United States District Court, S.D. Ohio, Western Division, Dayton
H. Rice District Judge.
REPORT AND RECOMMENDATIONS
L. Ovington United States Magistrate Judge.
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
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).
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
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).
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.
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.
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.
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
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.
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.
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.
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.
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.