Cabell v. Commissioner of Social Security

Filing 18

MEMORANDUM OPINION AND ORDER by Magistrate Judge Colin H. Lindsay on 9/24/2024. The final decision of the Commissioner is REVERSED and this matter is REMANDED, pursuant to sentence four of 42 § U.S.C. 405(g), to the Commissioner to conduct additional proceedings to remedy the above-identified defects in the original proceedings. cc: counsel (KDY)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:23-CV-00200-CHL
TORINDA C.,1

Plaintiff,

v.
COMMISSIONER OF SOCIAL SECURITY,2

Defendant.

MEMORANDUM OPINION AND ORDER
Before the Court is the Complaint filed by Plaintiff, Torinda C. (“Claimant”). Claimant
seeks judicial review of the final decision of the Commissioner of Social Security (“the
Commissioner”). (DN 1.) Claimant and the Commissioner each filed a Fact and Law Summary
and/or supporting brief. (DNs 15, 15-1, 17.) Claimant did not file a reply, and her time to do so
has expired. (DN 10.) The Parties have consented to the jurisdiction of a Magistrate Judge to
enter judgment in this case with direct review by the Sixth Circuit Court of Appeals in the event
an appeal is filed. (DN 13.) Therefore, this matter is ripe for review.
For the reasons set forth below, the final decision of the Commissioner is REVERSED
and this matter is REMANDED, pursuant to sentence four of 42 § U.S.C. 405(g), to the
Commissioner to conduct additional proceedings to remedy the herein identified defects in the
original proceedings.
I.

BACKGROUND
On June 30, 2020, Claimant applied for disability insurance benefits under Title II

(“DIB”) and supplemental security income under Title XVI (“SSI”). (R. at 21, 73, 82, 84, 86,
1

Pursuant to General Order 23-02, the Plaintiff in this case is identified and referenced solely by first name and last
initial.
2
As Martin O’Malley is now the Commissioner of Social Security in place of Kilolo Kijakazi, he is automatically
substituted as the Defendant in this matter pursuant to Fed. R. Civ. P. 25(d). The Clerk is directed to change the
case caption to reflect the substitution.

183-84.) Her applications alleged disability beginning on June 27, 2019, due to her knee
problems and a cyst in her left breast. (Id. at 73, 86.) Claimant’s applications were denied
initially and again on reconsideration. (Id. at 100-03, 105-11.)
At Claimant’s request, Administrative Law Judge (“ALJ”) Steven Collins conducted a
hearing on Claimant’s applications on February 24, 2022. (Id. at 37-72, 119-121.) Claimant
attended the hearing by telephone with her attorney.3 (Id. at 39.) An impartial vocational expert
also participated in the hearing. (Id.)
During the hearing, Claimant testified to the following. She is a high school graduate
who lives with her husband. (Id. at 45-46.) Her past work includes several commercial cleaning
jobs. (Id. at 47-48.) She stopped working due to her knees; she said she had a lot of pain and
wasn’t able to walk or stand for long periods of time. (Id. at 48-49.) After she stopped working,
she had patella replacement surgery and thereafter tried to go back to work. (Id. at 49.) But she
“wasn’t able to do anything,” and her other knee started giving her trouble. (Id. at 49-50.) She
testified that she has to elevate her knees above her heart constantly for a total of five to six
hours per day. (Id. at 50-51.) She can only stand or walk for about fifteen minutes before she
needs to take a rest because her knees get stiff and she experiences burning, shooting pain. (Id.
at 52-54.) After standing or walking, she needs to sit down for approximately an hour to recover
from the pain. (Id.) But she can only sit in a chair for about fifteen minutes before she needs to
elevate her legs. (Id. at 63.) She testified that she has continued to experience pain despite
undergoing multiple knee surgeries. (Id. at 54-56.) She has also attempted physical therapy and
injections, but those measures did not fully relieve her pain. (Id. at 56-58.) She has walked with
walker since her first knee replacement surgery due to both the pain and issues with her balance.

