Alexander v. Commissioner of Social Security
Memorandum Opinion and Order: The Court AFFIRMS the Commissioner's decision. Magistrate Judge Kathleen B. Burke on 2/16/2017. (D,I)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
MARY P. ALEXANDER,
COMMISSIONER OF SOCIAL
CASE NO. 1:16-cv-00655
KATHLEEN B. BURKE
MEMORANDUM OPINION & ORDER
Plaintiff Mary P. Alexander (“Plaintiff” or “Alexander”) seeks judicial review of the final
decision of Defendant Commissioner of Social Security (“Defendant” or “Commissioner”)
denying her application for social security disability benefits. Doc. 1. This Court has
jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned Magistrate
Judge pursuant to the consent of the parties. Doc. 13. As explained more fully below, the Court
AFFIRMS the Commissioner’s decision.
I. Procedural History
Alexander protectively filed an application for Disability Insurance Benefits (“DIB”)
(“SSI”) on May 24, 2010. 1 Tr. 218, 385-391, 439. Alexander alleged a disability onset date of
June 17, 2002, which was later amended to February 27, 2010. Tr. 117-118, 218, 412. She
alleged disability due to neck, left shoulder, back and feet problems, sleep apnea, weight loss,
high blood pressure, fatigue and depression. Tr. 150, 170, 237, 247, 451. Alexander’s
The Social Security Administration explains that “protective filing date” is “The date you first contact us about
filing for benefits. It may be used to establish an earlier application date than when we receive your signed
application.” http://www.socialsecurity.gov/agency/glossary/ (last visited 2/16/2017).
application was denied initially (Tr. 237-240) and upon reconsideration by the state agency (Tr.
247-253). Thereafter, she requested an administrative hearing. Tr. 254.
On February 7, 2012, an administrative hearing was conducted by Administrative Law
Judge Bassett (“ALJ Bassett”). Tr. 59-100. On April 3, 2012, ALJ Bassett issued an
unfavorable decision. Tr. 194-210. Following a request for review of the unfavorable decision,
on May 25, 2013, the Appeals Council remanded the case back to an Administrative Law Judge
to (1) further evaluate Alexander’s mental impairments; (2) give further consideration to
Alexander’s maximum residual functional capacity and evaluate the treating and non-treating
source opinions; and (3) if necessary, expand the record and obtain vocational expert testimony.
Tr. 211-214, 218.
Pursuant to the Appeals Council’s remand, on March 4, 2014, Administrative Law Judge
Beekman (“ALJ”) held an administrative hearing. Tr. 101-131. On September 29, 2014, the
ALJ issued his decision. Tr. 215-236. In his decision, the ALJ determined that Alexander had
not been under a disability within the meaning of the Social Security Act from February 27,
2010, through the date of the decision. Tr. 219, 228. Alexander requested review of the ALJ’s
decision by the Appeals Council. Tr. 55-58. On January 13, 2016, the Appeals Council denied
Alexander’s request for review, making the ALJ’s decision the final decision of the
Commissioner. Tr. 1-6.
II. Evidence 2
Personal, vocational and educational evidence
Alexander was born in 1965. Tr. 385. At the time of the March 4, 2014, hearing, she
was 49 years of age. Tr. 103. Alexander has a high school education. Tr. 104. She worked as a
Alexander’s arguments pertain to the ALJ’s analysis of her foot impairment. Accordingly, the summary of
evidence relates primarily to that impairment.
mail processing clerk for the U.S. Postal Service. Tr. 104. Alexander was injured at work and
was off work from October 2009 through December 2009. Tr. 112. She attempted to go back to
work in December 2009 but was still having a difficult time because standing really aggravated
her back. Tr. 112-113. She completely stopped working in February 2010. Tr. 113, 117-118.
Alexander was treated by Robert Fumich, M.D., an orthopedic surgeon, and Mark Tozzi,
M.D., a podiatrist, for problems with her feet. See e.g., Tr. 1434-1437, 2355-2379, 2380-2382.
She complained of foot problems since at least March 2009. Tr. 224, 2356. Alexander had
problems with plantar fasciitis and pronated flat feet. Tr. 2356. In March and April 2009,
Alexander’s plantar faciitis of the heel seemed to have improved but she had pronated flatfeet,
pain along the posterior tib and peroneal tendons bilaterally and some heel pain. Tr. 2356. Dr.
Fumich ordered orthotics and recommended that Alexander use ice and anti-inflammatories. Tr.
2356. On September 8, 2009, Alexander had pronated flatfeet, no arch, and the posterior tib was
swollen bilaterally, worse on the left than right. Tr. 2356. Dr. Fumich noted concern regarding a
posterior tib tear since Alexander’s work involved standing 8 hours a day on cement as a postal
worker for the prior 14 years. Tr.2356. Dr. Fumich indicated that Alexander should use her arch
supports and ice. Tr. 2356. He ordered MRIs of Alexander’s foot and ankle. Tr. 2356. Dr.
Fumich ordered Alexander off work from September 15, 2009, through September 21, 2009, due
to bilateral foot pain. Tr. 2359-2360. On September 29, 2009, Dr. Fumich noted that Alexander
had posterior tib dysfunction bilaterally and a split peroneous brevis on the left and requested a
consultation with Dr. Tozzi. Tr. 2356.
Alexander saw Dr. Tozzi on November 11, 2009. Tr. 1435. Dr. Tozzi noted various
problems with Alexander’s feet but did not believe that she was a surgical candidate. Tr. 1435.
Dr. Tozzi recommended that Alexander be treated conservatively unless her problems worsened
over time, or there was evidence of a tear. Tr. 1435. Dr. Tozzi administered an injection in
Alexander’s left hindfoot and indicated that, once Alexander’s left foot improved, he would
consider an injection on the right side. Tr. 1435. Dr. Tozzi also prescribed Mobic. Tr. 1435.
In February 2010, Alexander saw Dr. Tozzi. Tr. 1435. Dr. Tozzi noted that Alexander
was doing fine. Tr. 1435. Alexander received a cortisone injection, her prescription for Mobic
was renewed, and Dr. Tozzi recommended that Alexander continue to use her orthotics in her
work shoes. Tr. 1435. When Alexander saw Dr. Tozzi on June 2, 2010, she was limping badly.
