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Marlow v. Commissioner of Social Security Administration

United States District Court, S.D. Ohio, Western Division, Dayton

July 19, 2018


          Walter H. Rice District Judge.


          Sharon L. Ovington United States Magistrate Judge.

         I. Introduction

         Plaintiff Jeffrey Marlow brings this case challenging the Social Security Administration's denial of his application for period of disability and Disability Insurance Benefits. He applied for benefits on July 25, 2013, asserting that he could no longer work a substantial paid job. Administrative Law Judge (ALJ) Mark Hockensmith concluded that he was not eligible for benefits because he is not under a “disability” as defined in the Social Security Act.

         The case is before the Court upon Plaintiff's Statement of Errors (Doc. #6), the Commissioner's Memorandum in Opposition (Doc. #9), Plaintiff's Reply (Doc. #10), and the administrative record (Doc. #5).

         Plaintiff 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 Hockensmith's non-disability decision.

         II. Background

         Plaintiff asserts that he has been under a “disability” since January 14, 2013. He was forty-three years old at that time and was therefore considered a “younger person” under Social Security Regulations. See 20 C.F.R. § 404.1563(c). He has a high school education. See 20 C.F.R. § 404.1564(b)(4).

         A. Plaintiff's Testimony

         Plaintiff testified at the hearing before ALJ Hockensmith that he had his first back surgery in 2004. (Doc. #5, PageID #82). After that surgery, he was able to return to work-at GM and then Caterpillar. Id. Although his back bothered him, he only needed muscle relaxers and “was usually able to get by.” Id. at 82-83.

         Unfortunately, Plaintiff's back condition deteriorated in January 2013. After a day of heavy lifting, he came home from work and was watching his grandson. Id. at 80. While his grandson was on the steps, Plaintiff reached forward to grab him and fell to the ground. Id. He had “never been in that much pain.” Id. at 81. When his pain did not get better the next day, paramedics needed a flat board to get him out of his house. Id.

         In March 2013, Plaintiff underwent neck surgery. Id. at 83. “I wish I would [have] never had it, because I have a feeling that … I probably would have been at least … able to get by like I was … before this second … fusion.” Id. at 84. He feels “bent over all the time … and all this pressure.” Id. His surgeon, Dr. Glickman, indicated that he was progressing as planned but Plaintiff did not agree. Id. at 85. He could not put any weight on it for a couple of weeks and he was still using a walker when he returned to Dr. Glickman. Id. He jarred his back by merely stepping into a low spot in his yard. Id. And, he “fell a couple of times due to my back basically going out because of a jar.” Id. After Plaintiff fell, he began using a cane for safety. Id. at 94. He does not need it to walk. Id. He did have a back brace but he does not use it very often anymore. Id. at 95. He tried physical therapy but when he reported falling, the physical therapist ended his sessions. Id. at 86. When he later returned to physical therapy, she again stopped his therapy-this time because of his pain. Id.

         In his back, Plaintiff explained that he has pressure that “feels like … a baseball or something that's in the bottom of my back, all the time.” Id. at 87. He has the pressure all the time and, “the more I stay in one position, the worse it gets.” Id. If he does too much, then he also experiences shooting pains. Id. “And, a lot of times, my back feels like it's going to go out again, … I feel that pinched off thing where if I don't sit down and, or lay down, I'm going to be on the ground again. And … a lot of times that comes from repetitive motion.” Id. at 88. “Repetitive bending definitely causes something to swell up and pinch a nerve ….” Id.

         Plaintiff tried a spinal cord stimulator and it helped. Id. at 88. But, he was not approved to use it. Id. He would prefer using it over narcotics. Id. at 89. His pain management physician, Dr. Marar, wants him to try a pain pump. Id. At the time of the hearing, Plaintiff was taking a muscle relaxer, Percocet, and ibuprofen. Id. At 90. Percocet causes him to be drowsy-to the extent that if he knows he has to drive, he will not take it. Id.

         Plaintiff has the most problems with his right leg but he has had issues with his left leg as well. Id. at 86. He has “a lot of numbness. A lot of tingling. Pain shooting down the upper part of my leg.” Id. He has the numbness and tingling all of the time. Id. at 86-87.

         Plaintiff struggles with depression and anxiety. Id. at 91. He saw a counselor in 2013 and at the time of the hearing, he was seeing Dr. Bishop and had for a couple months. Id. at 95. He has difficulty sharing personal information: “I've never been really too much into … sharing everything … and kind of always went with the theory I can … fix things myself.” Id. at 96. Dr. Bishop prescribes Wellbutrin and medication to help Plaintiff sleep. Id.

         Plaintiff lives in a house with his wife. Id. at 75. At the time of the hearing, they were selling the house because they wanted to downsize and because climbing stairs was difficult with Plaintiff's back problems. Id. On an average day, he spends half of his time lying down-either in bed or on the couch. Id. at 98. During the day, he spends the majority of his time on his couch. Id. at 97. After he takes his medications, he sometimes falls asleep for up to an hour. Id. at 99. Plaintiff explained that he used to help a little more with housework. Id. at 92-93. Now, he can only do little stuff around the house like load the dishwasher. Id. at 93. He still tries to mow their two-acre yard. Id. However, he has to mow in thirty-minute increments and a lot of times, he needs someone else to help him finish. Id.

         Plaintiff has a driver's license and usually drives once or twice per day. Id. at 76. When he has to sit up straight-in a car or anywhere-his back starts to get stiff after just ten minutes, “a lot of pressure” builds up, and he has to change positions. Id. at 76-77. After thirty minutes of sitting, he has to get up, walk around, or lie down. Id. at 78. Lying down with a pillow under his knees helps him the most. Id. Plaintiff has difficulty sleeping because he wakes up often to change positions. Id. at 77.

         B. Medical Opinions

         i. ...

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