3

The hearing was held telephonically due to the COVID-19 pandemic with Claimant’s consent. (Id. at 41.)

2

(Id. at 57-59.) She testified that she has followed her doctor’s treatment recommendations but
that there is nothing more that doctors can do to help her than they have already done. (Id. at
60.) Her typical pain on any given day even with taking her medications is a six or seven out of
ten. (Id. at 62.)
The ALJ issued an unfavorable decision on March 30, 2022. (Id. at 18-36.) Applying the
five-step sequential evaluation process promulgated by the Commissioner to determine whether
an individual is disabled, the ALJ made the following findings. First, the Claimant had not
engaged in substantial gainful activity since June 27, 2019, her alleged onset date. (Id. at 23-24.)
Second, Claimant had the following severe impairments: bilateral knee osteoarthritis status post
arthroscopy and right total knee arthroscopy, plantar fasciitis, and obesity. (Id. at 24.) Third,
Claimant did not have an impairment or combination of impairments that met or medically
equaled any of the listed impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1. (Id.) Fourth,
Claimant had the residual functional capacity (“RFC”) to perform sedentary work with the
following exceptions:
the claimant can occasionally lift up to ten pounds and frequently lift less than ten
pounds out of an eight-hour workday. The claimant could stand and walk about
two hours and sit about six hours. The claimant could occasionally push and pull
and use foot controls bilaterally. The claimant could occasionally climb ramps
and stairs. The claimant should never climb ladders, ropes, or scaffolds. The
claimant could frequently balance. The claimant could occasionally stoop, kneel,
crouch, and crawl. The claimant should avoid concentrated exposure to vibrations
and dangerous machinery and heights.
(Id. at 24, 24-28.) Additionally at step four, the ALJ found that Claimant was unable to perform
any of her past relevant work as a commercial cleaner. (Id. at 29.) Fifth, and finally, considering
Claimant’s age, education, work experience, and RFC, there were jobs that existed in significant
numbers in the national economy that Claimant could perform. (Id. at 29-30.) The ALJ

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concluded that Claimant was not under a disability from June 27, 2019, through March 30, 2022,
the date of his decision. (Id. at 30.)
Claimant subsequently requested an appeal to the Appeals Council, which denied her
request for review on March 14, 2023. (Id. at 1-7, 180-82, 316-20.) At that point, the ALJ’s
decision became the final decision of the Commissioner. See 20 C.F.R. § 422.210(a) (2023); see
also 42 U.S.C. § 405(h) (discussing finality of the Commissioner’s decision). Pursuant to 20
C.F.R. § 422.210(c), Claimant is presumed to have received that decision five days later. 20
C.F.R. § 422.210(c). Accordingly, Claimant timely filed this action on April 20, 2023. (DN 1.).
II.

DISCUSSION
The Social Security Act authorizes payments of DIB and SSI to persons with disabilities.

See 42 U.S.C. §§ 401-434, 1381-1383f. An individual shall be considered “disabled” if he or she
is unable “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] months.” 42 U.S.C. §
423(d)(1)(A); 42 U.S.C. § 1382c(a)(3)(A); see also 20 C.F.R. §§ 404.1505(a), 416.905(a)
(2023).
A.

Standard of Review

The Court may review the final decision of the Commissioner but that review is limited
to whether the Commissioner’s findings are supported by “substantial evidence” and whether the
Commissioner applied the correct legal standards. 42 U.S.C. § 405(g); Key v. Callahan, 109
F.3d 270, 273 (6th Cir. 1997). “Substantial evidence” means “more than a mere scintilla”; it
means “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). The Court must “affirm the

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Commissioner’s decision if it is based on substantial evidence, even if substantial evidence
would also have supported the opposite conclusion.” Gayheart v. Comm’r of Soc. Sec., 710 F.3d
365, 374 (6th Cir. 2013); see Smith v. Sec’y of Health & Hum. Servs., 893 F.2d 106, 108 (6th Cir.
1989) (holding that if the Court determines the ALJ’s decision is supported by substantial
evidence, the court “may not even inquire whether the record could support a decision the other
way”). However, “failure to follow agency rules and regulations” constitutes lack of substantial
evidence, even where the Commissioner’s findings can otherwise be justified by evidence in the
record. Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011).
B.