Tr. 1435. Alexander reported that her left foot/ankle was much worse than it had been. Tr.
1435. Dr. Tozzi ordered an MRI to determine whether Alexander had a tear in the posterior
tendon. Tr. 1435. Following the MRI, Alexander saw Dr. Tozzi on June 21, 2010. Tr. 1435.
Dr. Tozzi indicated that there was “evidence of a grade PTTD [posterior tibial tendon
dysfunction] with some tendinosis noted, in addition to some enlargement and fraying of the
tendon, [but] . . . no frank tear.” Tr. 1435, 1436-1437. Dr. Tozzi also noted that Alexander had
“a significant valgus[ 3] in her left foot.” Tr. 1435. Dr. Tozzi advised Alexander of the surgical
procedure that might be necessary if the condition worsened but recommended foregoing surgery
for the time being and having Alexander wear her brace to prevent worsening. Tr. 1435.
On June 15, 2011, Alexander saw Dr. Tozzi complaining that her pain was disabling;
both of Alexander’s ankles, arches and heels were hurting. Tr. 2215. Dr. Tozzi observed that
Alexander’s condition seemed to be worsening but he was reluctant to proceed with surgery
A “valgus” is “an abnormally turned position of a part of the bone structure of a human being[.]”
http://www.dictionary.com/browse/valgus?s=t (last visited 2/16/2017).
because Alexander was “having pain in her low back, some major joint pain, and recalcitrant
foot and ankle pain.” Tr. 2215. Dr. Tozzi felt that Alexander’s best option was to consult with a
rheumatologist. Tr. 2215. Alexander saw Dr. Tozzi on September 19, 2011. Tr. 2215.
Alexander’s arthritis workup was negative for rheumatoid arthritis. Tr. 2215. Alexander
complained of recalcitrant bilateral foot and ankle pain, stating that her feet hurt her from the
time she wakes in the morning and the pain worsens with activity. Tr. 2215. Since conservative
treatment had not made a great deal of different, Dr. Tozzi discussed surgery with Alexander.
Dr. Tozzi proceeded with arch reconstruction surgery on Alexander’s left foot in October
2011. Tr. 2215, 2216-2217, 2357. Dr. Tozzi saw Alexander on October 24, 2011, for a postoperative visit. Tr. 2215. Dr. Tozzi removed the short leg cast and replaced it with a short leg,
non-weightbearing fiberglass cast. Tr. 2215. Dr. Tozzi noted no complications and indicated
that Alexander’s x-rays looked excellent and the graft was in a good position to heal. Tr. 2215.
On November 14, 2011, Dr. Tozzi removed Alexander’s short leg cast and she was placed in a
leg walker boot. Tr. 2215. Alexander was taking Vicodin intermittently for pain. Tr. 2215. Dr.
Tozzi advised that Alexander could begin partial weightbearing as tolerated and instructed her to
follow up in three weeks for x-rays. Tr. 2215. Dr. Tozzi provided Alexander with a referral for
rehab and advised her that complete recovery could take 6 months to a year. Tr. 2215. Also, Dr.
Tozzi advised Alexander that she could expect intermittent swelling as her activity increased.
Tr. 2215. Dr. Tozzi provided Alexander with a prescription for Motrin 800 mg. Tr. 2215.
Alexander saw Dr. Tozzi again for post-op follow up on December 7, 2011. Tr. 2215.
Dr. Tozzi observed that Alexander’s wounds were benign and her neurovascular status was
intact. Tr. 2215. Dr. Tozzi also observed that Alexander had some mild edema in her left foot,
which Dr. Tozzi indicated was expected given the extent of the surgery. Tr. 2215. Alexander
had been attending physical therapy. Tr. 2215. Dr. Tozzi indicated that Alexander’s x-rays
looked excellent and her bone graft appeared to be “healing nicely in excellent position.” Tr.
2215. Dr. Tozzi again discussed with Alexander that it would take time for her to heal and that
she should continue with physical therapy and continue challenging herself weightbearing. Tr.
2215. Dr. Tozzi believed that it would be another month or two before Alexander could wear a
shoe. Tr. 2215.
Alexander started physical therapy on December 1, 2011, at NovaCare Rehabilitation.
Tr. 2326-2329, 2345. Alexander cancelled or did not show for physical therapy appointments on
December 5, 7, and 9th. Tr. 2332-2334. She attended therapy on December 12 and December
15 (Tr. 2335-2344) but no showed for her December 22 appointment (Tr. 2346).
On December 22, 2011, Alexander saw Dr. Fumich. Tr. 2357. She was in a post-op
boot. Tr. 2357. She was still having pain and discomfort but Dr. Fumich noted that it was early
in the post-operative process. Tr. 2357. On December 28, 2011, Alexander was discharged
from physical therapy due to non-compliance. Tr. 2347-2349.
In January and February 2012, Alexander continued to report pain and discomfort to Dr.
Fumich in both the left foot, which had undergone surgery, and the right. Tr. 2357. During a
February 9, 2012, visit with Dr. Fumich, Dr. Fumich indicated that authorization for MRIs of the
left and right foot would be requested. Tr. 2357. It was noted that Alexander was “minimal
ambulatory” and could “stand for minimal periods of time due to severe pronated flatfeet and
degenerative conditions.” Tr. 2357. On May 3, 2012, Dr. Fumich noted that MRIs of
Alexander’s feet were fine. Tr. 2357. He ordered MRIs of her ankles. Tr. 2537. On May 22,
2012, Dr. Fumich reviewed the MRIs of Alexander’s ankles. Tr. 2357. Dr. Fumich indicated
that the MRI on the left side showed “surgical alterations to the Achilles, partial tear and healing
from the lengthening, but the most important finding [was] that the calcaneus shows a[n]
ununited osteotomy from the October 2011 surgery.” Tr. 2357. Dr. Fumich ordered a CT scan
to further evaluate the matter. Tr. 2357. The MRI of the right ankle “showed more chronic
changes, no tearing of the ligaments, some chronic sinus tarsitis. No OCD, chronic Grade II
lateral collateral strain.” Tr. 2357. On June 7, 2012, Dr. Fumich noted that CT scans further
confirmed the nonunion of the osteotomy site from the prior left calcaneal surgery performed by
Dr. Tozzi. Tr. 2357, 2372-2373. Dr. Fumich recommended arch supports for both feet, along
with ice and anti-inflammatories for the right posterior tib tendonitis. Tr. 2357. Alexander
planned to obtain a second opinion from Dr. Seferra. Tr. 2357.
