Emery v. Berryhill

Filing 25

ORDER granting 19 Motion for Summary Judgment; denying 22 Motion for Summary Judgment. The Commissioner's decision is VACATED as to steps four and five and this matter is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) forfurther proceedings consistent with this opinion. (Written Opinion) Signed by Magistrate Judge Tony N. Leung on 9/17/2018. (GFK)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Jean Paul R. Emery,

Case No. 17-cv-1988 (TNL)
Plaintiff,

v.

ORDER

Nancy A. Berryhill, Acting Commissioner
of Social Security,
Defendant.

Karl E. Osterhaut, Osterhaut Disability Law, LLC, 521 Cedar Way, Suite 200, Oakmont
PA 15139, and Edward C. Olson, Disability Attorneys of Minnesota, 331 Second Avenue
South, Suite 420, Minneapolis MN 55401 (for Plaintiff); and
Bahram Samie, Assistant United States Attorney, United States Attorney’s Office, 300
South Fourth Street, Suite 600, Minneapolis MN 55415 (for Defendant).

I.

INTRODUCTION
Plaintiff Jean Paul R. Emery brings the present action, contesting Defendant

Commissioner of Social Security’s denial of his application for supplemental security
income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. § 1381. The parties
have consented to a final judgment from the undersigned United States Magistrate Judge
in accordance with 28 U.S.C. § 636(c) and D. Minn. LR 7.2. This matter is before the
Court on the parties’ cross motions for summary judgment. For the reasons set forth
below, the Court grants Plaintiff’s motion, denies Defendant’s motion, and remands this
matter to the Social Security Administration for further consideration.

II.

BACKGROUND
A. Procedural History
Plaintiff filed the instant action for SSI on September 27, 2013, alleging a

disability onset date of April 1, 2009. Plaintiff alleges impairments of “numerous
physical disabilities,” chronic pain, left foot and ankle injuries/surgeries, severe arthritis,
back injuries post motor vehicle accident, and Crohn’s Disease. Plaintiff was found not
disabled on March 7, 2014. That finding was affirmed upon reconsideration. Plaintiff
then requested a hearing before an Administrative Law Judge. A hearing was held
February 9, 2016 and, on March 18, 2016, the ALJ issued a decision denying Plaintiff’s
claim for benefits. Plaintiff sought review of the ALJ’s decision through the Appeals
Council, which denied his request for review. Plaintiff then sought review in this Court.
B. The ALJ’s Decision
The ALJ found that Plaintiff had the severe impairments of peripheral neuropathy,
osteoarthritis, obesity, depression, and anxiety. (Tr. 19). The ALJ next found and
concluded that 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 C.F.R. pt.
404, subpt. P, app. 1. (Tr. 20). The ALJ looked at Listings 1.02 (major dysfunction of a
joint), 11.14 (peripheral neuropathies), 12.04 (affective disorders), and 12.06 (anxiety
related disorders). (Tr. 20–22). Following this, the ALJ found Plaintiff has the residual
functioning capacity (“RFC”) to perform sedentary work, except he is limited to:
lifting up to 10 pounds frequently and 10 pounds occasionally; standing
and/or walking approximately two hours and sitting approximately six
hours in an eight-hour day; never climbing ladders, ropes, or scaffolds but
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can occasionally climb ramps or stairs; never balancing; no work at heights
or around hazards or hazardous machinery; occasionally pushing and
pulling with the left lower extremity; and routine, repetitive instructions
and tasks in unskilled work, with three to four steps. Additionally, contact
with the public, coworkers, and supervisors should be brief for short
periods of time, superficial, and not on a decision-making type basis.
(Tr. 22). The ALJ next concluded that there are jobs that exist in significant numbers in
the national economy that Plaintiff can perform when considering his age, education,
work experience, and RFC. (Tr. 28–29). Accordingly, Plaintiff was found not disabled
from September 27, 2013 through the date of the ALJ’s decision. (Tr. 29).
III.

ANALYSIS
A. Legal Standard
Disability benefits are available to individuals determined to be under a disability.