Five-Step Sequential Evaluation Process for Evaluating Disability

The Commissioner has promulgated regulations that set forth a five-step sequential
evaluation process that an ALJ must follow in evaluating whether an individual is disabled. 20
C.F.R. §§ 404.1520, 416.920 (2023). In summary, the evaluation process proceeds as follows:
(1)

Is the claimant involved in substantial gainful activity? If the answer is
“yes,” the claimant is not disabled. If the answer is “no,” proceed to the
next step.

(2)

Does the claimant have a medically determinable impairment or
combination of impairments that satisfies the duration requirement4 and
significantly limits his or her physical or mental ability to do basic work
activities? If the answer is “no,” the claimant is not disabled. If the
answer is “yes,” proceed to the next step.

(3)

Does the claimant have an impairment that meets or medically equals the
criteria of a listed impairment within 20 C.F.R. Part 404, Subpart P,
Appendix 1? If the answer is “yes,” the claimant is disabled. If the
answer is “no,” proceed to the next step.

(4)

Does the claimant have the residual functional capacity (“RFC”) to return
to his or her past relevant work? If the answer is “yes,” then the claimant
is not disabled. If the answer is “no,” proceed to the next step.

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To be considered, an impairment must be expected to result in death or have lasted/be expected to last for a
continuous period of at least twelve months. 20 C.F.R. §§ 404.1509, 416.909 (2023).

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(5)

Does the claimant’s RFC, age, education, and work experience allow him
or her to make an adjustment to other work? If the answer is “yes,” the
claimant is not disabled. If the answer is “no,” the claimant is disabled.

20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
The claimant bears the burden of proof with respect to steps one through four. Walters v.
Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). However, the burden shifts to the
Commissioner at step five to prove that other work is available that the claimant is capable of
performing. Jordan v. Comm’r of Soc. Sec., 548 F.3d 417, 423 (6th Cir. 2008). The claimant
always retains the burden of proving lack of RFC. Id.; Her v. Comm’r of Soc. Sec., 203 F.3d
388, 392 (6th Cir. 1999).
C.

Claimant’s Contentions
Claimant argued that the ALJ failed to properly evaluate her subjective complaints and

that his RFC determination was unsupported by substantial evidence as his analysis did not
support that Claimant could perform the exertional requirements of sedentary work. (DN 15; 151.) The Commissioner characterized Claimant’s arguments as an impermissible attempt to ask
this Court to reweigh the evidence. (DN 17.) As set forth above, the only question before this
Court is whether the ALJ’s decision is supported by substantial evidence. Courts have held
repeatedly that a reviewing court’s role in determining whether an ALJ’s decision is based upon
substantial evidence is not to “resolve conflicts in evidence or decide questions of credibility.”
Conner v. Comm’r of Soc. Sec., 658 F. App’x 248, 253 (6th Cir. 2016) (citing Ulman v. Comm’r
of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012)). Nor is this Court’s role to second-guess the
ALJ’s conclusions. Gayheart, 710 F.3d at 374; Smith, 893 F.2d at 108; Ulman, 693 F.3d at 714.
However, this court considers the record as a whole and may look to any evidence in the
record—regardless of whether it has been cited by the ALJ—in determining whether an ALJ’s

