United States District Court, S.D. Ohio, Eastern Division
Michael H. Watson Judge
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE
Garth Morris filed this action seeking review of a decision
of the Commissioner of Social Security
(“Commissioner”) denying his Title II Disability
Insurance Benefits application. For the reasons that follow,
it is RECOMMENDED that Plaintiff's
Statement of Errors (Doc. 10) be OVERRULED,
and that judgment be entered in favor of Defendant.
filed an application for Title II benefits, alleging
disability onset on September 15, 2010. (Tr. 74, PAGEID #:
132; Tr. 206-07, PAGEID #: 264-65; Tr. 224, PAGEID #: 282)
Plaintiff's last-insured date is December 31, 2013. (Tr.
74, PAGEID #: 132). The agency denied Plaintiff's claims
initially and upon reconsideration (Tr. 143-45, PAGEID #:
201-03; Tr. 149- 55, PAGEID #: 207-13). Plaintiff filed a
Request for Hearing (Tr. 162-63, PAGEID #: 220- 21), and an
administrative hearing was held before Administrative Law
Judge Michael Hellman (the “ALJ”). (Tr. 87-125,
PAGEID #: 145-83). The ALJ denied Plaintiff's claim in a
decision issued on March 2, 2016. (Tr. 74-83, PAGEID #:
132-41). The Appeals Council denied Plaintiff's request
for review, adopting the ALJ's decision as the
Commissioner's final decision. (Tr. 1-6, PAGEID #:
filed this case (Doc. 1), and the Commissioner filed the
administrative record. (Doc. 9). Plaintiff filed a Statement
of Specific Errors (Doc. 10), the Commissioner responded
(Doc. 12), and Plaintiff filed a reply (Doc. 12).
Relevant Hearing Testimony
testified that he is claiming disability beginning on
September 15, 2010, and his physical pain and depression
began in 2008, the same year he was laid off. (Tr. 92-93,
PAGEID #: 150-51). Before that, from 1998 until 2008, he
worked as a semi-tractor and trailer driver, hauling glass
tubes. (Tr. 93, PAGEID #: 151). After he lost his job,
Plaintiff received unemployment benefits for a time and
searched for employment as a truck driver. (Tr. 94, PAGEID #:
152). He did not seek out other types of work. (Tr. 95,
PAGEID #: 153).
testified that he began receiving treatment for the pain in
his back and neck around 2009. (Id. (testifying that
treatment began “[s]omewhere in that area”)). He
had “severe” pain in his lower back that felt
like “a big knot at the bottom of [his] spine, ”
and a “grinding” in his neck. (Tr. 96, PAGEID #:
154). Plaintiff testified that in (or around) 2013, medical
providers took x-rays of his neck, back, hips, and knees.
(Id.). When asked why it took four years for x-rays
to be taken, Plaintiff did not know. (Tr. 98-99, PAGEID #:
156-57). Plaintiff testified, however, that during that
four-year period, medical providers prescribed pain
medication. (Tr. 99, PAGEID #: 157). In 2014, Plaintiff was
referred to a bone specialist and underwent testing. (Tr.
102, PAGEID #: 160). Plaintiff testified that “those
tests really don't show much.” (Tr. 103, PAGEID #:
his asthma, Plaintiff testified that he was diagnosed at age
16. (Tr. 104, PAGEID #: 162). He has never gone to the
emergency room with breathing complaints, and Plaintiff
testified that his asthma medication regimen is the same now
as when he was working. (Id.). He testified,
however, that he now gets winded more easily than he used to.
(Tr. 104-05, PAGEID #: 162-63).
testified that he also has “tremendous” pain in
his hips and back. (Tr. 105, PAGEID #: 163). That pain also
began around 2009. (Tr. 106, PAGEID #: 164). And, in 2013,
x-rays were taken. (Id.). Plaintiff testified that
he was in rehabilitation for about six weeks, but “it
was doing more harm than good”; after his sessions, he
“couldn't hardly walk.” (Tr. 107, PAGEID #:
165). He took medication and, “on occasion, ”
used a cane. (Tr. 108, PAGEID #: 166). Plaintiff estimated
that “on occasion” meant three times per week.
(Id.). Plaintiff testified that he needs to use the
cane to walk up his road, which is roughly 400 feet and at a
slight incline. (Tr. 108-09, PAGEID #: 166-67). Plaintiff
testified that this difficulty began in 2013. (Id.).
While giving this testimony, Plaintiff needed to take a break
to compose himself. (Tr. 109, PAGEID #: 167).
response to his lawyer's questioning, Plaintiff testified
that he has degenerative disc disease, hypertension,
osteoarthritis, and back spasms. (Tr. 111-13, PAGEID #:
169-71). He also testified that he struggled to sit
comfortably for more than 15 to 20 minutes. (Tr. 114, PAGEID
#: 172). At this point in the hearing, Plaintiff addressed
the ALJ, asking him if he'd noticed that Plaintiff had
been “shuffl[ing] around in his seat.”
