United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. LITKOVITZ, UNITED STATES MAGISTRATE JUDGE
Jeffrey Wayne Brown brings this action pursuant to 42 U.S.C.
§ 405(g) for judicial review of the final decision of
the Commissioner of Social Security
("Commissioner") denying his application for
disability insurance benefits ("DIB"). This matter
is before the Court on plaintiffs statement of errors (Doc.
8), the Commissioner's response in opposition (Doc. 13),
and plaintiff s reply memorandum. (Doc. 14).
protectively filed his application for DIB on April 28, 2015,
alleging disability since May 25, 2011, due to herniated
disc, degenerated disc and sciatic nerve. The application was
denied initially and upon reconsideration. Plaintiff, through
counsel, requested and was granted a de novo hearing
before administrative law judge ("ALJ") Donald G.
D'Amato. Plaintiff and a vocational expert
("VE") appeared and testified at the ALJ hearing
via video conference on October 19, 2017. On December 15,
2017, ALJ D'Amato issued a decision denying plaintiffs
DIB application. Plaintiffs request for review by the Appeals
Council was denied, making the decision of ALJ D'Amato
the final decision of the Commissioner.
Legal Framework for Disability Determinations
qualify for disability benefits, a claimant must suffer from
a medically determinable physical or mental impairment that
can be expected to result in death or that has lasted or can
be expected to last for a continuous period of not less than
12 months. 42 U.S.C. § 423(d)(1)(A). The impairment must
render the claimant unable to engage in the work previously
performed or in any other substantial gainful employment that
exists in the national economy. 42 U.S.C. § 423(d)(2).
promulgated by the Commissioner establish a five-step
sequential evaluation process for disability determinations:
1) If the claimant is doing substantial gainful activity, the
claimant is not disabled.
2) If the claimant does not have a severe medically
determinable physical or mental impairment - i.e.,
an impairment that significantly limits his or her physical
or mental ability to do basic work activities - the claimant
is not disabled.
3) If the claimant has a severe impairment(s) that meets or
equals one of the listings in Appendix 1 to Subpart P of the
regulations and meets the duration requirement, the claimant
4) If the claimant's impairment does not prevent him or
her from doing his or her past relevant work, the claimant is
5) If the claimant can make an adjustment to other work, the
claimant is not disabled. If the claimant cannot make an
adjustment to other work, the claimant is disabled.
Rabbers v. Comm'r of Soc. Sec, 582 F.3d 647, 652
(6th Cir. 2009) (citing 20 C.F.R. §§
404.1520(a)(4)(i)-(v), 404.1520(b)-(g)). The claimant has the
burden of proof at the first four steps of the sequential
evaluation process. Id.; Wilson v. Comm'r of Soc.
Sec., 378 F.3d 541, 548 (6th Cir. 2004). Once the
claimant establishes a prima facie case by showing an
inability to perform the relevant previous employment, the
burden shifts to the Commissioner to show that the claimant
can perform other substantial gainful employment and that
such employment exists in the national economy.
Rabbers, 582 F.3d at 652; Harmon v. Apfel,
168 F.3d 289, 291 (6th Cir. 1999).
The Administrative Law Judge's Findings
applied the sequential evaluation process and made the
following findings of fact and conclusions of law:
1. The [plaintiff] meets the insured status requirements of
the Social Security Act through December 31, 2017.
2. The [plaintiff] has not engaged in substantial gainful
activity since May 25, 2011, the alleged onset date (20 CFR
404.1571, et seq).
3. The [plaintiff] has the following severe impairments:
degenerative disc disease of the lumbar spine, status post
two fusion surgeries; lumbar radiculopathy; personality
disorder; affective disorder; history of alcohol
abuse/dependence; and obesity (20 CFR 404.1520(c)).
4. The [plaintiff] does not have an impairment or combination
of impairments that meets or medically equals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the
[ALJ] finds that the [plaintiff] has the residual functional
capacity [("RFC")] to perform work that is
unskilled with one-, two-, or three-step instructions that is
non-fast-rate production, defined as involving no conveyor
belt or assembly line work; can occasionally function as a
member of a discrete team and contact with coworkers and
supervisors is largely superficial and occasional; can only
occasionally be in directive interactive contact with the
public; requires a "low stress" environment,
defined as having only occasional changes in the work
setting; lift and/or carry 5 pounds frequently and 10 pounds
occasionally; stand and/or walk with normal breaks for 2
hours in an 8-hour workday, but can do so for only 15 minutes
at one time; can sit with normal breaks for 6 hours in an
8-hour workday, but can do so for only 15 minutes at one
time; can perform pushing and pulling motions with the upper
extremities within the aforementioned weight restrictions for
not more than 2/3 of an 8-hour workday but can only
occasionally do so with the lower extremities; needs to avoid
hazards in the workplace such as moving machinery and
unprotected heights; job responsibilities do not include the
use of hand held vibrating tools; needs a work environment
with stable temperatures, stable humidity, and good
ventilation; can occasionally balance, stoop, and crouch, but
needs to avoid climbing, kneeling, and crawling; and requires
work that, in addition to any regularly-scheduled breaks,
allows him to be off task up to 10% per 8-hour workday due to
the symptoms of his impairments and/or the ancillary effects
of treatment for such impairments.
6. The [plaintiff] is unable to perform any past relevant
work (20 CFR 404.1565).
7. The [plaintiff) was born [in] . .. 1969 and was 41 years
old, which is defined as a younger individual age 18-44, on
the alleged disability onset date. The [plaintiff]
subsequently changed age category to a younger individual age
45-49 (20 CFR 404.1563).
8. The [plaintiff] has at least a high school education and
is able to communicate in ...