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decision is supported by substantial evidence. Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 535
(6th Cir. 2001) (citing Walker v. Sec’y of Health & Hum. Servs., 884 F.2d 241, 245 (6th Cir.
1989), questioned on other grounds by Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284,
286 (6th Cir. 1994)). Here, the Court concludes that the ALJ’s decision is not supported by
substantial evidence.
In support of his RFC determination, the ALJ explained,
the claimant’s reports to her treating and examining physicians, as well as
findings upon objective examination are generally inconsistent with the
claimant’s testimony of such significant complaints of pain and dysfunction. The
medical evidence did not establish pain[ ] of the level and severity that would
result in debilitating limitations. The claimant testified that she required the use of
a cane and walker for mobility. The record did not reveal that the claimant
required subsequent inpatient hospitalization, recurrent emergency room
treatment, or prolonged physical therapy. Records revealed that her gait was
antalgic, and her strength and coordination was within normal limits. The
claimant had full range of motion and normal strength in all extremities. The
claimant was neurovascularly intact (Exhibit 1F). Additional medical records
revealed normal hip and ankle motion and minimal effusion. It was noted that the
claimant’s knee was stable, and she demonstrated normal motion and she had a
normal sensory examination. Further, an examination revealed only mild
tenderness to palpation along the medial and lateral joints of the knee. Her knee
was stable, and there was mild warmth and minimal effusion. Additionally, the
claimant received some benefit from steroid injections and demonstrated an
antalgic gait (Exhibit 11F).
(R. at 25-26 (citing id. at 321-42, 694-729).) The Court finds this summary inaccurate and
misleading.
The ALJ asserted that Claimant had not needed “prolonged physical therapy,” but the
Court and the ALJ must have different definitions of “prolonged.” The administrative record
contains approximately 415 pages of physical therapy records that demonstrate that Claimant
received physical therapy between one and three times weekly in August, September, October,
November, and December 2019; January, February, May, June, July, August, September,
October, November, and December 2020; January, February, March, April, May, June, July,

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August, November, and December 2021; and January 2022. (Id. at 408, 416, 418, 420, 422, 424,
428, 430, 432, 436, 438, 460, 468, 470, 472, 474, 479, 481, 483, 485, 487, 491, 493, 495, 497,
499, 502, 504, 506, 508, 510, 514, 516, 561, 569, 570, 571, 573, 575, 580, 582, 584, 586, 588,
593, 595, 597, 599, 601, 604, 606, 608, 610, 612, 616, 618, 629, 637, 639, 641, 643, 645, 649,
651, 653, 657, 659, 661, 663, 665, 670, 672, 674, 675, 968, 977, 979, 981, 982, 988, 990, 992,
995, 997, 999, 1001, 1003, 1008, 1010, 1012, 1016, 1018, 1020, 1024, 1026, 1028, 1030, 1033,
1036, 1038, 1040, 1042, 1044, 1046, 1048, 1050, 1052, 1054, 1077, 1087, 1089, 1091, 1093,
1095, 1097, 1099, 1101, 1103, 1105, 1107.) The gaps in Claimant’s physical therapy treatment
typically overlapped with her immediate recovery from one of her several knee surgeries, which
she underwent on July 25, 2019; May 19, 2020; October 29, 2020; and September 14, 2021. (Id.
at 392-94, 768-79, 892-946, 1265-99.) She also had a follow up procedure under anesthesia for
manipulation of her left knee on November 29, 2021. (Id. at 1389-1409.) Curiously, the ALJ’s
discussion of Claimant’s medical records referenced only one of Claimant’s knee surgeries
directly: her July 25, 2019, right knee patellofemoral arthroplasty. (Id. at 26.) Her May 2020
left knee surgery was only referenced by the ALJ in passing in his summary of her September
14, 2020, visit to the Ohio Valley Pain Institute, stating, “The claimant had a history of bilateral
knee surgeries with her right knee in June 2019 and a more recent left knee surgery in May
2020.” (Id. at 27.) This is nearly a direct quote from the medical record, including the record’s
error about the date of her right knee surgery. (Id. at 522.) Likewise, the ALJ only referenced
Claimant’s right total knee arthroplasty on October 29, 2020, as part of a summary of a follow up
visit to her provider from June 2, 2021, over six months after the surgery. (Id. at 27.) The ALJ
did not mention at all the fact that Claimant underwent a left total knee arthroplasty on
September 4, 2021, let alone that she required follow up manipulation of her left knee under

