United States District Court, S.D. Ohio, Eastern Division
GERALD D. STEVENS, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
James L. Graham
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE
Gerald D. Stevens, 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.
PROCEDURAL BACKGROUND The affidavit of Sharon Weeks,
an Operations Analyst in the Operations Support Branch of the
Office of Disability Operations of the Social Security
Administration, sets forth the relevant procedural history of
this case as follows:
a. The claimant filed applications for Title II disability
insurance benefits (DIB) and Title XVI social security income
(SSI) on March 27, 2015, alleging disability beginning August
b. On September 15, 2015, the Agency denied claimant's
Title II application for DIB and determined that he was not
eligible for disability benefits. The Agency affirmed its
initial determination upon reconsideration on January 14,
c. On September 24, 2015, the Agency determined claimant was
eligible for SSI benefits under Title XVI on initial
determination, finding him disabled beginning on March 27,
d. On October 28, 2016, after a hearing, the ALJ found that
with respect to the DIB claim, Plaintiff was not disabled
pursuant to sections 216(i) and 223(d) of the Social Security
Act, from August 1, 2008, through the date last insured of
December 31, 2012. The ALJ also found Plaintiff was eligible
for Medicare-qualified government employee (MQGE) benefits,
via collateral estoppel, as of the favorable Title XVI
decision finding him eligible for SSI benefits with the
established onset date of March 27, 2015.
e. On December 7, 2016, the Agency issued a Notice of Award
indicating that claimant was disabled as of August 1, 2008.
The Notice of Award also stated that claimant is entitled to
Medicare benefits starting on September 1, 2015, and as a
government employee does not qualify for monthly Social
f On March 3, 2017, the Appeals Council denied claimant's
request for review of the ALJ's decision.
(Doc. 17-2, PAGEID #: 891). The Notice of Award (the
"Notice") further advised Plaintiff that, if he
disagreed with the decision, he could appeal within 60 days
or later upon a showing of good cause. Plaintiff did not
Plaintiff filed the instant action nearly five months later
on May 4, 2017, asserting two alleged errors. (Doc. 14). The
first error consists of a single paragraph:
The Notice of Award issued to Mr. Stevens on December 7, 2016
states he is disabled beginning August 1, 2008. It further
states that as a government employee, he does not qualify for
social security disability payments. Yet, Mr. Stevens'
date last insured ("DLI") was determined to be
December 31, 2012. These inconsistencies in the record
require clarification, particularly if for some reason Mr.
Stevens was found disabled despite the Decision.
(Doc. 14 at 2). The second assignment of error is likewise a
The ALJ failed to take into consideration the medical
evidence related to Mr. Steven's right arm limitations.
The ALJ determined that Mr. Stevens "would be unlimited
in his ability to reach overhead with the right upper
extremity". (Decision at p. 10) However, this finding
overlooks the medical evidence which substantiates that Mr.
Stevens was diagnosed with right shoulder rotator cuff
re-tear, a chronic condition, on December 13, 2010. This is a
long-lasting condition, which presented limitations pre- and
post-DLI and ultimately resulted in surgical intervention and
ongoing treatment including injections. (3F/4; 5F) An
additional limitation related to his right upper extremity
could very well interfere with, if not outright bar him, from
performing the job functions of a buffing-machine tender,
solderer, and ...