United States District Court, S.D. Ohio, Western Division
M. Rose District Judge.
REPORT AND RECOMMENDATIONS 
L. Ovington United States Magistrate Judge.
Erica Mann brings this case challenging the Social Security
Administration's denial of her applications for a period
of disability, Disability Insurance Benefits, and
Supplemental Security Income. She applied for benefits on
October 10, 2012, asserting that she could no longer work a
substantial paid job due to chronic back pain, degenerative
disc disease, protrusions of the left side of her neck,
depression, hereditary foot condition, bipolar disorder,
post-traumatic stress disorder, polycystic ovarian disease,
chronic ankle pain, bunions, and asthma. Administrative Law
Judge (ALJ) Gregory G. Kenyon concluded that she was not
eligible for benefits because she is not under a
“disability” as defined in the Social Security
case is presently before the Court upon Plaintiff's
Statement of Errors (Doc. #6), the Commissioner's
Memorandum in Opposition (Doc. #11), Plaintiff Reply (Doc.
#12), the administrative record (Doc. #5), and the record as
asserts that she has been under a “disability”
since August 1, 2011. At that time, she was thirty-one years
old and was therefore considered a “younger
person” under Social Security Regulations. See
20 C.F.R. §§ 404.1563(c), 416.963(c). She has a
high school education, and past relevant work as a management
trainee and gas station attendant. (Doc. #5, PageID
administrative hearing on March 10, 2014, Plaintiff testified
that she could not work a full-time job because she has
problems dealing with people, she suffers from physical pain,
and she is not able to stand for long periods of time.
Id. at 78-79.
has had back pain daily for several years. Id. at
71. She describes it as “[i]ntense at times.
Tightening. It radiates from the middle of my back and wraps
around my hips. Sometimes going down into my right
leg.” Id. At the time of the hearing, she
rated her pain severity at a level seven on a zero to ten
scale and five on a day-to-day basis. Id. She takes
Vicodin for pain but “[i]t barely takes the edge
off.” Id. She has also tried physical therapy
and chiropractic care. Id. Her doctors discussed
surgery, but it “wasn't the avenue that they wanted
to pursue.” Id. at 72.
also has neck pain that she describes as “an aching
pain, stiffness, lack of range of motion for either side all
the way. If I look all the way to the left or look all the
way to the right it's difficult for me to do. So my
mobility is slightly limited.” Id. She takes
medication for the pain. Id. at 73. Further,
Plaintiff “severely” sprained her ankle two years
prior to the hearing. Id. She has pain and swelling
that flares up two to three times per month. Id.
When her ankle swells, she needs to elevate her legs four
times per day for approximately twenty minutes at a time.
Id. at 75. In addition, Plaintiff has plantar
fasciitis that “flares up” once every few months.
Id. at 74. When it does, she uses a cane and
orthotic boot. Id. She also has bunions on both feet
that cause her pain. Id. at 85.
testified that she suffers from bipolar disorder with mood
swings. Id. at 76. Additionally, “on a
day-to-day basis, I battle with depression and anger. I have
bouts of rage, feelings of worthlessness and
hopelessness.” Id. She is also irritable and
has panic attacks and anxiety. Id. at 76, 81-84. Her
panic attacks last between fifteen and forty-five minutes and
occur a couple times per month. Id. at 81. She has
post-traumatic stress disorder with flashbacks and
nightmares. Id. at 83. She attends therapy, and she
is on a list to see a psychiatrist. Id. Her
primary-care physician prescribes Abilify and Xanax.
Id. at 84.
estimated that she could stand and walk for ten minutes or
for approximately one to two blocks. Id. at 74. She
can only sit for an hour “because [she starts] getting
real tight in [her] back and [her] hips. And pain starts to
shoot down [her] leg.” Id. at 75. She believes
she can lift about ten pounds. Id. at 75-76.
lives in an apartment with her son and a roommate.
Id. at 70, 77. She takes care of her personal needs
such as bathing and dressing. Id. at 77. She does
not do many household chores. Id. Her roommate and
son share most of the household responsibilities.
Id. She spends most of her day sleeping because she
has difficulty sleeping at night. Id. at 78. She has
a driver's license but does not drive because she does
not own a vehicle and driving makes her nervous. Id.
at 70. In an average month, she only leaves the apartment
three to four times per month. Id. at 82.
