Gonzalez v. Commissioner of Social Security Administration

Filing 24

Memorandum and Opinion: Based upon a review of the record and law, the decision of the Administrative Law Judge is affirmed; substantial evidence supports the finding of the Administrative Law Judge that plaintiff retained the residual functio nal capacity to perform a reduced range of sedentary work; therefore, plaintiff was not disabled, and he is not entitled to disability insurance benefits and supplemental security income (Related document 1 ). Signed by Magistrate Judge George J. Limbert on 6/16/14. (S,AA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CARLOS A. GONZALEZ
Plaintiff
v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION

Defendant

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CASE NO. 1:13CV1229
MAGISTRATE JUDGE
GEORGE J. LIMBERT
MEMORANDUM AND OPINION

Plaintiff requests judicial review of the final decision of the Commissioner of Social Security
denying Carlos A. Gonzales Disability Insurance Benefits (DIB) and Supplemental Security Income
(SSI). The Plaintiff asserts that the Administrative Law Judge (ALJ) erred in his January 23, 2012
decision in finding that Plaintiff was not disabled because he retained the capacity to perform a
reduced range of sedentary work (Tr. 111, Finding No. 5). The Court finds that substantial evidence
supports the ALJ’s decision for the following reasons:

I.

PROCEDURAL HISTORY
Plaintiff, Carlos A. Gonzales, filed his application for DIB and SSI on July 22, 2010, alleging

that he became disabled on April 21, 2010 (Tr. 301-304). Plaintiff’s application was denied initially
and on reconsideration (Tr. 241-243, 248-251, 258-260, 265-267). Plaintiff requested a hearing
before an ALJ, and, on September 15, 2011, a hearing was held where Plaintiff appeared with counsel
1

and testified before an ALJ, and Ted Macy, a vocational expert, also testified (Tr. 123-141).
On January 23, 2012, the ALJ issued his decision, finding Plaintiff not to be disabled (Tr. 108116). Plaintiff requested a review before the Appeals Council, and the Appeals Council denied
Plaintiff’s request for review (Tr. 1-7, 101). Therefore, Plaintiff has requested judicial review of the
Commissioner’s final decision pursuant to 42 U.S.C. Section 405(g) and 42 U.S.C. Section 1383(c).

II.

STATEMENT OF FACTS
Plaintiff was born on May 21, 1983, which made him twenty-six years old as of his alleged

onset date (Tr. 301). Plaintiff received his GED (Tr. 326). His past relevant work was as a nursery
worker, which was unskilled work, and performed at a heavy exertional level (Tr. 136, 327).

III.

SUMMARY OF MEDICAL EVIDENCE
Plaintiff limited his arguments to his physical impairments only, and primarily his left knee

(Pl.’s Br. at 11-20).
Plaintiff alleged that he found out he had multiple sclerosis in 2004 (Tr. 548), yet a CT scan
of his brain, taken in November 2009, was normal (Tr. 423).
In February 2010, Plaintiff slipped and fell on ice while he was moving a trailer at work, and
the trailer hitch struck his left leg and knee (Tr. 557, 569, 807, 848).
An MRI of Plaintiff’s left knee, taken in April 2010, showed chondromalacia patella (Tr. 357,
448, 506, 567, 678, 834, 852). An MRI of Plaintiff’s thoracic spine was negative (Tr. 520).
Plaintiff’s primary care physician, Gregory C. Brant, D.O., issued Plaintiff a “No Restrictions”
“Return to Work” slip on April 5, 2010 (Tr. 522).

