United States District Court, S.D. Ohio, Eastern Division
OPINION AND ORDER
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.
Todd Albert Ison, filed this action seeking review of a
decision of the Commissioner of Social Security
(“Commissioner”) denying his application for
Title II disability insurance benefits and Title XVI
supplemental security income. For the reasons that follow,
Plaintiff's Statement of Errors (Doc. 18) is
OVERRULED, and judgment is entered in favor
Todd Albert Ison filed for disability insurance benefits
(“DIB”) on September 26, 2013 and supplemental
security income (“SSI”) on January 24, 2014,
alleging a disability onset date of June 7, 2008.
(See Doc. 12, Tr. 14, Tr. 70-71, PAGEID #: 79,
136-137). Earning records show that Plaintiff acquired
sufficient quarters of coverage to remain insured through
December 31, 2008. (Id., Tr.70, PAGEID #: 136).
Plaintiff's applications were denied initially on
November 19, 2013 (id., Tr. 77, PAGEID #: 143) and
upon reconsideration on January 30, 2014 (id., Tr.
78, PAGEID #: 144). Administrative Law Judge Jason C.
Earnhart (the “ALJ”) held a hearing on July 27,
2015 (Doc. 12, Tr. 29, PAGEID #: 94), after which he denied
benefits in a written decision on September 21, 2015
(id., Tr. 11, PAGEID #: 76). That decision became
final when the Appeals Council denied review on October 6,
2016. (Id., Tr. 1, PAGEID #: 66).
filed this case on December 8, 2016 (Doc. 1). On February 10,
2017, however, Plaintiff's attorney filed a Statement
Noting Todd Albert Ison's Death and informing the Court
that he planned to substitute a successor-representative as
soon as practicable. (Doc. 11) The Commissioner filed the
administrative record on February 13, 2017 (Doc. 12), and
Plaintiff filed a Statement of Specific Errors on April 7,
2017 (Doc. 18), along with an unopposed motion to substitute
Robert Ison, father of Plaintiff-Decedent Todd Albert Ison,
with respect to his claim for DIB (Doc. 17). The Court
granted the Motion on April 11, 2017. (Doc. 19). The
Commissioner responded to the Statement of Errors on May 22,
2017 (Doc. 23), and a Reply was filed on June 6, 2017 (Doc.
to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, and upon
consent of the parties, this case was referred to the
undersigned to conduct all proceedings and order the entry of
final judgment. (Doc 22).
Relevant Testimony at the Administrative Hearing
hearing, Plaintiff's counsel explained that
Plaintiff suffered a workplace back injury that
prevented him from engaging in substantial gainful activity.
(Doc. 12, Tr. 32, PAGEID #: 97). Plaintiff later elaborated
that he was splitting wood at work when he “felt like a
bee sting in the back.” (Id., Tr. 41, PAGEID
#: 106). Following his injury, Plaintiff underwent surgery
and stated “[i]t seemed to work until the disc popped
again. It was like a week after.” (Id., Tr.
45, PAGEID #: 110). Plaintiff described the second pop as
feeling “like somebody stabbed me again in the back and
twisting and fire on - going down my legs.”
(Id.). Upon prompting by his attorney, Plaintiff
rated his pain in the morning at “about a nine and
three-quarters” out of ten. (Id., Tr. 55,
PAGEID #: 120).
testified that he didn't believe he could work because he
couldn't sit “for as long as [he] used to;”
he couldn't stand for very long; he couldn't lift
more than a gallon of milk at a time; and his left leg had
weakness with a tendency to give out. (Id., Tr. 49,
PAGEID #: 114). In terms of daily activities, Plaintiff
stated that he was able to prepare simple meals and cut his
grass for ninety minutes at a time using his riding lawn
mower, although he explained that it took him three to four
days to cut less than a half-acre because of the amount of
trees. (Id., Tr. 50-51, PAGEID #: 115-16). Plaintiff
also stated that he was able to do laundry and sweep, and his
only hobby was watching TV. (Id., Tr. 52-53, 60,
PAGEID #: 117-18, 125). Finally, Plaintiff testified that he
could walk 400 feet, stand for ten to fifteen minutes, and
sit for thirty to forty-five minutes. (Id., Tr. 55,
57, PAGEID #: 120, 122). The ALJ sought to clarify this
testimony, considering Plaintiff's previous testimony was
that he could sit and ride his lawn mower for ninety minutes,
and Plaintiff replied by stating that he rode his mower
“on and off” for those ninety minutes.
(Id., Tr. 57-58, PAGEID #: 122-23).
beginning and end of the hearing, the ALJ noted that there
was significant evidence that the State Agency did not see in
their review that had since been added to the record.
(Id., Tr. 33, 67, PAGEID #: 98, 132). Accordingly,
the ALJ stated he was going to send the record out to a
medical expert for an additional interrogatory with a
specific focus on the date last insured. (Id., Tr.
34, 67, PAGEID #: 99, 132).
Relevant Medical Background
Prior to the Date Last Insured
December 28, 2007, while lifting a large piece of wood into a
wood splitter at work, Plaintiff experienced the immediate
onset of low back and left leg pain. (See e.g., Doc.
12, Tr. 309, PAGEID #: 379). It was determined that Plaintiff
required surgical intervention for a herniated disc, and he
met with Dr. Timothy Manuel for a preoperative physical on
July 2, 2008. (Id., Tr. 217, PAGEID #: 287). At that
time, Dr. Manuel noted that Plaintiff “continue[d] to
be in fairly moderate pain, 4 to 5 on a scale of 10 in the
low back area . . . with radiation into the left leg.”
(Id.). One week later, Plaintiff underwent a L5-S1
left microlaminectomy, medial factectomy, and foraminotomy
excision to repair his herniated disc. (Id., Tr.
273, PAGEID #: 343).
four weeks after surgery, on August 11, 2008, Dr. Mavian saw
Plaintiff for a follow-up. (Id., Tr. 224, PAGEID #:
294). At the appointment, Plaintiff reported that
“overall he [was] 30% better.” (Id.).
Dr. Mavian opined that Plaintiff's incision was well
healed, he ambulated without difficulty, and an x-ray of the
lumbar spine taken at the office was normal. (Id.).
Dr. Mavian recommended that Plaintiff take two Aleve in both
the morning and evening and prescribed physical therapy to
work on range of motion strengthening and modalities.
(Id., Tr. 225, PAGEID #: 295).
Mavian saw Plaintiff for another follow-up on October 27,
2008, and reported that a left S1 transoarminal nerve block
injection by Dr. Emily Yu about two weeks prior “did
minimal to change any of his symptoms” and his
“left leg radicular symptoms and backache [were] still
consistent at approximately 5 out of 10.”
(Id., Tr. 219, PAGEID #: 289). On physical exam,
straight leg raising on the left was positive for left leg
radicular symptoms as well as backache, and straight leg
raising on the right was negative. (Id.). Dr. Mavian
once again ...