Rick Gebhart, D.O.
February 26, 2014, Plaintiff's family-care physician, Dr.
Gebhart, completed interrogatories related to her medical
impairments. Id. at 681-88. He treated her for pain
in her joint, ankle, and feet, anxiety, fatigue, and
insomnia. Id. at 682. He opined that she is unable
to withstand the pressures of meeting standards of work
productivity and work accuracy without significant risk of
physical or psychological decompensation or worsening of her
physical and mental impairments; demonstrate reliability; and
complete a normal workday or workweek without interruptions
from psychologically and/or physically based symptoms and
perform at a consistent pace without an unreasonable number
and length of rest periods. Id. at 682-83. Dr.
Gebhart explained that she has “increased levels of
anxiety, mood swings that are often not managed by her
medications, problems dealing with the public, problems with
standing for long periods of time” and “has
chronic back pain and ankle pain.” Id. at 683.
Dr. Gebhart opined that Plaintiff could lift and/or carry no
more than twenty pounds frequently and ten pounds
occasionally; stand and/or walk no more than thirty minutes
at one time for a total of one hour in an eight-hour workday;
and sit no more than one hour at a time for a total of two
hours in an eight-hour workday. Id. at 684-85. She
can never climb or crawl, and she can occasionally stoop,
crouch, and kneel. Id. at 685. She also needs to
avoid exposure to noise because “noise tends to agitate
her.” Id. at 686-87. Additionally, “she
performs poorly with the public, she cannot stand, sit for
long periods. Despite numerous medication adjustments she
remains labile and unpredictable.” Id. at 687.
Dr. Gebhart concluded that she was unable to perform
sedentary work on a sustained basis. Id. at 688.
Scott West, D.O.
consulted with Dr. West, a neurosurgeon, in October 2010.
Id. at 568-71. She reported “low back pain
with radiation into her hips and buttocks regions
bilaterally, right greater than left.” Id. at
570. Further, she experiences “constant posterior
cervical pain with radiation into the intrascapular
region.” Id. at 568. In November 2010, Dr.
West noted that an MRI of her cervical spine revealed small
disc protrusions but no significant neural compression.
Id. at 567. He recommended physical therapy for one
February 7, 2011, Dr. West noted that the previous MRI also
revealed a small disc herniation at ¶ 4-5 left.
Id. at 566. In March 2011, an MRI of Plaintiff's
lumbar region revealed some mild degenerative changes at the
L4-5 level. Id. at 565. Dr. West opined that it was
not severe enough for surgical intervention, and he
recommended conservative care and pain management.
November 1, 2013, Dr. West noted that Plaintiff's most
recent lumbar spine x-rays showed only very mild disc space
narrowing. Id. at 661. On examination, Dr. West
found tenderness to palpation in the lower lumbar region,
decreased lumbar range of motion, and positive straight leg
raising on the right. Id. On December 2, 2013, an
MRI of her lumbar spine revealed some mild degenerative disc
changes at the L4-5 level, and Dr. West recommended
conservative care and pain management. Id. at
Michelle Achor, DPM
Achor, a podiatrist, first examined Plaintiff on December 3,
2012. Id. at 472-75. Plaintiff exhibited pain upon
palpation to her right ankle with focal edema, and her gait
showed calcaneal eversion and severe STJ (subtalar joint) and
MTJ (midtarsal joint) pronation. Id. at 475. X-rays
revealed normal alignment of the right ankle joint with no
loose bodies, significant talar declination, and decreased
calcaneal inclination right. Id. Dr. Achor diagnosed
chronic right ankle sprain, right peroneal tendonitis,
excessive pronation, and hallux abducto valgus. Id.
Plaintiff was casted for orthotics and referred to physical
therapy. Id. Dr. Achor opined that she may have
difficulty with prolonged standing and walking. Id.
October 3, 2013, Dr. Achor opined that Plaintiff experiences
moderate to severe pain, can only stand for fifteen minutes
at one time, and needs to elevate her legs at or above waist
level occasionally during an eight-hour work day.
Id. at 625, 627. On October 10, 2013, an MRI of
Plaintiff's right ankle revealed attenuation of the right
anterior talofibular ligament, consistent with a prior
sprain, trace subcortical bone marrow edema, and mild right
plantar fasciitis. Id. at 679. ...