Haley v. Commissioner of Social Security

Filing 19

MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 2/13/2017. The final judgment of the Commissioner is REVERSED. This case is REMANDED pursuant to sentence four of 42:405(g), to the Commissioner for further proceedings consistent with the instant Memorandum Opinion and Order. cc:counsel (JWM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:16-CV-00090-HBB
DONALD R. HALEY

PLAINTIFF

VS.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security

DEFENDANT

MEMORANDUM OPINION
AND ORDER
BACKGROUND
Before the Court is the complaint (DN 1) of Donald R. Haley (APlaintiff@) seeking judicial
review of the final decision of the Commissioner pursuant to 42 U.S.C. ' 405(g). Both the
Plaintiff (DN 15) and Defendant (DN 18) have filed a Fact and Law Summary.
Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties have consented to the
undersigned United States Magistrate Judge conducting all further proceedings in this case,
including issuance of a memorandum opinion and entry of judgment, with direct review by the
Sixth Circuit Court of Appeals in the event an appeal is filed (DN 11). By Order entered August
22, 2016 (DN 12), the parties were notified that oral arguments would not be held unless a written
request therefor was filed and granted. No such request was filed.

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FINDINGS OF FACT
Plaintiff protectively filed an application for Supplemental Security Income benefits on
May 13, 2014 (Tr. 51, 195). Plaintiff alleged that he became disabled on February 14, 2013, as a
result of an enlarged heart, bad right leg, high blood pressure and depression (Tr. 51, 212).
Administrative Law Judge Richard E. Guida (AALJ@) conducted a video hearing from Baltimore,
Maryland, on May 18, 2015 (Tr. 51, 65-67). Plaintiff and his attorney, Richard Burchett,
participated from a hearing room in Bowling Green, Kentucky (Tr. 51, 65-67). David Don couch
also participated as a testifying vocational expert (Tr. 51, 65-67).
In a decision dated July 1, 2015, the ALJ evaluated this adult disability claim pursuant to
the five-step sequential evaluation process promulgated by the Commissioner (Tr. 51-60). At the
first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since May 13,
2014 the alleged onset date (Tr. 55). At the second step, the ALJ determined that Plaintiff has the
following Asevere@ impairments: “coronary artery disease, cardio myopathy, degenerative joint
disease, and obesity” (Tr. 55). The ALJ also determined that Plaintiff=s medically determinable
medical impairments of depression and other affective disorders are Anon-severe@ impairments
within the meaning of the regulations (Tr. 55-56). At the third step, the ALJ concluded that
Plaintiff does not have an impairment or combination of impairments that meets or medically
equals one of the listed impairments in Appendix 1 (Tr. 56).
At the fourth step, the ALJ found Plaintiff has the residual functional capacity to perform
less than a full range of light work (Tr. 57). More specifically, the ALJ found:
[C]laimant has the residual functional capacity to perform light
work as defined in 20 CFR 416.967(b) except he can frequently
stoop. He can occasionally climb ramps and stairs as well as
occasionally Neil, crouch and crawl. He cannot use ladders, ropes
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or scaffolds. He must avoid concentrated exposure to temperature
extremes, vibrations, fumes, odors, and dusts, gases, poor
ventilation and hazards.
(Tr. 57). Relying on testimony from the vocational expert, the ALJ found that Plaintiff is unable
to perform any past relevant work (Tr. 59).
The ALJ proceeded to the fifth step where he considered Plaintiff=s residual functional
capacity, age, education, and past work experience as well as testimony from the vocational expert
(Tr. 59-60). The ALJ found that Plaintiff is capable of performing a significant number of jobs
that exist in the national economy (Tr. 59-60). Therefore, the ALJ concluded that Plaintiff has not
been under a Adisability,@ as defined in the Social Security Act, from May 13, 2014 through the
date of the decision, July 1, 2015 (Tr. 60).
Plaintiff timely filed a request for the Appeals Council to review the ALJ=s decision (Tr.
48). Additionally, Plaintiff submitted new medical evidence in support of his request for review
(Tr. 7-45). The Appeals Council denied Plaintiff=s request for review of the ALJ=s decision (Tr.
1-5).

