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Rasmussen v. Commissioner of Social Security

United States District Court, W.D. Michigan, Northern Division

July 10, 2017

GARY ALLEN RASMUSSEN, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendants.

          OPINION

          TIMOTHY P. GREELEY UNITED STATES MAGISTRATE JUDGE

         On January 3, 2013, Plaintiff Gary Allen Rasmussen completed an application for disability and disability insurance benefits. See Transcript of Administrative Hearing (PageID.145-148). Plaintiff alleges that he became disabled on November 9, 2012, due to back, neck, and leg pain limiting his ability to engage in employment. Plaintiff's application was denied initially and Plaintiff requested an administrative hearing before an Administrative Law Judge (ALJ). (PageID.102, 105-111). ALJ Patrick H. Morrison, held a hearing on April 9, 2015. (PageID.49-91). At the hearing, Plaintiff and Vocational Expert Les Goldsmith testified. In a decision issued on May 6, 2015, the ALJ denied Plaintiff's claims for benefits. (PageID.35-42).

         The ALJ found that Plaintiff could perform jobs that existed in significant numbers in the national economy given Plaintiff's residual functional capacity (RFC) and therefore concluded that Plaintiff was not under a “disability” under the Social Security Act (20 C.F.R. § 404.1520(g)). The ALJ's decision became the agency's final decision when the Appeals Council denied Plaintiff's request for review. Plaintiff now seeks judicial review of the agency's final decision denying his request for disability benefits[1].

         Plaintiff was 56 years old at the time of the hearing. (PageID.57). Plaintiff was five foot eight and one half inches tall and weighed two hundred and ten pounds. (PageID.58). Plaintiff sold life insurance and made about $3, 600.00 in the previous year. (PageID.59). Plaintiff drives a vehicle every day. Id. Plaintiff completed one year of college and then received vocational training as a financial service representative. (PageID.60). Plaintiff's past work included eight years as financial service representative, two years as a branch office manager, and about one year as multistate marketing director. (PageID.61-64). Plaintiff lifted up to thirty pounds in these positions and would spend time at an office and traveling. (PageID.64). Plaintiff has experience in the financial industry with different employers. (PageID.66).

         During the hearing, Plaintiff asserted that he experiences back spasms and back pain while sitting, and almost daily headaches. (PageID.67). At the time of the hearing, Plaintiff described “pretty bad lower back pain.” Id. Plaintiff suffers from degenerative joint disease and degenerative disc disease in his lumber spine. Id. The pain radiates down to the buttocks area, but only about once a week. (PageID.68). Plaintiff began experiencing pain in the late 1970s. Id. Plaintiff relieves the pain by taking Norco, Ibuprofen, and Tylenol. Id. He also takes Flexeril as a muscle relaxant. Id. Plaintiff takes Norco pills when the pain is really bad, and when the Ibuprofen is not working. (PageID.69).

         Plaintiff has seen chiropractors, doctors, and physical therapists, works out every day, and performs a stretching and yoga regimen for “maybe 10 or 20 minutes a day as I can do it.” Id. Plaintiff goes to the YMCA and uses a treadmill, stationary bike, or elliptical machine. Id. Plaintiff uses ice and heat regularly. (PageID.71). Plaintiff used to go to a chiropractor, but after May of 2011, he transitioned to physical therapy. Id.

         Plaintiff has bad knees. The right knee is worse, but does not affect his ability to work. (PageID.72). Plaintiff has arthritis in his neck and experiences pain and headaches. (PageID.73). Plaintiff states that he experiences neck and back pain together. Id. Both of Plaintiff's shoulders “pop out of place.” Id. Plaintiff's main problem is the arthritis from his brain stem to his tailbone. Id. Plaintiff experiences muscle cramping and spasms that cause his pain. Id. Plaintiff explained that after sitting at a desk for about one half hour he will experience headaches and spasms that become intolerable. (PageID.73-74).

