United States District Court, S.D. Ohio, Eastern Division
LUCIO M. PACHECO, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
A. Sargus, Jr. Chief Judge
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE
Lucio Manuel Pacheco, brings this action under 42 U.S.C.
§ 405(g) seeking review of a final decision of the
Commissioner of Social Security (“Commissioner”)
denying his application for disability insurance benefits.
For the reasons that follow, it is
RECOMMENDED that the Court
REVERSE the Commissioner's nondisability
finding and REMAND this case under Sentence
Four of § 405(g). I. BACKGROUND
Plaintiff protectively applied for benefits on January 11,
2011, alleging disability due to a back injury, a fractured
left foot, numbness in his left leg, radiculopathy,
arthritis, depression, and high blood pressure. (Doc. 6, Tr.
335-41, 415). Plaintiff initially alleged an onset date of
October 26, 2009, but later amended that date to September 1,
2010. (Doc. 6, Tr. 369). Plaintiff's last-insured date
was December 31, 2014. (Id., Tr. 154, 411).
initial administrative denials of Plaintiff's claims,
Administrative Law Judge Paul Yerian (“the ALJ”)
heard the case on October 18, 2012. (Id., Tr.
114-53). On February 15, 2013, the ALJ issued a decision,
finding that Plaintiff was not disabled within the meaning of
the Social Security Act. (Id., Tr. 188-201).
Plaintiff disagreed and requested a review of the Hearing
Decision on April 22, 2013. (Id., Tr. 270). The
Appeals Council reviewed and remanded the case to the ALJ.
(Id., Tr. 209-11).
held a supplemental hearing at which Plaintiff and a
Vocational Expert (“VE”) testified.
(Id., Tr. 49-113). On June 30, 2015, the ALJ issued
a decision finding that Plaintiff was not disabled within the
meaning of the Social Security Act. (Id., Tr.
21-40). Plaintiff again filed a Request for Review of the
Hearing Decision. (Id., Tr. 517-24; id.,
Tr. 1-8). That request was denied, and the Appeals Council
adopted the ALJ's decision as the Commissioner's
final decision. (Id.).
filed this case on November 4, 2016, and the Commissioner
filed the administrative record on January 12, 2017. (Doc.
6). Plaintiff filed a Statement of Specific Errors on March
13, 2017 (Doc. 9), the Commissioner responded on April 24,
2017 (Doc. 10), and Plaintiff replied on May 8, 2017 (Doc.
was born in December 1965 (Doc. 6, Tr. 335), making him
49-years-old on his alleged onset date. (Id., Tr.
38). He has a high school education and work experience as an
ironworker, packager, material handler, and mixer operator.
(Id., Tr. 416).
testified at the April 9, 2015, administrative hearing that
he lives in a two-story house with his fiancé.
(Id., Tr. 56-57). He testified that he has a
driver's license but not a car, and last drove in October
2014. (Id., Tr. 57). He further testified that his
pain inhibits his ability to focus and causes depression; he
experiences pain in his lower back, bottom, and the back side
of his left leg is tight down to his ankle. (Id.,
Tr. 65). At the time of the hearing, Plaintiff was prescribed
Percocet, Oxycontin, and Fentanyl for pain and Cymblata for
depression. (Id., Tr. 66-67). He also takes
prescribed medications for hypertension and high cholesterol,
and Gabapentin for his leg. (Id., Tr. 70-71). When
asked to estimate his physical abilities, he testified that
he could walk half of a block without his cane.
(Id., Tr. 76). Then he would have to sit and would
need to change position within 20 minutes. (Id., Tr.
a typical day, Plaintiff wakes up based on when he needs to
take his medication- sometimes at 8:00 a.m., other times
between 9:00 and 10:00 a.m. (Id., Tr. 74). According
to Plaintiff's testimony, he does not do housework; his
fiancé does it all (id., Tr. 78); his friends
check in on him, but he does not visit them (id.,
Tr. 79.); and while he sometimes goes grocery shopping, he
mostly stays in the car (id., Tr. 81-82). In
addition, Plaintiff testified that he watches English
language television with subtitles and uses the internet once
a week. (Id., Tr. 82-83).
vocational expert testified that a hypothetical person of
similar age and education as Plaintiff with a limitation of
light exertional work could not perform Plaintiff's past
job, but could perform other jobs available in the national
economy such as a packager, inspector or assembler.
(Id., Tr. 106-07). In addition, the vocational
expert testified that a hypothetical person of similar age
and education as Plaintiff was limited to simple, repetitive
tasks that would not involve strict production quotas or a
fast assembly line work pace, the assembly work could not be
performed. (Id., Tr. 107). When asked to provide an
additional occupation Plaintiff could perform with that above
limitation, the VE testified that Plaintiff could work as a
Relevant Medical Evidence
Scott Lewis Donaldson, Ph.D.
Donaldson evaluated Plaintiff for disability purposes in May
2011. (Id., Tr. 753-58). When asked why he was
applying for Social Security benefits, Plaintiff replied,
“I can't move my body. I have nerve root damage in
L4 and L5 since two years ago. I have an ankle tear.”
(Id., Tr. 753). Dr. Donaldson noted that Plaintiff
“was agitated, reserved and yet cooperative during this
evaluation, as if in a great deal of pain.”
(Id.). Plaintiff reported that he frequently
experiences feelings of helplessness, worthlessness, mood
swings, diminished interest in activities, weight loss,
insomnia, psychomotor agitation, fatigue, and lack of
concentration. (Id., Tr. 755). Plaintiff had intact
memory for past and recent events, reported that he got along
well with neighbors, store clerks, and people in public, and
had many friends. (Id.). Plaintiff further reported
that he walked short distances, watched television, sometimes
cooked, sometimes grocery shopped, and drove. (Id.).
Donaldson diagnosed Plaintiff with dysthymic disorder and
generalized anxiety disorder. (Id., Tr. 756). Dr.
Donaldson opined that Plaintiff's ability to understand,
remember, and carry out instructions “is not likely to
be limited” and his ability to maintain attention and
concentration “does not appear to be limited or
problematic.” (Id.) Based upon Plaintiff's
mental status, psychological components of chronic pain, as
well as his symptoms of mood and anxiety disorders, Dr.
Donaldson believed that Plaintiff's “response to
work pressures and demands may be limited.”
Lee Howard, Ph.D.
2011, Dr. Howard evaluated Plaintiff on behalf of the Bureau
of Workers Compensation for consideration of a psychological
claim allowance. (Id., Tr. 773-93). Plaintiff
reported that he experienced depression four days per week,
has crying spells almost every morning, depression with
changes in sleeping patterns, irritability, loss of pleasure,
and anxiety with symptoms of nervousness, trembling hands,
and fear of losing control. (Id., Tr. 779-82).
Plaintiff's social presentation was within the normal
range, and Plaintiff reported that he lived with his
girlfriend of six years and that their relationship was
“excellent.” (Id., Tr. 780). Plaintiff
stated that he watched the news, went out in his yard, read
books, and cooked. (Id.). He also drove and took