CONCLUSIONS OF LAW
Standard of Review
Review by the Court is limited to determining whether the findings set forth in the final
decision of the Commissioner are supported by Asubstantial evidence,@ 42 U.S.C. § 405(g); Cotton
v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993); Wyatt v. Sec’y of Health & Human Servs., 974 F.2d
680, 683 (6th Cir. 1992), and whether the correct legal standards were applied. Landsaw v. Sec’y
of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986). ASubstantial evidence exists when
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a reasonable mind could accept the evidence as adequate to support the challenged conclusion,
even if that evidence could support a decision the other way.@ Cotton, 2 F.3d at 695 (quoting
Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993)). In reviewing a
case for substantial evidence, the Court Amay not try the case de novo, nor resolve conflicts in
evidence, nor decide questions of credibility.@ Cohen v. Sec’y of Health & Human Servs., 964
F.2d 524, 528 (6th Cir. 1992) (quoting Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984)).
As previously mentioned, the Appeals Council denied Plaintiff=s request for review of the
ALJ=s decision (Tr. 1-5). At that point, the ALJ=s decision became the final decision of the
Commissioner. 20 C.F.R. '' 404.955(b), 404.981, 422.210(a); see 42 U.S.C. ' 405(h) (finality of
the Commissioner's decision). Thus, the Court will be reviewing the decision of the ALJ, not the
Appeals Council, and the evidence that was in the administrative record when the ALJ rendered
the decision. 42 U.S.C. § 405(g); 20 C.F.R. § 404.981; Cline v. Comm’r of Soc. Sec., 96 F.3d
146, 148 (6th Cir. 1996); Cotton v. Sullivan, 2 F.3d 692, 695-696 (6th Cir. 1993).
The Commissioner’s Sequential Evaluation Process
The Social Security Act authorizes payment of Disability Insurance Benefits and
Supplemental Security Income to persons with disabilities. 42 U.S.C. '' 401 et seq. (Title II
Disability Insurance Benefits), 1381 et seq. (Title XVI Supplemental Security Income). The term
Adisability@ is defined as an
[I]nability to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than twelve (12)
months.

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42 U.S.C. '' 423(d)(1)(A) (Title II), 1382c(a)(3)(A) (Title XVI); 20 C.F.R. '' 404.1505(a),
416.905(a); Barnhart v. Walton, 535 U.S. 212, 214 (2002); Abbott v. Sullivan, 905 F.2d 918, 923
(6th Cir. 1990).
The Commissioner has promulgated regulations setting forth a five-step sequential
evaluation process for evaluating a disability claim. See AEvaluation of disability in general,@ 20
C.F.R. '' 404.1520, 416.920. In summary, the evaluation proceeds as follows:
1)

Is the claimant engaged in substantial gainful activity?

2)

Does the claimant have a medically determinable
impairment or combination of impairments that satisfies the
duration requirement and significantly limits his or her
ability to do basic work activities?

3)

Does the claimant have an impairment that meets or
medically equals the criteria of a listed impairment within
Appendix 1?

4)

Does the claimant have the residual functional capacity to
return to his or her past relevant work?

5)

Does the claimant's residual functional capacity, age,
education, and past work experience allow him or her to
perform a significant number of jobs in the national
economy?

Here, the ALJ denied Plaintiff=s claim at the fifth step. The ALJ found that Plaintiff has not been
disabled from May 13, 2014 through July 1, 2015, because he retains sufficient residual functional
capacity to perform jobs that exist in significant numbers in the national economy.
A
1. Plaintiff’s Argument
Plaintiff challenges Finding No. 2 because the medical evidence shows a complete tear of
his right knee anterior cruciate ligament (“ACL”), yet the ALJ failed to find this condition is a
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“severe” impairment within the meaning of the regulations (DN 15 PageID # 627). Plaintiff
indicates that an MRI of his right knee on May 10, 2014, revealed the complete tear of the ACL, a
suspected tear of the fibular collateral ligament (“FCL”), and meniscal tears (Id. citing Tr. 400-01).
Plaintiff points out the operative report shows there was no attempt to repair the ACL tear during
the right knee arthroscopic surgery on September 26, 2014 (Id. citing Tr. 508-09). Plaintiff also
points out it was later reported that he was in need of a total knee replacement (Id. citing Tr. 460),
but the surgery was contraindicated due to risks associated with the diagnosis of cardiomyopathy
(Id. citing Tr. 429).
Plaintiff contends the ALJ failed to discuss the knee findings in detail with regard to
Plaintiff’s severe impairments (Id.).

