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Queen v. Commissioner of Social Security

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

December 21, 2017

BRANDON H. QUEEN, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          JAMES L. GRAHAM JUDGE.

          REPORT AND RECOMMENDATION

          ELIZABETH A. PRESTON DEAVERS UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Brandon H. Queen, brings this action under 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his application for supplemental security income (“SSI”). This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 12) (“SOE”), the Commissioner's Memorandum in Opposition (ECF No. 18) (“Opposition”), Plaintiff's Reply (ECF No. 19) (“Reply”), and the administrative record (ECF No. 9). For the reasons that follow, it is RECOMMENDED that the decision of the Commissioner be REVERSED and that this action be REMANDED under Sentence Four of § 405(g).

         I. BACKGROUND

         At the age of fifteen, Plaintiff began receiving SSI based on his disability. (R. at 34, 97.) When he reached the age of eighteen, the Social Security Administration conducted a disability redetermination and concluded that Plaintiff did not meet the disability standard for adults. (R. at 81, 92-127.) Plaintiff appealed that decision and a hearing was held on November 21, 2013. (R. at 119.) On December 19, 2013, the decision to cease Plaintiff's benefits was affirmed. (R. at 126-27.) Plaintiff requested a hearing before an administrative law judge. (R. at 130-37.) Administrative Law Judge Nino A. Sferrella (“ALJ”) held a hearing on July 14, 2015, at which Plaintiff, who was represented by counsel, appeared and testified. (R. at 54-91.) On August 11, 2015, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 34-47.) On September 15, 2016, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (R. at 1-7.) Plaintiff then timely commenced the instant action.

         II. HEARING TESTIMONY [1]

         A. Plaintiff's Testimony

         Plaintiff testified at the administrative hearing that he was born on July 28, 1994, and was twenty years old at the time of the hearing. (R. at 60.) Plaintiff lives with his mother and younger brother. (R. at 59-60.) Plaintiff was born with a heart defect that was corrected soon after birth and suffers from abnormalities in both feet. (R. at 61.) Plaintiff also has a learning disability. (R. at 61, 66.) While attending high school, Plaintiff took some “special classes” and graduated in 2013. (R. at 60.) Plaintiff specifically testified that he had difficulty in math and English, but did not believe that those difficulties limited his ability to work:

Q: There was a question about a learning disability. How do you feel that that might-and do you agree that maybe math was one of the learning disabilities you had in school? Is that the most difficult subject you had?
A: Yeah, I had trouble with both math and English.
Q: So do you think those are factors in either reducing your ability for work that is the learning factors, or math, or reading?
A: I don't think so.

(R. at 66.)

         Right after he graduated from high school, Plaintiff started at Columbus State and is in a two-year “adapted program” for students with certain kinds of handicaps, studying to become a chef. (R. at 70-71, 74.) While he is starting his second year, he is not close to graduating because he is taking his time in the program. (R. at 71.) Once he completes the program, he will receive certification. (Id.) Plaintiff described the accommodations he receives at Columbus State, including elevators and a calculator for math. (R. at 73.) Plaintiff also has special testing conditions in a quiet place that include headphones with recorded questions. (Id.)

         Plaintiff testified that the only paying job he has held was a part-time position (one to two hours a day) in the high school cafeteria cleaning tables and washing dishes from 2010 until he graduated in 2013. (R. at 60-61.) Plaintiff denied working well with computers, testifying that computers are “like gibberish, like alien to me or like an alien language or something.” (R. at 72.)

         Plaintiff is not taking any medication of any kind. (R. at 67.) Other than the learning disability he described, he denied having any other kind of mental symptoms. (Id.) Plaintiff testified that he does not let his conditions “control” him “at all.” (R. at 69.) When he is not in school, Plaintiff practices martial arts twice a week. (R. at 69-70.)

         B. Vocational Expert Testimony

         John Finch testified as a vocational expert (“VE”) at the July 14, 2015, administrative hearing. (R. at 78-89.) The ALJ proposed a hypothetical that presumed an individual with Plaintiff's age, his ankle problems, high school education, and no work experience, capable of performing sedentary work. (R. at 78.) The VE testified that the hypothetical individual could perform work as a sorter, order clerk, inspector, all of which were sedentary, unskilled positions and all of which were available nationally and in the east central Ohio region. (R. at 78-79.) The VE testified that these positions are simple jobs with simple tasks. (R. at 79.) The ALJ next asked the VE to presume the same individual as before with the following limitations: must have a clean air environment, no bilateral foot controls, occasional ramps, stairs, with no kneeling, crawling, or climbing ladders. (R. at 79-80.) The VE testified these limitations would not impact the hypothetical individual's ability to perform the sedentary work previously identified. (R. at 80.) The ALJ asked the VE to presume the same hypothetical individual with those limitations in addition to limitations of no work involving heights, no work involving moving or hazardous machinery, and no extreme temperatures. (Id.) The VE testified that these limitations would not impact the hypothetical individual's ability to perform the same sedentary jobs. (Id.) Plaintiff's other mental limitations would not affect his ability to perform these sedentary jobs:

ALJ: [Dr. Dory Sisson's] conclusions are, his [Plaintiff's] weaknesses are learning disorder NOS [not otherwise specified], it doesn't say why, and moderately impaired attention, working, and memory, moderate so he doesn't give a definition there either. He would be able to complete basic reading tasks at a functional level based upon mild impairment in sight, reading, reading comprehension. Does that fit into the jobs you mentioned?
VE: Yes.

(R. at 82-83.)

ALJ: I'm still looking, yeah, at [Exhibit] 8F, and I'm looking at these 13 areas that he's [Dr. Sisson] assessing, she's assessing. Moderate skills in math, he [Plaintiff] cannot be expected independently to complete more than very basic math calculations, accommodations should include use of a calculator, formally conversion table. Would that apply to any of the jobs-
VE: It wouldn't affect those jobs, your honor.

(R. 83.)

         Both the VE and the medical expert, Jonathan Nesbaum (“ME”), agreed that Plaintiff's Global Assessment of Functioning (“GAF”) score of 65 is a “workable” score. (R. at 84.)

         III. ...


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