Alexander saw Dr. Seferra and, on November 15, 2012, Dr. Fumich indicated that
Alexander had been using a boot and stimulator for 3 months. Tr. 2358. Dr. Fumich indicated
that Alexander was going to proceed with a CT scan and further consultation with Dr. Seferra.
Tr. 2358. A January 10, 2013, CT scan of the left foot showed no acute fractures or dislocations.
Tr. 2378. A small enthesophyte formation was present at the Achilles tendon. Tr. 2378.
On November 5, 2013, Alexander saw Dr. Fumich and reported continued pain and
discomfort. Tr. 2358. On November 18, 2013, Alexander saw Dr. Tozzi. Tr. 2381-2382. Dr.
Tozzi took x-rays which showed a failed bone graft with nonunion. Tr. 2382. Dr. Tozzi
recommended surgery to perform a new graft. Tr. 2382.
In January 2014, Alexander elected to proceed with bone graft surgery for the failed
fusion with nonunion. Tr. 2715. On February 12, 2014, Alexander saw Dr. Tozzi three weeks
post-op. Tr. 2713-2714. Alexander was progressing nicely. Tr. 2713. Dr. Tozzi removed the
short leg fiberglass cast. Tr. 2713. Alexander was having some problems using the bone growth
stimulator over the cast. Tr. 2713. Dr. Tozzi suggested that Alexander call the rep so that she
could start using the external bone growth stimulator as soon as possible. Tr. 2724. Dr. Tozzi
did not replace Alexander’s cast. Tr. 2713. Since Alexander had a wheelchair, Dr. Tozzi placed
her in a high-top CAM Walker boot. Tr. 2713. On March 5, 2014, Alexander was continuing to
use the CAM Walker and Dr. Tozzi recommended that Alexander continue with protected
weightbearing activity in the CAM Walker. Tr. 2711. Alexander was continuing to use a bone
growth stimulator. Tr. 2711. Overall, Dr. Tozzi felt pleased with Alexander’s progress in 6
weeks. Tr. 2711. During a follow-up visit with Dr. Tozzi on April 9, 2014, Alexander was
“doing very well.” Tr. 2720. Alexander had no unusual complaints other than some post-op
swelling. Tr. 2720. She was using her CAM Walker. Tr. 2720. Dr. Tozzi recommended that
Alexander start therapy and return in one month with her regular shoe to see if she could begin
using. Tr. 2720. On May 7, 2014, Tozzi indicated that Alexander was recovering uneventfully.
Tr. 2719. Dr. Tozzi advised Alexander to “interface her orthotic back into her shoes.” Tr. 2719.
Alexander was using a cane and had intermittent swelling. Tr. 2719. Dr. Tozzi advised
Alexander that her graft was probably 70-75% healed and it would take an additional 2-3 months
before Alexander was completely recovered. Tr. 2719.
On July 9, 2014, Alexander saw Dr. Tozzi because she had rolled her left ankle. Tr.
2718. Her ankle was sprained. Tr. 2718. Dr. Tozzi took an x-ray. Tr. 2718. Alexander’s
hardware was intact and there was no evidence of failure/fracture. Tr. 2718. Dr. Tozzi provided
Alexander with instructions on how to treat her sprained ankle, sent her for an aircast and brace,
and recommended that she rest, apply ice, and elevate her ankle. Tr. 2718. On July 30, 2014,
Alexander saw Dr. Tozzi for follow up. Tr. 2717. Dr. Tozzi observed that Alexander’s left
ankle was swollen. Tr. 2717. Alexander was using ice but no brace. Tr. 2717. Dr. Tozzi
recommended that Alexander perform range of motion exercises at home with resistance/Ace
bandage. Tr. 2717. Dr. Tozzi instructed Alexander to return if a new problem developed. Tr.
January 5, 2012
In a “To Whom it May Concern” letter/report dated January 5, 2012, Dr. Fumich
indicated that Alexander had a severe congenital foot condition with severe valgus deformity,
posterior tibial tendon dysfunction, paratalar subluxation, and short Achilles tendon. Tr. 2322.
Dr. Fumich indicated that Alexander’s conditions were preexisting congenital conditions causing
ongoing left foot pain due to her work activities. Tr. 2322. Dr. Fumich opined that, as a result of
her chronic conditions and the work activities of standing/walking 8 hours a day, Alexander
required surgical intervention. Tr. 2322. Also, Dr. Fumich opined that Alexander’s congenital
conditions were substantially aggravated by her work activities. Tr. 2322.
February 20, 2012
On February 20, 2012, Dr. Fumich completed a Medical Source Statement Regarding
Leg/Foot Impairment(s). Tr. 2323-2324. Dr. Fumich indicated that Alexander had foot pain and
a diagnosis of “flat foot.” Tr. 2323. Dr. Fumich opined that Alexander could sit for less than 2
hours in an 8-hour workday; stand/walk for less than 2 hours in an 8-hour workday; and stand at
one time for 0-5 minutes. Tr. 2323. Dr. Fumich opined that Alexander would need to frequently
elevate her leg(s) above the heart for 30-60 minutes at a time due to pain. Tr. 2323. Dr. Fumich
opined that Alexander was not able to: walk a block at a reasonable pace on rough or uneven
surfaces, walk enough to shop or bank, and/or climb a few steps at a reasonable pace with the use
of a single handrail. Tr. 2323. Dr. Fumich opined that Alexander suffered from pain that was
marked – a serious limitation, severely limiting ability to function, i.e., on task 48%-82% in an 8hour workday. Tr. 2323.
