United States District Court, S.D. Ohio, Western Division
H. Rice District Judge
REPORT AND RECOMMENDATIONS 
L. OVINGTON, UNITED STATES MAGISTRATE JUDGE
Ted Allen applied for Disability Insurance Benefits on August
5, 2013, asserting he could no longer work a substantial paid
job due to his mental and physical impairments. The Social
Security Administration denied Plaintiff's claims
initially and upon reconsideration. Following an
administrative hearing, Administrative Law Judge (ALJ) Eric
Anschuetz concluded that Plaintiff was not eligible for
benefits because he is not under a “disability”
as defined in the Social Security Act. Plaintiff brings this
case challenging the Social Security Administration's
denial of his application for Social Security benefits.
case is before the Court upon Plaintiff's Statement of
Errors (Doc. #7), the Commissioner's Memorandum in
Opposition (Doc. #8), Plaintiff's Reply (Doc. #9), 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 Anschuetz's non-disability decision.
asserts that he has been under a “disability”
since April 9, 2013. He was thirty-nine years old at that
time and was therefore considered a “younger
person” under Social Security Regulations. See
20 C.F.R. § 404.1563(c). He has a high school education.
See 20 C.F.R. § 404.1564(b)(4).
testified at the hearing before ALJ Anschuetz that he cannot
work because he has “left eye, vision issues, [is] numb
below the waist down, unstable, [and] clumsy, [he has] head
pain, hearing loss, [and] back pain, [his] hands don't
work that much anymore, [he has problems with] grasping,
[has] loss of strength, [has trouble] standing for a period
of time[, ]” and experiences fatigue. (Doc. #6,
PageID #76). “The biggest problem I've
been having has been my waist down to my toes. It will get
burning feelings and the next thing you know, I can see my
legs, but I can't feel them at all.” Id.
was first checked out for symptoms of multiple sclerosis (MS)
in 2005, after he had Lasik eye surgery and they discovered
optical neuritis in his left eye. Id. at 94-95. In
2010, when Plaintiff's father died, the severity of his
MS increased and he began to have flare-ups more frequently.
Id. at 95, 98.
sees his primary-care physician, Dr. Moore, the most often.
Id. at 77. In a six-month period, Plaintiff usually
sees him three to four times for head pain and any smaller
issues. Id. Plaintiff also sees a neurologist, Dr.
Mankowski. Id. Plaintiff sees Dr. Mankowski's
nurse once a month for Tysabri infusions. Id.
Plaintiff spent the three days before the hearing at Dayton
Center of Neurology Disorders getting steroid treatments
“to help calm down the symptoms I've been having
with the numbness going down my legs and my waist down and
the head pain and things like that going on with my
body.” Id. at 77-78.
past, Plaintiff has taken prednisone to help with his
symptoms as well as Avonex. Id. at 79. The medicine
Plaintiff was using at the time of the hearing-
Tysabri-“is actually a more potent medication for MS
and they don't like to use steroids as much unless
you're having a major flare-up.” Id. at
80. Plaintiff takes Lyrica for nerve pain. Id. at
improve his condition, Plaintiff tries to “stay
stress-free” and “not overheat.”
Id. at 85. Overheating causes him to have MS
flare-ups: “It will actually cause flare-ups actually
in the brain to the point that my vision will go about 90%
gone in my left eye, to the point I can barely walk, once
that happens either you go for a steroid injection or
you're going to be down for a good week or two.”
Id. at 85-86. “A flare basically … you
can actually start feeling - you kind of start sweating a
little bit or you feel burning going through sections of your
body. And the next thing you know, you can't feel parts
of your body or your vision just totally leaves.”
Id. at 96. Plaintiff has a minimum of five flares a
week. Id. at 93. They can last anywhere between
thirty minutes and an entire week. Id. They happen
most often between 9:30 p.m. and 11:30 p.m. Id. at
97. While having a flare, he is not able to do any activities
and has to lie in bed. Id. at 93. And, between
flares, he struggles with fatigue. Id.
lives in a split-level house with his wife and five
children-ages 15, 12, 9, 6, and 5. Id. at 82. He
does not regularly exercise but he will walk around his front
yard when his children are out playing. Id. at 81.
