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McDaniel v. Berryhill

United States District Court, S.D. Ohio, Western Division

May 19, 2017

SCOTT L. McDANIEL, Plaintiff,
NANCY A. BERRYHILL, Commissioner of the Social Security Administration, Defendants.

          Thomas M. Rose District Judge.


          Sharon L. Ovington United States Magistrate Judge.

         Plaintiff 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.

         On June 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.

         During 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).

         Before 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 ALJ's hearing.

         Plaintiff's 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.

         During 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.

         Plaintiff 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.

         During 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.

         Turning 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).[2] 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.

         The ALJ 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.[3] 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).

         The 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).

         Plaintiff 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 Administration's ...

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