On October 11, 2011, Dr. Tozzi completed a Medical Source Statement Regarding
Leg/Foot Impairment(s). Tr. 2110-2111. Dr. Tozzi indicated that Alexander was totally
disabled and unable to sit and/or stand/walk during an 8-hour workday. Tr. 2110. Dr. Tozzi also
indicated that Alexander was post-surgical and needed to elevate her leg(s) most of the time.
Tr. 2110. Dr. Tozzi opined that Alexander suffered from pain that was marked. Tr. 2111. Dr.
Tozzi commented that Alexander “had surgery 10-5-11. Disability 3 to 6 months.” Tr. 2111.
On September 28, 2010, 4 consultative examining physician Naomi Waldbaum, M.D.,
evaluated Alexander. Tr. 1964-1967. Alexander was using a cane during the evaluation and
ambulated in a slow, careful, limping manner. Tr. 1965. Alexander had difficulty getting out of
her chair and required assistance. Tr. 1965. Alexander’s boyfriend accompanied her during the
evaluation and he was needed to assist Alexander with activities. Tr. 1965. Dr. Waldbaum
observed that Alexander was dependent on her boyfriend and, while she had significant
difficulties and pain, these symptoms may have been slightly exaggerated. Tr. 1965. Dr.
[Alexander] presents today with severe ongoing chronic pain related to the neck,
the back, left shoulder, and left ankle. She walks with a cane which is obligatory
and she requires full time assistance for all activities of daily living. She is being
The evaluation report is dated September 29, 2010. Tr. 1964.
evaluated by a neurosurgeon in the near future and for possible foot surgery also
in the near future. . . At this point in time, [Alexander] is totally disabled.
On October 15, 2010, state agency reviewing physician Leigh Thomas, M.D., reviewed
Alexander’s records and offered her opinion regarding Alexander’s physical impairments. Tr.
158-163. Dr. Thomas opined that Alexander had the following exertional limitations:
occasionally lift and/or carry 10 pounds; frequently lift and/or carry less than 10 pounds; stand
and/or walk for a total of 2 hours; sit for a total of 6 hours in an 8-hour workday; and push and/or
pull unlimitedly, other than as shown for lift and/or carry. Tr. 161. Dr. Thomas further
explained the exertional limitations, stating that Alexander retained the ability to stand/walk for
15 minutes of every hour for a total of 2 hours in an 8-hour workday and retained the ability to
lift up to 5 pounds. Tr. 161. Dr. Thomas opined that Alexander had the following postural
limitations: never climbing ladders/ropes/scaffolds; and occasional balancing, stooping,
kneeling, crouching, and crawling. Tr. 161-162. Dr. Thomas further explained the postural
limitations, stating that Alexander should avoid all hazardous climbing because of problems with
her lumbar/cervical spine and left foot. Tr. 162. Dr. Thomas opined that Alexander’s reaching
in any direction was limited in the front and/or laterally, left overhead, and right overhead and
she was unable to perform overhead bilateral reaching. Tr. 162.
Upon reconsideration, on December 28, 2010, state agency reviewing physician Myung
Cho, M.D., affirmed the earlier opinion rendered by Dr. Thomas. Tr. 183-185.
At the March 4, 2014, hearing, Alexander was represented and testified. 5 Tr. 103-118.
Alexander appeared at the March 4, 2014, hearing in a wheelchair and carrying a cane. Tr. 104105. Alexander stated she had been using a wheelchair for two months due to a recent surgery
on her foot. Tr. 104. Alexander indicated that she was not supposed to put pressure on her foot
and was required to use the wheelchair for three months. Tr. 105. In addition to the problems
with her feet, Alexander indicated that she has problems with her back, neck and shoulders, bad
headaches, depression and high blood pressure. Tr. 106-107. Alexander needs to use her cane or
have someone assist her when she rises from a sitting to a standing position because her back
stiffens up when she is sitting. Tr. 116-117.
Alexander has a herniated disc in her back which limits her ability to bend or stand for a
long period of time. Tr. 108. Also, walking and sitting are difficult for Alexander. Tr. 108,
114. She estimated being able to stand for about 5 or 10 minutes. Tr. 108. She can sit for a
couple of hours and because of the wheelchair she does not have much choice but to sit. Tr. 108.
Alexander has problems turning her neck and head and has headaches almost daily. Tr. 114,
115. Also, she has problems lifting her left arm. Tr. 114. Alexander has some problems
sleeping. Tr. 115. It is not as bad when uses the CPAP but she is still tired the next day. Tr. 115116.
Alexander’s problems with her feet started in 2009 when she was working. Tr. 114. All
of a sudden, both of her feet became flatfooted and then turned into plantar fasciitis. Tr. 114. In
Alexander also testified and was represented at the February 7, 2012, hearing. Tr. 63-77.
October 2011, Alexander had surgery on her left foot because of plantar fasciitis. Tr. 114. The
surgery involved reconstruction of her arch with a bone graft and a nerve from her Achilles. Tr.
114-115. The same thing happened to her right foot. Tr. 115.
Alexander was asked to describe an average day prior to her recent foot surgery. Tr. 108.
She indicated that her days were filled with a lot of doctor appointments and just trying to take
care of basic things like getting dressed and eating. Tr. 108-109. Also, she did some physical
therapy exercises throughout the day for her back. Tr. 109. Alexander’s husband drives her
places. Tr. 109. She is able to prepare her own food but her husband does the household chores.
Tr. 109, 110. Alexander enjoys spending time with her grandchildren when they visit. Tr. 110.
She might read a book. Tr. 110. She occasionally does some grocery shopping. Tr. 111.
Alexander does not go shopping alone. Tr. 116. She goes with her daughter or husband. Tr.
Vocational Expert (“VE”) Alfreda Bell testified at the March 4, 2014, hearing. Tr. 118130. The VE described Alexander’s past work as a postal clerk, a light, semi-skilled position.