(Id.). The ALJ responded no. (Id.).
Plaintiff testified that he can stand for “maybe a
half-hour.” (Id.). If he attempts to walk any
longer, he “would probably fall down.” (Tr. 115,
PAGEID #: 173). Plaintiff did not remember if a walking
assistive device was prescribed for him. (Tr. 114, PAGEID #:
172). With regard to climbing stairs, Plaintiff testified
that he has “to take them in sections, ” breaking
between every few stairs. (Tr. 115-16, PAGEID #: 173-74).
Plaintiff estimated that he can lift 50 pounds once and 20
pounds repeatedly. (Tr. 116-17, PAGEID #: 174-75). He cannot,
however, lift his arms above his head, and he has a weak
grip. (Tr. 117, PAGEID #: 175). Plaintiff testified that he
has good days and bad days; on a bad day, he needs to use a
motorized cart at the grocery store. (Id.). He also
testified that he cannot clip his own toenails. (Tr. 118,
PAGEID #: 176). Plaintiff told the ALJ that he would love to
go back to work and misses felling trees with his father,
like he used to do. (Tr. 119, PAGEID #: 177).
Relevant Medical Evidence
noted, Plaintiff's last-insured date is December 31,
2013. (Tr. 74, PAGEID #: 132). He accordingly must establish
disability on or before that date in order to be entitled to
a period of disability and disability benefits.
(Id.). The ALJ gave Plaintiff “the benefit of
[the] doubt, ” and considered medical evidence that
post-dates the last-insured date to find medically
determinable impairments of degenerative disc disease and
degenerative joint disease. (Tr. 78, PAGEID #: 136). This
Court does likewise. However, for the reasons explained
below, the undersigned does not consider evidence that was
not before the ALJ.
Degenerative Joint Disease and Degenerative Disc Disease
regards to Plaintiff's degenerative joint disease and
degenerative disc disease, the medical evidence shows routine
visits to his general practitioner for complaints of left arm
pain and shoulder pain from Plaintiff's alleged onset
date until his last-insured date. (See generally Tr.
266-78, PAGEID #: 324-36). During these visits, Plaintiff had
varying complaints of pain in his arm/shoulder, wrists, back,
and neck. (Id.).
19, 2010, for instance, he reported that he believed he may
have arthritis because all of his joints hurt. (Tr. 269,
PAGEID #: 327). He noted during that appointment that he
“[could not] find a job that suits him.”
(Id.). During that visit, he also reported mowing
the grass. (Id.). On November 11, 2010, Plaintiff
returned to his general practitioner for a blood pressure
check. (Tr. 270, PAGEID #: 328). During that visit, he told
nurse practitioner Donna Mayer that he was “unable to
find any work driving a truck” and he was
“financially a mess.” Plaintiff did not report
any complaints of joint pain. (Tr. 270, PAGEID #: 328). A
record dated January 17, 2011 shows, inter alia,
that Plaintiff had been having arm and shoulder pain for one
week, which was “keeping him awake at night”; he
had “intact grips equal and strong”; and Vicodin
and was prescribed. (Tr. 272, PAGEID #: 330).
a June 13, 2011 visit, Plaintiff presented with complaints of
joint pain in his shoulders and wrists and other joints,
including his low back and bilateral knees. (Tr. 274, PAGEID
#: 332). He reported that he took ibuprofen when the pain was
severe, but it did not really help. (Id.). The
musculoskeletal examination during this visit revealed
findings of tenderness but no evidence of swelling,
ecchymosis, or crepitus of the cervical spine, bilateral
shoulders, hips, or bilateral knees. (Id.). The
report revealed diagnoses of neck strain, shoulder strain,
knee pain, and joint pain. (Id.). Plaintiff was
prescribed Naproxen. (Id.).
19, 2011, Plaintiff stated was doing “pretty good,
” and that the sharp pain was gone. (Tr. 275, PAGEID #:
333). He reported that he was going to “hold off”
on getting x-rays. (Id.). The examination noted
tenderness of the lumbar spine but no evidence of swelling,
ecchymosis or crepitus of the bilateral shoulder.
year later, at a September 1 3, 2013 visit, Plaintiff
reported hip and ankle pain without associated numbness or
tingling in the extremities and denied any injuries to the
area. Plaintiff alleged having pain in his back, neck, and
shoulders. X-rays once again were recommended, but Plaintiff
reported that he did not have money for x-rays and did not
want to get them. (Tr. 276, PAGEID #: 334).
months later, in November of 2013, Plaintiff reported that
his pain was worsening. (Tr. 278, PAGEID #: 336).
Specifically, he reported having weak grip strength and
occasional muscle cramps. (Id.). He also reported
that he took 800 mg of ibuprofen three times a day as well as
Tramodol for pain relief. (Id.). Plaintiff noted
continued low back-pain, ankle, and knee pain.