2

In early May 2010, Plaintiff began seeing John Posch, M.D. for his left knee (Tr. 569, 844).
On examination, Plaintiff had 0 to 140 degrees of range of motion with no laxity or effusion, negative
Apley and McMurray test and diffuse discomfort mainly on palpation of the patella (Tr. 569). Dr.
Posch diagnosed nonspecific knee pain secondary to chondromalacia of the patella and contusion of
the left knee (Tr. 569). He ordered a quadriceps strengthening program, since surgery was usually
not helpful for this type of problem (Tr. 569).
Dr. Posch also observed that Plaintiff walked with a limp in the office when he knew he was
being watched, but then walked with a normal gait out to the parking lot after the office visit, unaware
that he was being observed (Tr. 569). In conclusion, Dr. Posch stated, “I do not find any evidence of
any major knee pathology in this individual” (Tr. 569).
Plaintiff then sprained his left foot in late May 2010 (Tr. 395, 471, 480, 710, 716, 828).
Plaintiff then saw William A. Seeds, M.D., an orthopedist, in May 2010 for his left knee pain
(Tr. 561, 564, 849-850). Dr. Seeds determined that Plaintiff had a mechanical knee problem
consistent with his injury and the MRI showing a full thickness cartilage defect from direct trauma
(Tr. 562, 565, 850). The plan was for Plaintiff to undergo arthroscopic intervention (Tr. 562, 565).
Dr. Seeds issued Plaintiff a three-month excuse from work (Tr, 673).
In May 2010, Plaintiff denied having any limitations in activities of daily living, and reported
that he raised pit bulls and liked to attend dog shows and do things with his children (Tr. 548).
Plaintiff slipped on concrete steps in July 2010, affecting his left knee (Tr. 452-453). An x-ray
was unremarkable (Tr. 459).
In August 2010, Dr. Seeds examined Plaintiff in follow up for his left knee (Tr. 507, 597).
Plaintiff’s diagnosis was full thickness cartilage defect that continued to be a problem; they were
awaiting approval for surgical intervention (Tr. 508, 598). Dr. Seeds issued Plaintiff another three3

month excuse from work (Tr. 674).
Plaintiff underwent an independent medical examination (IME) in late August 2010 by
Gregory A. Moten, D.O. in connection with a worker’s compensation claim (Tr. 557-559, 871-873).
Dr. Moten noted that Plaintiff’s MRI was consistent with blunt trauma, and stated that Plaintiff may
require arthroscopic intervention to repair the defect (Tr. 559, 873).
Oscar F. Sterle, M.D. conducted a second IME in late August 2010 (Tr. 587, 862). Plaintiff
described the nature of his February 2010 knee injury that occurred while working as a general laborer
at a nursery (Tr. 587, 862). He complained of knee pain, swelling, and stiffness (Tr. 588, 863). Dr.
Sterle reviewed and summarized Plaintiff’s medical records (Tr. 588-589, 863-864). Plaintiff’s
examination showed: walking with a significant limp on the left; good alignment of the lower limbs;
ability to rise on toes and heels; ability to squat with no obvious weakness; no swelling or effusion
of the left knee; no redness, scars, or discoloration of the left knee; good patellar tracking with no
evidence of subluxation; negative patellar apprehension and tracking compression tests; no evidence
of knee instability; normal range of motion on extension, and slightly reduced range of motion on
flexion; intact sensation of the lower limbs; no muscle atrophy of the lower limbs, with equal
circumference measurements; and good motor strength of the quadriceps and hamstrings (Tr. 590-591,
865-866).
State agency physician, W. Jerry McCloud, M.D., reviewed Plaintiff’ medical evidence in
October 2010, and opined that Plaintiff retained the capacity to occasionally lift and/or carry twenty
pounds, frequently lift and/or carry ten pounds, stand and/or walk for a total of four hours in an eighthour workday, and sit for about six hours in an eight-hour workday; and that he could never use left
foot controls and could occasionally climb ramps/stairs, stoop, kneel, crouch, and crawl, but never
climb (Tr. 180, 196). Dr. McCloud specifically stated that he was limiting Plaintiff to four hours of
4

