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Pacheco v. Commissioner of Social Security

United States District Court, S.D. Ohio, Eastern Division

October 27, 2017

LUCIO M. PACHECO, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Edmund A. Sargus, Jr. Chief Judge

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE

         Plaintiff, 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).

         After 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).

         The ALJ 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.).

         Plaintiff 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. 11).

         A. Personal Background

         Plaintiff 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).

         B. Relevant Testimony

         Plaintiff 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. 76-77).

         During 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).

         The 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 folder. (Id.).

         C. Relevant Medical Evidence

         1. Scott Lewis Donaldson, Ph.D.

         Dr. 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.).

         Dr. 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.” (Id.).

         2. Lee Howard, Ph.D.

         In June 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 ...


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