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Barrett v. Berryhill

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

June 12, 2017


          District Judge Walter H. Rice


          Sharon L. Ovington United States Magistrate Judge

         I. Introduction

         Plaintiff Larry Barrett brings this case challenging the Social Security Administration's denial of his applications for period of disability, Disability Insurance Benefits, and Supplemental Security Income. He applied for benefits on August 25, 2010, asserting that he could no longer work a substantial paid job. Administrative Law Judge (ALJ) David A. Redmond concluded that he was not eligible for benefits because he is not under a “disability” as defined in the Social Security Act.

         The Appeals Council denied Plaintiff's request for review, and he filed a previous action in United States District Court for the Southern District of Ohio. See Barrett v. Commissioner of Social Security, 3:14-cv-102, 2015 WL 1187290 (S.D. Ohio June 24, 2015) (D.J. Rose). The Court vacated the Commissioner's decision and remanded the case pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings. Id. at *1. Upon remand, ALJ Mark Hockensmith issued a decision finding that Plaintiff is not under a “disability” and thus, not eligible for benefits.

         The case is before the Court upon Plaintiff's Statement of Errors (Doc. #8), the Commissioner's Memorandum in Opposition (Doc. #11), Plaintiff's Reply (Doc. #12), the administrative record (Doc. #s 6-7), and the record as a whole.

         Plaintiff 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 Hockensmith's non-disability decision.

         II. Background

         Plaintiff asserts that he has been under a “disability” since November 1, 2007. He was thirty-seven years old at that time and was therefore considered a “younger person” under Social Security Regulations. 20 C.F.R. §§ 404.1563(c), 416.963(c). He has a limited education. 20 C.F.R. §§ 404.1564(b)(3), 416.964(b)(3).

         Plaintiff testified at the hearing before ALJ Hockensmith that he had pneumonia and had to have lung surgery in 2008. (Doc. #7, PageID #661). He believes he only has half of his lung. Id. at 662. He is frequently out of breath and has chest pain. Id. He has regularly seen doctors at the Cassano Clinic since his lung surgery. Id. at 658.

         Plaintiff has diabetes and has problems with his legs and feet. His feet and shins go numb, cramp badly, and ache. Id. at 659. If he sits for too long, his legs bother him and he is in pain. Id. Usually, he gets up and walks around at home if they start hurting too much. Id. He and Charlene, his girlfriend, sometimes go on one to two minute walks. Id. at 661. He cannot walk very far because his legs give out and he falls. Id. at 666. He has broken his ankle from falling. Id.

         Plaintiff has a lot of pain in his back. Id. at 662. When he is in bed, he cannot lie in just one spot for too long. Id. at 663. Sitting also causes back pain. Id. His hands also cramp up. Id. at 664. He takes medication, but it makes him feel itchy and drowsy. Id. at 665.

         Plaintiff struggles with anxiety and depression. Id. at 664. He sometimes gets scared and cries. Id. He is worried because, “I can't work …. I have nothing.” Id.

         Plaintiff dropped out of high school in tenth grade. Id. at 648. Throughout school, he was in special education classes. Id. When he was around twenty-four years old, he tried to take the GED test but “couldn't even read it ….” Id. He did not attend any classes prior to taking the test. Id.

         Plaintiff obtained a State Tested Nurse Aide (STNA) license. Id. He first took a forty-hour class and then had to take a test. Id. at 649-50. When he was unable to read the test, they tried reading him the questions, but he still could not pass. Id. at 650. They then sent the test home with him, and he still did not pass. Id. Despite failing the test, Plaintiff testified that they still gave him a license. Id. at 650-51. He then worked as an STNA in an Alzheimer's unit where he had to feed patients, give them baths, put their clothes on, etc. Id. at 653. He explained that the entire job was physical and required a lot of lifting. Id. His last job was in 2007 at a concrete company. Id. at 654. He said that he never “did concrete” but may have cleaned up the yard. Id.

         Plaintiff lives in a trailer with Charlene. Id. at 645. She helps him with almost everything, including going to the grocery for him. Id. at 646, 663. His brother pays his rent. Id. at 645. Plaintiff does not have a driver's license. Id. at 647. During the day, he eats, watches TV, and uses the bathroom. Id. at 663. He does not shower every day because it is difficult for him to get in and out of the shower. Id. He is not able to do much around the house. Id. He is able to warm food in the microwave but cannot cook. Id. When he needs to go somewhere, his brother or Charlene usually takes him. Id. at 647.

         Plaintiff had difficulty reading and understanding applications and his mail. Id. at 655. He can write his name and address and then his brother usually completes the application. Id. He has trouble writing and spelling as well. Id. at 656. When he used to work, his brothers managed his money. Id. at 667

         III. Standard of Review

          The Social Security Administration provides Disability Insurance Benefits and Supplemental Security Income 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), 1382(a). 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 job-i.e., “substantial gainful activity, ” in Social Security lexicon. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see Bowen, 476 U.S. at 469-70.

         Judicial review of an ALJ's non-disability decision proceeds along two lines: “whether the ALJ applied the correct legal standards and whether the findings of the ALJ are supported by substantial evidence.” 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). Review for substantial evidence is not driven by whether the Court agrees or disagrees with the ALJ's factual findings or by whether the administrative record contains evidence contrary to those factual findings. Gentry v. Comm'r of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014); Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). Instead, the ALJ's factual findings are upheld if the substantial-evidence standard is met-that is, “if 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, 486 F.3d at 241 (citations and internal quotation marks omitted); see Gentry, 741 F.3d at 722.

         The other line of judicial inquiry-reviewing the correctness of the ALJ's legal criteria-may result in reversal even when the record contains substantial evidence supporting the ALJ's factual findings. Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009); see Bowen, 478 F.3d at 746. “[E]ven if supported by substantial evidence, ‘a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right.'” Rabbers, 582 F.3d at 651 (quoting in part Bowen, 478 F.3d at 746, and citing Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 546-47 (6th Cir. 2004)).

         IV. The ALJ's Decision

         As noted previously, it fell to ALJ Hockensmith to evaluate the evidence connected to Plaintiff's application for benefits. He did so by considering each of the five sequential steps set forth in the Social Security Regulations. See 20 C.F.R. ...

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