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anesthesia on November 29, 2021. (Id. at 768-79, 1389-1409.) Moreover, while the objective
findings regarding Claimant’s purported “full range of motion” on which the ALJ relied do exist
in the record, there are also a large number of findings of instances when Claimant demonstrated
abnormal range of motion, often in the physical therapy records that the ALJ appears not to have
reviewed. (Id. at 361, 377, 380, 433, 471, 484, 492, 572, 585, 594, 654, 675, 685, 703, 716, 719,
722, 780, 783, 787, 795, 970, 996, 1007, 1017, 1109, 1110, 1121, 1159.) Further, the ALJ
incorrectly stated that Claimant received some benefit from steroid injections but the Claimant
consistently denied receiving benefit from either steroid or gel injections that she received. (Id.
at 354 (“She was given a corticosteroid injection 2 weeks ago. This provided her no relief.”); id.
at 377 (“She also had an injection she recalls in November into the left knee that she states was
not helpful.”); id. at 522 (“She has had knee injections with minimal improvement.”); id. at 528
(“She has had knee injections with minimal improvement.”); id. at 535 (“We tried a cortisone
injection into the scarring last visit without much improvement.”); id. at 544 (“She has tried gel
injections . . . without improvement.”); id. at 700 (“She had a third gel injection on 4/21/2021.
She still having a lot of pain in the left knee.”); id. at 703 (“Establish[ed] patient is here for third
and final gel injection. No changes. She is still having some pain.”); id. at 705 (“Established
patient returns regarding her left knee. She is here for her second injection. No significant
changes.”); id. at 707 (“She previously had a cortisone injection without much improvement.”).
These inaccuracies and misrepresentations of the record cast doubt on the validity of the ALJ’s
conclusions.
The ALJ also relied on Claimant’s daily activities in support of his RFC determination,
noting that “claimant’s activities of daily living were consistent with the ability to perform a
limited range of sedentary exertional level work.” (Id. at 28.) He noted that Claimant testified

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that she didn’t drive at all. (Id. at 25.) He then summarized that Claimant’s husband indicated
that “the claimant had no difficulties attending to her personal needs and prepared meals daily”;
“performed household chores without assistance”; “was able to drive, shopped in stores, and
managed her finances”; and “watched television, attended church services, and went out to eat
with her sisters.” (Id. at 26 (citing id. at 251-59).) But this too appears to be a misleading
summary of the third-party statement, omitting numerous qualifiers about the assistance
Claimant’s husband provides her with many of the tasks listed by the ALJ. (Id. at 252 (“I always
help her. She [is] in a lot of pain with her knees all of the time. I do all of the cooking and
cleaning.”); id. at 253 (noting that Claimant’s husband has to help her out of the bath); id. at 254
(noting that it takes Claimant thirty minutes to an hour to prepare “sandwiches and frozen
dinners” and that Claimant “can’t stand for a long time”); id. at 254 (“I help her with cleaning
and laundry”).) The statement was also dated July 22, 2020, before all of the surgeries Claimant
underwent, leading to obvious questions about the continued accuracy of the information in light
of Claimant’s declining condition. Curiously, the ALJ didn’t cite at all to Claimant’s own report
of her functioning, which is also dated July 22, 2020, and is largely consistent with her
husband’s report. (Id. at 262 (noting that she has trouble getting out of the bathtub); id. at 263
(noting that she cooks sandwiches and frozen dinners and her husband does all the big meals); id.
at 263 (noting that her husband helps her with cleaning and laundry).) The ALJ didn’t ask
Claimant any questions during the hearing about her daily activities., which seems an odd choice
given the significant changes in her medical history between the completion of the function
reports in 2020 and the 2022 hearing.
Based on these inaccuracies and misrepresentations, the Court agrees with Claimant that
the ALJ’s finding that she could perform a limited range of sedentary work is not supported by

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substantial evidence. While the threshold for substantial evidence is “not high,” it does require
the ALJ to make accurate citations to the record and not ignore without comment large bodies of
conflicting evidence. Biestek v. Berryhill, 587 U.S. 97, 102-03 (2019) (citing Consol. Edison Co.
v. NLRB, 305 U.S. 197, 229 (1938)) (“Under the substantial-evidence standard, a court looks to
an existing administrative record and asks whether it contains ‘sufficien[t] evidence’ to support
the agency’s factual determinations.

