United States District Court, S.D. Ohio, Western Division, At Dayton
H. Rice District Judge.
REPORT AND RECOMMENDATIONS 
L. Ovington United States Magistrate Judge.
Joseph Brunkel brings this case challenging the Social
Security Administration's denial of his application for
period of disability and Disability Insurance Benefits. He
applied for benefits on October 10, 2012, asserting that he
could no longer work a substantial paid job. Administrative
Law Judge (ALJ) George D. McHugh concluded that he was not
eligible for benefits because he is not under a
“disability” as defined in the Social Security
case is before the Court upon Plaintiff's Statement of
Errors (Doc. #6), the Commissioner's Memorandum in
Opposition (Doc. #9), Plaintiff's Reply (Doc. #10), the
administrative record (Doc. #5), and the record as a whole.
seeks a remand of this case for payment of benefits or, at a
minimum, for further proceedings. The Commissioner asks the
Court to affirm ALJ McHugh's non-disability decision.
asserts that he has been under a “disability”
since April 1, 2011. He was forty-four years old at that time
and was therefore considered a “younger person”
under Social Security Regulations. 20 C.F.R. §
404.1563(c). He has a limited education. 20 C.F.R. §
testified at the hearing before ALJ McHugh that he cannot
work because of the severe pain in his back and neck. (Doc.
#5, PageID #s 87, 103). His back pain started in
2003 or 2004, and he underwent a lumbar fusion surgery in
2006. Id. at 85-86. In the two years before the
hearing, his pain has gotten worse. Id. at 90. It
starts in his lower back and goes down his legs. Id.
at 90-91. When he is in one position (standing, sitting,
laying, etc.) for too long, his back pain increases.
Id. at 91. On a scale from one to ten, his pain on
an average day is a nine. Id. at 91. When he took
medication regularly, his pain was at a four or five.
Id. at 104.
also has severe neck pain. In April 2011, his doctor, Dr.
Taha, “put [him] on permanent disability and did
surgery on [his] neck.” Id. at 84-85.
Additionally, Plaintiff's arms and fingers go numb.
Id. at 87. His hands bother him every other day, and
his left hand is worse than his right hand. Id. at
89-90. He also has muscle weakness and “can barely pick
up a gallon of milk.” Id. at 87. He has
difficulty reaching overhead and twisting from side to side.
Id. at 90-91. He “can probably touch [his]
toes, but it would kill [him].” Id. at 91.
had medical insurance through Humana and had difficulty
finding doctors. Id. at 88. He switched to
CareSource and at the time of the hearing, his doctors were
“starting to see [him] more.” Id. At the
time of the hearing, he was not receiving any treatment, but
he has gone to the emergency room for pain medication.
Id. at 92-93. Additionally, he indicated that he had
a pain management appointment scheduled for the next
Thursday. Id. at 88, 92.
also suffers from depression. Id. at 93. It began in
2011 when his father got sick. Id. His father passed
away in 2012 and then his mother passed away in May 2015.
Id. When asked what his symptoms are, he reported
that he gets really nervous, jumps at loud noises, and gets
aggravated with his roommate's children. Id. at
94. (Plaintiff lives with a friend and the friend's two
children. Id. at 82.). He sometimes has suicidal
thoughts but “won't act on it because [he thinks]
that's a terrible way to go out.” Id. He
has crying spells approximately twice per week. Id.
He has mood swings and trouble sleeping at night.
Id. He hears his mother and father talking
approximately twice per week. Id. at 95. He also has
difficulty with concentration. Id.
not have a driver's license. Id. at 83. He
estimated that he could walk less than a quarter of a mile
and stand for ten to fifteen minutes at a time. Id.
at 89. On a typical day, Plaintiff walks “[t]wo doors
down” to his friend's house to watch television,
sit on the porch, drink tea, and talk to him. Id. at
96, 102. He is able to shower and dress himself. Id.
at 101. He washes dishes, vacuums, and does his own laundry
with assistance from his roommate's children.
Id. He is not able to do any outside work such as
mowing the lawn. Id. at 101-02.
attended school through eleventh grade. Id. at 83.
He is not very good at reading or writing. Id. From
1995 through 2011, he worked as a certified electrician.
Id. at 97. To be certified, he was required to
attend an eight-hour class every Saturday for two years.
Id. at 84.
2006, Plaintiff presented to Jamal Taha, M.D., and reported
severe pain in his back and legs. Id. at 568. An MRI
revealed displacement of the lumbar intervertebral disc
without myelopathy and spinal stenosis of the lumbar region.
Id. at 569, 611. Plaintiff underwent a laminectomy
on the left at ¶ 4-L5 and posterior stabilization.
Id. at 609. Although he recovered as expected, he
continued to have back pain and began having numbness in his
arms. Id. at 560-67.
August 2007, a CT scan revealed severe foraminal stenosis,
and Plaintiff underwent a right C3-4 and C4-5 posterior
cervical foraminotomy. Id. at 557-59. Unfortunately,
Plaintiff's pain quickly returned. Id. at
2010, Plaintiff began treatment with Mervet K. Saleh, M.D.,
at the Ohio Institute for Comprehensive Pain Management.
Id. at 484. Dr. Saleh tried a lumbar selective nerve
root block several times to help alleviate Plaintiff's
pain. Id. at 484-85, 712-16. He also prescribed pain
medication and muscle relaxers. Id. at 705, 709.
April 2011, after Plaintiff's condition had not improved
with conservative treatment, Dr. Taha performed an anterior
cervical C5-6 discectomy with decompression of neural tissue;
anterior cervical C5-6 interbody fusion; and anterior
cervical plating at ¶ 5-6. Id. at 475-77.
has since been evaluated by one consulting physician, Phillip
Swedberg, M.D., and two consulting psychologists, Mary Ann
Jones, Ph.D., and David Chiappone, Ph.D. Id. at
528-34, 753-70. Additionally, Plaintiff's records have
been reviewed by eight State agency doctors, Steve E. McKee,
M.D., Olga V. Pylaeva, M.D., Gary Hinzman, M.D., Anne
Prosperi, D.O., Karen Terry, Ph.D., Robelyn Marlow, Ph.D.,
Irma Johnston, Psy.D., and David Demuth, M.D. Id. at
Standard of Review
Social Security Administration provides Disability Insurance
Benefits to individuals who are under a “disability,
” among other eligibility requirements. Bowen v.
City of New York,476 U.S. 467, 470 (1986); see
42 U.S.C. § 423(a)(1). The term
“disability”-as defined by the Social Security
Act-has specialized meaning of limited scope. It encompasses
“any medically determinable physical or mental
impairment” that precludes an applicant from performing
a significant paid ...