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Dion Ray Tjelle v. Michael J. Astrue

April 18, 2012

DION RAY TJELLE, PLAINTIFF-CLAIMANT,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT-RESPONDENT.



The opinion of the court was delivered by: Jeffrey T. Gilbert Magistrate Judge

MEMORANDUM OPINION AND ORDER

Claimant Dion Ray Tjelle ("Claimant") brings this action seeking review of the decision by Respondent Michael J. Astrue, Commissioner of Social Security ("Commissioner"), denying Claimant's application for disability insurance benefits. This matter is before the Court on the parties' cross-motions for summary judgment [Dkt.##11, 13]. Claimant asserts one issue on appeal, arguing that the Commissioner did not meet his Step Five burden of the Sequential Evaluation of Disability because he failed to properly apply Social Security Rule ("SSR") 96-9p by not specifying the frequency of Claimant's need to alternate between sitting and standing. For the reasons explained in this Memorandum Opinion and Order, Claimant's motion for summary reversal or remand is denied [Dkt.#11], and the Commissioner's motion for summary judgment is granted [Dkt.#13]. The Commissioner's decision denying Claimant's application for disability benefits is affirmed.

I. BACKGROUND

A.Procedural History

On March 5, 2009, Claimant filed a Title II application for disability insurance benefits, alleging a disability onset date of January 23, 2009. R.135-43. Claimant alleged that he was unable to work primarily on account of his back pain. R.162. The Commissioner initially denied his application on June 19, 2009, and again upon reconsideration on September 30, 2009. R.80-99. On May 13, 2010, a hearing was held before Administrative Law Judge Sylke Merchan (the "ALJ"). R.100-01. Medical expert Walter J. Miller Jr., M.D. ("ME") and vocational expert Pamela Tucker ("VE") appeared and testified at the hearing along with Claimant and his wife Lynette Tjelle. R.67, 73, 30, 65. Claimant was represented by attorney Jennifer Mansberger. The ALJ denied the claim on July 20, 2010 (R.22), finding that Claimant had not engaged in substantial gainful activity since the alleged onset date; had degenerative disc disease, a severe impairment; had the residual functional capacity ("RFC") to perform a limited range of light work with a sit/stand option; was unable to perform any past relevant work; and could perform a significant number of jobs in the national economy. R.14-21. The Appeals Council denied Claimant's request for review on May 17, 2011, making the ALJ's decision the final decision of the Commissioner. R.1. On November 21, 2011, Claimant filed this action for review pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

B.Hearing Testimony-May 13, 2010

1.Claimant Dion Ray Tjelle

At the time of the hearing, Claimant was 34 years old, married, and had five children, ages 21, 19, 19, 11, and 8. R.34. He graduated high school. R.35. Until April 2010, he had worked for ten years as a mail deliverer at the Painesville Post Office. R.39. He would case mail four hours a day, loading up to 80 pounds of equipment; the last four hours of his day he would drive and deliver the mail. R.39.

Claimant testified that he had problems with his back for ten years, but that he aggravated it trying to salvage things from his flooded basement in January 2009. R.39-40. He had been seeing a pain specialist for his back pain prior to the flood. R.41. After the flood, the pain specialist proscribed three different injections and physical therapy. R.42. Having no relief, Claimant had his vertebrae surgically fused in March 2009. R.42. He denied doing well after the surgery and testified that Dr. Harvey never released him back to work. R.43, 45. As a result, he was fired in April 2010. R.45.

Claimant testified that, at the time of the hearing, he was helping his wife with her paper route; he only has to lift individual papers because someone else put the bundles in his van for him. R.38. If he is doing the entire route, he will get help from a friend. R.54. He testified that in the hour it takes him to complete the route, he gets out and walks one or two times and stretches an additional one or two times. R.55.

Claimant described his pain as constant from the top to the bottom of his spine. R.45. He also had pain and numbness in his left leg and the lower left side of his body; the pain sometimes radiated into his feet. R.45-46. Claimant testified that he was taking Norco and Valium, which provided temporary pain relief, but made him feel cloudy and lightheaded. R.47-48. He informed the ALJ that he does the dishes some days, but that he has to take frequent breaks because he cannot stand for very long. R.50. He also did laundry in small stages because he was unable to carry thing up and down stairs. R.50. After his surgery, he switched from coaching his 12 year old son's baseball team to his younger son's team because it was less physically demanding. R.50. Claimant had games twice a week, each lasting for an hour and a half. R.51.

Claimant testified that he could only stand for ten minutes at a time and sit for 20-30 minutes before he needed to get up and stretch. R.52. Claimant testified that his back tingles, his muscles spasm in his neck, low back, and calves hourly, and he has swelling after walking.

R.58. After walking for half a block, he would squat or touch his toes for five minutes to relieve the pain. R.58. He prefers laying down to sitting. R.53. Claimant stated that he can lift a gallon of milk or twelve cans of soda and described problems with overhead reaching. R.53.

He had been doing aquatic therapy independently since January and had discussed additional surgery for his remaining herniated discs but was hesitant because of his last operation. R.56-57. He testified that he was also holding off on a facet block and nerve root injections because he did not have enough money to pay his existing medical bills. R.64.

2.Claimant's Wife Lynette Tjelle

Mrs. Tjelle described Claimant's daily activities as follows: he gets his children clothed and occasionally prepares them breakfast; he occasionally does dishes, which takes him an hour and a half; he puts laundry away "once in a while"; and he spends the rest of the day sleeping.

R.65-66.

3.Dr. Walter Miller-Medical Expert

The ME diagnosed Claimant's impairments as "herniated disc, degenerative disc disease and surgery" based on the complaints Claimant made in his 3368 form and the fact they were consistent with the record as a whole. R.67-68. The ME considered "all" of the listed impairments and concluded that Claimant did not have a listed ...


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