 9, PageID # 711-12).

III. BACKGROUND

A. Personal, Educational, and Vocational Experience

Boone was born in 1983, and she was 35 years old on the alleged onset date (see ECF Doc. No. 5, Exhibit 1D, PageID # 195), making her a “younger” person under the Social Security Regulations. 20 C.F.R. §§ 404.1563(c), 416.963(c). Boone has a high school education, is married, and has three children, including one step-child. (ECF Doc. No. 5, PageID # 68). Boone's past relevant work includes work as a PCA (i.e., a personal care assistant) and a telemetry technician. (Id. at PageID # 73-74).

B. Relevant Hearing Testimony

1. Boone's Testimony

Boone testified that she was diagnosed with MS in 2009, but that she was able to work on and off over the years until her symptoms worsened in 2018. (ECF Doc. No. 5, PageID # 61-62). Boone testified she has experienced vertigo since 2009, that medications have not helped, and that she stopped working, in part, because she no longer felt comfortable driving the long distance to work. (Id. at PageID # 65, 62). Boone testified that she has also experienced falls, memory issues, weakness in her lower extremities, foot drop, and nerve pain, and that she now uses a cane to ambulate. (Id. at PageID # 61). Boone testified that her nerve pain limits her mobility and daily activities, and that medications have not helped. (Id. at PageID # 63-64).

Boone testified that she can walk twenty feet without stopping, that she can stand for a maximum of fifteen minutes, and that she cannot sit for long periods of time due to pain and discomfort. (Id. at PageID # 65-66). Boone also testified that she can lift ten pounds, that she can drive short distances, and that she has difficulty turning her head in different directions. (Id.). Boone testified that she is forgetful, that she gets confused easily, that she experiences brain fog, and that she has difficulty concentrating. (Id. at PageID # 70).

Regarding her ability to care for herself, Boone testified that she can perform some personal hygiene herself, but that her husband helps her dress because she has difficulty bending over and reaching her arms over her head. (Id. at PageID # 67). Regarding her social activities, Boone testified that she attends church, that she occasionally goes to restaurants, and that she attends her son's band concerts and sporting events. (Id. at PageID # 68). Boone also testified that she enjoys doing small crafts and gardening with the help of her son and husband. (Id. a PageID # 68-69).

Boone testified that, during a typical day, she tries to do things around the house, naps in the afternoon for about two hours, prepares dinner, cleans up after dinner with the help of her family, and then spends the rest of the evening on the couch until she goes to bed. (Id. at PageID # 70-71). Boone testified that she has difficulty sleeping due to pain, and that she typically wakes up after her pain medication has worn off. (Id. at PageID # 69). She further testified that her cervical spine pain started to worsen “a couple weeks ago[,]” and that she had started physical therapy for that condition. (Id. at PageID # 72).

2. Vocational Expert's Testimony

The VE testified as to Boone's past work experience as a PCA/home health aide in hospital and home-care settings, as well as her past work experience as a telemetry technician. (ECF Doc. No. 5, PageID # 73-75). The VE testified that the PCA positions are semi-skilled work with medium exertion as generally performed, but that they were performed as very heavy exertion in this case. (Id. at PageID # 74). The VE also testified that the telemetry technician position is skilled work with sedentary exertion as generally performed, but that it was performed as light exertion in this case. (Id. at PageID # 75).

The ALJ then asked the VE to assume a hypothetical individual with Boone's age, education, and work experience, who could perform work with the following limitations:

• can lift, carry, push, and pull twenty pounds occasionally and ten pounds frequently;

• can stand or walk for four hours out of an eight-hour workday;

• can sit for six hours in an eight-hour workday;

• cannot use left lower extremity foot controls;

• requires a cane for community distances;

• can occasionally climb ramps and stairs;

• cannot climb ladders, ropes, or scaffolds;

• can occasionally balance, stoop, kneel, crouch, and crawl;

• must avoid concentrated exposure to extreme heat or extreme cold or humidity; and

• must avoid even moderate exposure to hazards including unprotected heights or dangerous moving equipment.

(Id. at PageID # 75-76). The ALJ then asked the VE whether that hypothetical individual could perform Boone's past work. (Id. at PageID # 76). The VE responded that the hypothetical individual could not perform Boone's past work as a PCA, but could perform Boone's past work as a telemetry technician as generally performed. (Id.). Boone's counsel then asked the VE whether a hypothetical individual could still perform the telemetry technician position if that person needed a cane for standing, walking, and balancing. (Id.). The VE responded that the telemetry technician position could still be performed as generally performed, but not as actually performed. (Id.). Boone's counsel then asked the VE whether a hypothetical individual could still perform the telemetry position if that person would need to take frequent breaks to rest (in addition to regularly scheduled breaks), would be off task about fifteen percent of the day, and would miss more than two days of work per month. (Id. at PageID # 76-77). The VE responded that these additional limitations would not be tolerated. (Id.).

After the VE finished testifying, Boone testified that her past work as a telemetry technician required her to sit in front of computer screens for several hours per day, which “set off [her] vertigo[.]” (Id. at PageID # 77-78).

C. Relevant Medical Evidence

The relevant medical evidence is more fully discussed in the analysis of Boone's assignments of error below. That discussion is limited to the portions of the record cited by the parties in their briefs and/or deemed relevant to the instant case. By way of summary, though, the record indicates that Boone was diagnosed with MS in 2009, that she experienced periods of remission, and that she presented for treatment of her worsening symptoms in 2019. (ECF Doc. No. 5 Exhibit 4F, PageID # 400). At that time, Boone reported being “very tired[,]” having weakness on her right side, experiencing “electrical shocks and a burning sensation all over[,]” using a cane, and having recent falls. (Id.). Boone...