United States District Court, S.D. Ohio, Western Division
SCOTT L. McDANIEL, Plaintiff,
NANCY A. BERRYHILL, Commissioner of the Social Security Administration, Defendants.
M. Rose District Judge.
REPORT AND RECOMMENDATIONS 
L. Ovington United States Magistrate Judge.
Scott L. McDaniel brings this case pro se
challenging the Commissioner's final decision to deny his
applications for Disability Insurance Benefits and
Supplemental Security Income. The Commissioner denied
Plaintiff's applications through a decision by
Administrative Law Judge (ALJ) Lloyd E. Hubler, III who
concluded that Plaintiff was not under a benefits-qualifying
disability. This case is presently before the Court for
review of ALJ Hubler's decision by way of Plaintiff's
pro se Statement of Errors (Doc. #8), the
Commissioner's Memorandum in Opposition (Doc. #9), the
administrative record (Doc. #6), and the record as a whole.
13, 2013, the date Plaintiff's asserted disability begin,
he was 43 years old. During elementary and high school, he
was in special education classes. Over the years after
graduating from high school, he worked as a truck driver and
a tree-trimmer helper.
his proceedings with Social Security Administration, he was
represented by an attorney. His attorney argued, in part,
that ALJ Hubler erred by not finding that Plaintiff has a
severe mental-health impairment and by not appropriately
addressing Plaintiff's chronic pain. (Doc. #6, pp.
334-37; PageID #s 386-89).
issuing his non-disability decision, ALJ Hubler held a
hearing during which Plaintiff testified. He explained that
he had been in excruciating back pain during the 2-year
period before he stopped working. He fought the pain but
eventually he could not walk. At the time of the ALJ's
hearing (April 2015), Plaintiff was taking pain medications,
muscle relaxers, and medication to help him sleep. His
medications made him severely drowsy. Id. at p. 60;
PageID #108. He had also been treated with epidural
injections that gave him “a little bit of
benefit.” Id. at p. 56; PageID #104.
He estimated his daily pain level at between a 4 and a 6,
presumably on a 0-to-10 pain scale (0 equaling pain free; 10
equaling the worst pain). Id. At times, his pain
level rises to and 8 or 9. Id. at p. 59;
PageID #107. He wore a back brace at the time of the
pain was in the middle of his back on the right side. He also
had shooting pain down his leg. He described it as constant
stabbing, aching pain. Id. at p. 58; PageID
#106. He experienced pain all day long. He had not undergone
surgery to help relieve his pain but had gone to the
emergency room for treatment and had been through physical
therapy twice. Physical therapy did not help relieve his
pain. He found aqua therapy helpful, but his pain restarted
as soon as he got out of the pool. He used crutches at times
when his pain level gets very severe. He also tried to hold
on to stuff, and took breaks, when he walks. He estimated
that he can walk about 1 block. He can lift about 6 or 7 or 8
pounds. His ability to reach overhead is limited. His most
comfortable position was bent over but his leg would get
numb, requiring him to sit. Id. at pp. 66, 71;
PageID #s 114, 119.
the summer of 2014, Plaintiff was treated for several blood
clots: 1 in his leg and 2 in his lungs. He explained that
physicians were worried the blood clots might return in his
right leg. He also had experienced kidney disease (nephrotic
syndrome), which was in remission at the time of the
ALJ's hearing. Plaintiff explained, “I spill
protein into my urine, and I can swell, you know, that's
probably going to be a life given thing for me to do that. I
only have half of a kidney on my left side and no spleen.
I'm highly susceptible to pneumonias and colds and such.
I have cataract-steroid cataracts on my eyes that effect my
vision. My right arm, I can't straighten it
….” Id. at 65; PageID #113.
received treatment from a psychiatrist who prescribed
Wellbutrin. He was also on Lexapro, prescribed by his family
doctor. Plaintiff testified, “I cry. I'm upset. I
have a lot of unself [sic]-confidence with everything
that's going on with me. I've had this history since
I was a small child, but I never seek treatment for it. You
know, I cry daily and … things really got me
upset…, I have thought about suicide ….”
