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Worden v. Commissioner of Social Security

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

June 10, 2019

DANIEL WORDEN, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ALGENON L. MARBLEY JUDGE

          REPORT AND RECOMMENDATION

          ELIZABETH A. PRESTON DEAVERS CHIEF UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Daniel Worden, 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 application 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. 12), the Commissioner's Memorandum in Opposition (ECF No. 15), and the administrative record (ECF No. 10). Plaintiff did not file a Reply. For the reasons that follow, it is RECOMMENDED that the Commissioner's non-disability finding be REVERSED and the case REMANDED under Sentence Four of § 405(g).

         I. BACKGROUND

         On June 27, 2013, Plaintiff protectively filed an application for disability insurance benefits and on March 30, 2015, he filed an application for supplemental security income, alleging that he had been disabled since June 7, 2013. (R. at 11, 243-55.) Plaintiff's applications were denied initially and upon reconsideration. (R. at 141-47, 153-64.) Plaintiff sought a de novo hearing before an administrative law judge. (R. at 165-66.) Administrative Law Judge (“ALJ”) Timothy G. Keller held a hearing on April 18, 2017, at which Plaintiff, who was represented by counsel, appeared and testified. (R. at 30-55.) On September 5, 2017, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 11-23.) On April 26, 2018, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (R. at 1-3.) Plaintiff then timely commenced the instant action.

         II. HEARING TESTIMONY[1]

         A. Plaintiff's Testimony

         Plaintiff testified at the administrative hearing that he is 45 years old and divorced with two children. (R. at 36.) Plaintiff attended school through the tenth grade when he dropped out to start working. (R. at 36-37.) Plaintiff started working for Ace Blacktop in 1991 or 1992, driving a dump truck and trailer and tearing out concrete and asphalt driveways, which included a lot of heavy physical lift work. (R. at 39, 41-42.) In 2011, he was injured on the job and his friends had to carry him out of the truck. (R. at 37.) Plaintiff has no worker's compensation claim. (Id.) He receives income from Child and Family Services (approximately $115 monthly), food assistance (approximately $195 monthly), and Medicaid, which pays for his doctor visits and prescriptions. (R. at 42.)

         Plaintiff testified that he had back surgery in 2013 and was told that there was nothing else they could do for him because he had osteoarthritis. (R. at 35.) Plaintiff previously received pain management through Gregory M. Figg, M.D.'s office, but the relationship was terminated after marijuana was detected in Plaintiff's system. (R. at 43-45.) Plaintiff experiences sleep disturbances due to pain even though he takes pain medication. (R. at 45.)

         Plaintiff lives with a female friend with whom he is not romantically involved and pays her $115 for a room. (R. at 45-46.) His bedroom is on the second floor of the apartment and he tries to stay up there because walking on the stairs is painful. (R. at 46.) He drives only when necessary and drove to the administrative hearing. (Id.) Plaintiff uses a cane at times, testifying as follows:

Q This cane that you walk with, was that ever prescribed by a health care provider?
A Sharon [phonetic], my primary care physician - Q Nurse practitioner -- A Told me that I should use one because sometimes, my legs get weak.
ALJ: That's not exactly a prescription.
ATTY: Not exactly a prescription, but --
CLMT: It helps. It helps.
ALJ: You need it?
CLMT: Yeah. Today I- - yeah.

(R. at 46-47.)

         B. Vocational ...


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