standing and walking, due to left knee pain (Tr. 180, 196). William Bolz, M.D. later agreed with this
assessment in February 2011 (Tr. 214, 232).
Carl Rosenberg, M.D. examined Plaintiff in November 2010, at the request of Plaintiff’s
primary care physician, Dr. Brant (Tr. 774-775). Plaintiff’s medications included Lyrica, Oxycodone,
and Baclofen for muscle twitching and pain (Tr. 774). Dr. Rosenberg noted that Plaintiff reported a
history of an MS diagnosis, but had a negative CT scan and had never had a true MS exacerbation (Tr.
774). He also had no history of any transient neuralgic deficit and no visual disturbance (Tr. 774).
Dr. Rosenberg stated that, “[w]hile [Plaintiff] may have had signs of a demyelinating event, he had
no history compatible with MS” (Tr. 775). Nevertheless, Plaintiff reported that he was seeking
disability benefits for MS (Tr. 774). Plaintiff’s motor examination showed normal strength, tone, and
bulk in all four extremities (Tr. 775). Dr. Rosenberg assessed Plaintiff as having anxiety (Tr. 775).
In December 2010, Dr. Rosenberg wrote to Dr. Brant about his examination of Plaintiff for
low back pain, after reviewing Plaintiff’s brain and thoracic spine MRI’s (Tr. 719, 768). Dr.
Rosenberg reiterated that Plaintiff’s MRI showed no definitive evidence of multiple sclerosis plaques,
and stated, “I highly doubt that this gentleman has multiple sclerosis” (Tr. 719, 768). Plaintiff’s Cspine MRI was negative (Tr. 719, 769). Dr. Rosenberg stated that the most he could find was “a report
of a possible mild L5 disc” (Tr. 719, 768).
The record next shows that Plaintiff underwent a left knee arthroscopy on December 23, 2010,
after which Dr. Seeds prescribed physical therapy (Tr. 659, 664, 666). A physical therapy report
dated February 2011 states that Plaintiff no longer experienced his knee giving out and had increased
range of motion from treatment (Tr. 898).
In May 2011, Dr. Seeds recommended a synthetic joint fluid injection for Plaintiff’s knee pain
(Tr. 804). On examination, Plaintiff had full range of motion, 5/5 strength, and no instability (Tr.
5

803).
Thereafter, Plaintiff fell in June 2011 and sought an examination in the Emergency
Department for his left foot (Tr. 1011-1013).
Dr. Seeds recommended a repeat MRI of Plaintiff’s left knee in July 2011 (Tr 801).
In July 2011, Thomas Jones, M.D. assessed Plaintiff as having grade IV chondromalacia
patellae, mild distal quadriceps tendinosis, and small effusion based upon an MRI (Tr. 797, 1043).
Dr. Seeds recommended arthroscopy with further debridement chondroplasty of the defect (Tr. 796).
In August 2011, Plaintiff reported continued knee pain, and Dr. Seeds noted that Plaintiff’s
MRI showed further articular defect (Tr. 905). Dr. Seeds performed a left knee arthroscopy on
September 1, 2011 (Tr. 906-907).
In early October 2011, Plaintiff underwent surgical repair of a torn anterior cruciate ligament
(ACL) (Tr. 914-915, 1005-1006, 1025).
On examination by Dr. Seeds in November 2011, Plaintiff had increased scar tissue around
the knee and had reduced flexion and extension (Tr. 919). Dr. Seeds recommended an arthroscopic
evaluation (Tr. 919).
Plaintiff had another left knee arthroscopy on December 8, 2011 (Tr. 1034-1035).
In early January 2012, Plaintiff slipped and fell on ice in his backyard, sustaining a left knee
contusion (Tr. 1015, 1039). Dr. Seeds sent him for another MRI (Tr. 1039). In January 2012, Dr.
Seeds referred Plaintiff to Gilbert H. Maulsby, M.D. to interpret the MRI (Tr. 1041-1042). Dr.
Maulsby concluded that Plaintiff had at least intermediate grade patellofemoral compartment
chondromalacia, post-surgical change of ACL graft and medial meniscectomy, and no recurrent
meniscal tear or graft tear (Tr. 1042).

6

In late January 2012, Dr. Seeds reported that Plaintiff’s MRI showed no change and that his
ACL was still intact with no effusion (Tr. 1041). Plaintiff was developing a pain syndrome of the soft
tissue (Tr. 1041). He opined that with Plaintiff’s sensitivity and difficulty progressing, that he was
“not a candidate for any type of work presently” (Tr. 1041). The plan was to send him to pain
management (Tr. 1041).
In February 2012, Tim Nice, M.D. wrote to Plaintiff’s attorney, after examining Plaintiff’s
knee (Tr. 1046-1047). Dr. Nice noted that, following ACL repair surgery by Dr. Seeds, Plaintiff
developed some tightness in his knee and lacked full extension and flexion, but that this would
improve for up to two years (Tr. 1046). He felt it was necessary for Plaintiff to wear a knee brace (Tr.
1046). Dr. Nice opined that it would be unrealistic for Plaintiff to return to the hard labor-type work
that he had done in the past (Tr. 1046). He stated that sedentary-type work would put Plaintiff at less
risk of re-injury to his knee (Tr. 1046). He added that Plaintiff would walk with a slight limp, have
difficulty squatting and going up and down ladders/inclines/scaffolding, and would experience aching
in inclement weather (Tr. 1046).

IV.