42 U.S.C. § 1381a; accord 20 C.F.R. § 416.901. An individual is considered disabled if
he 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 12
months.” 42 U.S.C. § 1382c(a)(3)(A). This standard is met when a severe physical or
mental impairment, or impairments, renders the individual unable to do his previous work
or “any other kind of substantial gainful work which exists in the national economy”
when taking into account his age, education, and work experience. 42 U.S.C.
§ 1382c(a)(3)(B). Disability is determined according to a five-step, sequential evaluation
process. 20 C.F.R. § 416.920(a)(4).
To determine disability, the ALJ follows the familiar five-step process,
considering whether: (1) the claimant was employed; (2) she was severely
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impaired; (3) her impairment was, or was comparable to, a listed
impairment; (4) she could perform past relevant work; and if not,
(5) whether she could perform any other kind of work.
Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir. 2010) (citing 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4)). In general, the burden of proving the existence of
disability lies with the claimant. 20 C.F.R. § 404.1512(a); Thomas v. Sullivan, 928 F.2d
255, 260 (8th Cir. 1991).
This Court reviews whether the ALJ’s decision is supported by substantial
evidence in the record as a whole. Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011)
(citing Harris v. Barnhart, 356 F.3d 926, 928 (8th Cir. 2004)); 42 U.S.C. § 405(g).
“Substantial evidence means less than a preponderance but enough that a reasonable
person would find it adequate to support the decision.” Boettcher, 652 F.3d at 863 (citing
Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005)). This standard requires the
Court to “consider the evidence that both supports and detracts from the ALJ’s decision.”
Perks v. Astrue, 687 F.3d 1086, 1091 (8th Cir. 2012) (citing Ellis v. Barnhart, 393 F.3d
988, 993 (8th Cir. 2005)).
The ALJ’s decision “will not [be] reverse[d] simply because some evidence
supports a conclusion other than that reached by the ALJ.” Perks, 687 F.3d at 1091
(citing Pelkey v. Barnhart, 433 F.3d 575, 578) (8th Cir. 2006)). “If, after reviewing the
record, the court finds it is possible to draw two inconsistent positions from the evidence
and one of those positions represents the [ALJ’s] findings, the court must affirm the
[ALJ’s] decision.” Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). In
reviewing the record for substantial evidence, the Court may not substitute its own
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judgment or findings of fact for that of the ALJ. Hilkemeyer v. Barnhart, 380 F.3d 441,
445 (8th Cir. 2004); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993).
B. Plaintiff’s Cane Usage
Plaintiff first argues that the ALJ erred in formulating the RFC by not accounting
for his cane usage. (ECF No. 20, at 5–13).
Social Security Ruling 96-9p, discusses the “the impact of a [RFC] assessment for
less than a full range of sedentary work on an individual’s ability to do other work.” 1996
WL 374185, at *1. SSR 96-9p addresses exertional limitations and restrictions, including
those related to a medically required hand-held assistive device. Id. at *7. “To find that a
hand-held assistive device is medically required, there must be medical documentation
establishing the need for a hand-held assistive device to aid in walking or standing, and
describing the circumstances for which it is needed . . . .” Id.; Tripp v. Astrue, 489 F.
App’x 951, 955 (7th Cir. 2012); Staples v. Astrue, 329 F. App’x 189, 191–92 (10th Cir.
2009); Howze v. Barnhart, 53 F. App’x 218, 222 (3d Cir. 2002). “The standard described
in SSR 96–9p does not require that the claimant have a prescription for the assistive
device in order for that device to be medically relevant to the calculation of her RFC.”
Staples, 329 F. App’x at 191.
In determining Plaintiff’s RFC, the ALJ referenced Plaintiff’s cane usage twice
when recounting specific medical records: in February 2014, “the claimant had a widebased gait, used a cane, was unable to tandem walk or squat, had slightly reduced flexion
in his knees, neuropathy in his legs, and reduced from [sic] in his left ankle,” (Tr. 25);
and in March 2015, “the claimant walked with a limp and a cane, but the examiner
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indicated that the claimant’s pain medications have allowed him to continue to be active
and continue his employment,” (Tr. 25). The ALJ did not discuss another reference to
Plaintiff’s cane usage found in the record, (see Tr. 292), only discussing the mental
aspects found therein, (Tr. 27) (discussing the opinion of Dr. James Huber). Nor did the
ALJ discuss or reference Plaintiff’s assertion in his two Adult Function Reports that he
requires a cane and his cane was prescribed, despite discussing other aspects of those
submissions.
Despite noting that Plaintiff made use of a cane, the ALJ made no specific finding
as to whether the cane used by Plaintiff was medically required and whether its use was
supported by the medical record. SSR 96-9p; Staples, 329 F. App’x at 192 (“Application
of [the SSR 96-9p] standard here requires us to ask whether there is any medical
documentation establishing the need for a hand-held assistive device to aid in walking or
standing.”). In fact, the ALJ does not reference SSR 96-9p anywhere in the decision. 1
The ALJ’s failure to address Plaintiff’s cane usage impedes this Court’s ability to review
the decision. Thomas v. Colvin, 534 F. App’x 546, 550 (7th Cir. 2013) (“The error in this
case, however, is not that the medical evidence required the ALJ to find that [claimant]
needed a cane to stand and walk, but that the ALJ failed to consider the issue at all,
leaving us without a finding to review.”) (emphasis in original); Masch v. Barnhart, 406
F. Supp. 2d 1038, 1052 n.12 (E.D. Wis. 2005) (noting that, on remand, ALJ should
consider plaintiff’s cane use pursuant to SSR 96-9p where ALJ discussed plaintiff’s cane
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The failure to reference SSR 96-9p is particularly notable where the ALJ made heavy use of the SSRs in
his decision, citing 14 others: 83-11; 83-12; 83-14; 85-15; 85-28; 96-3p; 96-4p; 96-5p; 96-6p; 96-7p; 968p; 00-4p; 02-01p; and 06-3p.