Plaintiff asserts that this ligament tear would impose

additional limitations not covered by his degenerative knee conditions (Id.). Plaintiff argues that
his ACL tear should be considered a severe impairment (Id.).
2. Defendant’s Argument
Defendant argues that substantial evidence supports the ALJ’s finding that Plaintiff’s ACL
tear was not a severe impairment (DN 18 PageID #643-44). Defendant contends the ALJ
considered evidence regarding the ACL tear and Plaintiff’s subsequent surgery (Id. citing Tr. 58,
474, 508). Defendant points out the ALJ noted that following the surgery, Plaintiff had full knee
strength in flexion and extension, and his range of motion testing was near normal limits (Id. citing
Tr. 58, 460). Additionally, Defendant points out that by April 2015, an examination revealed no
objective abnormalities (Id. citing Tr. 510-14). Alternatively, Defendant relies on Maziarz v. Sec’y
of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987), to argue the ALJ’s failure to find
this impairment “severe” was harmless (Id.).
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3. Discussion
At the second step in the sequential evaluation process, a claimant must demonstrate he has
a Asevere@ physical or mental impairment to continue with the remaining steps in the disability
determination. 20 C.F.R. §416.920(a)(4)(ii); Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988)
(per curiam). An impairment is “severe” if it’s significantly limits a claimant’s ability to do basic
work activities. 20 C.F.R. § 416.920(a)(4)(ii) and (c); Social Security Ruling 96-3p; Social
Security Ruling 96-4p; Higgs, 880 F.2d at 863. Basic work activities relate to the abilities and
aptitudes necessary to perform most jobs, such as the ability to perform physical functions, the
capacity for seeing and hearing, and the ability to use judgment, respond to supervisors, and deal
with changes in the work setting. 20 C.F.R. § 416.921(b). An impairment will be considered
non-severe only if it is a “slight abnormality which has such minimal effect on the individual that it
would not be expected to interfere with the individual’s ability to work, irrespective of age,
education and work experience.” Farris v. Sec’y of Health & Human Servs., 773 F.2d 85, 90 (6th
Cir. 1985) (citing Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984)).
Plaintiff apparently injured his right knee on April 26, 2014 (Tr. 396). Plaintiff reported
that he jumped out of a truck and, as he landed, his right leg gave out from underneath him and
buckled (Id.). On April 29, 2014 Dr. Buchanan, an orthopedist, performed an examination,
reviewed films of Plaintiff’s right knee, and made the following assessment: localized primary
osteoarthritis of the right knee, displaced acute medial meniscus tear of the right knee, knee sprain,
and loose body in the knee (Tr. 398-99). Dr. Buchanan scheduled an MRI of the right knee with a
follow-up office visit (Tr. 399).

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The MRI was performed on May 10, 2014, and the radiologist’s report sets forth the
following diagnostic impression:
1. Complete tear of anterior cruciate ligament and redundant
appearing, but otherwise intact posterior cruciate ligament.
2. Extensive bony edema throughout the tibial plateau,
predominantly along the posterolateral aspect associated with
what appears to be a small osteochondral impaction injury
adjacent to the fibular head. Additional edema signal is seen in
the lateral femoral condyle and in the medial femoral condyle,
as well as in the fibular head.
3. The fibular head appearance reveals curvilinear defect which
suggests a probable small fracture line, but without significant
displacement.
4. Joint effusion.
5. Irregular tear of medial meniscus central to posterior horn
aspects.
6. Cartilaginous thinning along the medial edges of the medial
femoral condyle and medial tibial plateau. This may be due to
degenerative change or impaction injury.
7. Lateral meniscus linear tear of posterior horn.
8. A full-thickness focal osteochondral defect along the medial
facet of the posterior surface of the patella.
9. Joint effusion.
10. Soft tissue edema is seen about the knee, particularly laterally.
11. Fibular collateral ligament tear suspected.
(Tr. 400-01).

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Plaintiff presented for a follow-up office visit with Dr. Buchanan on May 13, 2014 (Tr.
402-04). Following an examination of plaintiff and review of the MRI, Dr. Buchanan assessed
displaced acute medial meniscus tear of the right, displaced acute lateral meniscus tear of the right
knee, and complete tear of the ACL of the right knee (Tr. 404).