SUMMARY OF TESTIMONY
At that hearing before the ALJ, Plaintiff testified that he felt he was disabled because he was

diagnosed with multiple sclerosis in 2004, he finds it hard to bend down because of his knee, and he
has back pain (Tr. 126). With respect to activities, Plaintiff testified that he spends his time with his
children, going to his mother’s house, using the computer, and trying to keep himself busy (Tr. 128).
On the computer, Plaintiff chats on Facebook and looks at dogs, bikes, and cars (Tr. 135). He stated
that he has “two little kids,” and tries to play with them as much as he can until he starts getting bad
pain (Tr. 128). Plaintiff cannot get daycare for his children because he is off from work, and he does
7

not have anyone else to watch them (Tr. 128). Plaintiff also does home exercises because he is
supposed to stretch out his thigh muscle “because that’s where [his] ACL’s are at” (Tr. 128). The ALJ
asked about Plaintiff’s drinking of alcohol, and he testified that he is not alcoholic, but on some days
he drinks a 12-pack, on others “maybe six” (Tr. 129). When asked what medications he took for pain,
Plaintiff testified, “I get Percocets” (Tr. 129). Plaintiff also testified about falling down his basement
steps and falling down his porch steps (Tr. 131). As part of his physical therapy for his back, Plaintiff
rides a bicycle and uses the squat machine (Tr. 134). Plaintiff is able to drive, and drove himself to
the hearing (Tr. 135).
Thereafter, the VE testified that Plaintiff’s past job as a nursery worker was heavy, unskilled
work (Tr. 136). The ALJ posed a hypothetical question to the VE, asking him to assume a twentyeight year old individual of the same age, with a GED, and the same work background as Plaintiff
(Tr. 137). This hypothetical individual can lift/carry twenty pounds occasionally and ten pounds
frequently; stand six out of eight hours, walk six out of eight hours, and sit six out of eight hours; has
no ability to use a left foot pedal, but can occasionally use a ramp or stairs, but never a ladder, rope
or scaffold; can frequently balance, occasionally stoop, never kneel, occasionally crouch, and never
crawl; needs to avoid temperature extremes and unprotected heights; and cannot do complex tasks,
but can do simple routine tasks (Tr. 137). The job cannot have stress, high production quotas, or piece
rate work, and cannot involve arbitration, negotiation, or confrontation (Tr. 137). Finally, the
hypothetical individual can have only superficial interpersonal interactions with the public, coworkers, and supervisors (Tr. 137).
In response, the VE testified that an individual with that profile could perform jobs that exist
in significant numbers in the regional and national economies, including the light unskilled jobs of
bench assembler and wire worker. The VE also identified the sedentary job of final assembler (Tr.
8

138). The VE further testified that the jobs of bench assembler and wire worker can also be
performed at the sedentary level, but would exist at reduced numbers (Tr. 138). Some other options
that fit at the sedentary level included table worker and bench hand, which also exist in significant
numbers in the national economy (Tr. 139). Upon additional questioning from Plaintiff’s counsel,
the VE testified that these jobs allowed for a sit/stand option and the use of a crutch while standing
or walking (Tr. 139).

V.

EVIDENCE SUBMITTED AFTER THE ALJ’S DECISION
Plaintiff submitted additional evidence after the ALJ issued a decision in January 2012