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use but made no determination as to its medical necessity). Thus, remand is appropriate
so Plaintiff’s cane usage may be considered in the first instance. Draper v. Barnhart, 425
F.3d 1127, 1130 (8th Cir. 2005) (“While a deficiency in opinion-writing is not a
sufficient reason to set aside an ALJ’s finding where the deficiency has no practical effect
on the outcome of the case, inaccuracies, incomplete analyses, and unresolved conflicts
of evidence can serve as a basis for remand.”) (quotation and citation omitted).
Defendant argues that, despite the ALJ failing to address Plaintiff’s cane usage,
the ALJ did not err because the medial record is inconsistent with Plaintiff’s claimed
need for a cane. (ECF No. 23, at 7–8). The ALJ made no determination that Plaintiff’s
cane was or was not medically required, so this Court cannot determine whether
substantial evidence supports this finding. Nonetheless, the Court is unpersuaded by
Defendant’s argument. The ALJ’s failure to make any determination pursuant to SSR 969p as to Plaintiff’s cane usage is puzzling given the fairly straightforward nature of the
medical record concerning the cane and Plaintiff’s well-documented lower extremity
ailments. In an Adult Function Report submitted December 2, 2013, Plaintiff reported
using a cane to walk and that it was prescribed in 2010. (Tr. 164). In another Adult
Function Report submitted September 22, 2014, Plaintiff again reported using a cane
when leaving his home and that it has been prescribed for “[a] few years.” (Tr. 182).
Plaintiff was observed by various medical providers using a cane during and after the
time period between his Adult Function Reports. (Tr. 240–41 (Feb. 27. 2014); Tr. 292
(Nov. 3, 2014); Tr. 306 (Mar. 9, 2015)). These records show Plaintiff’s consistent and
persistent use of a cane. The contemporaneous medical records cited by Defendants do
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not contradict this; while some improvement was observed in various aspects of
Plaintiff’s lower extremities, the medical observations are not inconsistent with ongoing
cane usage.
In sum, the ALJ erred in failing to determine pursuant to SSR 96-9p whether
Plaintiff’s cane was medically required. By not making a decision, either in the
affirmative or negative, the Court is deprived of the ability to conduct a substantial
evidence review of the ALJ’s overall decision. Thus, remand is required to permit the
ALJ to make that determination in the first instance, to complete the analysis. Moreover,
because the Court vacates the ALJ’s decision as to steps four and five, it does not reach
Plaintiff’s remaining arguments as to the ALJ’s weighing of the opinions of physician’s
assistant Claude Erickson and Dr. A. Neil Johnson because the ALJ will necessarily have
to reconduct the RFC analysis, which in turn includes weighing these opinions anew.

[Continued on next page.]

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IV.

CONCLUSION
Based upon the record, memoranda, and proceedings herein, and for the reasons

stated above, IT IS HEREBY ORDERED as follows:
1. Plaintiff’s Motion for Summary Judgment, (ECF No. 19), is GRANTED.
2. Defendant’s Motion for Summary Judgment, (ECF No. 22), is DENIED.
3. The Commissioner’s decision is VACATED as to steps four and five and this
matter is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for
further proceedings consistent with this opinion.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Date: September 17, 2018

s/ Tony N. Leung
Tony N. Leung
United States Magistrate Judge
District of Minnesota
Emery v. Berryhill
Case No. 17-cv-1988 (TNL)

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