United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
R. Knepp II United States Magistrate Judge.
Gary Dix (“Plaintiff”) filed a complaint against
the Commissioner of Social Security
(“Commissioner”) seeking judicial review of the
Commissioner's decision to deny supplemental security
income (“SSI”) and disability insurance benefits
(“DIB”). (Doc. 1). The district court has
jurisdiction under 42 U.S.C. §§ 1383(c) and 405(g).
The parties consented to the jurisdiction of the undersigned
in accordance with 28 U.S.C. § 636(c) and Civil Rule 73.
(Doc. 11). For the reasons stated below, the undersigned
reverses the Commissioner's decision and remands for
filed applications for SSI and DIB in October 2012 (Tr. 177,
183), alleging disability as of May 19, 2010 (Tr. 206). His
claims were denied initially (Tr. 123, 132) and upon
reconsideration (Tr. 140, 147). Plaintiff (represented by
counsel) and a vocational expert (“VE”) testified
at a hearing before the ALJ on August 19, 2014. (Tr. 39-65).
On October 7, 2014, the ALJ issued a written decision finding
Plaintiff not disabled. (Tr. 22-33). The Appeals Council
denied Plaintiff's request for review, making the hearing
decision the final decision of the Commissioner. (Tr. 1); 20
C.F.R. §§ 404.955, 404.981, 416.1455, 416.1481.
Plaintiff filed the instant action on April 21, 2016. (Doc.
and Vocational Background
was born on August 18, 1964, and was 48 years old on the
alleged date of disability. (Tr. 66). He has a high school
education and prior work as a driver, housekeeper, motor
operator, and sandblaster. (Tr. 207). At the time of the
hearing, he lived with his sister and nephew. (Tr. 48-49).
testified he is right-handed (Tr. 48) and has two adult
children (Tr. 49). His medications at that time included
meloxicam, gabapentin, hydrocodone, and hydrochlorothiazide,
all which caused drowsiness. Id. A year prior he was
prescribed Celexa for depression, but only took it for
“[m]aybe three months because it was just too much for
[him].” (Tr. 50). Plaintiff testified depression
affected his daily activity, resulting in irritability. (Tr.
55). When the ALJ asked him how he spent a typical day, he
responded: “ESPN.” Id. His sister
cooked, cleaned the apartment, and washed laundry. (Tr.
55-56). Plaintiff stated he had trouble dressing himself
because he was not able to “bend over to pick up
anything.” (Tr. 57). He also had assistance showering,
but had no trouble getting in and out of the tub.
Id. Plaintiff did not drive a car because he had
difficulty sitting for an extended period of time (Tr. 57)
and no longer had a valid driver's license (Tr. 48).
testified he had pain in his lower back, front of his leg,
thighs, calves, and foot. (Tr. 50). Plaintiff stated he
underwent back surgery in 2009. (Tr. 53). The pain interfered
with his sleep, for which he reported using a CPAP machine.
(Tr. 52). Plaintiff stated he could stand, but was unable to
walk for long periods of time, estimating he could walk for
five or ten minutes at a time. (Tr. 50-51). He also
experienced pain when sitting in a chair and estimated he
spent seven hours a day in a recliner. (Tr. 51). Plaintiff
stated he had been using a doctor-prescribed cane for a year
and a half due to weakness in his legs. (Tr. 51-52). He
testified his left hand was “just real numb and dead to
[him].” (Tr. 54). Plaintiff stated he lacked strength
in his left hand “[o]ff and on” for two or three
years. Id. He testified he stopped attending school
in 2011 due to back pain, and last worked in
2010. (Tr. 56).
presented a series of hypothetical scenarios to the VE. The
first hypothetical scenario consisted of an individual of the
same age, education, and work experience as Plaintiff with
the following limitations: lift, carry, push, and pull twenty
pounds occasionally and ten pounds frequently; sit, stand, or
walk for six hours in an eight-hour workday; cannot climb
ladders, ropes, or scaffolds; occasionally climb ramps and
stairs; occasionally stoop, kneel, and crawl; frequently
handle and finger with the non-dominant left upper extremity;
must avoid workplace hazards such as unprotected heights or
exposure to dangerous, moving machinery; limited to simple,
routine tasks that do not involve arbitration, negotiation,
or confrontation; cannot direct the work of others or be
responsible for the safety or welfare of others; cannot
perform work that requires strict production quotas; cannot
perform piece rate work or assembly line work; and limited to
occasional interaction with others. (Tr. 59-60). The VE
stated the individual would be able to perform jobs in the
regional and national economy, such as cleaner/housekeeper,
mail clerk, and marker. (Tr. 60-61).
second hypothetical scenario, the individual had the same
limitations as in the first hypothetical, except that he was
further restricted to lift, carry, push, and pull ten pounds
occasionally and five pounds frequently; and stand and walk
for two hours in an eight-hour workday. (Tr. 61-62). The VE
stated there would be jobs available the individual could
perform, such as addresser, document preparer, and touch-up
screener (printed circuit board assembly). (Tr. 62).
third hypothetical, the ALJ added a limitation that the
individual would be off-task 33% of the time. (Tr. 62-63).
