United States District Court, S.D. Ohio, Western Division
H. Rice District Judge
REPORT AND RECOMMENDATIONS 
L. Ovington United States Magistrate Judge
Donnel Smith brings this case challenging the Social Security
Administration's denial of his applications for benefits.
He applied for Disability Insurance Benefits on October 24,
2013 and for Supplemental Security Income on September 16,
2014, asserting that he could no longer work a substantial
paid job. Administrative Law Judge (ALJ) George D. McHugh
concluded that he was not eligible for benefits because he is
not under a “disability” as defined in the Social
case is before the Court upon Plaintiff's Statement of
Errors (Doc. #7), the Commissioner's Memorandum in
Opposition (Doc. #12), Plaintiff's Reply (Doc. #13), 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 McHugh's non-disability decision.
asserts that he has been under a “disability”
since January 2, 2013. He was thirty-seven 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). He has at
least a high school education. See 20 C.F.R.
§§ 404.1564(b)(4), 416.964(b)(4).
testified at the hearing before ALJ McHugh that he had
bariatric surgery in 2009. (Doc. #6, PageID #93). At
his max, he weighed 433 pounds. Id. At the time of
the hearing, he weighed 265 pounds. Id. at 89-90.
“[T]he surgery initially went well but 1 started
hemorrhaging in the recovery room.” Id. at 93.
His doctors had to “take [him] back into surgery to see
why [he was] vomiting blood. Id. A month after his
surgery, he returned to the hospital “because the scar
tissue had covered the new stomach and I was unable to
August 2013, Plaintiff underwent surgery “to remove
scar tissue in hopes that would reduce the pain. The scar
tissue ended up coming back more aggressive.”
Id. at 92. A month after surgery, he spoke to his
surgeon, “and [the surgeon] basically busted out in
tears because he couldn't help me. He did all he could
…. [B]y that point I had four surgeries, including the
gastric bypass till that surgery in August, and he had hoped
that that would help me … as a last ditch effort and
… it didn't, and he apologized because he's in
a business of helping his patients and he couldn't help
me.” Id. at 99.
explained that he “never healed and the pain was worse
than before than ever ….” Id. His pain
is primarily located from his ribcage to the bottom of his
stomach. Id. at 103. On a scale from one to ten, he
estimated that pain level was typically seven. Id. A
few times a week, Plaintiff cannot “move because the
pain is so great.” Id. at 116. On average,
this pain occurs twenty of thirty days in a month.
Id. at 117.
takes several medications to reduce his pain: gabapentin (for
nerve damage), six-hundred milligrams three times a day;
oxycodone, thirty milligrams every four hours; and OxyContin,
twenty milligrams every twelve hours. Id. at 103.
November 2013, Plaintiff was involved in a car accident with
a tanker truck. Id. at 101. And, since the accident,
he has not been able to “consistently walk on [his] own
without [his] legs buckling. Id. He purchased a
cane-at his doctor's suggestion- to help him keep his
balance. Id. His doctor determined that he developed
bursitis in his hips and arthritis in his lower back.
Id. His treatment included both medication and
injections-but they were unsuccessful. Id.
suffers from depression and anxiety, and he has attempted
suicide more than once. Id. at 105. “[W]hen
the pain is at its highest level[, ] the depression gets
worse, [he] feel[s] worthless, and [he] constantly think[s]
about taking [his] own life because of it.”
Id. He also was diagnosed with schizophrenia and
bipolar disorder. Id. Further, “I hear voices
that constantly tell me to do things to myself
….” Id. He has anxiety and/or panic
attacks “sometimes once or twice a week.”
Id. at 110. During an attack, he has shortness of
breath, hears voices, feels like his head is cloudy, and
feels like he cannot think straight. Id.
time of the hearing, Plaintiff was seeing a therapist, Dr.
Lana at the Wellness Center, once every week or two weeks.
Id. at 106. His doctors have prescribed several
medications, including Geodon, clonazepam, and buspar.
Id. at 108, 110. “For the most part ...,
” his medication helps. Id. at 108.
typical day, Plaintiff spends the “bulk” of his
time in a recliner “trying to get comfortable.
Id. at 112. He watches “a couple hours”
of television. Id. He tries to read when his pain is
not too bad. Id. When his pain is at its highest
level, he does not do anything. Id. at 109. If he
has to shower, he has a shower chair or his mother helps him.
Id. at 112. He does not do any household chores.
Id. He tries to go to church as much as he can.
Id. at 113. He has visitors-his grandparents and
some friends. Id. Plaintiff has difficulty sleeping
because his pain wakes him up. Id. at 107. In an
average night, he sleeps about three hours. Id. He
has a driver's license but cannot “drive much
because of the pain.” Id. at 90. He usually
only drives a couple times a week. Id. at 91.
Plaintiff estimated that he could walk “about a block
if I'm lucky on a good day.” Id. at 104.
He cannot lift more than ten pounds and
“sometimes” has trouble lifting a gallon of milk.
K. Kevin Moffa, M.D.
January 2014, Plaintiff's treating physician, Dr. Moffa,
opined that Plaintiff “has difficulty doing most
activities due to pain levels. Id. at 924. Further,
he has severe limitations of functional capacity and is not
capable of minimum (sedentary) activity. Id. Dr.
Moffa completed interrogatories in November 2014.
Id. at 625. He reported that he has been
Plaintiff's primary care physician for ten years and has
treated him for the following medical problems: chronic
abdominal pain due to recurrent abdominal adhesions,
recurrent depression, anxiety, bipolar I, left hip pain, and
schizophrenia. Id. at 625-26. He opined that
Plaintiff was not able to be prompt and regular in attendance
because of “difficulty in getting ready due to pain
limiting ability for movement.” Id. at 626.
Further, due to his high pain level and mental stress, he is
unable to withstand the pressure of meeting normal standards
of work productivity and work accuracy. Id. at 627.
He cannot demonstrate reliability “due to fluctuating
pain levels [and] mood fluctuations.” Id.
Moffa opined that, as a result of Plaintiff's impairments
and/or treatment, he would be absent three times a month.
Id. at 632. Additionally, he could lift/carry ten
pounds occasionally and five pounds frequently. Id.
at 628. He can stand/walk for ten minutes at a time for two
hours total during an eight-hour workday. Id. He
must use a cane. Id. He can sit for thirty minutes
at a time for a total of four hours. Id. at 629.
Plaintiff can never climb or kneel and can occasionally
balance, stoop, crouch, and crawl. Id. He has
abdominal pain with reaching, pushing, and pulling and
speaking, and he has difficulty speaking when he has severe
pain or depression. Id. at 630. Dr. Moffa concluded
Plaintiff could not perform sedentary work. Id. at
Esberdado Villanueva, M.D. & Michael Delphia,
January 9, 2014, Dr. Villanueva reviewed Plaintiff's
records. Id. at 145-56. Dr. Villanueva opined that
Plaintiff could occasionally lift/carry up to twenty pounds
and frequently lift/carry up to ten pounds. Id. at
152. He could stand, walk and/or sit for six hours in an
eight-hour workday. Id. He could never climb
ladders, ropes, and scaffolds; could frequently balance and
climb ramps/stairs; and could occasionally stoop, crouch, or
crawl. Id. He should avoid concentrated exposure to
hazards. Id. at 153. Dr. Villanueva concluded
Plaintiff is not under a disability. Id. at 156.
Delphia reviewed Plaintiff's records on March 20, 2014
and confirmed Dr. Villanueva's assessment. Id.