United States District Court, S.D. Ohio, Western Division, Dayton
District Judge Walter H. Rice
REPORT AND RECOMMENDATIONS 
L. Ovington United States Magistrate Judge
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.
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.
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
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
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),
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
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.
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.
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
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.
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.
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.
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
Standard of Review
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.
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.
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)).
The ALJ's Decision
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. ...