Clark v. Commissioner of Social Security
Memorandum Opinion and Order that the decision of the Commissioner denying Clark's application for supplemental security income is affirmed. (Related Docs. # 1 , 12 ). Signed by Magistrate Judge William H. Baughman, Jr., on 09/21/2017. (S,MD)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
COMMISSIONER OF SOCIAL
CASE NO. 1:16 CV 821
WILLIAM H. BAUGHMAN, JR.
MEMORANDUM OPINION AND
Before me1 is an action by Howard Lee Clark under 42 U.S.C. § 405(g) for judicial
review of the final decision of the Commissioner of Social Security denying his application
for supplemental security income.2 The Commissioner has answered3 and filed the transcript
of the administrative record.4 Under my initial5 and procedural6 orders, the parties have
ECF # 12. The parties have consented to my exercise of jurisdiction.
ECF # 1.
ECF # 8.
ECF # 9.
ECF # 5.
ECF # 11.
briefed their positions7 and filed supplemental charts8 and the fact sheet.9 They have
participated in a telephonic oral argument.10
For the reasons set forth below, the decision of the Commissioner will be affirmed as
supported by substantial evidence.
Background facts and decision of the Administrative Law Judge (“ALJ”)
Clark who was 51 years old at the time of the administrative hearing,11 did not
graduate high school, but has a GED.12 He lives with his fiancé in an apartment.13 His past
relevant employment history includes work as a material handler and a injection molding
The ALJ, whose decision became the final decision of the Commissioner, found that
Clark had the following severe impairments: osteoarthritis of the knee with left total knee
ECF # 23 (Commissioner’s brief); ECF # 18 (Clark’s brief).
ECF # 23-1 (Commissioner’s charts); ECF # 18-1(Clark’s charts).
ECF # 17 (Clark’s fact sheet).
ECF # 25.
ECF #17 at 1.
ECF # 9, Transcript (“Tr.”) at 52, 239.
Id. at 33.
arthroplasty; retained bullet fragments in the left leg; mood disorder; personality disorder,
and substance abuse.15
After concluding that the relevant impairments did not meet or equal a listing, the ALJ
made the following finding regarding Clark’s residual functional capacity (“RFC”):
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined
in 20 CFR 416.967(b) except the claimant can never climb any ladders, ropes
or scaffolds; can occasionally climb ramps and stairs; can occasionally stoop,
crouch, kneel, and crawl; and can frequently balance; avoid concentrated
exposure to cold, humidity and all exposure to unprotected heights and
dangerous moving machinery. As for mental limitations, the claimant has no
limits in understanding, remembering, and carrying out instructions; can
interact superficially with general public, co-workers, and supervisors
frequently; superficial is defined as speaking, signaling to accept instructions,
ask questions, serve, etc., but no higher more intense forms of interaction like
negotiating, mentoring, etc.; is limited to work that is simple, routine in nature
with infrequent changes; and can make simple work related decisions.16
Given that residual functional capacity, the ALJ found Clark incapable of performing
his past relevant work as a material handler and injection molding machine tender.17
Based on an answer to a hypothetical question posed to the vocational expert at the
hearing setting forth the residual functional capacity finding quoted above, the ALJ
determined that a significant number of jobs existed locally and nationally that Clark could
perform.18 The ALJ, therefore, found Clark not under a disability.
Id. at 22.
Id. at 26.
Id. at 33.
Id. at 33.
Issues on judicial review
Clark asks for reversal of the Commissioner’s decision on the ground that it does not
have the support of substantial evidence in the administrative record. Specifically, Clark
presents the following issues for judicial review:19
Whether substantial evidence supports the residual functional capacity
determined by the ALJ.
Whether the ALJ erred in failing to determine that the plaintiff’s
conditions meets, or at least equal Listing 1.02A regarding a major
dysfunction of a joint.
Whether the ALJ erred in failing to perform a proper pain analysis.
For the reasons that follow, I will conclude that the ALJ’s finding of no disability is
supported by substantial evidence and, therefore, must be affirmed.
The Sixth Circuit in Buxton v. Halter reemphasized the standard of review applicable
to decisions of the ALJs in disability cases:
Congress has provided for federal court review of Social Security
administrative decisions. 42 U.S.C. § 405(g). However, the scope of review is
limited under 42 U.S.C. § 405(g): “The findings of the Secretary as to any fact,
if supported by substantial evidence, shall be conclusive....” In other words, on
review of the Commissioner’s decision that claimant is not totally disabled
within the meaning of the Social Security Act, the only issue reviewable by
ECF # 18 at 1.
this court is whether the decision is supported by substantial evidence.
Substantial evidence is “ ‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a
The findings of the Commissioner are not subject to reversal merely
because there exists in the record substantial evidence to support a different
conclusion. This is so because there is a “zone of choice” within which the
Commissioner can act, without the fear of court interference.20
Viewed in the context of a jury trial, all that is necessary to affirm is that reasonable minds
could reach different conclusions on the evidence. If such is the case, the Commissioner
survives “a directed verdict” and wins.21 The court may not disturb the Commissioner’s
findings, even if the preponderance of the evidence favors the claimant.22
I will review the findings of the ALJ at issue here consistent with that deferential
Pain as a cause of disability and credibility
When a claimant presents pain as the cause of disability, the decision of the Sixth
Circuit in Duncan v. Secretary of Health and Human Services23 provides the proper
analytical framework. The Court in Duncan established the following test:
Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (citations omitted).