denying Plaintiff’s claim for disability benefits (Tr. 9-100).
This evidence indicates that Arpan Desai, D.O. examined Plaintiff in February 2012 (Tr. 9798). Dr. Desai observed that Plaintiff had full 5/5 motor strength and tone in his lower extremities
(Tr. 98). He had no obvious instability of his knee, but decreased range of motion with pain (Tr. 98).
There was no obvious atrophy (Tr. 98). Dr. Desai noted that Plaintiff was on “high dose opioids,” and
had a history of alcohol abuse (Tr. 98). To treat Plaintiff’s left knee pain, Dr. Desai administered a
left lumbar sympathetic block with fluoroscopic guidance in February 2012 and in March 2012 (Tr.
91, 94).
Plaintiff underwent a knee examination by Donald P. Goodfellow, M.D. in May 2012 (Tr. 8283). Plaintiff reported to Dr. Goodfellow that he has a few drinks per day to help with pain (Tr. 82).
Dr. Goodfellow observed that Plaintiff had flexion contracture (Tr. 83). His impression was fibroarthrosis post ACL reconstruction (Tr. 83).
Plaintiff went to the Emergency Department in June 2012 for back pain (Tr. 10). Plaintiff had
lifted up a child who had fallen off a bicycle, and pulled his back (Tr. 13, 15, 79). Spine CT scans
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were unremarkable (Tr. 17-18).
In July 2012, Plaintiff sought an Emergency Department examination for complaints of chest
pain/chest wall pain (Tr. 20). He was assessed as having costochondritis (inflammation of the
cartilage that attaches the ribs to the breastbone) (Tr. 21).
In September 2012, Plaintiff went to the Emergency Department after he slipped going down
the deck and injured his foot (Tr. 30). He was assessed as having plantar fascitis (Tr. 31).
In late October 2012, at a pre-surgical assessment and physical, Plaintiff reported that he fell
in mid-October when his knee went out (Tr. 47).
Plaintiff’s attorney referred him to Timothy Nice, M.D. (Tr. 82), who performed exploratory
knee surgery on October 31, 2012 (Tr. 59-60). Dr. Nice noted that Plaintiff’s knee was normal, but
showed the previous ACL repair and chondromalacia of the patella (Tr. 60). There were no clinical
signs of significant instability (Tr. 60).
In November 2012, Plaintiff again went to the Emergency Department, this time because he
tripped and fell in the yard, and his hand touched a hot muffler (Tr. 34). His burned hand was treated
and bandaged (Tr. 35).
The new evidence also shows that Dr. Brant continued to prescribe Plaintiff Oxycodone (Tr.
76-78, 86-88).

VI.

STEPS TO EVALUATE ENTITLEMENT TO SOCIAL SECURITY BENEFITS
An ALJ must proceed through the required sequential steps for evaluating entitlement to

disability insurance benefits and supplemental security income. These steps are:
1.

An individual who is working and engaging in substantial gainful
activity will not be found to be “disabled” regardless of medical
findings (Sections 20 C.F.R. 404.1520(b) and 416.920(b) (1992);
10

2.

An individual who does not have a “severe impairment” will not be
found to be “disabled” (Sections 20 C.F.R. 404.1520(c) and
416.920(c)(1992);

3.

If an individual is not working and is suffering from a severe
impairment which meets the duration requirement, see Sections 20
C.F.R. 404.1509 and 416.909 (1992), and which meets or is equivalent
to a listed impairment in Sections20 C.F.R. Pt. 404, Subpt. P, App. 1,
a finding of disabled will be made without consideration of vocational
factors (Sections 20 C.F.R. 404.1520(d) and 416.920(d) (1992);

4.

If an individual is capable of performing the kind of work he or she has
done in the past, a finding of “not disabled” must be made (Sections 20
C.F.R. 404.1520(e) and 416.920(e) (1992);

5.

If an individual’s impairment is so severe as to preclude the
performance of the kind of work he or she has done in the past, other
factors including age, education, past work experience and residual
functional capacity must be considered to determine if other work can
be performed (Sections 20 C.F.R. 404.1520(f) and 416.920(f) (1992).

Hogg v. Sullivan, 987 F.2d 328, 332 (6th Cir. 1992). The claimant has the burden of going forward
with the evidence at the first four steps and the Commissioner has the burden at Step Five to show that
alternate jobs in the economy are available to the claimant, considering his age, education, past work
experience and residual functional capacity. See, Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir.
1990).

VII.

STANDARD OF REVIEW
Under the Social Security Act, the ALJ weighs the evidence, resolves any conflicts, and makes

a determination of disability. This Court’s review of such a determination is limited in scope by
Section 205 of the Act, which states that the “findings of the Commissioner of Social Security as to
any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. Section 405(g).
11

Therefore, this Court is limited to determining whether substantial evidence supports the
Commissioner’s findings and whether the Commissioner applied the correct legal standards. See,
Abbott v. Sullivan, 905 F.2d 918, 922 (6th Cir. 1990). The Court cannot reverse the ALJ’s decision,
even if substantial evidence exists in the record that would have supported an opposite conclusion, so
long as substantial evidence supports the ALJ’s conclusion. See, Walters v. Commissioner of Social
Security, 127 F.3d 525., 528 (6th Cir. 1997). Substantial evidence is more than a scintilla of evidence,
but less than a preponderance. See, Richardson v. Perales, 402 U.S. 389, 401 (1971). It is evidence
that a reasonable mind would accept as adequate to support the challenged conclusion. See, id.,
Walters, 127 F.3d 525, 532 (6th Cir. 1997). Substantiality is based upon the record taken as a whole.
See, Houston v. Secretary of Health and Human Servs., 736 F.2d 365 (6th Cir. 1984).