Id. at 64; PageID #112. He further
testified that had had always been depressed. He has
difficulty concentrating, memory problems, and understanding
instructions and new information due to his learning
disability. Id. at 67; PageID #115. He also
feels worthless-like no one cares about him. He noted,
“I'm at the wits end of my world, you know, where I
don't know what to do any more.” Id. at
p.70; PageID #118.
a normal day, he lies on his back watching television. He
switches position, usually to laying on his left side and
uses pillows between his legs to keep himself as comfortable
as possible. He spends 3 quarters of his day lying down.
Id. at 72; PageID #120. He will also
alternate between sitting and standing, 15 minutes each. He
does not drive because he takes Morphine. He sleeps 4 or 5
hours each night and naps on and off throughout the day. He
is able to take a shower by holding on to something. He does
not do household chores. He makes sandwiches for himself but
then immediately returns to the couch. His daughter visits
him and does the laundry and other household tasks for him.
When he goes to the grocery store, he holds onto a cart and
doesn't carry milk or soft drinks.
to ALJ Hubler's decision, he found that Plaintiff was not
under a disability by conducting the 5-step evaluation
required by social security law. See 20 C.F.R.
§ 404.1520(a)(4). His more significant findings began with
his conclusion that Plaintiff had 2 severe
impairments-“degenerative changes of lumbar spine;
borderline intellectual functioning”-but the ALJ
determined that Plaintiff's impairments did not
automatically constitute a disability.
next assessed Plaintiff's residual functional capacity or
the most he could do despite his impairments. See 20
C.F.R. 404.1545(a); see also Howard v. Comm'r of
Soc. Sec., 276 F.3d 235, 239 (6th Cir. 2002). Doing
so, the ALJ found that despite Plaintiff's impairments,
he could still perform a limited range of sedentary
work. And, given that ability along with his
education, work experience, and age, he could still perform a
significant number of jobs available to him in the national
economy, according to the ALJ. The availability of such jobs,
namely “inspector, ” “sorter, ” and
“bench assembler” meant that Plaintiff was not
under a benefits-qualifying disability. (Doc. #6, pp. 16-29;
PageID #s 64-77).
present judicial review determines whether ALJ Hubler applied
the correct legal standards and whether substantial evidence
supports his findings. Blakley v. Comm'r of Soc.
Sec., 581 F.3d 399, 406 (6th Cir. 2009); see Bowen
v. Comm'r of Soc. Sec., 478 F.3d 742, 745-46 (6th
Cir. 2007). If ALJ Hubler failed to apply the correct legal
criteria, his decision may be fatally flawed even if the
record contains substantial evidence supporting his findings.
Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647,
651 (6th Cir. 2009); see Bowen, 478 F.3d at 746;
Wilson v. Comm'r of Soc. Sec., 378 F.3d 541,
546-47 (6th Cir. 2004). A conclusion is supported by
substantial evidence when “a ‘reasonable mind
might accept the relevant evidence as adequate to support a
conclusion.'” Blakley, 581 F.3d at 407
(quoting Warner v. Comm'r of Soc. Sec., 375 F.3d
387, 390 (6th Cir. 2004). Substantial evidence consists of
“more than a scintilla of evidence but less than a
preponderance ....” Rogers v. Comm'r of Soc.
Sec., 486 F.3d 234, 241 (6th Cir. 2007).
relies on, and has attached to his Statement of Errors, a
Memorandum his former attorney submitted to the Social
Security Administration's Appeals Council. His attorney
contended in this Memorandum that ALJ Hubler (1) failed to
give sufficient weight to Plaintiff's treating physician,
(2) failed to appropriately evaluate Plaintiff's
credibility, and (3) failed to appropriately evaluate the
record in conjunction with the Social Security