United States District Court, S.D. Ohio, Western Division, Dayton
H. Rice District Judge.
REPORT AND RECOMMENDATIONS 
L. Ovington United States Magistrate Judge.
Kimberly Alston brings this case challenging the Social
Security Administration's denial of her application for
period of disability and Disability Insurance Benefits. She
applied for benefits on August 6, 2013, asserting that she
could no longer work a substantial paid job. Administrative
Law Judge (ALJ) Robert M. Senander concluded that she was not
eligible for benefits because she is not under a
“disability” as defined in the Social Security
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. #6), 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 Senander's non-disability decision.
asserts that she has been under a “disability”
since August 1, 2012. She was forty-eight years old at that time
and was therefore considered a “younger person”
under Social Security Regulations. See 20 C.F.R.
§ 404.1563(c). On September 5, 2013, Plaintiff turned
fifty years old and was then considered a person
“closely approaching advanced age.” See
Id. at § 404.1563(d). She has a limited education.
See 20 C.F.R. § 404.1564(b)(3)
testified at the hearing before ALJ Senander that since her
last hearing, her neck has gotten worse. (Doc. #6,
PageID #108). She cannot turn her head as much as
she used to, and if she looks down for over three to four
minutes, her head starts hurting and her vision gets blurry.
Id. As a result, she is no longer able to read the
bible like she used to. Id. Additionally, if she
turns her head, she has increased pain in the back of her
head, shoulders, and down her back. Id. at 109.
Plaintiff's pain is the worst when she gets up in the
attorney stated in response to the ALJ's asking what had
changed since Plaintiff's last application, “due to
chronic pain and cervical spine problems primarily, she's
now likely limited to sedentary work instead of a reduced
range of light work ….” Id. at 103. He
also pointed out that the previous ALJ did not find that
degenerative disc disease was one of Plaintiff's severe
impairments. Id. at 106.
testified that her carpal tunnel has also gotten worse, and
when she walks, she has increased pain in her legs and back.
Id. at 111. Her pain from fibromyalgia is also more
severe. Id. at 112. As a result, she cannot do
activities that she used to do. Id. at 113. She
experiences migraines once or twice a week. Id. at
114. If she has medication, they last a day and a half.
Id. at 114-15. But if she runs out of medication,
they can last two to three days. Id. at 114.
has both a CPAP machine and an oxygen machine for sleep
apnea. Id. at 110. She needs oxygen because after
her sleep study, “they said I stop breathing 58 times
out of a minute, three seconds at a time ….”
Id. She also experiences breathing problems when she
walks up the stairs or performs other similar activities.
also struggles with depression. Id. at 114. It
causes her to not want to be around anyone. Id.
lives in a house with her daughter and grandchildren.
Id. at 99. She sometimes tries to take care of her
grandchildren but cannot because she cannot stay awake.
Id. at 114. She used to drive but stopped after
getting into a car accident in June 2015. Id. at
99-100. The left side of her face was bruised and swollen in
the accident and she still had a knot. Id. at 100.
Plaintiff estimated that she can stand for five to six
minutes at a time. Id. at 113. She does not believe
that she could sit in a chair all day because it would hurt
her back and legs. Id. She also did not think she
could lift twenty pounds because of the pain. Id.
Donald J. Kramer, Ph.D.
Kramer evaluated Plaintiff on January 3, 2014. Id.
at 450. He diagnosed depressive disorder, anxiety disorder,
and borderline intellectual functioning. Id. at 454.
Dr. Kramer opined that Plaintiff's prognosis appeared
“somewhat guarded.” Id. He noted,
“she displayed some very significant psychomotor
retardation …. She was very unspontaneous, mumbled,
and was soft spoken and difficult to understand.”
Id. Additionally, she had “some difficulty
understanding simple questions ….” Id.
Kramer opined that Plaintiff “appears to have the
intellectual ability to perform simple tasks, although her
attention and concentration and persistence and pace were
somewhat weak ….” Id. He also noted
that her eye contact was poor and she looked uncomfortable.
Id. He indicated that her limitations may be due to
the fact that Plaintiff reported experiencing a migraine at
the examination. Id.
Paul Tangeman, Ph.D., & Carl Tishler, Ph.D.
Tangeman reviewed Plaintiff's records on January 28,
2014. Id. at 163-75. He diagnosed seven severe
impairments: fibromyalgia, migraine, inflammatory bowel
disease, obesity, affective disorders, anxiety disorders, and
borderline intellectual functioning. Id. at 169. He
opined that Plaintiff had moderate restrictions of activities
of daily living; moderate difficulties in maintaining social
functioning; and moderate difficulties in maintaining
concentration, persistence, or pace. Id. Dr.
Tangeman found that Plaintiff was markedly impaired in her
ability to understand, remember, and carry out detailed
instructions. Id. at 172. She was moderately
impaired in her ability to understand, remember, and carry
out very short and simple instructions. Id. He
concluded, Plaintiff “is able to perform simple 1-2
step tasks in a static environment. Limited to occasional
contact with the public.” Id. at 173.
13, 2014, Dr. Tishler reviewed Plaintiff records and agreed
with Dr. Tangeman's conclusions. Id. at 163-75.
Gary Hinzman, M.D. & Eli Perencevich, D.O.
Hinzman reviewed Plaintiff's records on December 12,
2013. Id. at 163-75. He adopted the previous
ALJ's residual functional capacity under Acquiescence
Ruling 98-4. Id. at 171. On May 13, 2014, Dr.