VIII. ANALYSIS
Plaintiff raises three issues:
A.

WHETHER SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ’S
DETERMINATION THAT PLAINTIFF’S SEVERE IMPAIRMENTS
DID NOT MEET, OR AT LEAST EQUAL, LISTING 1.02(A).

B.

WHETHER THE ADMINISTRATIVE LAW JUDGE ERRED IN
FAILING TO PROVIDE A PROPER AND ADEQUATE ANALYSIS
OF THE PLAINTIFF’S PAIN COMPLAINTS.

C.

WHETHER MEDICAL EVIDENCE SUBMITTED SUBSEQUENT
TO THE HEARING IS NEW AND MATERIAL EVIDENCE
WARRANTING REMAND.

The ALJ issued a decision on January 23, 2012, finding that Plaintiff had the “severe”
impairments of contusion and articular cartilage defect of the left knee, chronic low back pain with
mild L5 disc disease, attention deficit disorder, mood disorder, and anxiety (Tr. 109, Finding No. 3).
He further found that Plaintiff retained the capacity to perform a reduced range of sedentary work (Tr.
12

111, Finding No. 5).
Based upon this residual functional capacity (RFC), the ALJ determined that Plaintiff could
not perform his past relevant work as a nursery worker (Tr. 115, Finding No. 6), but that he could
perform the representative sample of jobs that the VE identified (Tr. 116, Finding No. 10). Therefore,
Plaintiff was not disabled and not entitled to benefits (Tr. 116, Finding No. 11).
First, Plaintiff argues that the ALJ erred in failing to find that his left knee impairment met or
equaled Listing 1.02A (Pl.’s Br. at 11-14). However, the Court finds that Plaintiff does not have an
inability to ambulate effectively, and, hence, he does not meet or equal this Listing.
Listing 20 C.F.R. pt. 404, subpt. P, app.1., Listing 1.02, requires the showing of “major
dysfunction of a joint(s) (due to any cause),” characterized by gross anatomical deformity (e.g.,
subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness
with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on
appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of
the affected joint(s) with:
A.

Involvement of one major peripheral weight-bearing joint (i.e., hip, knee, or ankle),
resulting in inability to ambulate effectively, as defined in 1.00B2b;

Section 1.00B2b states that to ambulate effectively:
individuals must be capable of sustaining a reasonable walking pace over a
sufficient distance to be able to carry out activities of daily living. They must
have the ability to travel without companion assistance to and from a place of
employment or school. Therefore, examples of ineffective ambulation include,
but are not limited to, the inability to walk without the use of a walker, two
crutches or two canes, the inability to walk a block at a reasonable pace on
rough or uneven surfaces, the inability to use standard public transportation,
the inability to carry out routine ambulatory services, such as shopping and
banking, and the inability to climb a few steps at a reasonable pace with the use
of a single handrail. The ability to walk independently about one’s home
without the use of assistive devices does not, in and of itself, constitute
effective ambulation.
20 C.F.R. pt. 404, subpt. P, app. 1., section 1.00B2b.

13

Plaintiff’s bases his arguments on whether he is able to ambulate effectively as described in
the regulations. The evidence does not demonstrate that Plaintiff was unable to ambulate effectively.
Plaintiff concedes as much in his brief (Pl.’s Br. at 12). Plaintiff has only established that he walks
with a limp (Pl.’s Br. at 12). However, the record shows that in May 2010, Dr. Posch observed
Plaintiff walking with a limp in the office during the examination, but then walking with a normal gait
out to the parking lot after the office visit when he thought no one was looking (Tr. 569).
Hence, there is no evidence in the record establishing the type of restricted ambulation that the
Listing requires. In fact, Plaintiff testified that he is the full-time caregiver for his young children, as
they are no longer in daycare (Tr. 128). He spends his time with his children, going to his mother’s
house, and keeping himself busy (Tr. 128). He stated that he tries to play with his “two little kids” as
much as he can (Tr. 128). These activities contradict his claim that he cannot ambulate effectively.
The objective evidence also does not support a conclusion that Plaintiff meets or equals this
Listing. A physical therapy report dated February 2011 states that Plaintiff no longer experienced his
knee giving out and had increased range of motion from treatment (Tr. 898). In addition, Dr. Seeds
notes in May 2011 that Plaintiff had full range of motion of his knee, 5/5 strength, and no instability
(Tr. 803). In February 2012, Dr. Desai observed that Plaintiff had full 5/5 motor strength and tone in
his lower extremities (Tr. 98). He also had no obvious instability of his knee and no obvious muscle
atrophy (Tr. 98).
While Plaintiff claims the use of one crutch on occasion, the Listing contemplates needing two
canes or two crutches for ambulation to be considered ineffective. As of February 2012, Plaintiff’s
only prescribed medical device was a knee brace, as Dr. Nice noted (Tr. 1046). Also, Dr. Nice opined
that Plaintiff could not return to the hard-labor type work that he had done in th past (Tr. 1046), not
that he was completely unable to work. The only limitations he observed were that Plaintiff walked
with a slight limp, and would have difficulty squatting and going up and down