(Id.). He described hearing a “grinding”
sound when he moved his neck and reported intermittent
“hot poking” pain in his left arm.
(Id.). An examination revealed tenderness but no
swelling, ecchymosis, or crepitus of the lumbar spine or
bilateral hips and knees. (Id.).
his last-insured date, in March 2014, Plaintiff had x-rays.
(Tr. 296, PAGEID #: 354). Those x-rays revealed
“[d]egenerative disc space narrowing” at ¶
4-C5 and, more so, at the C5-C6 level; and neural foramina
encroachment was seen at the C5-C6 level bilaterally.
(Id.). Plaintiff also had x-rays of the lumbar
spine, which revealed findings of spurring at the inferior
aspect of L4 and L5. (Tr. 301, PAGEID #: 359). An x-ray of
Plaintiff's shoulders at this same time showed
downsloping acromion variation that may impress upon the
rotator cuff, but “[n]o advanced degenerative changes,
” “[n]o AC joint widening or prominent soft
tissue calcifications, ” and “[n]o acute
bilateral shoulder abnormality.” (Tr. 305, PAGEID #:
363). Later diagnostic studies, in June 2014 and April 2015,
revealed “minor” osteoarthritis process in the
right hip and “mild” degenerative disc disease of
the lower lumber spine without significant stenosis. (Tr.
348, PAGEID #: 406; Tr. 363, PAGEID #: 421). These x-rays
revealed no other abnormalities in the left hip or knees.
(See generally Tr. 348, PAGEID #: 406; Tr. 350,
PAGEID #: 408; Tr. 352, PAGEID #: 410; Tr. 354, PAGEID #:
412; Tr. 362-63, PAGEID #: 420-21).
records show diagnosis for asthma and chronic obstruction
without asthmaticus. (Tr. 274, PAGEID #: 332). Treatment
reports have shown that Plaintiff had clear lungs to
auscultation bilaterally, with no dyspnea, wheezing, rales or
rhonchi. (Tr. 274-75, PAGEID #: 332-33; Tr. 307, PAGEID #:
365). While Plaintiff reported some distress during strenuous
activity, he denied shortness of breath, nausea, vomiting, or
diaphoresis. (Tr. 270, PAGEID #: 328; Tr. 272-74, PAGEID #:
330-32; Tr. 276, PAGEID #: 334). According to a March 19,
2014 spriometry report, the findings were within normal
limits. (Tr. 307, PAGEID #: 365).
The ALJ's Decision
found that Plaintiff met the insured status requirements
through December 31, 2013, and that he has not engaged in
substantial gainful activity since September 15, 2010. (Tr.
76, PAGEID #: 134). The ALJ determined that Plaintiff suffers
from the following severe impairments: “degenerative
disc disease, degenerative joint disease and asthma . . .
.” (Id.). At step three, the ALJ found that
Plaintiff did not have an impairment or a combination of
impairments that met or medically equaled the severity of any
of the impairments in the Listings of Impairments. (Tr. 77,
PAGEID #: 135). The ALJ found that Plaintiff retained the
residual functional capacity (“RFC”) to perform
light work, except he:
. . . could occasionally climb ladders, ropes, or scaffolds,
frequently climb ramps and stairs, stoop, crouch, kneel, and
crawl. . . . had to avoid concentrated exposure to humidity,
environmental irritants (such as fumes, odors, dusts and
gases), poorly ventilated areas, and chemicals. . . . [and]
had to avoid use of moving machinery and to unprotected
(Id.). At step four of the sequential evaluation,
the ALJ concluded that Plaintiff was not capable of
performing any of his past relevant work. (Tr. 81, PAGEID #:
139). At step five, the ALJ found that Plaintiff was not
disabled because there were a significant number of jobs in
the national economy which Plaintiff could perform, including
the jobs of cashier, inspector-packer, and assembler. (Tr.
82, PAGEID #: 140).
STANDARD OF REVIEW
42 U.S.C. § 405(g), “[t]he findings of the
[Commissioner] as to any fact, if supported by substantial
evidence, shall be conclusive. . . .”
“[S]ubstantial evidence is defined as ‘more than
a scintilla of evidence but less than a preponderance; it is
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.'” Rogers v.
Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.
2007) (quoting Cutlip v. Sec'y of HHS, 25 F.3d
284, 286 (6th Cir. 1994)). The Commissioner's findings of
fact must also be based upon the record as a whole.
Harris v. Heckler, 756 F.2d 431, 435 (6th Cir.
1985). To that end, the Court must “take into account
whatever in the record fairly detracts from [the]
weight” of the Commissioner's decision. Rhodes
v. Comm'r of Soc. Sec., No. 1:13-cv-1147, 2015 WL
4881574, at *2 (S.D. Ohio Aug. 17, 2015).