Initially, Dr. Buchanan

recommended physical therapy as well as pain management with hydrocodone-acetaminophen
10-325 mg, 1 to 2 tabs every 12 hours as needed for pain (Tr. 404). However, by June 10, 2014,
Plaintiff advised Dr. Buchanan that the physical therapy had not helped and he was ready to have
surgery on the right knee (Dr. 409, 426). Dr. Buchanan’s surgical plan involved right knee
diagnostic arthroscopy with partial medial and lateral meniscectomies and other procedures as
indicated (Tr. 412, 428).
Plaintiff then sought surgery clearance from his cardiologist, Dr. Lin (Tr. 429). After
conducting a two-dimensional transthoracic echocardiogram, Dr. Lynn declined to give general
anesthesia surgery clearance apparently because Plaintiff had a left ventricle ejection fraction of
25% 1 (Tr. 429-440). Further, in lieu of an implantable cardioverter defibrillator, Dr. Lynn
prescribed a lifevest which is a wearable defibrillator (Tr. 79-80, 440).
On August 26, 2014, Plaintiff met with Dr. Buchanan and advised that his cardiologist
would not give him clearance for general anesthesia surgery (Tr. 441). As a result, Dr. Buchanan
planned on spinal anesthesia while performing the right knee diagnostic arthroscopy with partial
medial and lateral meniscectomies and other procedures as indicated (Tr. 444). The operative
report indicates on September 26, 2014, Dr. Buchanan performed a right knee diagnostic
1 Notably, “[a] normal left ventricular ejection fraction (LVEF) ranges from 55% to 70%.”
http://my.clevelandclinic.org/health/articles/ejection-fraction. An LVEF of less than 35% means the pumping ability
of the heart is severely below normal and “you have a greater risk of life-threatening irregular heartbeats that can cause
sudden cardiac arrest/death.” Id.

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arthroscopy with partial medial and lateral meniscectomy and a resection of the medial plica (Tr.
508-09). Although the diagnostic arthroscopy confirmed the presence of an ACL tear, there is no
indication in the operative report that Dr. Buchanan repaired the ligament (Tr. 509). Thus,
following the arthroscopic surgery, Plaintiff continued to have the ACL tear in his right knee.
Following the surgery, plaintiff underwent physical therapy from September 26, 2014
through December 5, 2014 (Tr. 460-84). The physical therapy discharge summary noted that
Plaintiff had shown progress through increased range of motion and increased strengthening (Tr.
460). The report indicated that Plaintiff’s right knee flexion and extension was 5/5 and his
passive range of motion was 52 to 126 degrees flexion (Dr. 460). However, the report indicates
that Plaintiff’s pain continued to be a “problem which, based on the status of his right knee joint,
will probably remain a problem until undergoing total knee replacement as directed by Dr.
Buchanan” (Id.).
From February 2, 2015 through April 29, 2015, Plaintiff received treatment for right knee
pain from Comprehensive Pain Specialists (Tr. 525-29). A physical examination of the right knee
on February 2, 2015, revealed crepitus with range of motion, chronic anterior swelling, and a
positive drawer sign test2, which indicates a torn ACL (Tr. 527). While Plaintiff’s chronic pain
became stable by April 29, 2015, he continued to experience an average pain score of 8 on a scale
of 1 to 10 along with swelling, popping and aching (Tr. 510-11).

2 The drawer sign is a test used during a physical examination to determine whether a patient has laxity or a tear of the
ACL or posterior cruciate ligament of the knee. http://medical-dictionary.thefreedictionary.com/drawer+sign.

