Davis v. Comm'r of Soc. Sec.

CHRISTIAN L. DAVIS, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

Case No. 2:17-cv-995

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

March 19, 2020

Judge Sarah D. Morrison

Magistrate Judge Elizabeth Preston Deavers

OPINION AND ORDER

Christian Davis ("Plaintiff") brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for Supplemental Security Income ("SSI"). This matter is before the Court on the Plaintiff's Objection (ECF No. 20) to the Report and Recommendation (R&R) issued by the United States Magistrate Judge on January 16, 2020 (ECF No. 19), recommending that the Court overrule Plaintiff's Statement of Errors and affirm the Commissioner's decision. For the reasons set forth below, the Court SUSTAINS Plaintiff's Objection, ADOPTS in part and REJECTS in part the Magistrate Judge's R&R, and AFFIRMS in part and REVERSES in part the Commissioner's decision. The case is REMANDED to the Commissioner under the Fourth Sentence of 42 U.S.C. § 405(g) for proceedings consistent with this Opinion.

I. BACKGROUND

A. Procedural History

On August 19, 2011, Plaintiff's mother filed an application for SSI benefits on Plaintiff's behalf. (R. at 69). At that time, Plaintiff was 15 years old. (Id. at 57). Plaintiff's claims were denied initially on November 16, 2011, and upon reconsideration on February 29, 2012. (Id. at 89-95, 99-106). Following a hearing, administrative law judge ("ALJ") James B. Griffith issued a decision finding that Plaintiff was not disabled on May 16, 2013. (Id. at 10-25). Plaintiff turned eighteen on January 27, 2014. (Id. at 175). The Appeals Council subsequently denied review and adopted the ALJ's decision as the Commissioner's final decision on August 21, 2014. (Id. at 1-5).

Thereafter, Plaintiff filed a civil action in this Court (Case No. 2:14-cv-1909) and the Court remanded the case back to the Appeals Council. (Id. at 1567-69). On October 23, 2015, the Appeals Council vacated and remanded ALJ Griffith's decision. (Id.). The case was then assigned to ALJ Edmund Giorgione who held a hearing on February 3, 2016. (Id. at 1438). However, because ALJ Giorgione passed away before issuing a decision, another hearing was held by ALJ Timothy Gates on August 2, 2016. (Id.). On September 1, 2016, ALJ Gates issued a decision finding that Plaintiff was not disabled either prior to or since attaining age 18. (Id. at 1438-66). The Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision on September 18, 2017. (Id. at 1281-84).

Plaintiff filed this case on November 15, 2017 (ECF No. 3), and the Commissioner filed the administrative record on January 26, 2018 (ECF No. 8). Plaintiff filed a Statement of Specific Errors (ECF No. 11), and the Commissioner responded (ECF No. 17). On January 16, 2020, the Magistrate Judge issued her Report and Recommendation. (ECF No. 19). After a thorough analysis, the Magistrate Judge recommended affirming the Commissioner's non-disability findings. On January 30, 2020, Plaintiff timely filed an Objection to the Magistrate's R&R. (ECF No. 20). The Commissioner filed a brief Response on February 3. (ECF No. 21).

B. Relevant Record Evidence¹

1. Hearing Testimony

Plaintiff, represented by counsel, appeared and testified at the February 3, 2016 administrative hearing before ALJ Giorgione. At the time of the hearing, Plaintiff was 20 years old. (R. at 1481). Plaintiff testified that migraines and arthritis are the primary ailments that prevent him from being able to work. (Id. at 1482). According to Plaintiff, he suffers from migraines constantly and has pain in his back and all of his joints. (Id. at 1482-83). He testified that if the pain is bad enough he uses a cane or walker, and the pain tends to get worse depending on the weather. (Id. at 1483). Plaintiff testified that he can sit for 35 minutes at a time and stand and walk for 25-30 minutes before he needs to sit. (Id.). The most he can lift is 17 pounds. (Id.). Plaintiff stated that he has difficulty with stairs, has sensitivity to light and sound, and has difficulty focusing. (Id. at 1484). He does not "really like being around folks because of [his] pain." (Id.). Plaintiff also complained of problems with his vision. (Id. at 1485).

Plaintiff testified that he can dress himself, although it takes time. (Id.). He is able to shower or bathe himself, but sometimes he needs help getting out of the shower. (Id.). He does not have a driver's license because he is "prone to passing out." (Id. at 1485-86). Plaintiff testified that he cannot cook well, and he tends to forget about laundry, but he can wash dishes a few at a time although he does have trouble gripping objects. (Id. at 1486, 1492). Plaintiff also testified that he is often nauseous, which has gotten worse since starting infusions at Nationwide Children's Hospital. (Id. at 1486).

