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Howard v. Commissioner of Social Security

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

February 14, 2018

RODNEY DALE HOWARD, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MICHAEL H. WATSON JUDGE

          REPORT AND RECOMMENDATION

          CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Rodney Dale Howard (“Plaintiff”), 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. 9), the Commissioner's Memorandum in Opposition (ECF No. 15), Plaintiff's Reply (ECF No. 16), and the administrative record (ECF No. 7). For the reasons that follow, the undersigned RECOMMENDS that the Court REVERSE the Commissioner of Social Security's non-disability finding and REMAND this case to the Commissioner and the ALJ under Sentence Four of § 405(g) for further consideration consistent with this Report and Recommendation.

         I. BACKGROUND

         Plaintiff protectively filed his applications for disability insurance benefits and supplemental security income on November 1, 2012, alleging that he has been disabled since June 9, 2011, due to a combination of physical and mental impairments. On January 8, 2015, following initial administrative denials of Plaintiff's application, an administrative hearing was held by videoconference before Administrative Law Judge Joel Fina (the “ALJ”). (ECF No. 7-2 at PAGEID ##47-57.) The ALJ issued a decision on February 11, 2015, concluding that Plaintiff was not disabled. (Id. at PAGEID #57.) On May 2, 2016, the Appeals Council denied Plaintiff's request for review and affirmed the ALJ's decision. Plaintiff then timely filed this action for review. (ECF No. 1.)

         In his Statement of Errors, Plaintiff challenges the residual functional capacity (“RFC”)[1]the ALJ assessed on three grounds. First, Plaintiff contends that the ALJ failed to adequately account for his mental limitations. Second, he contends that the ALJ erred by discounting the opinion of treating physician Dr. Carl E. Otten, M.D., in favor of the opinion of Medical Expert Dr. Ashok Jilhewar, M.D., and, relatedly, by failing to consider the factors set forth in 20 C.F.R. § 404.1527d(c) in evaluating Dr. Otten's opinion. Third, he contends that the ALJ erred by failing to include the use of a cane in the RFC.

         The undersigned finds Plaintiff's first contention of error to be well taken. This finding obviates the need for in-depth analysis of Plaintiff's remaining assignments of error. The undersigned therefore limits discussion to record evidence bearing on Plaintiff's first contention of error.

         II.RELEVANT RECORD EVIDENCE

         A. Hearing Testimony

         Plaintiff, represented by counsel, appeared at the hearing and testified. Plaintiff testified that he has not been able to work since October 2012 because of leg pain, anxiety, and depression. (ECF No. 7-2 at PAGEID #71.) Plaintiff also testified that he now watches television and hides in his room most of the day and that he sometimes experiences a panic attack in the morning. With respect to his depression and anxiety, Plaintiff testified that he is nervous and has panic attacks when he is around groups of people. (Id. at PAGEID #78-79.) He testified that he also has panic attacks at home and that he does not know what brings them on. (Id. at PAGEID #80.) He testified that he takes Lexapro and Xanax for his depression and anxiety. (Id. at PAGEID #78.)

         Vocational expert Dr. Timothy Tansey (the “VE”) also appeared and testified at the administrative hearing. The VE testified that a hypothetical individual of Plaintiff's age, education, and work experience who retained the RFC that the ALJ ultimately assessed could not perform Plaintiff's past work, but could perform other jobs that exist in significant numbers in the national economy. He identified the following representative jobs, all of which have a Specific Vocational Preparation (“SVP”) level of 2 and are performed at the sedentary level of exertion: washroom operator, addresser, grinder, operator, and stringing-machine tender. (Id. at PAGEID ##102-03.) Upon cross-examination, the VE testified that being off task more than ten percent of the day or limiting the work week to only twenty hours would preclude competitive employment.

         B. The ALJ's Decision

         The ALJ issued his decision on February 11, 2015. He found that Plaintiff was not disabled within the meaning of the Social Security Act. (Id. at PAGEID# 60-69.) At step one of the sequential evaluation process, [2] the ALJ found that Plaintiff had engaged in substantial gainful activity during the period from April through October of 2012, meaning that Plaintiff could not establish that he was disabled during the period from his June 2011 injury to the time he returned to work in April 2012 because twelve months had not elapsed. (Id. at PAGEID #49.) The ALJ focused the remainder of his analysis on the period beginning on October 17, 2012, when Plaintiff left work for the last time. (Id. at PAGEID #50.)

At steps two and three, the ALJ found that, through the application date, Plaintiff had the severe impairments of “status post work related injuries to the left knee including a left tibial plateau fracture (durationally non-severe), complex tear of the medial meniscus, patellar tendinitis and patellofemoral syndrome, anxiety, and depression.” (Id.) The ALJ further found that Plaintiff did not have any impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments as described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at PAGEID #63.)

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

[T]he claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except that Claimant is limited to lifting up to 10 pounds occasionally and 5 pounds frequently; standing or walking two hours per eight hour period and sitting for up to six hours per eight hour period, with normal breaks. Claimant can never operate foot controls with the left lower extremity. He can never climb ladders, ropes or scaffolds. Claimant can occasionally climb ramps or stairs; balance, stoop, and crouch. Claimant can never kneel or crawl. He must avoid concentrated exposure to unprotected heights. The claimant is further limited to simple work involving no strict production rate requirements such as that which would be requires [sic] for an assembly line worker. Claimant may have only occasional interaction with the public, coworkers and supervisors.

(Id. at PAGEID #51.) The ALJ indicated that “[t]he non-exertional limitations arising from [Plaintiff's] depression and anxiety assessed in the above residual functional capacity are consistent with the ...


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