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According to the Mayo Clinic website, “[l]igaments are strong bands of tissue that connect
one bone to another. The ACL, one of two ligaments that cross in the middle of the knee,
connects your thigh bone (femur) to your shinbone (tibia) and help stabilize your knee joint.”3
According to the Miami Sports Medicine website, “[t]he ACL is the main knee stabilizer,
preventing excessive motion at the knee joint between the femur (thigh bone) and the tibia (leg
bone).”4 The signs and symptoms of an ACL injury can include “[a] loud ‘pop’ or a ‘popping’
sensation in the knee”, “[s]evere pain and inability to continue activity”, and “[a] feeling of
instability or ‘giving way’ with weight-bearing”.5 If the symptoms of knee instability are not
controlled by a brace and rehabilitation program, then arthroscopic surgery using a piece of tendon
to replace the torn ACL may be suggested.6
The medical evidence in the administrative record and the medical literature set forth
above indicate that Plaintiff’s ACL tear would, necessarily, impose some type of limitations on his
ability to perform basic work activities. Yet, at the second step in the sequential evaluation
process, the ALJ did not find Plaintiff’s ACL tear to be a “severe” impairment within the meaning
of the regulations (Tr. 55). Further, the ALJ did not indicate why he believed the ACL tear was a
nonsevere impairment (Tr. 55-56).
Although substantial evidence may not support the ALJ’s finding that the ACL tear is a
“nonsevere” impairment, that error is insufficient, alone, to reverse and remand the ALJs decision.
See Maziarz, 837 F.2d at 244.

So long as an Administrative Law Judge finds that other

3 http://www.mayoclinic.org/diseases-conditions/acl-injury/symptoms-causes/dxc-20167379
4 http://www.miamisportsmedicine.com/ACLTears.html
5 http://www.mayoclinic.org/diseases-conditions/acl-injury/symptoms-causes/dxc-20167379
6 http://www.miamisportsmedicine.com/ACLTears.html

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impairments are severe, continues on with the sequential evaluation process, and considers all of a
claimant’s impairments in the remaining steps, the error is harmless. Id.; Mish v. Comm’r of Soc.
Sec., No. 1:09-CV-753, 2011 WL 836750, at *1-2 (W.D. Mich. Mar. 4, 2011); Stephens v. Astrue,
No. 09-55-JBC, 2010 WL 1368891, at *2 (E.D. Ky. Mar. 31, 2010); Meadows v. Comm'r of Soc.
Sec., No. 1:07cv1010, 2008 WL 4911243, at *12-13 (S.D. Ohio Nov.13, 2008); Jamison v.
Comm’r of Soc. Sec., No. 1:07-CV-152, 2008 WL 2795740, at *8-9 (S.D. Ohio July 18, 2008);
Tuck v. Astrue, No. 1:07-CV-00084-EHJ, 2008 WL 474411, at *3 (W.D. Ky. Feb. 19, 2008).
Here, the ALJ found that Plaintiff had other impairments that are “severe,” and continued with the
sequential evaluation process.

Thus, the undersigned must determine whether the ALJ

considered Plaintiff’s ACL tear in the remaining steps in the sequential evaluation process.
At the fourth step, in the context of making the residual functional capacity assessment, the
ALJ discussed Plaintiff’s ACL tear and the arthroscopic surgery (Tr. 58). However, the ALJ
failed to recognize that Dr. Buchanan did not repair the ACL tear during the arthroscopic surgery
(Tr. 58). Further, the ALJ provided a less than accurate and thorough summary of the physical
therapy and pain management medical records with regard to the ACL tear (Tr. 58). More
importantly, the ALJ’s residual functional capacity assessment and hypothetical questions to the
vocational expert failed to take into consideration limitations that may have been imposed by the
ACL tear in Plaintiff’s right knee (Tr. 57, 91-93). Therefore, the ALJ's failure to address or
include any limitations from the ACL tear in determining Plaintiff’s residual functional capacity is
not harmless error, so this case will be reversed and remanded, pursuant to sentence four of 42

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U.S.C. § 405(g), for further development and clarification of Plaintiff's knee impairment on his
ability to do work. See Mish, 2011 WL 836750, at 2; Meadows, 2008 WL 4911243, at *13.
The undersigned acknowledges that Plaintiff has raised other challenges to the ALJ’s
findings. The undersigned concludes it is not necessary to address those challenges in light of the
above findings. Notwithstanding, the ALJ completely overlooked Dr. Lin’s determination that
Plaintiff has a left ventricle ejection fraction of 25% and the significant impact it may have on
Plaintiff’s residual functional capacity (Tr. 58, 429-40). This is a matter that should be addressed
by the ALJ upon remand.

ORDER
IT IS HEREBY ORDERED that the final judgment of the Commissioner is
REVERSED.
IT IS FURTHER ORDERED that the case is REMANDED, pursuant to sentence four of
42 U.S.C. § 405(g), to the Commissioner for further proceedings consistent with the instant
Memorandum, Opinion, and Order.
This is a final and appealable Order and there is no just cause for delay.

February 13, 2017

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