United States District Court, S.D. Ohio, Eastern Division
C. Smith Judge.
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.
Charles Willis Rowland, brings this action under 42 U.S.C.
§§ 405(g) and 1383(c)(3) for review of a final
decision of the Commissioner of Social Security
(“Commissioner”) denying his applications for
social security disability insurance benefits
(“DIB”) and supplemental security income
(“SSI”). For the reasons that follow, it is
RECOMMENDED that Plaintiff's Statement of Errors be
OVERRULED, and that judgment be entered in favor of
applied for supplemental security income on July 12, 2012,
and filed for disability benefits on July 26, 2012. (Doc. 9,
Tr. 201-203, 212, PAGEID #: 239-241, 250). In both
applications, Plaintiff alleged a disability onset date of
November 23, 2008. (Id.). His application was denied
initially on November 1, 2012 (Id. at Tr. 125,
PAGEID #: 163), and upon reconsideration on February 4, 2013.
(Id. at Tr. 134, PAGEID #: 172). Administrative Law
Judge Edmund Round (the “ALJ”) held a hearing by
video teleconference on November 10, 2014 (id. at
Tr. 31, PAGEID #: 69), after which he denied benefits in a
written decision on December 8, 2014 (id. at Tr. 9,
PAGEID #: 47). That decision became final when the Appeals
Council denied review on March 24, 2016. (Id. at Tr.
1, PAGEID #: 39).
filed this case on March 31, 2016 (Doc. 1), and the
Commissioner filed the administrative record on August 5,
2016 (Doc. 9). Plaintiff filed a Statement of Specific Errors
on October 6, 2016 (Doc. 13), the Commissioner responded on
November 25, 2016 (Doc. 14), and Plaintiff replied on
December 5, 2016 (Doc. 15).
Testimony at the Administrative Hearings
time of the hearing, Plaintiff was fifty-two years old with a
ninth grade education. (Doc. 9, Tr. 36-37, 74-75). During the
administrative hearing, Plaintiff testified about his former
work framing houses, finishing concrete slabs, and working at
a steel company. (Id. at Tr. 37-39, PAGEID #:
75-77). Plaintiff described his biggest impediment to his
ability to work was “getting along with people”
(id. at Tr. 43, PAGEID #: 81), but indicated he had
not sought mental health counseling or treatment
(id. at Tr. 44, PAGEID #: 82).
asked to describe the physical impairments that interfere
with his ability to work, Plaintiff stated he has “a
lot of pain in [his] back” that he would rate as a
constant five or six, but a ten on a pain scale from one to
ten when it's at its worst. (Id. at Tr. 45-46,
PAGEID #: 83-84). Plaintiff indicated he is not currently
taking any medication for the pain, but stated he had taken
oxycodone and OxyContin in the past. (Id. at Tr.
47-48, PAGEID #: 85-86). Plaintiff also said he has sharp
pain in his knee almost daily (id. at Tr. 51, PAGEID
#: 89) and that he has pain in his left shoulder “about
every day” (id. at Tr. 52, PAGEID #: 90).
Further, Plaintiff explained that he is blind in his left eye
and that it “just sort of came on.” (Id.
at Tr. 53, PAGEID #: 91). Plaintiff explained that even with
glasses “the only thing [he] can see out of [the left
eye] is blurry. It's like real foggy.”
(Id. at Tr. 53-54, PAGEID #: 91-92). However,
Plaintiff stated he successfully renewed his driver's
license, despite the vision issues he alleged. (Id.
at Tr. 54, PAGEID #: 92).
terms of daily activities, Plaintiff stated he drinks coffee
in the morning, drives over to a horse barn and racetrack
owned by friends, cooks, and feeds his cat. (Id. at
Tr. 55-57, PAGEID #: 93-95).
Relevant Medical Background
unrelated to the impairments at issue, two hospital visits in
the year of the alleged onset date are worth noting. First,
Plaintiff was treated at the Knox Community Hospital
Emergency Room (“ER”) on January 6, 2008,
complaining of tooth pain. (Doc. 9, Tr. 303, PAGEID #: 341).
Plaintiff requested a prescription for hydrocodone but was
given Amoxil and Vicodin instead. (Id. at Tr.
303-04, PAGEID #: 341-42). A few months later, Plaintiff was
seen at the same ER after being struck in the head with a
floor joist. (Id. at Tr. 293, PAGEID #: 331). Upon
the doctor prescribing him Ultram, Plaintiff argued that he
wanted something stronger and that the prescribed medication
was “worthless.” (Id. at Tr. 296-97,
PAGEID #: 334-35). After the doctor explained to Plaintiff
that because of his head injury, he did not want him to take
anything stronger, Plaintiff signed his discharge, yelling
expletives as he left. (Id.).
20, 2008, Plaintiff had a CT scan of his lumbrosacral spine.
(Id. at Tr. 250, PAGEID #: 288). The scan revealed
normal alignment and curvature of the spine with no fractures
or dislocations. (Id.). There was mild concentric
disc bulging at the L3-L4 level with minimal impingement on
the exiting L4 nerve root. (Id.). Additionally,
there were minimal degenerate changes of the facet joints and
the L5-S1 level showed mild facet arthrosis. (Id.).
presented to the Knox Community Hospital ER on December 15,
2011, after twisting his right knee several days prior.