For the first hypothetical, the ALJ asked the VE to consider an individual with the
following limitations: can lift/carry 20 pounds occasionally and 10 pounds frequently; walk and
stand 4 out of 8 hours a day, 20 minutes at a time; sit 6 out of 8 hours a day; frequently push/pull,
never foot pedal; occasionally use a ramp or stairs, never a ladder, rope or scaffold; frequently
balance; occasionally stoop, kneel and crouch; never crawl; reach overhead occasionally with the
left and frequently with the right; handling, fingering and feeling are all constant; visual
capabilities and communication skills are all constant; should avoid dangerous machinery and
unprotected heights; and can perform low-level complex and unskilled tasks (SVP 1-3). Tr. 119120. The VE indicated that the described individual would be unable to perform Alexander’s
past work but there would be other jobs that the described individual could perform, including
(1) mail sorter (non-postal clerk position); (2) marking clerk; and (3) routing clerk. Tr. 120-122.
The VE provided regional and national job incidence numbers for the jobs identified. Tr. 120122.
For the second hypothetical, the ALJ asked the VE to consider the same individual as
described in the first hypothetical except that the individual could lift/carry 20 pounds
occasionally and 10 pounds frequently; walk and stand 2 out of 8 hours per day, 20 minutes at a
time; and sit 6 out of 8 hours per day, 2 hours at a time. Tr. 122. The VE indicated that the mail
sorter, marking clerk and routing clerk positions would still remain available. Tr. 122.
clarified that, because of the walking and standing requirements, the number of jobs available
would need to be reduced. Tr. 127-128. The reduced job incidence numbers for the jobs
identified in response to the second hypothetical were 400 jobs regionally and 40,000 jobs
nationally for the mail sorter position; 500 jobs regionally and 55,000 jobs nationally for the
marking clerk position; and 300 jobs regionally and 30,000 jobs nationally for the routing clerk
position. Tr. 129.
The ALJ then asked the VE to consider a sedentary exertional level hypothetical. Tr.
122. The VE indicated that the following positions would be available: (1) order clerk; (2)
receptionist; and (3) billing clerk. Tr. 122-123.
In response to claimant’s counsel’s questioning, the VE indicated that, if an individual
was off-task greater than 5% of the time, there would be no jobs available for the individual. Tr.
129-130. Also, if an individual missed work three or more days in a month, the individual would
be unable to sustain employment. Tr. 130.
III. Standard for Disability
Under the Act, 42 U.S.C § 423(a), eligibility for benefit payments depends on the
existence of a disability. “Disability” is defined as the “inability 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. § 423(d)(1)(A). Furthermore:
[A]n individual shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable
to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in
the national economy6 . . . .
42 U.S.C. § 423(d)(2)(A).
In making a determination as to disability under this definition, an ALJ is required to
follow a five-step sequential analysis set out in agency regulations. The five steps can be
summarized as follows:
If claimant is doing substantial gainful activity, he is not disabled.
If claimant is not doing substantial gainful activity, his impairment must
be severe before he can be found to be disabled.
If claimant is not doing substantial gainful activity, is suffering from a
severe impairment that has lasted or is expected to last for a continuous
period of at least twelve months, and his impairment meets or equals a
listed impairment, 7 claimant is presumed disabled without further inquiry.
“’[W]ork which exists in the national economy’ means work which exists in significant numbers either in the
region where such individual lives or in several regions of the country.” 42 U.S.C. § 423(d)(2)(A).
The Listing of Impairments (commonly referred to as Listing or Listings) is found in 20 C.F.R. pt. 404, Subpt. P,
App. 1, and describes impairments for each of the major body systems that the Social Security Administration
considers to be severe enough to prevent an individual from doing any gainful activity, regardless of his or her age,
education, or work experience. 20 C.F.R. § 404.1525.
If the impairment does not meet or equal a listed impairment, the ALJ
must assess the claimant’s residual functional capacity and use it to
determine if claimant’s impairment prevents him from doing past relevant
work. If claimant’s impairment does not prevent him from doing his past
relevant work, he is not disabled.
If claimant is unable to perform past relevant work, he is not disabled if,
based on his vocational factors and residual functional capacity, he is
capable of performing other work that exists in significant numbers in the
20 C.F.R. § 404.1520; see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). Under this
sequential analysis, the claimant has the burden of proof at Steps One through Four. Walters v.
Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts to the Commissioner
at Step Five to establish whether the claimant has the RFC and vocational factors to perform
work available in the national economy. Id.
IV. The ALJ’s Decision
In his September 29, 2014, decision, the ALJ made the following findings: 8
Alexander has not engaged in substantial gainful activity since February
27, 2010, the amended alleged onset date. Tr. 220.
Alexander has the following severe impairments: cervical disc herniation,
degenerative disc disease of the cervical and lumbar spines, obstructive
sleep apnea, obesity, affective disorder, and personality disorder. Tr.
Alexander does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the Listings. Tr.
Alexander meets the insured status requirements through December 31,
2015. Tr. 220.
Alexander has the RFC to perform light work except lifting 20 pounds
occasionally and 10 pounds frequently, standing and walking for 2 hours
in an 8-hour day and 20 minutes at a time, sitting for 6 hours in an 8-hour
day and 2 hours at a time, frequent push/pull but never foot pedal,
The ALJ’s findings are summarized.
occasionally climb ramps and stairs but never ladders, ropes or scaffolds,
frequently balance, occasionally stoop, kneel or crouch, never crawl,
occasional reaching overhead with the left upper extremity but frequent
reaching with the right, constant handling, fingering or feeling, visual and
communication skills are all constant, must avoid dangerous machinery
and unprotected heights, and limited to tasks with SVP of 1-3. Tr. 223227.
Alexander is unable to perform any past relevant work. Tr. 227.
Alexander was born in 1965 and was 45 years old, defined as a younger
individual age 18-49, on the alleged disability onset date. Tr. 227.
Alexander has at least a high school education and is able to
communicate in English. Tr. 227.
Transferability of jobs skills is not material to the determination of
disability. Tr. 227.
Considering Alexander’s age, education, work experience, and RFC,
there are jobs that exist in significant numbers in the national economy
that Alexander can perform, mail sorter, marketing clerk, and routing
clerk. Tr. 227-228.