14

ladders/inclines/scaffolding (Tr. 1046).
Furthermore, W. Jerry McCloud, M.D. and William Bolz, M.D. opined that Plaintiff did not
meet the Listing of impairments in 1.02. These Ohio state agency reviewing physicians are charged
with the task of determining whether a claimant meets or equals a listing. They reviewed Plaintiff’s
medical evidence in October 2010, and opined that Plaintiff was able to perform a reduced range of
light/sedentary work (Tr. 180, 196, 214, 232). The ALJ correctly relied on their opinions in
concluding that Plaintiff did not meet or equal the listings. Drs. McCloud and Bolz are experts in the
evaluation of the medical issues in disability claims under the Act, and, therefore, their opinions
should be considered. See, 20 C.F.R. Sections 404.1527(e)(2)(i), 416.927(e)(2)(i) (2013). As highly
qualified physicians, they are permitted to consider the evidence and determine whether a listing has
been met or equaled or what RFC the claimant retains. 20 C.F.R. Sections 404.1527(f)(1),
416.927(f)(1); See, also, SSR 96-6p.
In regard to the next issue of Plaintiff, the ALJ correctly considered his subjective complaints
of pain (Pl.’s Br. at 14-16). Plaintiff, who was born in 1983, was a very young man in his late 20's
during the period at issue. His argument seems to focus on trying to convince this Court that the ALJ
erred because he has a significant knee impairment. Plaintiff’s knee impairment is not at issue – only
the extent to which it limits his functioning. The record establishes that Plaintiff’s left knee was a
concern throughout the years. Hence, the ALJ, in his RFC finding, limited Plaintiff in finding him
capable of only a reduced range of sedentary work (Tr. 111, Finding No. 5).
In regard to the argument of improperly evaluating pain (Pl.’s Br. 14-16), the ALJ must follow
the Social Security Regulations, that once a claimant establishes a medically determinable impairment
which could reasonably be expected to produce the pain or other symptoms alleged, the ALJ evaluates
the intensity and persistence of the symptoms to determine how they limit the claimant’s ability to
perform work-related activities. 20 C.F.R. Section 404.1529.

15

The Social Security Regulations establish a two-step process for evaluating pain. See, 20
C.F.R. Section 416.929, SSR 96-7p. First, there must be (1) objective medical evidence of an
underlying medical condition, and (2) objective medical evidence that confirms the severity of the
alleged disabling pain, or, objectively, the medical condition is of such severity that it can reasonably
be expected to produce such disabling pain. See, id.; Stanley v. Secretary of Health and Human
Services, 39 F.3d 115, 117 (6th Cir. 1994); Duncan v. Secretary of Health and Human Services, 801
F.2d 847 853 (6th Cir. 1986). In other words, the ALJ must first consider whether an underlying
medically determinable physical or mental impairment exists that could reasonably be expected to
produce the individual’s pain or other symptoms. See, id. Secondly, the ALJ must then determine the
intensity, persistence, and limiting effects of the claimant’s symptoms to determine the extent to which
the symptoms limit the claimant’s ability to do basic work activities. See, id.
Here, the ALJ reviewed the medical evidence, and concluded that, while the medical records
documented the existence of any impairment that could reasonably be expected to produce symptoms
of pain, the claimant’s allegations of disabling symptoms and limitations are not fully credible.
Moreover, to the extent that Plaintiff asserts that the ALJ was required to lay out various
factors in some particular format in assessing his credibility and subjective complaints, there is no
such requirement. The decision shows that the ALJ credited Plaintiff’s complaints of pain to the
extent that Plaintiff was incapable of work that was more demanding than the RFC finding.
Additionally, with respect to medications (Pl.’s Br. at 16), even if they were not effective, this does
not establish that Plaintiff was incapable of sedentary work. Plaintiff also alleges that the ALJ did not
discuss his surgeries (Pl.’s Br. at 16), which is not the case (Tr. 112-113).
In addition, Plaintiff is not fully credible. Dr. Posch noted Plaintiff feigned limping (Tr. 569).
Also, Plaintiff’s activities, including caring for his young children, are not consistent with his
allegations of not being able to work because of pain.

