United States District Court, S.D. Ohio, Western Division, Dayton
H. Rice, District Judge
REPORT AND RECOMMENDATIONS 
L. OVINGTON, UNITED STATES MAGISTRATE JUDGE
Robbin Thaxton brings this case challenging the Social
Security Administration's denial of her applications for
period of disability, Disability Insurance Benefits, and
Supplemental Security Income. She applied for benefits on
August 30, 2012, asserting that she could no longer work a
substantial paid job. Administrative Law Judge (ALJ) Emily
Ruth Statum concluded that she was not eligible for benefits
because she is not under a “disability” as
defined in the Social Security Act.
Appeals Council denied Plaintiff's request for review,
and she filed a previous action in United States District
Court for the Southern District of Ohio. See Thaxton v.
Comm'r of Soc. Sec., 3:15-cv-352, Doc. #s 8-9 (S.D.
Ohio April 21, 2016). Upon the parties' Joint Motion to
Remand to the Commissioner, the Court vacated the
Commissioner's decision and remanded the case pursuant to
sentence four of 42 U.S.C. § 405(g) for further
administrative proceedings. Id. Upon remand, ALJ
Gregory G. Kenyon determined that Plaintiff was not eligible
for benefits because she is not under a disability.
case is before the Court upon Plaintiff's Statement of
Errors (Doc. #8), the Commissioner's Memorandum in
Opposition (Doc. #11), Plaintiff's Reply (Doc. #12), and
the administrative record (Doc. #s 6-7).
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 Kenyon's non-disability decision.
asserts that she has been under a “disability”
since January 31, 2008. She 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), 416.963(c). She has since
turned fifty years old and is accordingly considered a person
“closely approaching advanced age.” See
Id. §§ 404.1563(d), 416.963(d). She has a
limited education. See Id. §§
testified at the hearing before ALJ Kenyon that she has an
extra vertebra in her lower back that pinches the nerves and
causes sharp pain in her lower back. (Doc. #7,
PageID #648-49). On a scale from one to ten, her
pain is at ten most of the time. Id. at 649. She
sometimes has to lie on the floor with her knees up to ease
the pain in her back. Id. at 648. Before she goes to
sleep, she gets into her Jacuzzi tub to help with the pain.
Id. at 649. It does not bother her as much when she
is sleeping and relaxed. Id. She also uses a heating
pad and takes over-the-counter medications. Id. at
650. She saw a chiropractor for two weeks but stopped because
it was causing her more pain. Id.
also has burning pain in her upper back between her shoulder
blades. Id. at 648-49. If she walks too far, she has
to stop and bend down on her knees to ease the pain.
Id. at 648.
Plaintiff has pain in her knees. Id. at 650. On a
ten-point scale, her knee pain is between six to seven.
Id. at 651. “I had bad … cartilage in
my kneecaps and my kneecaps will go from the front clear
around to the back and it brings me to the ground.”
Id. at 650. That usually happens once or twice a
month. Id. Her knees swell up about twice a day, and
she puts heat on them to reduce the swelling. Id. at
struggles with depression. Id. at 651. At least for
or five times a week, she “want[s] to sit and cry all
the time.” Id. She also isolates herself in
her room. Id. She sometimes has trouble interacting
with other people. Id. For example, she goes off on
her family three or four times a week “sometimes for no
reason at all.” Id. She has also gone off on a
person at the trailer park and people at the grocery store.
Id. at 652. She also hears voices and music at
nighttime four or five times per week. Id. at
only went to school through the eighth grade. Id. at
646. While in school, she was in special education classes.
Id. She cannot comprehend what she reads and
sometimes has trouble figuring out or pronouncing words.
Id. She struggles with helping her granddaughter-who
is in the first grade-with her homework. Id. She
also has trouble with math. Id. at 647.
lives with her husband, her thirty-year-old daughter, and
seven and thirteen-year old granddaughters in a doublewide
trailer. Id. at 644-45, 659-60. She also has two
adult sons. Id. at 644. She spends an ordinary day
sitting in her recliner with her feet propped up and a pillow
behind her back. Id. at 654-55. Her daughter does
the housework, laundry, and cleaning. Id. at 645.