Based on the foregoing, the ALJ determined that Alexander had not been under a
disability, as defined in the Social Security Act, from February 27, 2010, through the date of the
decision. Tr. 228.
V. Parties’ Arguments
First, Alexander argues that the ALJ’s evaluation of Dr. Fumich’s February 20, 2012,
opinion and assignment of “some weight” to that opinion did not comport with the treating
physician rule because the ALJ ignored evidence supporting Dr. Fumich’s opinion and the
decision did not adequately explain which of Dr. Fumich’s limitations were rejected and why.
Doc. 15, pp. 10-12, Doc. 20, pp. 1-3. Next, Alexander argues that the RFC finding is not
supported by substantial evidence because the ALJ did not find that her foot impairment was a
severe impairment at Step Two, the decision lacks analysis of the evidence regarding her foot
impairment, and the RFC failed to account for her foot impairment. Doc. 15, pp. 13-15. Finally,
Alexander contends that the ALJ also erred by not properly analyzing her foot impairment at
Step Three. Doc. 15, pp. 15-18.
In response, the Commissioner argues that the ALJ provided good reasons for the weight
assigned to Dr. Fumich’s February 20, 2012, opinion and explained the weight assigned. Doc.
18, pp. 7-11. Alternatively, the Commissioner argues that, to the extent that the ALJ did not
adequately articulate which portions of Dr. Fumich’s opinion the ALJ assigned “some weight” to
and which portions the ALJ gave no weight to, error, if any, was harmless. Doc. 18, pp. 7-11.
Next, the Commissioner argues that, although the ALJ did not find Alexander’s foot impairment
to be a severe impairment, the ALJ found other impairments to be severe, discussed at length
Alexander’s foot impairment, and the RFC is supported by substantial evidence. Doc. 18, pp.
11-13. Lastly, the Commissioner argues that the ALJ’s Step Three finding is supported by
substantial evidence because the evidence does not support a listing level impairment. Doc. 18,
VI. Law & Analysis
Standard of review
A reviewing court must affirm the Commissioner’s conclusions absent a determination
that the Commissioner has failed to apply the correct legal standards or has made findings of fact
unsupported by substantial evidence in the record. 42 U.S.C. § 405(g); Wright v. Massanari, 321
F.3d 611, 614 (6th Cir. 2003). “Substantial evidence is more than a scintilla of evidence but less
than a preponderance and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Besaw v. Sec’y of Health & Human Servs., 966 F.2d 1028,
1030 (6th Cir. 1992) (quoting Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681
(6th Cir. 1989).
The Commissioner’s findings “as to any fact if supported by substantial evidence shall be
conclusive.” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (citing 42
U.S.C. § 405(g)). Even if substantial evidence or indeed a preponderance of the evidence
supports a claimant’s position, a reviewing court cannot overturn the Commissioner’s decision
“so long as substantial evidence also supports the conclusion reached by the ALJ.” Jones v.
Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003). Accordingly, a court “may not try the
case de novo, nor resolve conflicts in evidence, nor decide questions of credibility.” Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
The ALJ properly considered and explained the weight assigned to Dr. Fumich’s
February 20, 2012, opinion
Alexander challenges the ALJ’s evaluation of Dr. Fumich’s February 20, 2012, opinion,
arguing that the ALJ ignored evidence supporting Dr. Fumich’s opinion and the decision did not
adequately explain which of Dr. Fumich’s limitations were rejected and why. Doc. 15, pp. 1012, Doc. 20, pp. 1-3.
Under the treating physician rule, “[t]reating source opinions must be given ‘controlling
weight’ if two conditions are met: (1) the opinion ‘is well-supported by medically acceptable
clinical and laboratory diagnostic techniques’; and (2) the opinion ‘is not inconsistent with the
other substantial evidence in [the] case record.’” Gayheart v. Comm’r of Soc. Sec., 710 F.3d
365, 376 (6th Cir. 2013) (citing 20 C.F.R. § 404.1527(c)(2)); see also Wilson v. Comm’r of Soc.
Sec., 378 F.3d 541, 544 (6th Cir. 2004).
If an ALJ decides to give a treating source’s opinion less than controlling weight, he must
give “good reasons” for doing so that are sufficiently specific to make clear to any subsequent
reviewers the weight given to the treating physician’s opinion and the reasons for that weight.
Gayheart, 710 F.3d at 376; Wilson, 378 F.3d at 544. In deciding the weight to be given, the ALJ
must consider factors such as (1) the length of the treatment relationship and the frequency of the
examination, (2) the nature and extent of the treatment relationship, (3) the supportability of the
opinion, (4) the consistency of the opinion with the record as a whole, (5) the specialization of
the source, and (6) any other factors that tend to support or contradict the opinion. Bowen v.
Comm’r of Soc Sec., 478 F.3d 742, 747 (6th Cir. 2007); 20 C.F.R. § 404.1527(c). An ALJ is not
obliged to provide “an exhaustive factor-by-factor analysis” of the factors considered when
weighing medical opinions. See Francis v. Comm’r of Soc. Sec., 414 Fed. Appx. 802, 804 (6th
After discussing details of Alexander’s impairments, including her foot problems (Tr.
224), the ALJ considered and weighed the medical opinion evidence (Tr. 225-227). With
respect to Dr. Fumich’s opinions, the ALJ explained:
Some weight is given to the medical source statement completed by Dr.
Fumich dated February 20, 2012 where he noted that Ms. Alexander has foot
pain and can sit for less than two hours in an eight hour day and stand/walk
for less than two hours and standing for up to five minutes at a time as he
completed the questionnaire four months after her osteotomy and she had a
non-union fusion at the time [Exhibit 27F]. However, little weight is given to
the report from Dr. Fumich dated February 5, 2012,[ 9] which indicated that
Ms. Alexander has a severe congenital foot condition as if it was a congenital
condition, she probably would not have been able to work on her feet at the
post office for so many years as she did [Exhibit 26F].
