United States District Court, S.D. Ohio, Western Division, Dayton
AMBER N. BRANDENBURG, Plaintiff,
NANCY A. BERRYHILL, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.
H. Rice District Judge
REPORT AND RECOMMENDATIONS 
L. Ovington United States Magistrate Judge
Amber N. Brandenburg applied for period of disability and
Disability Insurance Benefits on August 23, 2013 and applied
for Supplemental Security Income on October 18, 2013,
asserting that as of May 31, 2011, she could no longer work a
substantial paid job due to post-traumatic stress disorder
(PTSD), bipolar disorder, anxiety, depression, and insomnia.
The Social Security Administration denied Plaintiff's
claims initially and upon reconsideration. At Plaintiff's
request, Administrative Law Judge (ALJ) Benjamin Chaykin
conducted a hearing where both Plaintiff and a vocational
expert testified. Shortly thereafter, the ALJ concluded that
Plaintiff was not eligible for benefits because she is not
under a “disability” as defined in the Social
Security Act. Plaintiff brings this case challenging the
Social Security Administration's denial of her
applications for Social Security benefits.
case is before the Court upon Plaintiff's Statement of
Errors (Doc. #7), the Commissioner's Memorandum in
Opposition (Doc. #9), Plaintiff's Reply (Doc. #10), and
the administrative record (Doc. #6).
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 Chaykin's non-disability decision.
Standard of Review
Social Security Administration provides Disability Insurance
Benefits and Supplemental Security Income to individuals who
are under a “disability, ” among other
eligibility requirements. Bowen v. City of New York,
476 U.S. 467, 470 (1986); see 42 U.S.C. §§
423(a)(1), 1382(a). The term “disability”-as
defined by the Social Security Act-has specialized meaning of
limited scope. It encompasses “any medically
determinable physical or mental impairment” that
precludes an applicant from performing a significant paid
job-i.e., “substantial gainful activity, ” in
Social Security lexicon. 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A); see Bowen, 476 U.S. at 469-70.
review of an ALJ's non-disability decision proceeds along
two lines: “whether the ALJ applied the correct legal
standards and whether the findings of the ALJ are supported
by substantial evidence.” Blakley v. Comm'r of
Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see
Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 745-46
(6th Cir. 2007). Review for substantial evidence is not
driven by whether the Court agrees or disagrees with the
ALJ's factual findings or by whether the administrative
record contains evidence contrary to those factual findings.
Gentry v. Comm'r of Soc. Sec., 741 F.3d 708, 722
(6th Cir. 2014); Rogers v. Comm'r of Soc. Sec.,
486 F.3d 234, 241 (6th Cir. 2007). Instead, the ALJ's
factual findings are upheld if the substantial-evidence
standard is met-that is, “if a ‘reasonable mind
might accept the relevant evidence as adequate to support a
conclusion.'” Blakley, 581 F.3d at 407
(quoting Warner v. Comm'r of Soc. Sec., 375 F.3d
387, 390 (6th Cir. 2004)). Substantial evidence consists of
“more than a scintilla of evidence but less than a
preponderance . . . .” Rogers, 486 F.3d at 241
(citations and internal quotation marks omitted); see
Gentry, 741 F.3d at 722.
other line of judicial inquiry-reviewing the correctness of
the ALJ's legal criteria-may result in reversal even when
the record contains substantial evidence supporting the
ALJ's factual findings. Rabbers v. Comm'r of Soc.
Sec., 582 F.3d 647, 651 (6th Cir. 2009); see
Bowen, 478 F.3d at 746. “[E]ven if supported by
substantial evidence, ‘a decision of the Commissioner
will not be upheld where the SSA fails to follow its own
regulations and where that error prejudices a claimant on the
merits or deprives the claimant of a substantial
right.'” Rabbers, 582 F.3d at 651 (quoting
in part Bowen, 478 F.3d at 746, and citing
Wilson v. Comm'r of Soc. Sec., 378 F.3d 541,
546-47 (6th Cir. 2004)).
asserts that she has been under a “disability”
since May 31, 2011. She was thirty-two years old at that time
and was therefore considered a “younger person”
under Social Security Regulations. See 20 C.F.R.
§§ 404.1563(c), 416.963(c). She has a high school
education. See 20 C.F.R. §§
testified at the hearing before ALJ Chaykin that she has
struggled with mental health problems for approximately
fifteen years on and off. (Doc. #6, PageID #87). She
has been diagnosed with bipolar disorder, PTSD, and anxiety
disorder. Id. at 91. She also has black-out periods
where she cannot remember what she did. Id. In 2013,
she began seeing a psychiatrist, Dr. Agarwal, every two to
three months. Id. at 87-88. In addition, Plaintiff
sees a therapist every week or at least twice per month.
takes several medications for her mental impairments:
Seroquel as a mood stabilizer, Ativan for anxiety and panic
attacks, and Doxepin to help her sleep. Id. at 89.
