Spears v. Comm'r of Soc. Sec.

James Spears, Plaintiff,

v.Commissioner of Social Security, Defendant.

Case No. 2:12-cv-0725

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

Dated: May 20, 2013

JUDGE ALGENON L. MARBLEY

Magistrate Judge Kemp

REPORT AND RECOMMENDATION

I. Introduction

Plaintiff, James Spears, filed this action seeking review of a decision of the Commissioner of Social Security denying his application for disability insurance benefits. That application was filed on December 21, 2007, and alleged that plaintiff became disabled on May 18, 2007.

After initial administrative denials of his application, plaintiff was given a hearing before an Administrative Law Judge on May 20, 2010. In a decision dated August 11, 2010, the ALJ denied benefits. That became the Commissioner's final decision on June 13, 2012, when the Appeals Council denied review.

After plaintiff filed this case, the Commissioner filed the administrative record on October 15, 2012. Plaintiff filed his statement of specific errors on November 16, 2012. The Commissioner filed a response on December 20, 2012. Plaintiff filed a reply brief on January 4, 2013, and the case is now ready to decide.

II. Plaintiff's Testimony at the Administrative Hearing

Plaintiff, who was 53 years old at the time of the administrative hearing and who has an eleventh grade education, testified as follows. His testimony appears at pages 56-72 ofthe administrative record.

Plaintiff testified that he suffered a heart attack in 1992. In 2007, he underwent a defibrillator implantation. It is that condition which prevents him from working. He has been told by his doctor to exercise and he does so on occasion, but has fewer sharp chest pains if he does not exercise.

In response to questions from his attorney, plaintiff said that his last job was in 2007, driving a gasoline truck. He did that for more than twenty years. That job involved lifting from ten to twenty pounds.

Plaintiff experienced fatigue on a daily basis. In a typical day, he made breakfast, did dishes, and watched television. He also cooked simple meals and spent time talking to family members on the telephone. He was able to practice casting a fly rod. He could lift up to twenty pounds, but not repetitively. He has found that washing the car or doing yard work was too strenuous. He napped twice a day and spent a good deal of time lying down. Even when working, he had the feeling at times of being dizzy or ready to pass out, based on his heart going out of rhythm. That caused him to work sporadically throughout the week rather than in concentrated blocks of time.

III. The Medical Records

The medical records in this case are found beginning on page 194 of the administrative record. The pertinent records can be summarized as follows.

Plaintiff was admitted to Berger Hospital in Circleville on May 19, 2007 after a fainting spell at dinner. His admitting diagnoses were syncope and collapse. He underwent a series of tests to determine the cause. Plaintiff reported that he had been doing 3 miles on a treadmill 4-5 times per week without chest pain or shortness of breath. The assumption was that he suffered from a scar-related arrhythmia. Notes also showedepisodes of bradycardia. A heart catheterization was done which showed left ventricular systolic dysfunction consistent with ischemic cardiomyopathy. He was transferred to Mount Carmel West Hospital in Columbus for implantation of an internal defibrillator. (Tr. 194-294). A follow-up note from November 5, 2007 showed that plaintiff had done well since the implantation, reporting no chest pain, shortness of breath, claudication or fatigue. (Tr. 314).

Plaintiff saw Dr. Nichols on February 22, 2008 for purposes of determining if he could return to work as a commercial driver. He also told Dr. Nichols he was doing well. He apparently had one self-correcting episode of non-sustained ventricular tachycardia the previous November. However, based on Ohio and federal safety regulations, Dr. Nichols concluded that someone with a defibrillator or a diagnosis of syncope could not drive commercially. (Tr. 339). In March, 2008, Dr. Gahman, a state agency reviewer, examined the records and concluded that plaintiff could do light work with a restriction on heights, hazardous machinery, and no commercial driving. (Tr. 353). Another state agency reviewer, Dr. Albert, later confirmed that conclusion. (Tr. 368).