He walks between fifty and sixty feet. Id. He has a
driver's license and usually drives two to three times a
week to Kroger's or Walgreens. Id. at 81-82.
school days, Plaintiff usually wakes up around 6:30 a.m. to
help his kids get ready for school. Id. at 89. After
they leave, he usually lies back down or watches the news.
Id. During the day, he does little things around the
house. Id. at 90. He sometimes starts laundry,
cleans up small messes, and runs quick errands. Id.
He watches television for up to two and a half hours a day.
Id. During daytime hours, even when he is not
experiencing a flare, he spends approximately sixty percent
of his time lying in bed, trying to relax. Id. at
last worked at his wife's HVAC company in July 2013.
Id. at 67. She operated the business out of their
house, and he helped her find contractors. Id. She
did not pay him. Id. at 69-70. He estimated that he
worked twenty to twenty-five hours per week and if she had
paid him, he would likely have made twenty-five dollars an
hour. Id. at 70. The ALJ asked what happened on the
date Plaintiff alleges his disability began- April 9,
2013-and Plaintiff explained, “my wife's company
pretty [much] crashed and no income's really coming in
and we both decided, … we're going to have to make
adjustments and you need to file for disability.”
Id. at 72.
Matthew Moore, M.D.
25, 2013, Plaintiff's treating physician, Dr. Moore,
provided a brief statement. Id. at 362. He indicated
that he had treated Plaintiff for over thirty years and
opined, “He has multiple sclerosis. It is progressively
getting worse to the point that he is now on [IV] therapy.
[Plaintiff] has also been seen for depression/anger issues
and has been referred to a therapist. [Plaintiff] is
considering disability and I am supporting him in this
Moore also completed a questionnaire regarding
Plaintiff's MS on July 17, 2014. Id. at 420-21,
431-32. He identified an abundance of problems applicable to
Plaintiff: MRI showing plaques characteristic of MS; CSF
abnormalities; ataxia; numbness; weakness; double vision or
other visual disturbances; vertigo; paresthesias; other
emotional disturbances; sustained disturbance of gait and
station; and significant, reproductive fatigue of motor
function with substantial muscle weakness on repetitive
activity, demonstrated on examination. Id. at 420.
Dr. Moore opined Plaintiff could not work at all.
Id. Plaintiff could, however, stand for thirty
minutes at one time, lift five pounds on an occasional basis,
and use his arms to work occasionally. Id. Further,
Plaintiff would be off task twenty percent or more of the
day. Id. at 421. Dr. Moore opined Plaintiff has a
significant problem with anxiety and/or depression that would
markedly limit his ability to withstand the stresses and
pressures of ordinary work activity. Id.
Kenneth Mankowski, D.O.
Mankowski, Plaintiff's treating neurologist, also
completed a questionnaire on multiple sclerosis. Id.
at 422-23. He recognized the following as applicable to
Plaintiff: MRI showing plaques characteristic of MS; positive
Babinski; CSF abnormalities; ataxia; numbness; weakness;
stiffness; paresthesias; sustained disturbance of gross and
dexterous movements; sustained disturbance of gait and
station; significant, reproductive fatigue of motor function
with substantial muscle weakness on repetitive activity,
demonstrated on examination; and inability to ambulate
effectively. Id. at 422. Dr. Mankowski opined
Plaintiff could work for two hours in one day, stand for
fifteen minutes at one time; stand for a total of one hour in
a workday, lift five pounds on a frequent basis, and use his
arms to work occasionally. Id. Additionally,
Plaintiff would be off task twenty percent or more of the
day. Id. at 423. Dr. Mankowski noted, “active
multiple sclerosis requiring monthly Tysabri-Severe gait
dysfunction, fatigue, etc.” Id.
Steve McKee, M.D., & ...