         Plaintiff has some difficulties lifting. After he recently lifted his 18 pound dog, he tweaked his back and was done for the day, and he had to sit in a chair for two days while taking Norco pain medication. (PageID.74). He experiences fatigue daily due to sleeping only five hours pernight. (PageID.73-75). As result, Plaintiff rests and takes naps during the day. (PageID.75-76). Plaintiff is able to personally take care of himself. (PageID.76). Plaintiff cooks, vacuums, dusts, makes beds, cleans bathrooms, pays bills, does laundry, takes out the trash, mows the lawn, grocery shops, attends church on occasion, and is the President of the Lions Club. (PageID.77). Plaintiff uses a laptop computer and cell phone, uses email, and Facebook. (PageID.78). During an average day he spends about fourteen hours using his phone for scheduling appointments, and socialization. Plaintiff uses his laptop weekly for work related activity. (PageID.79). Plaintiff can walk for only fifteen or twenty minutes and is less motivated to do so because his dog is too old. Id. Plaintiff tries to exercise for a half an hour to one hour a day. (PageID.80). Plaintiff enjoys riding his bike and in the winter cross country skiing. Id. Plaintiff's mother lives about a half hour away and he likes to drive to her house and spend the day with her. Id. Plaintiff reads two to four books per month. Id.

         Plaintiff explained that his problems began in 1967 when he was initially hurt in a bike accident, then he had several ski jumping accidents in the 1970s, but after he was involved in a car accident in 2009, his problems became more severe. (PageID.81). Moreover, when he first started working, he was told that if he worked really hard the first five years, it would get easier, but Plaintiff discovered that was not true, because it is harder to make money today since companies have reduced what they will pay. Id.

         Vocational Expert Goldsmith testified that Plaintiff's past employment in the financial and insurance industry could be characterized as a light, skilled job, but some of the Plaintiff's past jobs would qualify as sedentary to light, skilled work. (PageID.83). The vocational expert testified that a hypothetical person of Plaintiff's age with similar education and work experience who could not be expected to work on ladders, ropes, scaffolding, or at unprotected heights, limited to occasional stooping, kneeling, crouching, and crawling, could perform Plaintiff's past work. (PageID.84). If that same hypothetical person was limited to only sedentary jobs then positions such as bank manager and marketing director, and some of the sales jobs could be performed, but not the jobs characterized as light duty. (PageID.85). In addition to the limitation of sedentary jobs, if the person could only sit and stand during an eight hour day every half hour or so, the same jobs could be performed. Id.

         However, if the individual was off task 10 to 15 percent each day due to neck and back pain, that individual would not be able to perform these past relevant jobs and other jobs. (PageID.86). However, an individual with this skillset would have transferable skills which could lead to positions like telemarketing or telephone order taking. Id. If such an individual was unable to go to work on a given day, or had to leave work due to pain in the neck or back at least two to three times per month, that person would not be able to work in competitive employment. (PageID.88).

         The ALJ determined that Plaintiff suffers from degenerative joint disease in the low back and bilateral knees, which caused severe limitation in Plaintiff's ability to do basic work activities. (PageID.38). Plaintiff was also found to suffer from non-severe impairments of headaches, bilateral shoulder pain, and neck pain. Id. The ALJ concluded that based upon Plaintiff's residual functional capacity, Plaintiff could perform his past relevant work as an insurance sales person, bank manager, or marketing director. (PageID.41-42).

         After the Appeals Council denied Plaintiff's appeal, Plaintiff filed this action asserting that the ALJ's decision to deny disability benefits was improper because the Plaintiff's medical condition prohibits him from fully engaging in substantial gainful employment. Plaintiff filed a motion for summary judgment, which will be construed as Plaintiff's initial brief. The Commissioner filed a response arguing that the ALJ's decision is supported by substantial evidence. Plaintiff filed a reply arguing that his disabling back pain would cause him to be off task 10-15 percent of the time, eliminating his ability to engage in competitive employment as testified by the vocational expert.

         [R]eview of the ALJ's decision is limited to whether the ALJ applied the correct legal standards and whether the findings of the ALJ are supported by substantial evidence.” Winslow v. Comm'r of Soc. Sec., 566 Fed.App'x 418, 420 (6th Cir. 2014) (quoting Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009)); see also 42 U.S.C. § 405(g). The findings of the ALJ are conclusive if they are supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is defined as more than a mere scintilla of evidence but “such relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Jones v. Sec'y, Health & Human Servs., 945 F.2d 1365, 1369 (6th Cir. 1991). This Court is not permitted to try the case de novo, nor resolve conflicts in the evidence and cannot decide questions of credibility. Brainard v. Sec'y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); see Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003) (noting the ALJ's decision cannot be overturned if sufficient evidence supports the decision regardless of whether evidence also supports a contradictory conclusion). This Court is required to examine the administrative record as a whole and affirm the Commissioner's decision if it is ...


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