LeMaster v. Sec’y of Health & Human Servs., 802 F.2d 839, 840 (6th Cir. 1986);
Tucker v. Comm’r of Soc. Sec., No. 3:06CV403, 2008 WL 399573, at *6 (S.D. Ohio Feb. 12,
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
Duncan v. Sec’y of Health & Human Servs., 801 F.2d 847 (6th Cir. 1986).
[t]here must be evidence of an underlying medical condition and (1) there must
be objective medical evidence to confirm the severity of the alleged pain
arising from that condition or (2) the objectively determined medical condition
must be of a severity which can reasonably be expected to give rise to the
Under the first prong of this test, the claimant must prove by objective medical
evidence the existence of a medical condition as the cause for the pain. Once the claimant
has identified that condition, then under the second prong he or she must satisfy one of two
alternative tests – either that objective medical evidence confirms the severity of the alleged
pain or that the medical condition is of such severity that the alleged pain can be reasonably
expected to occur.25
Objective medical evidence of pain includes evidence of reduced joint motion, muscle
spasm, sensory deficit, or motor disruption.26 The determination of whether the condition is
so severe that the alleged pain is reasonably expected to occur hinges on the assessment of
the condition by medical professionals.27 Both alternative tests focus on the claimant’s
“alleged pain.”28 Although the cases are not always clear on this point, the standard requires
the ALJ to assume arguendo pain of the severity alleged by the claimant and then determine
Duncan, 801 F.2d at 853.
Felisky v. Bowen, 35 F.3d 1027, 1039 (6th Cir. 1994).
Id. at 1037 (quoting 20 C.F.R. 404.1529(c)(2)).
Walters v. Comm’r of Social Security, 127 F.3d 525, 531 (6th Cir. 1997).
Duncan, 801 F.2d at 853.
if objective medical evidence confirms that severity or if the medical condition is so bad that
such severity can reasonably be expected.
A claimant’s failure to meet the Duncan standard does not necessarily end the inquiry,
however. As the Social Security Administration has recognized in a policy interpretation
ruling on assessing claimant credibility,29 in the absence of objective medical evidence
sufficient to support a finding of disability, the claimant’s statements about the severity of
his or her symptoms will be considered with other relevant evidence in deciding disability:
Because symptoms, such as pain, sometimes suggest a greater severity of
impairment than can be shown by objective medical evidence alone, the
adjudicator must carefully consider the individual’s statements about
symptoms with the rest of the relevant evidence in the case record in reaching
a conclusion about the credibility of the individual’s statements if a disability
determination or decision that is fully favorable to the individual cannot be
made solely on the basis of objective medical evidence.30
The regulations also make the same point.
We must always attempt to obtain objective medical evidence and, when it is
obtained, we will consider it in reaching a conclusion as to whether you are
disabled. However, we will not reject your statements about the intensity and
persistence of your pain or other symptoms or about the effect your symptoms
have on your ability to work . . . solely because the available objective medical
evidence does not substantiate your statements.31
Social Security Ruling (SSR) 96-7p, Evaluation of Symptoms in Disability Claims:
Assessing the Credibility of an Individual’s Statements, 61 Fed. Reg. 34483 (July 2, 1996).
Id. at 34484.
20 C.F.R. § 416.929(c)(2).
Under the analytical scheme created by the Social Security regulations for determining
disability, objective medical evidence constitutes the best evidence for gauging a claimant’s
residual functional capacity and the work-related limitations dictated thereby.32
As a practical matter, in the assessment of credibility, the weight of the objective
medical evidence remains an important consideration. The regulation expressly provides that
“other evidence” of symptoms causing work-related limitations can be considered if
“consistent with the objective medical evidence.”33 Where the objective medical evidence
does not support a finding of disability, at least an informal presumption of “no disability”
arises that must be overcome by such other evidence as the claimant might offer to support
The regulations set forth factors that the ALJ should consider in assessing credibility.
These include the claimant’s daily activities; the location, duration, frequency, and intensity
of the pain; precipitating and aggravating factors; the type, dosage, effectiveness, and side
effects of medication; and treatment or measures, other than medication, taken to relieve
The specific factors identified by the regulation as relevant to evaluating subjective
complaints of pain are intended to uncover a degree of severity of the underlying impairment
not susceptible to proof by objective medical evidence. When a claimant presents credible
Swain, 297 F. Supp. 2d at 988-89.
20 C.F.R. § 404.1529(c)(3).
20 C.F.R. §§ 404.1529(c)(3)(i)-(vii).
evidence of these factors, such proof may justify the imposition of work-related limitations
beyond those dictated by the objective medical evidence.