And whatever the meaning of ‘substantial’ in other

contexts, the threshold for such evidentiary sufficiency is not high.”). In particular, the ALJ’s
decision as compared to the record gives the Court concern that the ALJ did not consider
relevant evidence in the record, including her physical therapy records and records regarding her
fourth knee surgery. The Court is mindful that—as noted above—it is not its task to resolve
conflicting pieces of evidence or questions about credibility, but here the ALJ ignored those
issues and did not provide sufficient accurate analysis supported by citations to the record for the
Court to conclude that the ALJ appropriately resolved such conflicts. As such, the case must be
remanded for the ALJ to do so.
Likewise, as to the ALJ’s rejection of Claimant’s testimony regarding her pain, the Court
agrees with Claimant that the ALJ erred. When forming an RFC, an ALJ must assess the
claimant’s subjective allegations regarding his or her symptoms. 20 C.F.R. §§ 404.1529(a),
416.929(a) (2023).

The regulations note that a claimant’s statement that he or she is

experiencing pain or other symptoms will not, taken alone, establish that he or she is disabled;
there must be objective medical evidence that show the existence of a medical impairment that
could reasonably be expected to give rise to the pain and/or other symptoms alleged. 20 C.F.R.
§§ 404.1529(a), 416.929(a). If the ALJ finds that there is a medically determinable impairment
that could reasonably be expected to produce the claimant’s symptoms, the ALJ must then assess

11

the intensity and persistence of a claimant’s symptoms to determine how those symptoms limit
the claimant’s capacity for work. 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1). In doing so, the
ALJ should consider a number of factors including a claimant’s daily activities; the location,
duration, frequency, and intensity of a claimant’s pain or other symptoms; any precipitating or
aggravating factors; the type, dosage, effectiveness, and side effects of claimant’s medications;
and any other measures a claimant may use to alleviate pain or other symptoms. 20 C.F.R. §§
404.1529(c)(3), 416.929(c)(3); see also Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th
Cir. 2007) (citing 20 C.F.R. § 416.929). The regulations only require an ALJ to consider the
pertinent factors; they do not require the ALJ to discuss all the factors in his or her opinion. See
Dutkiewicz v. Comm’r of Soc. Sec., 663 F. App’x 430, 433 (6th Cir. 2016) (“The ALJ was not
required to explicitly discuss [claimant]’s work history when assessing his credibility . . . .”).
However, the ALJ’s decision “must contain specific reasons for the weight given to the
individual’s symptoms, be consistent with and supported by the evidence, and be clearly
articulated so the individual and any subsequent reviewer can assess how the adjudicator
evaluated the individual’s symptoms.” SSR 16-3p, 81 Fed. Reg. 14166, 14171 (Mar. 16, 2016).
The ALJ’s decision contains no such detailed analysis. While the ALJ did rely on the Claimant’s
daily activities, his inability to make an accurate citation to the record regarding the same calls
into question his analysis and leads the Court to conclude that he did not comply with the
relevant regulations and SSR.
Given these deficiencies, the Court will remand this matter to the agency for further
proceedings.

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III.

ORDER
For the reasons set forth above, IT IS HEREBY ORDERED that the final decision of the

Commissioner is REVERSED and that this matter is REMANDED, pursuant to sentence four
of 42 § U.S.C. 405(g), to the Commissioner to conduct additional proceedings to remedy the
above-identified defects in the original proceedings.

cc:

Counsel of Record
September 24, 2024

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