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Furthermore, the objective findings on examination do not support Plaintiff’s allegations. Dr.
Sterle’s examination in August 2010 showed that Plaintiff had good alignment of the lower limbs; no
swelling or effusion of the left knee; no redness, scars, or discoloration of the left knee; good patellar
tracking with no evidence of subluxation; negative patellar apprehension and tracking compression
tests; no evidence of knee instability; normal range of motion on extension, and slightly reduced range
of motion on flexion; intact sensation of the lower limbs; no muscle atrophy of the lower limbs, with
equal circumference measurements; and good motor strength of the quadriceps and hamstrings (Tr.
590-591, 865-866). When Dr. Seeds examined Plaintiff’s knee in May 2011, Plaintiff had full range
of motion, 5/5 strength, and no instability (Tr. 803). Also, Dr. Desai observed, in February 2012, that
Plaintiff had full 5/5 motor strength and tone in his lower extremities (Tr. 98).
To the extent Plaintiff alleges that he has problems with sitting (Pl.’s Br. at 16), the VE
testified that the jobs identified allowed for a sit/stand option (Tr. 139). In conclusion, substantial
evidence supports the ALJ’s assessment of Plaintiff’s credibility.
Finally, Plaintiff argues that remand is required on the basis of new evidence submitted to this
Court (Pl.’s Br. at 17-19). However, a claimant has the burden of showing that the evidence is “new”
and “material” and that there was “good cause” for not submitting it to the ALJ before his decision.
Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). The claimant has the burden of showing all three
requirements. Id. Plaintiff has not met his burden of proof that the evidence relating to the period
after the date of the ALJ’s decision is appropriate for remand pursuant to the sixth sentence of 42
U.S.C. Section 405(g). See, Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 653 (6th Cir. 2009).
Plaintiff has not shown that the evidence meets all three requirements. Although Plaintiff has
submitted additional evidence of treatment and surgery, this evidence is not new evidence of the
limiting effects of Plaintiff’s condition prior to the ALJ’s decision. Further, the evidence presented
to the Appeals Council is after the relevant period, which ended on January 22, 2012, and is not

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“material” within the meaning of 42 U.S.C. Section 405(g) because it deals with a change in condition
after the administrative hearing. The mere fact that Plaintiff underwent later additional knee surgery
would not affect the ALJ’s decision in this case. The Commissioner would not have reached a
different decision if presented with this evidence of a later worsening of Plaintiff’s condition. Id.
Plaintiff must show that the newly-submitted evidence was relevant to the time period at issue and that
there was a probability that the Commissioner would have reached a different decision if presented
with this evidence. None of the evidence Plaintiff submitted supports limitations greater than the
ALJ’s initial RFC finding of a reduced range of sedentary work.
In addition, Plaintiff has also not satisfied the “good cause” requirement of sentence six,
because he has not discussed this requirement (Pl.’s Br. at 17-19).
Since the evidence relating to the period after the date of the ALJ’s decision was not really new
or material, and Plaintiff has not established a good cause, remand pursuant to the sixth sentence of
42 U.S.C. Section 405(g) is denied.

IX.

CONCLUSION
Based upon a review of the record and law, the undersigned affirms the ALJ’s decision.

Substantial evidence supports the finding of the ALJ that Plaintiff retained the residual functional
capacity (RFC) to perform a reduced range of sedentary work, and, therefore, was not disabled.
Hence, he is not entitled to DIB and SSI..

Dated: June 16, 2014

/s/George J. Limbert
GEORGE J. LIMBERT
UNITED STATES MAGISTRATE JUDGE

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