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McKinney v. Commissioner of the Social Security Administration

United States District Court, S.D. Ohio, Western Division, Dayton

September 5, 2019

DAVID P. McKINNEY, Plaintiff,
v.
COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          Walter H. Rice, District Judge.

          REPORT AND RECOMMENDATIONS [1]

          Sharon L. Ovington, United States Magistrate Judge.

         I. Introduction

         The Social Security Administration provides Disability Insurance Benefits and Supplemental Security Income to individuals who are under a disability, among other eligibility requirements. A “disability” in this context refers to “any medically determinable physical or mental impairment” that precludes an applicant from engaging in “substantial gainful activity.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see Bowen v. City of New York, 476 U.S. 467, 469-70 (1986).

         Finding himself unable to work due to various health problems, Plaintiff David P. McKinney applied for Disability Insurance Benefits and Supplemental Security Income. He asserted that starting on November 30, 2014, and continuing thereafter, he had been under a disability. Administrative Law Judge (ALJ) Mark Hockensmith disagreed. He concluded that Plaintiff was not under a disability and denied Plaintiff's applications. (Doc. #7, PageID #s 50-60).

         Plaintiff brings the present case contending (in part) that ALJ Hockensmith erred when evaluating the medical source opinions and that substantial evidence fails to support ALJ Hockensmith's assessment of Plaintiff's mental residual functional capacity. Plaintiff seeks a remand of this case for payment of benefits or, alternatively, for further proceedings. The Commissioner finds no error in the ALJ's decision and asks the Court to affirm rather than remand.

         II. Background

         Plaintiff was fifty years old on his asserted disability onset date. He therefore met the Social Security Administration's definition of an “individual approaching advanced age.” 20 C.F.R. §§ 404.1563(d), 416.963(d).[2] He has a limited education and worked in the past as a cemetery worker and a production assembler.

         During a hearing before ALJ Hockensmith, Plaintiff testified that he has difficulty reading and took an oral test to get his driver's license. He could not read the written instructions he would get each day when working at the cemetery. He stopped working at this job because he had could not breath during the winter. He cannot breath in extreme cold or extreme heat.

         Plaintiff described his health as “going downhill for a long time.” (Doc. #7, PageID #78). When he walks a short distance or up a flight of stairs, he needs to sit down. He can “mow the lawn some” using a push mower, but his lawn is not that big. Id. at 80. It takes him twice as long to mow the entire yard (thirty minutes) than it used to (fifteen minutes). He uses a prescription inhaler once in the morning and once at night to. And he keeps it with him all the time presumably for sudden breathing problems. Id. at 81. His attorney during the ALJ's hearing described this as a “rescue inhaler.” Id. at 86. He uses this once or twice a week. Id.

         Plaintiff testified that he has low-back pain, extending to his knee and right hip. Id. at 81, 85. He feels tingling in his left knee cap. Id. at 85. These problems limit his ability to walk. He can sit for forty-five minutes before needing to stand. Id. at 81. He can stand for about thirty minutes. Id. at 84. He consequently alternates between sitting and standing. He can lift ten pounds but cannot carry it far. Id. at 81 Activities around the house include doing the dishes and taking out the garbage. Yet this requires him to stand too long and “kind of gets [his] back.” Id. at 82. He explained, “They don't make things high enough for a guy like me.” Id. He is six feet three and a half inches tall. Id. at 74.

         Plaintiff has difficulty getting along with others. He goes to the grocery store but does not have the patience for it. He revealed, “I'd much rather stay in the truck, and wait on my wife to get me stuff. I just ain't got patience for the store. I'm just not able….” Id. at 83. He described himself as just not a friendly type of person. Id. at 84. He provided a telling example: “You know, people can ask you one thing, and you can tell them, and they just look at you like you're stupid. Then you're arguing with them. That's why I'm an unfriendly person.” Id. at 84.

         Plaintiff also has memory and concentration problems. He “drifts off” when he watches TV shows or movies. Id. at 86-87. He typically cannot complete small chores or projects. He ends up walking away from them and starting over. Three or four times a week, Plaintiff has suicidal thoughts. He said, “I just don't want to be here.” Id. at 87.

         In June 2015, clinical psychologist George O. Schulz, Ph.D. evaluated Plaintiff at the request of the Ohio Division of Disability Determination. Id. at 360-69. Dr. Schulz found that Plaintiff's long-term memory was within the borderline to low-average range. His general fund of knowledge and his ability to abstract were in the low-average range. Id. at 367. Dr. Schulz did not administer an IQ test or any psychological testing. He diagnosed Plaintiff with borderline intellectual functioning, explaining that Plaintiff's “presentation during the interview supported intellectual functioning in the borderline range.” Id. at 368. As to Plaintiff's ability to work with attention, concentration, and maintaining persistence and pace to perform simple and multi-step task, Dr. Schulz thought that “given [Plaintiff's] performance today on formal mental evaluation tasks he is likely to experience some objective concerns by employers.” Id. Dr. Schulz ...


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