(Id. at Tr. 281, PAGEID #: 319). A physical exam
revealed that Plaintiff was weight-bearing, had no swelling,
and exhibited full range of motion. (Id. at Tr. 281,
PAGEID #: 319). An MRI taken the same day of his knee and
ankle revealed no abnormal findings, and showed no fractures,
dislocations or evidence of bone or joint disease.
(Id. at Tr. 279, PAGEID #: 317). Plaintiff was
discharged and given prescriptions for Vicodin and Motrin.
(Id. at Tr. 285, PAGEID #: 323).
returned to the ER on February 23, 2012, complaining of back
pain that was made worse after “mucking out [horse]
stalls last night.” (Id. at Tr. 267, 274,
PAGEID #: 305, 312). Plaintiff reported taking Motrin and
oxycodone in the past to control pain and discomfort.
(Id. at Tr. 277, PAGEID #: 315). After examination,
Plaintiff was diagnosed with an acute lumbrosacral strain,
his condition was noted as “good, ” and he was
sent home with prescriptions for Vicodin, Amoxil, Motrin, and
Flexeril. (Id. at Tr. 269, 272, PAGEID #: 307, 310).
April 27, 2012, Plaintiff went to the ER yet again,
complaining of low back pain after shoveling horse stalls.
(Id. at Tr. 255, PAGEID #: 293). Plaintiff was
diagnosed with a lumbar strain and muscle spasms
(id.), and was proscribed Vicodin, Flexeril, and
Naprosyn. (Id. at Tr. 260, PAGEID #: 298). His
medical records made several references to the fact that this
was an “acute” injury, as opposed to chronic.
(Id. at Tr. 265, PAGEID #: 303).
saw Dr. Sushil M. Sethi for his shoulder, back, and knee pain
on August 15, 2012. (Id. at Tr. 350, PAGEID #: 388).
At the appointment, Plaintiff reported having taken no
medication at all for three years, although he admitted that
he used to take OxyContin, Percocet and Soma. (Id.).
The physical examination revealed that Plaintiff's left
knee had no effusion or laxity of ligaments, and that
Plaintiff walked with a normal gait, was able to walk on
tiptoes and heels, and could squat. (Id. at Tr. 351,
PAGEID #: 389). Both shoulders showed mild tenderness in the
AC joint with bony crepitus at . (Id. at Tr.
351-52, PAGEID #: 389-90). The cervical spine showed mild
tenderness at the C6-7 level but there was no swelling,
redness or deformity and no curvature abnormality.
(Id. at Tr. 352, PAGEID #: 390). It was also noted
that Plaintiff's right eye was 20/20 and his left eye was
20/200, yet he arrived at the examination with no glasses.
(Id. at Tr. 351, PAGEID #: 389). Overall, Dr. Sethi
opined that there were minimal arthritic findings and no
neuromuscular deficits. (Id. at Tr. 352, PAGEID #:
390). In terms of work limitations, Dr. Sethi stated
Plaintiff could sit 4-6 hours, stand 3-4 hours, and walk 3-4
hours in an 8-hour shift, as well as lift and carry 20-25
pounds frequently. (Id.).
September 18, 2012, Plaintiff saw Dr. Steven Meyer for a
psychological evaluation to assess his mental status.
(Id. at Tr. 358, PAGEID #: 396). When asked about
the nature of his disability, Plaintiff replied that
“he has back problems, has been in prison four times,
and cannot keep work and needs to go to a doctor.”
(Id.). Plaintiff “denied having any problems
getting along with coworkers or supervisors in the
past.” (Id. at Tr. 363, PAGEID #: 401). In
terms of daily activities, Plaintiff stated he drinks coffee,
watches the news, eats breakfast, goes out to search for
aluminum cans, his sister stops by, he works in his garden,
watches television, and talks to neighbors. (Id. at
Tr. 359, PAGEID #: 397).
was alert during the evaluation, but presented as confused at
times and evidenced mild comprehension problems.
(Id.). Plaintiff reported that he had never been
hospitalized for psychiatric reasons, has never been involved
in outpatient counseling, and has never had psychological
testing performed. (Id. at Tr. 360, PAGEID #: 398).
During testing, Plaintiff was cooperative for the most part,
although attention and concentration were disrupted and
Plaintiff was distracted. (Id. at Tr. 361, PAGEID #:
399). It was noted that Plaintiff had “no difficulty
with his vision.” (Id.). Plaintiff obtained a
Full Scale IQ score of 55 during the evaluation, which falls
in the Extremely Low range of functioning, although Dr. Meyer
noted that the score appeared to be “a low estimate of
his abilities.” (Id. at Tr. 361-62, PAGEID #:
400-01). Ultimately, Dr. Meyer diagnosed Plaintiff with
Depressive Disorder NOS, PTSD, Personality Disorder NOS,
Learning Disorder NOS, and Borderline Intellectual
Functioning. (Id. at Tr. 362, PAGEID #: 400).
visited the Knox Community Hospital ER again on January 8,
2016, after falling on ice and twisting his left knee.
(Id. at Tr. 365, PAGEID #: 403). The ER records show
that Plaintiff had no deformity, no swelling or effusion, and
full range of motion, albeit with pain. (Id.).
Plaintiff's x-rays were normal and he was diagnosed with
a knee ...