Alexander challenges the ALJ’s consideration of Dr. Fumich’s February 20, 2012, not the
ALJ’s consideration of the Fumich’s February 5, 2012, opinion. Doc. 15, p. 11, Doc. 20.
The opinion found at Exhibit 26F is dated January 5, 2012, not February 5, 2012. Tr. 2322.
Alexander first argues that the ALJ did not adequately explain which limitations from Dr.
Fumich’s February 20, 2012, opinion were rejected. Contrary to Alexander’s claim, the ALJ
specifically identified which portions of Dr. Fumich’s February 20, 2012, opinion the ALJ was
assigning some weight to and his rationale for assigning that weight. Tr. 226. The ALJ did not
specifically mention Dr. Fumich’s marked limitations or elevation requirements that were
included in the February 20, 2012, opinion, but the ALJ did discuss and provide only little
weight to Dr. Fumich’s February 5, 2012, opinion that Alexander’s foot condition was severe
and the ALJ also provided no weight to Dr. Tozzi’s October 11, 2011, opinions that elevation
was necessary and that Alexander was totally disabled. Tr. 226. The ALJ also provided some
weight to the state agency reviewing physicians’ opinions, finding that their opinions that
Alexander could stand and walk up to 2 hours a day and sit for 6 hours in an 8-hour day were
consistent with the evidence of record. Tr. 225. In light of the foregoing, it is clear from the
decision that, while the ALJ found evidence to support Alexander’s physician’s opinion that
Alexander had pain and limitations associated with her foot problems, the ALJ did not find that
the evidence supported Dr. Fumich’s February 20, 2012, opinion that suggested that any such
limitations were marked, severe or totally disabling.
Alexander also contends that the ALJ violated the treating physician rule because the
ALJ ignored evidence when determining the weight to assign to Dr. Fumich’s February 20,
2012, opinion. In particular, she asserts that the “ALJ ignores the fact that Dr. Fumich began an
exhaustive workup including multiple imaging studies to determine the cause of the pain and
worked collaboratively with Dr. Tozzi which ultimately led to second surgery in 2014 to correct
the ‘failed’ first surgery.” Doc. 15, p. 12. Alexander’s argument is without merit. As is clear
from the decision, the ALJ considered Alexander’s treatment history for her foot dating back to
2009 and continuing through 2014 when Dr. Tozzi performed a second surgery. Tr. 224.
Considering the foregoing, the Court finds that the ALJ sufficiently explained the weight
assigned to Dr. Fumich’s February 20, 2012, opinion and did not ignore evidence when
evaluating Dr. Fumich’s opinion. Further, the ALJ did not completely dismiss Dr. Fumich’s
opinions or Alexander’s subjective complaints. The ALJ limited Alexander exertionally in the
RFC to lifting 20 pounds occasionally and 10 pounds frequently, standing and walking for 2
hours in an 8-hour day and 20 minutes at a time, sitting for 6 hours in an 8-hour day and 2 hours
at a time, and frequent push/pull but never foot pedal. Tr. 223.
Based on the foregoing, the undersigned finds that the ALJ properly and sufficiently
explained his decision to provide some weight to Dr. Fumich’s February 20, 2012, opinion and
that decision is supported by substantial evidence.
The ALJ properly considered and accounted for Alexander’s foot impairment at
Step Two and in formulating the RFC
Alexander argues that the ALJ erred at Step Two and in formulating the RFC because the
ALJ did not find a severe impairment related to her feet or provide any analysis of the evidence
pertaining to her foot impairment.
Doc. 15, pp. 13-15.
At Step Two, a claimant must show that she suffers from a severe medically determinable
physical or mental impairment that meets the duration requirement in 20 C.F.R. § 404.1509, 10 or
a combination of impairments that is severe and meets the duration requirement. 20 C.F.R. §
404.1520(a)(4)(ii). It is Alexander’s burden to show the severity of her impairments. Foster v.
Sec’y of Health & Human Svcs., 899 F.2d 1221, *2 (6th Cir. 1990) (unpublished) (citing Murphy
The duration requirement provides that “Unless your impairment is expected to result in death, it must have lasted
or must be expected to last for a continuous period of at least 12 months.” 20 C.F.R. § 404.1529.
v. Sec’y of Health & Human Svcs., 801 F.2d 182, 185 (6th Cir. 1986). An impairment is not
considered severe when it does not significantly limit the claimant’s physical or mental ability to
do basic work activities (without considering the claimant’s age, education, or work
experience). 11 Long v. Apfel, 1 Fed. Appx. 326, 330-332 (6th Cir. 2001); 20 C.F.R §
The Sixth Circuit has construed Step Two as a de minimis hurdle such that “an
impairment can be considered not severe only if it is a slight abnormality that minimally affects
work ability regardless of age, education, and experience.” Higgs v. Bowen, 880 F.2d 860, 862
(6th Cir. 1988). However, as noted by the Higgs court, a diagnosis alone “says nothing about the
severity of the condition.” Id. at 863.
Additionally, where an ALJ finds one severe impairment and continues with subsequent
steps in the sequential evaluation process, error, if any, at Step Two may not warrant reversal.
See Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987) (the
Commissioner’s failure to find claimant’s cervical condition severe was not reversible error
because the Commissioner did find a severe impairment and continued with the remaining steps
in the sequential evaluation process); see also Anthony v. Astrue, 266 Fed. Appx. 451, 457 (6th
Cir. 2008) (relying on Maziarz when finding that, because the ALJ had found other impairments
severe, the fact that some other impairments were found to be non-severe at Step Two was not
Alexander challenges the ALJ’s Step Two finding because the ALJ did not find her foot
impairment to be a severe impairment. Doc. 15, p. 14. Even if Alexander could demonstrate
Basic work activities are defined by the regulations as “the abilities and aptitudes necessary to do most jobs.” 20
C.F.R. § 404.1521(b). Examples, include: (1) physical functions such as walking, standing, sitting, lifting, pushing,
pulling, reaching, carrying, or handling; (2) the capacity to see, hear and speak; (3) the ability to understand, carry
out, and remember simple instructions; (4) use of judgment; (5) ability to respond appropriately to supervision, coworkers, and usual work situations; and (6) the ability to deal with changes in a routine work setting. Id.
error with respect to the ALJ’s finding that her foot problems did not constitute a severe
impairment, reversal is not warranted because the ALJ found that Alexander had severe
impairments, i.e., cervical disc herniation, degenerative disc disease of the cervical and lumbar
spines, obstructive sleep apnea, obesity, affective disorder, and personality disorder, at Step Two
(Tr. 220-221), and proceeded with subsequent steps in the sequential analysis (Tr. 221-228).
