United States District Court, S.D. Ohio, Eastern Division
C. Smith Judge.
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.
Mary Lou Iser, filed this action seeking review of a decision
of the Commissioner of Social Security
(“Commissioner”) denying her Title II Disability
Insurance Benefits application. For the reasons that follow,
it is RECOMMENDED that Plaintiff's
Statement of Errors be OVERRULED, and that
judgment be entered in favor of Defendant.
filed for disability insurance benefits (“DIB”)
on March 25, 2013, alleging a disability onset date of
September 24, 2010, with a date last insured of September 30,
2010. Doc. 10, Tr. 123-25, PAGEID #: 190-92). Her application
was denied initially on June 26, 2013 (Id., Tr. 141,
PAGEID #: 208), and upon reconsideration on September 9, 2013
(id., Tr. 145, PAGEID #: 212). Administrative Law
Judge Jeffrey Hartranft (the “ALJ”) held a
hearing on March 27, 2015 (id., Tr. 45, PAGEID #:
112), after which he denied benefits in a written decision on
July 15, 2015 (id., Tr. 10, PAGEID #: 77). That
decision became final when the Appeals Council denied review
on June 10, 2016. (Id., Tr. 1, PAGEID #: 68).
filed this case on August 8, 2016 (Doc. 1), and the
Commissioner filed the administrative record on October 14,
2016 (Doc. 10). Plaintiff filed a Statement of Specific
Errors on December 28, 2016 (Doc. 14), the Commissioner
responded on February 13, 2017, (Doc. 15), and Plaintiff
replied on February 27, 2017 (Doc. 16).
Relevant Testimony at the Administrative Hearing
counsel began the hearing by explaining that Plaintiff was
involved in a motor vehicle accident on September 24, 2010,
her alleged date of disability. (Doc. 10, Tr. 54, PAGEID #:
121). He explained further that in the accident she sustained
several injuries, but most significantly, she sustained a
traumatic brain injury. (Id.).
Plaintiff began her testimony, the ALJ noted this was an
“unusual case” because there were only six days
between the alleged onset date and the date last insured
(“DLI”). (Doc. 10, Tr. 58, PAGEID #: 125). The
ALJ also stated that he would “obviously”
consider evidence after Plaintiff's DLI, but he was
concerned how that evidence would “relate back”
to Plaintiff's conditions on the DLI. (Doc. 10, Tr.
59-60, PAGEID #: 126-27).
testified that she completed school through ninth grade and
can read and write. (Doc. 10, Tr. 67-69, PAGEID #: 134-36).
She also stated that she has never had a driver's license
so she relies on her husband and daughter for transportation.
(Doc. 10, Tr. 67, PAGEID #: 134). In terms of daily
activities, Plaintiff testified that she wakes up at 4:30
a.m., packs her husband's lunch, takes her dog outside to
the bathroom, sometimes takes him on walks, makes breakfast,
and sometimes does laundry, the dishes, or vacuums, although
if she is doing chores she often needs a break for 15 or 20
minutes. (Doc. 10, Tr. 81-86, PAGEID #: 148-53). In the
summer, Plaintiff likes to plant flowers and cuts the grass
with her push mower. (Doc. 10, Tr. 83-84, PAGEID #: 150-51).
Finally, Plaintiff stated that on Fridays, she typically
grocery shops. (Doc. 10, Tr. 84, PAGEID #: 151).
asked what problems she was having after the accident,
Plaintiff stated that sometimes she doesn't remember
things. (Doc. 10, Tr. 75, PAGEID #: 142). Further, she
explained that she had to go through vestibular, speech, and
physical therapy. (Doc. 10, Tr. 88- 89, PAGEID #: 155-56).
Specifically, Plaintiff explained that she had to attend
speech therapy because she couldn't think or say a lot of
words. (Doc. 10, Tr. 93, PAGEID #: 160) (“My brain -
sometimes like it'd move-it would move either too fast
and I know - like I'm talking now-I would talk and then
I'd get cut off. It's like it just shuts totally
off[.]”). Plaintiff also testified that she sometimes
forgets to tell her husband someone called for him, she
forgets birthdays, and she forgets doctor's appointments.
(Doc. 10, Tr. 96, PAGEID #: 163). Further, Plaintiff stated
that as a result of the accident, she no longer can movies or
read because of lack of concentration. (Doc. 10, Tr. 94-95,
PAGEID #: 163).
Plaintiff testified that she used to run an in-home daycare,
but after the accident, she “lost all of [her] kids . .
. because the daycare kids had to go to other daycares”
and by the time she was recovered, “they were already
settled in new places.” (Doc. 10, Tr. 100, PAGEID #:
Relevant Medical Background
result of the automobile accident on September 24, 2010,
Plaintiff suffered a concussion, left retroperitoneal and
adrenal stranding, left upper extremity laceration, left
facial laceration, left chest wall contusion, and left
temporal bone fracture. (Doc. 10, Tr. 275, PAGEID #: 342).
had a positive loss of consciousness at the scene of the
accident but was conscious upon arrival at the hospital.
(See id., Tr. 275, PAGEID #: 342) (“Plaintiff
had a GCS [Glasgow Coma Scale] ¶ 15 upon
arrival”). At the hospital, a CT of the brain revealed
the ventricular and cisternal spaces were within normal
limits for Plaintiff's age and there was no acute
intracranial abnormality. (Id., Tr. 296, PAGEID #:
363). During her hospital stay, Plaintiff underwent both
physical and occupational therapy, and it was noted that she
“did well with no complication.” (Id.,
Tr. 275, PAGEID #: 342). All of Plaintiff's injuries were
treated non-surgically and her discharge notes on September
29, 2010, indicate that she was “doing well” and
was “discharged home with self-care in no acute
distress with a good prognosis.” (Id., Tr.
275-76 PAGEID #: 342-43). At the time of discharge, Plaintiff
was given additional information regarding outpatient speech
therapy. (Id., Tr. 276, PAGEID #: 343).
was seen by Ms. Devereaux at the Fairfield Medical Center
Speech Therapy Department on October 4, 2010, for an initial
consultation. (Id., Tr. 314, PAGEID #: 381). At that
time, it was noted that Plaintiff had mild to moderate
difficulty with adequate speed of auditory processing as
evidenced in slow response to questions and test stimuli;
mild decrease in retention of new and recent information;
mild decrease in high thought processing and organization;
and mild to moderate word retrieval difficulty.
(Id.). Thus, Plaintiff was diagnosed with
“cognitive dysfunction” and was recommended to
undergo therapy for sixty minutes, once per week.
four therapy sessions, treatment notes on November 22, 2010,
indicate that Plaintiff had 100% accuracy in appropriate
speed for a trailing/tracking exercise indicating adequate
attention and processing speed; she performed short-term
memory exercises with 90% accuracy; completed deduction
puzzles with minimal assistance and 90% accuracy; provided
logical solutions to functional problem scenarios with 90%
accuracy; and demonstrated adequate word retrieval in
explaining function of objections, explaining idioms, and
naming items of a category. (Id., Tr. 318, PAGEID #:
385). Overall, Plaintiff demonstrated “adequate
cognitive skills for performing activities of daily living
that she [was] used to performing, ” however it was
noted that she did not exhibit or report to have the stamina,
energy, strength, or coordination to return to her previous
employment. (Id., Tr. ...