Plaintiff testified that he graduated high school with mostly C's and D's. (Id. at 1487). He "had to miss so much school that [he] had to attend summer school" and was nearly held back. (Id.). According to Plaintiff, he "started spiraling in depression" after the death of his grandparents. (Id. at 1489). Plaintiff stated that prior to his grandfather's death, he acted as one of his primary caregivers. (Id. at 1495). Plaintiff elaborated that this meant he "tried taking care of him for more than a month." (Id.). Plaintiff stated that during that time he attempted to change and wash his grandfather, but he would throw his back out trying to pick him up and ended up having to call his mother to help him. (Id. at 1495-96). Plaintiff testified that "[t]here are some days where it is physically impossible for [him] to get out of [his] bed." (Id. at 1490). This occurs approximately four times a week on average. (Id.). Plaintiff testified that because he only sleeps three to four hours a night, he often sleeps an hour during the day. (Id. at 1494-95). He spends most of his days lying down. (Id. at 1495).

Vocational Expert Lynelle Hall ("VE") also testified. Although Plaintiff had previously worked at a car wash part-time for a month and half, he had to leave the job due to his "ailment." (Id. at 1482). As a result of this very brief work history, ALJ Giorgione concluded that there was no past relevant work. (Id.). The ALJ proposed a hypothetical to the VE, which limited Plaintiff to lifting and carrying 20 pounds occasionally and ten pounds frequently, constantly bilaterally reaching, frequently bilaterally handling and fingering, standing 45 minutes at time for two hours,² walking 30 minutes at a time for two hours, sitting 60 minutes at a time for four hours, and occasionally bending, crouching, crawling, and climbing steps and ladders. (Id. at 1497-98). The VE testified that under these conditions, Plaintiff could perform sedentary jobs, includingaddresser, table worker, and assembler. (Id. at 1498). However, Plaintiff could not sustain employment with an additional two 15-minute breaks per day, outside of the 30-minute lunch and two 15-minute breaks typically allotted. (Id. at 1500). Similarly, if Plaintiff required regular breaks requiring a quiet, dark setting where he could lie down, or was regularly tardy, the VE testified that those limitations would be work preclusive. (Id. at 1500-01).

When asked to alter the hypothetical to Plaintiff also missing less than five days of work per month, the VE testified that "anything more than one day off per month would be work preclusive, up to four or five times per year." (Id. at 1498-99). When asked to alter the original hypothetical to limit Plaintiff to work in relative isolation, the VE testified that the Plaintiff could still do the same three identified sedentary jobs. (Id. at 1499). When asked to keep the same hypothetical but Plaintiff would not be able to maintain an eight-hour workday or a 40-hour workweek because of an inability to maintain attention and concentration, the VE testified that no work would be available to Plaintiff. (Id.). Similarly, if on a month-to-month basis Plaintiff had one unscheduled absence and one unscheduled tardiness, Plaintiff could not sustain competitive employment. (Id. at 1501).

Plaintiff, represented by counsel, appeared and testified at the August 2, 2016 supplemental administrative hearing before ALJ Gates. Plaintiff testified that his conditions worsened since the February hearing. (Id. at 1510). He elaborated that as of May or June, he had been getting infusions once a week for pain and inflammation, which are "almost unbearable." (Id. at 1510, 1514). Further, it is hard for him to get up during the day and he has migraines and back pain constantly. (Id. at 1510). Plaintiff also testified that since the February hearing, the vision in his left eye had gotten significantly worse and he had been diagnosed with ptosis. (Id.).

Vocational Expert Lynne Kaufman also testified at the supplemental hearing. The ALJasked the VE to alter the original hypothetical proposed at the February hearing to include occasional interaction with supervisors and co-workers and no contact with the general public. (Id. at 1517-18). The VE testified that "there would be some light jobs you could do as well as some sedentary" including the jobs identified at the February hearing. (Id. at 1518-19). When asked to alter the original hypothetical so that Plaintiff would be off task more than 10% of the time, the VE testified that Plaintiff would be unable to sustain competitive work. (Id. at 1520). In contrast to VE Hall's testimony, VE Kaufman did not believe that an extra 30 minutes of daily breaks would necessarily be work preclusive. (Id.). However, she did acknowledge that most competitive work does not provide a place to lie down during breaks. (Id. at 1521).

2. Hospital Records

Since 2011, Dr. Charles Spencer at Nationwide...