The only chore Plaintiff does is make her bed-and that takes
her between twenty and thirty minutes because she has to take
breaks in between. Id. at 655-56.
has a driver's license and usually drives once or twice a
week. Id. at 645. She cannot lift anything heavier
than a gallon of milk. Id. at 653. She is able to
stand in one spot for five minutes before needing to sit
down. Id. at 654. She can walk around the block but
has to stop two or three times to bend down. This eases the
burning in her back. Id. She can sit for about
thirty minutes before she needs to stand up and walk around
for two to three minutes. Id. at 654, 656.
James Wilcher, D.O.
treating physician, Dr. Wilcher, provided several opinions.
In April 2015, he opined that Plaintiff is “unable to
work due to back pain.” Id. at 1030. A little
more than one year later, in May 2016, he indicated that
Plaintiff “is unable to work for 12 mo[nths].”
Id. at 1029.
October 2013 and October 2016, Dr. Wilcher completed
medical-impairment questionnaires with almost identical
responses. (Doc. #6, PageID #s 516-17); (Doc. #7,
PageID #s 1027-28). He diagnosed hypertension and
arthritis in her back, shoulder, and knees. (Doc. #6,
PageID #516); (Doc. #7, PageID #1027). She
experiences moderate pain in her back, shoulders, and knees
and her treatment includes NSAIDS and exercise. (Doc. #6,
PageID #516); (Doc. #7, PageID #1027).
Wilcher opined Plaintiff could stand for thirty minutes at
one time, sit for two hours, and work for four hours per day.
(Doc. #6, PageID #516); (Doc. #7, PageID
#1027). She can frequently lift ten pounds and can
occasionally bend, stoop, balance, and raise her arms over
shoulder level. (Doc. #6, PageID #s 516-17); (Doc.
#7, PageID #s 1027-28). She needs to elevate her
legs occasionally during an eight-hour workday. (Doc. #6,
PageID #516); (Doc. #7, PageID #1027).
Pravesh Patel, M.D.
Patel, Plaintiff's psychiatrist, completed a
mental-impairment questionnaire in February 2014. (Doc. #7,
PageID #s 827-30). He diagnosed depressive disorder,
anxiety disorder not otherwise specified (NOS), and mood
disorder. Id. at 827. She is responding well to
medication-Wellbutrin, Remeron, and hydroxyzine. Id.
at 828. However, her prognosis is guarded. Id.
Patel identified some of Plaintiff's signs and symptoms
including, for example, poor memory, sleep disturbance,
emotional lability, feelings of guilt/worthlessness,
perceptual disturbances, and decreased energy. Id.
at 827. She also has an anxious mood and affect, trouble
focusing, mood swings at times, and a tendency to get
irritable easily. Id. at 828. Dr. Patel opined that
Plaintiff's impairments and treatment would cause her to
be absent from work more than three times per month.
Id. at 829. And, Plaintiff's psychiatric
condition “will decrease [her] pain threshold.”
Id. at 828.
Patel opined that Plaintiff is markedly impaired in her
ability to carry out very detailed instructions, maintain
concentration and attention for extended periods, respond
appropriately to changes in the work setting, and complete a
normal workday and workweek without interruptions from
psychologically-based symptoms and perform at a consistent
pace without an unreasonable number and length of rest
periods. Id. at 829-30. She is moderately impaired
in most other areas, including for example, her ability to
perform activities within a schedule, maintain regular
attendance, be punctual within customary tolerances, make
simple work-related decisions, and set realistic goals or
make plans independently of others. Id.
Damian M. Danopulos, M.D.
Danopulos examined Plaintiff in December 2012. (Doc. #6,
PageID #s 346-56). His “objective findings
were: 1) Lumbar spine mild arthritic changes, 2) Cervical
spine arthralgias, 3) Left knee mild arthritic changes, 4)
Well-controlled hypertension, and 5) Exogenous versus morbid
obesity.” Id. at 349. He opined, “Her
ability to do any work-related activities is affected from
the combination of her lumbar spine and left knee early
arthritic changes and her cervical spine arthralgias. Her
well-controlled hypertension and her exogenous versus morbid
obesity are additional problems.” Id. at 350.
Mary Ann Jones, Ph.D.
January 2013, Dr. Jones evaluated Plaintiff and administered
the Weschler (WAIS-VI). Id. at 466-73. On the
WAIS-IV, Plaintiff received a full-scale intelligent quotient
of 64, a verbal comprehension index of 66, and working memory
index of 66- all of which fall into the mild range of mental
retardation. Id. at 470. Further, she achieved a
perceptual reasoning index of 75 ...