United States District Court, S.D. Ohio, Eastern Division
ALGENON L. MARBLEY JUDGE
REPORT AND RECOMMENDATION
ELIZABETH A. PRESTON DEAVERS CHIEF UNITED STATES MAGISTRATE
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 §
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.
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.)
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.)
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.)