Plaintiff followed up again with Dr. Handel, his cardiologist, on May 5, 2008. Up to that time, his defibrillator had never discharged, but he reported that upon working two to three hours, he developed severe fatigue and shortness of breath. It was noted that his last cardiac catheterization showed an ejection fraction of less than 35%. Dr. Handel stated that "[p]resently, he is not able to continue gainful employment due to continued symptoms and his need to rest at least [one-half] hour for every two hours of physical activity." He also did not think plaintiff was a candidate for rehabilitation "because of his marked disabilities and low ejection fraction." (Tr. 362).

Plaintiff was referred to Dr. Baig by Dr. Handel for consultation on a number of occasions. In May, 2008, Dr. Baig reported that a physical examination was normal and that the implanted device was functioning well. There had been two episodes of ventricular arrhythmias, the longest of which lasted for two seconds. Plaintiff's coronary artery disease and ischemia were both described as stable. (Tr. 366-67). Plaintiff continued to see Dr. Handel. One note from 2009 shows that he was doing well without complaints of chest pain, shortness of breath or fatigue. (Tr. 384). Another showed that he reported some mild shortness of breath on exertion and that he had one episode of chest pain in the last six months. In that note, Dr. Handel repeated his statement about plaintiff's need to rest a half hour every two hours during physical activity due to fatigue. (Tr. 387).

Plaintiff took a cardiac stress test on November 20, 2009. The results showed that he was able to exercise for nine minutes and 42 seconds and to achieve a maximum heart rate of 152 bpm. There was no stress-induced ischemia. The calculated ejection fraction was 31%, which was characterized as a moderate overall reduction in left ventricular ejection fraction and global left ventricular function. (Tr. 393). Finally, Dr. Handel wrote a letter describing plaintiff to be functional Class II-III of the New York Heart Association, which plaintiff contends is consistent with being comfortable at rest but developing fatigue upon exertion. (Tr. 406).

IV. The Vocational Testimony

A vocational expert, Ms. Kaufman, also testified at the administrative hearing. Her testimony begins at page 72 of the record. She characterized plaintiff's past work as a fuel oil delivery driver, which plaintiff performed at the light exertional level. That job is semi-skilled.

Ms. Kaufman was asked some questions about a hypothetical person who could perform the exertional demands of light work, with some restrictions on climbing and exposure to hazardous machinery or unprotected heights, and also lacking the ability to operated motorized vehicular equipment. With those restrictions, that person could, in Ms. Kaufman's view, not do plaintiff's past work. However, someone with those restrictions could do a good range of light and sedentary work, including about seventy percent of the light occupations, which translated to 52,000 jobs in the regional economy. Jobs such as cashier, sales attendant, and cleaner would fall into that category. If the person needed to change positions between sitting and standing every thirty minutes, the job base would be reduced significantly, but twenty percent of the light jobs would still be available. If the person could lift but not carry twenty pounds, that percentage went down to ten percent, and it went down to under five percent if the person had both of those restrictions. No work would be available to someone who would be off task for 30 minutes every two hours, however.

V. The Administrative Law Judge's Decision

The Administrative Law Judge's decision appears at pages 14 through 25 of the administrative record. The important findings in that decision are as follows.

The Administrative Law Judge found, first, that plaintiff met the insured requirements for disability benefits through December 31, 2012. Next, plaintiff had not engaged in substantial gainful activity from his alleged onset date of May 18, 2007 through the date of the decision. As far as plaintiff's impairments are concerned, the ALJ found that plaintiff had severe impairments including a remote history of myocardial infarction and percutaneous translumenal coronary angioplasty, status post internal cardiac defibrillator implantation forventricular tachycardia, ischemic cardiomyopathy, coronary artery disease, congestive heart failure, borderline type II diabetes mellitus, hyperlipidemia, and nicotine dependency. 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 the next step of the sequential evaluation process, the ALJ found that plaintiff had the residual functional capacity to perform light work but with restrictions on climbing ropes, ladders or scaffolds, working around hazardous machinery or unprotected heights, and operating motorized vehicular equipment. The ALJ determined that, with these restrictions, plaintiff could not perform his past relevant work, but he could perform those jobs identified by the vocational expert, such as cashier, sales attendant, and cleaner, and that significant numbers of such jobs existed in the regional, state and national economies. Consequently, the ALJ concluded that plaintiff was not entitled to benefits.

VI. Plaintiff's Statement of Specific Errors

In his statement of specific errors, plaintiff...