United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. Litkovitz, United States Magistrate Judge
brings this action pursuant to 42 U.S.C. § 405(g) for
judicial review of the final decision of the Commissioner of
Social Security (Commissioner) denying plaintiffs application
for disability insurance benefits (DIB). This matter is
before the Court on plaintiffs Statement of Errors (Doc. 8),
the Commissioner's response in opposition (Doc. 14), and
plaintiffs reply (Doc. 17).
protectively filed an application for DIB on August 6, 2012.
Plaintiff alleged disability since November 8, 2011, due to
"[n]eck injury going down both arms, mid back and lower
back"; "[s]pine c-4 thru c-7 two fusions &
muscle & soft tissue etc."; "[a]rms muscle
& tissue damage from spine issues (c-4/c-7)";
"spine mid back"; "[s]pine lower back nerve
damage goes down [through] both legs"; "[h]eadaches
from spine c-4 [through] c-7"; high blood pressure
treated with medication; "[e]motional distress from
pain"; and "[w]eakness in hands and arms from c-4
[through] c-7 spine." (Tr. 231). Plaintiffs application
was denied initially and upon reconsideration. Plaintiff,
through counsel, requested and was granted a de novo
hearing before ALJ Penny Loucas. Plaintiff and a vocational
expert (VE) appeared and testified at the ALJ hearing. On
November 19, 2014, the ALJ issued a decision denying
plaintiffs DIB application.
request for review by the Appeals Council was denied, making
the decision of the ALJ the final administrative decision of
Legal Framework for Disability Determinations
qualify for disability benefits, a claimant must suffer from
a medically determinable physical or mental impairment that
can be expected to result in death or that has lasted or can
be expected to last for a continuous period of not less than
12 months, 42 U.S.C. § 423(d)(1)(A). The impairment must
render the claimant unable to engage in the work previously
performed or in any other substantial gainful employment that
exists in the national economy. 42 U.S.C. § 423(d)(2).
promulgated by the Commissioner establish a five-step
sequential evaluation process for disability determinations:
1) If the claimant is doing substantial gainful activity, the
claimant is not disabled.
2) If the claimant does not have a severe medically
determinable physical or mental impairment - i.e.,
an impairment that significantly limits his or her physical
or mental ability to do basic work activities - the claimant
is not disabled.
3) If the claimant has a severe impairment(s) that meets or
equals one of the listings in Appendix 1 to Subpart P of the
regulations and meets the duration requirement, the claimant
4) If the claimant's impairment does not prevent him or
her from doing his or her past relevant work, the claimant is
5) If the claimant can make an adjustment to other work, the
claimant is not disabled. If the claimant cannot make an
adjustment to other work, the claimant is disabled.
Robbers v. Comm'r of Soc. Sec, 582 F.3d 647, 652
(6th Cir. 2009) (citing §§ 404.1520(a)(4)(i)-(v),
claimant has the burden of proof at the first four steps of
the sequential evaluation process. Id.; Wilson v.
Comm'r of Soc. Sec. 378 F.3d 541, 548 (6th
Cir. 2004). Once the claimant establishes a prima facie case
by showing an inability to perform the relevant previous
employment, the burden shifts to the Commissioner to show
that the claimant can perform other substantial gainful
employment and that such employment exists in the national
economy. Rubbers, 582 F.3d at 652; Harmon v.
Apfel, 168 F.3d 289, 291 (6th Cir. 1999).
Administrative Law Judge's Findings
applied the sequential evaluation process and made the
following findings of fact and conclusions of law:
1. The [plaintiff met] the insured status requirements of the
Social Security Act through December 31, 2016.
2. The [plaintiff] has not engaged in substantial gainful
activity since November 8, 2011, the alleged onset date (20
CFR 404.1571 et seq.).
3. The [plaintiff] has the following severe impairments:
degenerative disc disease of the cervical spine status post
fusion (C5-6 and C6-7), osteoarthritis and situational
anxiety (20 CFR 404.1520(c)).
4. The [plaintiff] does not have an impairment or combination
of impairments that meets or medically equals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the
[ALJ] finds that the [plaintiff] has the residual functional
capacity to perform light work as defined in 20 CFR
404.1567(b) except: She can occasionally push and pull
bilaterally. She can never climb ladders, ropes or scaffolds.
She can occasionally climb ramps or stairs. She can
frequently balance and crawl. She can kneel and crouch on an
unlimited basis. She can frequently perform bilateral
overhead reaching. She must avoid unprotected heights. She
has no limits in her memory. She can maintain her
concentration, persistence or pace over a normal eight-hour
workday and work week. She can interact with the general
public, co-workers and supervisors but she should not be
required to perform tasks involving mentoring, persuasion or
conflict resolution. She is limited to routine type work
where there are no demands for fast, machine paced, high
production quota type work or piece rate type work. The
[plaintiff] would be off task 10% of the time.
6. The [plaintiff] is capable of performing past relevant
work as a cosmetologist and title clerk. This work does not
require the performance of work-related activities precluded
by the [plaintiffs] ...