United States District Court, S.D. Ohio, Western Division, Dayton
M. Rose District Judge
REPORT AND RECOMMENDATIONS 
L. Ovington United States Magistrate Judge
Plaintiff Daphne Davis worked for many years in the
food-service industry, she began having significant problems
with her right knee. Unfortunately, conservative treatments
were unsuccessful and she underwent a total knee replacement.
After surgery, Plaintiff was unable to continue working
fulltime and applied for period of disability, Disability
Insurance Benefits, and Supplemental Security Income. Her
claims were denied initially and upon reconsideration. After
a hearing, Administrative Law Judge (ALJ) Emily Ruth Statum
concluded that Plaintiff 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. Upon the
parties' Joint Motion to Remand, 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. See Davis v. Commissioner of
Social Security, 3:16cv11 (S.D. Ohio July 11, 2016)
remand, Plaintiff achieved partial success: ALJ Elizabeth A.
Motta found that she was under a disability beginning on
April 20, 2016 but was not disabled within the meaning of the
Social Security Act prior to that date. Thus, only the period
of time between June 18, 2012 and April 20, 2016 is at issue
in this case.
case is before the Court upon Plaintiff's Statement of
Errors (Doc. #13), the Commissioner's Memorandum in
Opposition (Doc. #14), Plaintiff's Reply (Doc. #15), and
the administrative record (Doc. #10).
asserts that she has been under a “disability”
since June 8, 2012. She was forty-six 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). On April 21, 2016,
Plaintiff turned fifty years old and was accordingly a person
“closely approaching advanced age.” See
Id. §§ 404.1563(d), 416.963(d). She has a
ninth-grade-or “limited”-education. See
Id. §§ 404.1564(b)(3),
testified at the hearing before ALJ Motta that she has had
four knee surgeries, including a total knee replacement and
cyst removal. (Doc. #10, PageID #1846). She had
knee-replacement surgery in 2012 and “it's been a
problem since.” Id. at 1847. She is not able
to walk normally, she has back and knee pain, and she cannot
fully straighten her leg. Id. at 1851. After
surgery, Plaintiff attended physical therapy until her
insurance stopped covering it. Id. at 1859. She
wanted more physical therapy because it helped straighten her
still has swelling in her knee and leg. She was prescribed
special stockings to eliminate swelling. Id. at
1860. Three or four years before the hearing, her family-care
doctor, Dr. Brown, prescribed a cane because of
Plaintiff's difficulty walking and so that she would not
fall. Id. at 1847. Luckily, she has not fallen
because she always uses her cane. Id. at 1861.
Plaintiff also uses a brace to help her walk. Id. at
1860. At the grocery store, she uses an electric cart because
she does not want to fall.
addition, Plaintiff has problems with her left shoulder. She
had surgery to repair a torn ligament in it in November 2016,
about a month before the hearing. Id. at 1850. It
was still sore at the hearing. Id.
has sciatic nerve problems that cause pain in her mid-back.
Id. at 1848. As a result, she has trouble sitting in
hard chairs. Id. Fortunately, her work gave her a
soft chair to sit in. Id. Plaintiff takes Percocet
for pain and has had cortisone shots in the past.
Id. at 1850.
has sleep apnea and has to use a CPAP machine every night.
Id. at 1848-49. She also has some breathing problems
and uses inhalers and a breathing machine. Id. at
struggles with depression. Her former doctor prescribed her
medication. Id. at 1851. However, he stopped
accepting CareSource, her health insurance. At the time of
the hearing, she was seeing Victoria Brookshire, a nurse
practitioner in Huber Heights. Id. at 1849.
Plaintiff believes she will prescribe medications in the
future. Id. at 1851. Plaintiff sought some treatment
from Samaritan Behavioral Health but has not been there since
2014. Id. at 1852.
lives in an apartment with her 18-year-old daughter.
Id. at 1841. She usually drives to her part-time job
three times a week. Id. If she needs to go anywhere
else, her mother drives her. Id. at 1841-42.
Plaintiff does not leave her apartment as much as she used to
but her mother and sister try to get her out when they can.
Id. at 1856. She visits with them and goes to church
on Sundays. Id. at 1856-57. When asked if she had a
significant other, boyfriend, or anything like that,
Plaintiff responded, “Not really. I don't call him
that.” Id. at 1856.
the day, she reads her Jehovah book, watches TV, and plays
games on her phone. Id. at 1857-58. She is generally
able to use a computer. Id. at 1857. After her
shoulder surgery, she had to use a long stick to help her
type so that she did not have to move her arm. Id.
She can take a bath or shower but it was more difficult after
her shoulder surgery. Id. After surgery, she had a
“home care lady” helping her but her doctor told
her they were too much. For the most part, Plaintiff can
dress herself. Id. at 1857. She has trouble putting
on stockings. Id. At the time of the hearing, her
sister helped her get dressed for work. Id. Her
daughter does most of the chores around the apartment,
including preparing meals and doing laundry. Id. at
1855-56. Plaintiff is able to go to the store but uses an
electric cart. Id. at 1856.
has worked at many restaurants. For example, she worked at
KFC as a shift manager and assistant manager. Id. at
1843. She also worked for Golden Corral, Taco Bell, Lee's
Famous Recipe, and Wendy's. Id. at 1844. At the
time of the hearing, she was working as a receptionist at
Extended Stay America. Id. at 1845. She usually
worked about 8 hours a day, 3 days a week, for a total of 23
to 24 hours. Id. at 1845, 1854. She checks people in
and directs them to their rooms. Id. at 1884. She
spends most of her time at work sitting. Id. at
1854. However, she cannot sit continuously for hours at a
time and has to get up and move around a little bit before
sitting back down. Id. at 1859. If her employer
offered her more hours, she would not take them because she
does not think she would be able to work more. Id.
She has to go to work in pain because she cannot take her
medications and be able to function. Id. When she
gets home, she takes her medication to make it through the
rest of the day. Id. at 1860.
Morris Brown, M.D.
primary-care physician, Dr. Brown, completed a medical
functional capacity assessment and a basic medical assessment
in September 2011 (almost a year before Plaintiff's
amended alleged onset date). He opined that Plaintiff was
markedly limited in every functional category. Id.
at 2545. He indicated that she had a right meniscal tear that
required surgery. Id. at 2546. Her health status was
poor but stable. Id. He concluded that her
limitations were expected to last twelve or more months and
Plaintiff was unemployable. Id. at 2545.
January 21, 2014, Dr. Brown indicated in his treatment notes
that Plaintiff reported sharp pain in her lumbar spine and
right knee. Id. at 1556. The pain interfered with
her sleep and work. Id. It was present for more than
twelve months. Id. Dr. Brown concluded that she