Furthermore, contrary to Alexander’s claim, it is clear that the ALJ considered Alexander’s
allegations regarding her foot problems. Tr. 224. For example, the ALJ specifically
acknowledged that Alexander “had complaints of foot pain since at least March 2009” and
proceeded to discuss Alexander’s treatment history with both Dr. Fumich and Dr. Tozzi for her
foot problems as well as objective test results. Tr. 224.
The ALJ did not ignore or disregard Alexander’s foot problems. Based on consideration
of all the evidence, including allegations and medical evidence regarding Alexander’s foot
problems, the ALJ concluded that Alexander had physical RFC limitations, including:
[L]ifting 20 pounds occasionally and 10 pounds frequently, standing and walking
for two hours in an eight hour day and 20 minutes at a time, sitting for six hours
in an eight hour day and two hours at a time, frequent push/pull but never foot
pedal, occasional climb ramps and stairs but never ladders, ropes or scaffolds,
frequent balance, occasional stoop, kneel or crouch, never crawl, occasional
reaching overhead with the left upper extremity but frequent reaching with the
right, constant handle, finger, or feel.
When assessing Alexander’s RFC, among other evidence considered, the ALJ relied
upon and gave some weight to the state agency reviewing physicians’ opinions, finding their
opinions that Alexander could stand and walk up to two hours a day and sit for six hours in an
eight hour day consistent with the evidence of record. Tr. 225.
Accordingly, even if it was determined that the ALJ incorrectly found Alexander’s foot
problems to be a non-severe impairment, the ALJ proceeded to subsequent steps in the sequential
evaluation process and Alexander has not shown that the ALJ failed to consider her allegations
with respect to her foot problems when assessing her RFC or that the RFC is not supported by
substantial evidence. Thus, reversal and remand is not warranted based on the ALJ’s Step Two
Reversal and remand is not warranted based on the ALJ’s Step Three
Alexander argues that remand is warranted because the ALJ did not determine whether
her arch collapse met Listing 1.02, 1.03 or1.06. Doc. 15, pp. 15-18.
At Step Three of the disability evaluation process, a claimant will be found disabled if her
impairment meets or equals one of the listings in the Listing of Impairments. 20 C.F.R. §
416.920(a)(4)(iii). The claimant bears the burden of establishing that her condition meets or
equals a Listing. Johnson v. Colvin, 2014 U.S. Dist. LEXIS 50941, *7 (6th Cir. 2014) (citing
Buress v. Sec’y of Health and Human Serv’s., 835 F.2d 139, 140 (6th Cir. 1987). A claimant
“must present specific medical findings that satisfy the various tests listed in the description of
the applicable impairment or present medical evidence which describes how the impairment has
such equivalency.” Thacker v. SSA, 93 Fed. Appx. 725, 728 (6th Cir. 2004).
Alexander acknowledges that Listing 1.02, 1.03 and 1.06 all require evidence that the
claimant has an inability to ambulate effectively. Doc. 15, pp. 16-17. Under the Listings, what it
means to ambulate effectively is explained as follows:
b. What We Mean by Inability To Ambulate Effectively
Definition. Inability to ambulate effectively means an extreme limitation
of the ability to walk; i.e., an impairment(s) that interferes very seriously with the
individual's ability to independently initiate, sustain, or complete activities.
Ineffective ambulation is defined generally as having insufficient lower extremity
functioning (see 1.00J) to permit independent ambulation without the use of a
hand-held assistive device(s) that limits the functioning of both upper extremities.
(Listing 1.05C is an exception to this general definition because the individual has
the use of only one upper extremity due to amputation of a hand.)
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 activities, such as
shopping and banking, and the inability to climb a few steps at a reasonable pace
with the use of a single hand rail. The ability to walk independently about one's
home without the use of assistive devices does not, in and of itself, constitute
20 C.F.R. pt. 404, subpt. P, App. 1, pt. A1, § 1.00B2b.
In order to demonstrate an inability to ambulate effectively, Alexander points to evidence
that she has a significant limp; that her pain is aggravated by activity; that she has had to use a
cane to use the restroom; that she reports being unable to walk for more than 20 feet without
stopping and sitting; and that Dr. Waldman observed a limp and use of a cane and indicated that
use of a cane was “obligatory.” Doc. 15, p. 17. However, ineffective ambulation is “defined
generally as having insufficient lower extremity functioning. . . to permit independent
ambulation without the use of a hand-held assistive device(s) that limits the functioning of both
upper extremities.” 20 C.F.R. pt. 404, subpt. P, App. 1, pt. A1, § 1.00B2b(1) (emphasis
supplied); see also 20 C.F.R. pt. 404, subpt. P, App. 1, pt. A1, § 1.00B2b(2) (“[E]xamples of
ineffective ambulation include, but are not limited to, the inability to walk without . . . two canes
. . .”). Thus, the use of a cane would not limit the functioning of both of Alexander’s upper
extremities. Further, to the extent that Alexander relies upon her own subjective allegations
regarding her limitations, the ALJ considered Alexander’s own subjective statements but found
her statements not entirely credible. 12 Tr. 225.
Based on the foregoing, while the ALJ did not specifically cite to Listings 1.02, 1.03, and
1.06 at Step Three, Alexander has failed to demonstrate evidence to establish a Listing level
impairment. Thus, reversal and remand is not warranted for further analysis at Step Three.
For the reasons set forth herein, the Court AFFIRMS the Commissioner’s decision.
Dated: February 16, 2017
Kathleen B. Burke
United States Magistrate Judge
Alexander has not separately challenged the ALJ’s credibility assessment.
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