Plaintiff explained that the medication helps but “also
hinder[s] [her] too because they're very high
dose.” Id. at 88. She experiences two primary
side effects: “Sometimes I get dizzy. Sometimes I get
drowsy.” Id. She feels dizzy approximately
four times a week and has to sit down for thirty to forty
minutes before she can stand again. Id. She gets
drowsy every day. Id. at 89.
Ativan helps reduce the number of panic attacks she has, it
does not prevent them completely. Id. Plaintiff
estimated that she has three panic attacks per week.
Id. When she is having a panic attack, her heart
starts racing, she gets hot and shaky, and she feels like she
cannot stand. Id. Plaintiff's panic attacks are
triggered by flashbacks of times when she was sexually
abused. Id. at 97.
sometimes hears voices. Id. at 90. Seroquel helps
but she still hears voices two to three times per week.
Id. She explained, “it's like I'm
hearing somebody tell me I need to go kill myself. I'm
not worth anything.” Id. Plaintiff was
admitted to the hospital approximately six years before the
hearing because she had tried to kill herself. Id.
At the time of the hearing, Plaintiff had not had any
suicidal thoughts in a month-since her doctor increased her
dosage of Seroquel. Id. at 98. Before the increase,
she had suicidal thoughts “a couple times a
Plaintiff has insomnia. Id. at 86. She is able to
sleep on some days, but then she may not sleep for three days
in a row. Id. She takes Doxepin, but it does not
always help. Id. When she cannot sleep, it is
usually because her mind is racing. Id. Plaintiff
also has nightmares: “I just have nightmares about
being killed, something [bad] happening to me , and then a
lot of times in my dreams it's like the abuser in my
dream that abused me when I was young telling stuff like
I'm not worth anything, you know. I'm just a piece of
-- you know what I mean?” Id. at 97.
past, Plaintiff struggled with addiction to prescription
medication such as Percocet and Oxycodone. Id. at
94. At the time of the hearing, she had been clean for two
years. Id. at 95.
has had four surgeries in three years because of issues with
her stomach/abdomen. Id. at 85. She still has
swelling and pain in her stomach that she was planning to see
a specialist about. Id. She has pain every day but
the intensity and duration varies. Id. at 86.
Plaintiff has pain medication but her friend holds onto it
for her, and she only takes it when she “absolutely
[has] to.” Id. at 94.
lives in a house with a family friend. Id. at 81.
Plaintiff sometimes sweeps, mops, and washes dishes.
Id. There are some days-about three days per
week-when she does not get out of bed. Id. at 92,
95. As a result, she sometimes does not take care of her
hygiene. Id. at 92. She has good days two to three
times per week: “I consider a good day getting up,
getting in the shower, eating, taking a walk, reading a
book.” Id. at 95-96. She has a television but
she does not watch it very often. Id. at 92.
Although she reads, she does not remember what she read.
Id. at 96. She described her memory as
“horrible.” Id. She cannot remember
things that happened a couple days before. Id. She
also has trouble staying focused; she gets distracted easily.
Id. She often starts things but then forgets about
them and does not complete them. Id. at 97.
has one friend that she sees once or twice a week.
Id. at 93. Her friend takes her to get groceries.
Id. Plaintiff only leaves her house to go out in
public once a week. Id. at 98. She never leaves by
herself. Id. It is “very difficult” for
Plaintiff to go out into public: “I'm just scared
that somebody is going to try to hurt me or I'm just
paranoid that somebody is going to try to hurt me.”
Id. at 93.
has two children. Id. at 82. Both live with their
fathers. Id. Plaintiff has visitation rights
“but they don't let me see my kids because they
think that I'm going to hurt them or something because of
my mental disabilities.” Id. Plaintiff does
not have a driver's license. Id. at 83.
last worked as a cashier at a tobacco store at least two
years before the hearing. Id. at 84. She was let go
because she “made a $500 mistake.” Id.
She explained that she “didn't charge the right
amount [for] a product because [she] forgot the change
….” Id. Plaintiff testified that she
had trouble working because “I was getting paranoid
around people coming in because I always worked like in the
public, and I don't do good around a lot of people plus
my memory is really bad, and I was forgetting things that I
should have been doing.” Id. at 85.
Sunita Agarwal, M.D.
March 18, 2014, Dr. Agarwal, Plaintiff's treating
psychiatrist, opined, “She is unable to work
indefinitely. She is ...