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Stepp v. Commissioner of Social Security Administration

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

July 26, 2019

LYDIA J. STEPP, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          Sarah D. Morrison, Judge

          REPORT AND RECOMMENDATION

          ELIZABETH A. PRESTON DEAVERS CHIEF UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Lydia J. Stepp (“Plaintiff”), brings this action under 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her application for Supplemental Security Income benefits (“SSI”). This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 13), the Commissioner's Memorandum in Opposition (ECF No. 18), Plaintiff's Reply (ECF No. 19), and the administrative record (ECF No. 9). For the following reasons, it is RECOMMENDED that the Court REVERSE the Commissioner's nondisability finding and REMAND this case to the Commissioner and the ALJ under Sentence Four of § 405(g).

         I. BACKGROUND

         Plaintiff applied for Supplemental Security Income benefits on March 27, 2015. (R. at 193-98.) Plaintiff's claim was denied initially and upon reconsideration. (R. at 144-55.) Upon request, a hearing was held on April 26, 2017 in which Plaintiff, represented by counsel, appeared and testified. (R. at 39-79.) A vocational expert also appeared and testified at the hearing. (R. at 71-77.) On November 7, 2017, Administrative Law Judge Timothy Gates (“the ALJ”) issued a decision finding that Plaintiff was not disabled at any time after February 12, 2015, the alleged onset date. (R. at 9-35.) On May 11, 2018, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (R. at 1-6.) Plaintiff then timely commenced the instant action. (ECF No. 3.)

         II. HEARING TESTIMONY

         A. Plaintiff's Testimony

         Plaintiff testified that her boyfriend is Roy Ankrom and she lives with him and his mother, Norma Ankrom. (R. at 48, 59.) Plaintiff stated that Norma does the housework, cooking, and cleaning. (R. at 57.) Plaintiff further stated that her typical day involves waking up, taking her medications, taking a shower, taking the dog outside, and then sitting in front of the television for the rest of the day. (R. at 58-59.) She also stated that she has never had a driver's license. (R. at 62.) Plaintiff testified that the highest grade level she completed in school was the ninth grade and she did not try to get her GED. (R. at 48.) Plaintiff stated that she does not do any reading and that her reading level during school was a second grade level. (R. at 48-49.) Plaintiff further stated that she was in special education classes for all school subjects. (R. at 49.) Plaintiff testified that she has never worked a day in her life because she has “been sick all [her] life and [has] been getting SSI” since she was fifteen-years-old. (Id.)

         Plaintiff stated that at age nineteen she had surgery because her gallbladder and appendix ruptured. (R. at 49-50.) Plaintiff testified that her wound from that surgery “came back open.” (R. at 50.) Plaintiff further testified she is currently being treated for the wound. (Id.) Plaintiff stated that the wound affects her “if [she tries] to get stuff over the top of [her] head or something, it stretches it and it pulls the skin more open and it starts bleeding.” (R. at 51-52.) Plaintiff also stated that if she lifts more than five or six pounds it is “too heavy” and “stretches her wound.” (R. at 54-55.) Plaintiff later testified that there are two holes that remain open in her stomach and puss will come out of them. (R. at 67.)

         Plaintiff also testified that her medication makes her “sleep all the time.” (R. at 52.) She further testified that she has been using an inhaler for about two years and that her breathing problems get worse when she walks. (Id.) Plaintiff stated that she has had problems with her knees that affect walking and sitting. (Id.) Additionally, Plaintiff stated that she has back pain that “goes down to [her] right knee . . . clear down [her] leg and [her] hip.” (R. at 53.) Plaintiff also testified that she has schizophrenia and does not like to be around people or be in elevators. (Id.) Plaintiff further testified that she gets migraine headaches three to four times a month. (R. at 68.)

         Plaintiff testified that she has six living children and sixteen grandchildren, with the sixteenth grandchild still in utero at the time of the hearing. (R. at 70.) Plaintiff further testified the fifteenth grandchild was eight months old at the time of the hearing and she could not hold him because he was too heavy. (R. at 71.)

         B. Vocational Expert Testimony

         Jerry O'Chesky testified as the vocational expert (“VE”) at the April 2017 hearing. (R. at 41.) The ALJ asked the VE to assume a hypothetical individual with the same age and education as Plaintiff who could occasionally climb ramps and stairs; but never climb ladders, ropes or scaffolds; who could occasionally balance, kneel, crouch, and crawl; who could frequently stoop; who could not have any exposure to workplace hazards such as unprotected heights or moving mechanical parts; who is limited to performing simple, routine tasks; who can have occasional interaction with supervisors and coworkers but no interaction with the general public; who can adapt to routine changes in the workplace; and must have a workplace where there is only moderate time and production demands. (R. at 72.) Assuming those limitations, the VE testified that the individual could perform light, unskilled work such as a cleaner at the light, unskilled level; a light, unskilled hand packer; and a light, unskilled inspector. (R. at 73.)

         The ALJ then asked the VE to assume a hypothetical individual with the same age and education as Plaintiff who is limited to work at a sedentary exertional level; who can stand and walk up to two hours in an eight-hour workday; who can sit for up to six hours in an eight-hour workday; who can lift and carry up to ten pounds occasionally and less than ten pounds frequently; with the same postural, environmental, and mental limitations as the previous hypothetical. (Id.) Assuming those limitations, the VE testified that the individual could perform work in sedentary, unskilled occupations such as an assembler at the sedentary, unskilled level; sorter at the sedentary, unskilled level; or inspector at the sedentary, unskilled level. (R. at 74.)

         The ALJ then asked the VE to assume a hypothetical individual with the same age and education as Plaintiff and the same limitations as in either the first or second hypothetical, but in addition the individual would be absent from work two days per month. (Id.) Assuming those limitations, the VE testified that the individual could not work because “with that rate of absenteeism . . . most employers are eventually going to terminate that worker.” (R. at 75.)

         The VE next testified that assuming a hypothetical individual with the Plaintiff's age and education who in an eight-hour workday could sit for an hour and a half to two hours and would only occasionally be able to perform activities within a schedule, this individual would not be able to do competitive work. (R. at 75.) The VE further testified that assuming the first or second hypothetical, but adding limitations that the individual would not be able to do any overhead reaching, would not be able to extend their arms forward, and would have to sit in a position that would cause them to either sit back into a chair or in another position to take pressure off their abdomen, then this individual would not be able to perform any of the jobs provided for the first or second hypotheticals. (R. at 75-76.)

         III. RELEVANT RECORD EVIDENCE

         Norma Ankrom provided a statement regarding Plaintiff on April 20, 2017:

My name is Norma Ankrom and [I am] the home owner where Lydia Stepp is now living. Lydia's health is getting worse all the time. On Easter Sunday her son Bobby came to our house with his 2 children[.] His little Girl wanted to sit on grandma's lap. Lydia couldn't let her[.] She is three years old, but Lydia couldn't hold her[] as it is too painful on her stomach; where she had surgery last October.
The wound is still open in a couple of places. Lydia has a hard time reaching up into the bathroom and kitchen cupbords [sic] as it pulls on her stomach. The other child Bobby brought to the house is a little boy who weights [sic] about 17 pounds. Lydia cried when they left because she wanted to hold the baby; but the pain was to [sic] much on her back. When we go shopping; Lydia is always asking me to get something for her. If she trys [sic] to get it for [herself], she has pains shooting up her legs and into her back.
Lydia can't be out an[d] about for very long; as her knees give out and she does[n]'t want to fall. Lydia fell in the house about three weeks ago[] and [I] couldn't get her up. I called a ...

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