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O'Bannon v. Commissioner of Social Security

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

January 5, 2018

WILLIAM HOWARD O'BANNON, JR., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Judge, Michael H. Watson

          REPORT AND RECOMMENDATION

          CHELSEY M. VASCURA, UNITED STATES MAGISTRATE JUDGE

         Plaintiff O'Bannon 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 applications for disability insurance benefits and supplemental security income. This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 18), the Commissioner's Memorandum in Opposition (ECF No. 22), Plaintiff's Reply (ECF No. 23), and the administrative record (ECF No. 11). For the reasons that follow, it is RECOMMENDED that the Court OVERRULE Plaintiff's Statement of Errors and AFFIRM the Commissioner's decision.

         I. BACKGROUND

         Plaintiff filed his applications for disability insurance benefits and supplemental security income on September 19, 2013, alleging that he had been disabled since March 1, 2012, due to a combination of physical and mental impairments. On June 29, 2015, following initial administrative denials of his application, Plaintiff sought a de novo hearing before an administrative law judge.

         A hearing was held before Administrative Law Judge Jason C. Earnhart (the “ALJ”), at which Plaintiff, represented by counsel, appeared and testified. (ECF No. 11 at PAGEID ##79-135). Plaintiff testified that he has been raising his eleven-year-old daughter since she was two. He helps her with her homework, but his sister comes and helps him some days when the pain in his toes is too great. He said that he likes to read a lot of books and that he regularly attends Alcoholics Anonymous meetings. He also takes care of his dog. Plaintiff testified that he has about twenty years of painting experience and that he also worked as a meat packer. He said that he currently volunteers with his church helping coach young children.

         Vocational Expert George Coleman (the “VE”) also appeared and testified. He stated that Plaintiff's past relevant work included painting, which the VE classified as skilled with an SVP level of 7; and meat packing, which the VE classified as unskilled, with an SVP level of 2. The VE then testified that a hypothetical individual of Plaintiff's age, education, and work experience who retained the residual functional capacity (“RFC”)[1] that the ALJ ultimately assessed could perform Plaintiff's past work as a meat packer both as Plaintiff performed it and as that job is typically performed. The VE also identified several other jobs that exist in significant numbers in the national economy that the hypothetical individual could perform with the foregoing RFC and also with an RFC that restricted the individual to light work.

         On August 12, 2015, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (Id. at PAGEID## 60-73). At step two of the sequential evaluation process, [2] the ALJ found that Plaintiff had the following severe impairments: a depressive disorder; an anxiety disorder; and deformity of his feet, status post repair. The ALJ concluded that Plaintiff did not, however, have an impairment or combination of impairments that met or medically equaled one of the listed impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. He specifically identified Listings 1.02, 1.04, 12.06, and 12.06 as Listings he considered. With respect to Listings 12.04 and 12.06, the ALJ concluded that Plaintiff did not satisfy the paragraph B criteria because his “none of the functional limitation categories are manifested to a degree which satisfies the full requirements of such listings.” (Id. at PAGEID# 63). The ALJ proceeded to offer a lengthy discussion of the paragraph B criteria.

         At step four of the sequential process, the ALJ set forth Plaintiff's RFC as follows:

[Plaintiff] has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(b) and 416.967(b) except occasional use of both feet to operate foot controls. Mentally, [Plaintiff] can perform simple, routine and repetitive tasks. [Plaintiff] can perform low stress work defined as requiring no more than occasional changes in the work setting. [Plaintiff's] social functioning is limited, but adequate for occasional interaction with the public, co-workers, and supervisors.

(Id. at PAGEID# 65). Relying on the VE's testimony, the ALJ concluded that Plaintiff was capable of performing his past relevant work as a meat packer. The ALJ alternatively concluded that Plaintiff was capable of performing other jobs that exist in significant numbers in the national economy. He therefore concluded that Plaintiff was not disabled under the Social Security Act during the relevant period.

         In his Statement of Errors (ECF No. 18), Plaintiff asserts that the ALJ erred in failing to consider his intellectual impairment. More specifically, Plaintiff contends that the ALJ erred at step two by failing to consider the limiting effects of his intellectual impairment and again at step three in failing to consider whether his impairments met or equaled Listing 12.05(C).

         In her Memorandum in Opposition (ECF No. 22), the Commissioner asserts that any such error was harmless. The Commissioner further submits that Plaintiff has failed to satisfy his burden to demonstrate that he could not perform his past work or that he could satisfy the diagnostic criteria of Listing 12.05(C).

         In his Reply (ECF No. 23), Plaintiff emphasizes that the ALJ failed to consider his intellectual impairment and submits that the Commissioner is impermissibly offering post-hoc rationalization.

         II. ...


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