The VE stated there would not be any jobs the individual
could perform. (Tr. 63).
fourth hypothetical was also the same as the first expect
that the individual would be absent from work more than four
days a month. Id. The VE stated there would not be
any jobs available the individual could perform. Id.
The VE added that even if the individual would be absent from
work two days on average per month, he would be precluded
from work. (Tr. 63-64).
October 7, 2014, the ALJ issued a written a decision in which
he made the following findings of fact and conclusions of
1. The claimant meets the insured status requirements of the
Social Security Act through December 31, 2015.
2. The claimant has not engaged in substantial gainful
activity since May 19, 2010, the alleged onset date.
3. The claimant has the following severe impairments: lumbar
degenerative disc disease, left carpal tunnel syndrome,
obstructive sleep apnea, depression, and panic disorder.
4. The claimant 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,
5. After careful consideration of the entire record, I find
that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except that he cannot climb ladders, ropes, or
scaffolds, but can occasionally stoop, kneel, and crawl. He
can frequently handle and finger with his non-dominant left
upper extremity. Moreover, the claimant must avoid workplace
hazards such as unprotected heights or dangerous moving
machinery. He is limited to simple routine tasks that do not
involve arbitration, negotiation, confrontation, directing
the work of others or being responsible for the safety of
others. The claimant cannot perform work requiring strict
production quotas, and cannot perform piecework or assembly
line work. Finally, he is limited to only occasional
interaction with others.
6. The claimant is unable to perform any past relevant work.
7. The claimant was born on August 18, 1964 and was 45 years
old, which is defined as a younger individual age 18-49, on
the alleged disability onset date.
8. The claimant has at least a high school education and is
able to communicate in English.
9. Transferability of job skills is not material to the
determination of disability because using the
Medical-Vocational Rules as a framework supports a finding
that the claimant is “not disabled, ” whether or
not the claimant has transferable job skills.
10. Considering the claimant's age, education, work
experience, and residual functional capacity, there are jobs
that exist in significant numbers in the national economy
that the claimant can perform.
11. The claimant has not been under a disability, as defined
in the Social Security Act, from May 19, 2010, through the
date of this decision.
(Tr. 19- 38) (internal citations omitted).
to May 19, 2010, Alleged Onset Date of
February 16, 2009, Plaintiff complained of left hip pain for
approximately one week and lumbar pain three weeks after
lifting something heavy at work. (Tr. 298). It was noted he
was having trouble ambulating and bending over. Id.
A physical examination revealed moderate tenderness to
palpation over the lower back and left hip, a negative
straight leg raise test, and no evidence of swelling,
effusion, or contusion. (Tr. 299). A lumbar spine x-ray
revealed degenerative changes of the lower lumbar spine. (Tr.
317). Plaintiff was diagnosed with a hip sprain and back pain
of unknown etiology. (Tr. 299). He was given a Tordal
injection, advised to perform back exercises at home, and
prescribed muscle relaxants and anti-inflammatory pain
medication. (Tr. 301-02).
Anthony J. Ventimiglia's impression of an April 1, 2009
MRI of Plaintiff's lumbar spine was as follows:
L3[-]L4, L4[-] LS, and LS-Sl disc protrusions as described
above more prominent at ¶ 4-LS where it measures up to
3.5 mm at the left lateral recess and up to 4 mm at the left
lateral recess at LS-Sl with associated annular tear. Disc
material appears to contact the left sided intracanalicular
nerve roots in these regions. There is mild spinal canal
stenosis at ¶ 4-L5 and mild neural foraminal narrowing
at ¶ 4 LS and LS-Sl.
8, 2009, Plaintiff underwent surgery (“micro
laminectomy with discectomy L4-5, L5-S1, left”). (Tr.
283, 338-39). He was diagnosed with a herniated nucleus
pulposus, stenosis of the lumbar spine, and “status
post microlaminectomy, discectomy, L4-L5, L5-S1 on the
left.” (Tr. 288). Also on ...