The discretion afforded by the courts to the ALJ’s evaluation of such evidence is
extremely broad. The ALJ’s findings as to credibility are entitled to deference because he has
the opportunity to observe the claimant and assess his subjective complaints.35 A court may
not disturb the ALJ’s credibility determination absent compelling reason.36
If the ALJ rejects the claimant’s complaints as incredible, he must clearly state his
reasons for doing so.37 Unlike the requirement that the ALJ state good cause for discounting
the opinion of a treating source, the regulation on evaluating a claimant’s subjective
complaints contains no express articulation requirement. The obligation that the ALJ state
reasons for rejecting a claimant’s complaints as less than credible appears to have its origin
in case law.38 The Social Security Administration has recognized the need for articulation of
reasons for discounting a claimant’s credibility in a policy interpretation ruling.
It is not sufficient for the adjudicator to make a single, conclusory statement
that “the individual’s allegations have been considered” or that “the allegations
are (or are not) credible.” It is also not enough for the adjudicator simply to
recite the factors that are described in the regulations for evaluating symptoms.
The determination or decision must contain specific reasons for the finding on
credibility, supported by the evidence in the case record, and must be
Buxton, 246 F.3d at 773.
Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001).
Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994).
Felisky, 35 F.3d at 1036; Auer v. Sec. of Health & Human Servs., 830 F.2d 594, 595
(6th Cir. 1987).
sufficiently specific to make clear to the individual and to any subsequent
reviewers the weight the adjudicator gave to the individual’s statements and
the reasons for that weight.39
The strong statement from the administrative ruling quoted above constitutes a clear
directive to pay as much attention to giving reasons for discounting claimant credibility as
must be given to reasons for not fully accepting the opinions of treating sources. An ALJ in
a unified statement should express whether he or she accepts the claimant’s allegations as
credible and, if not, explain the finding in terms of the factors set forth in the regulation.40
The ALJ need not analyze all seven factors identified in the regulation but should provide
enough assessment to assure a reviewing court that he or she considered all relevant
evidence.41 The articulation should not be conclusory;42 it should be specific enough to
permit the court to trace the path of the ALJ’s reasoning.43
Application of standards
This case, and the three issues raised by Clark, centers on the claimant’s left knee,
which was completely replaced in 2013. Essentially Clark asserts that weakness and atrophy
in that knee qualifies as meeting Listing 1.02A.44 He argues further that the RFC, which
SSR 96-7p, 61 Fed. Reg. at 34484.
20 C.F.R. § 404.1529(c)(3).
Blom v. Barnhart, 363 F. Supp. 2d 1041, 1054 (E.D. Wisc. 2005).
SSR 96-7p, 61 Fed. Reg. at 34384.
Blom, 363 F. Supp. 2d at 1054.
ECF # 18 at 13-16.
found him capable of light work, is flawed in that he is only capable of sedentary work.45 He
further contends that the ALJ did not properly analyze his complaints of pain, noting
especially that the ALJ did not address factors beyond the subjective complaints, such as the
diagnosis of Dr. Jill Mushkat, who found psychological factors as well as medical conditions
underlying the pain.46
Listing 1.02A, addressing major dysfunction of a joint due to any cause, provides:
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:
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.
In that regard, Listing 1.00B2b, which defines the inability to ambulate, states:
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
To ambulate effectively, individuals must be capable of sustaining a
reasonable walking pace over a sufficient distance to be able to carry
Id. at 10-13.
Id. at 16-17.
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 or 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 an assistive device
does not, in and of itself, constitute effective ambulation.
Here, the ALJ essentially concluded that Clark did not meet Listing 1.02A because,
by the terms of Listing 1.00B2b, he could not show an inability ambulate.47 In that regard,
the ALJ observed that Clark has the ability to drive, shop, prepare meals, do laundry and
perform self-care.48 Although Clark contends that his ability to perform such daily activities
should not be equated with an ability to work,49 the Commissioner correctly notes that the
ALJ made no such argument, but did find that these activities of daily living did demonstrate
that Clark was able to carry out “routine ambulatory activities, such as shopping and
banking” that are specified in Listing 1.00B2b.50 It is Clark’s unchallenged ability to perform
these “routine ambulatory activities,” not the ability to engage in full-time employment, that
precludes Clark from meeting the listing.
Tr. at 23.
ECF # 18 at 15.
ECF # 23 at 8.
Accordingly, and for the reasons stated, substantial evidence supports the finding of
the Commissioner that Clark does not meet Listing 1.02A.
Consideration of left knee pain as to the RFC
The central issue is the effect of Clark’s 2013 knee replacement on his functional
abilities. As the Commissioner notes, the replacement surgery was in January 2013 and, as
the ALJ found, by February 2013 the range of motion on that knee was normal, the incision
was healing well, and he had no atrophy or tone abnormality.51 The ALJ further observed
that there is no evidence in the record that Clark sought additional treatment for his knee after
the surgery until December 2013 when he went to a new physician for treatment of leg and
back pain.52 The ALJ also stated that “[m]edical notes from January 2014 indicate that
[Clark’s] muscle strength in the lower left extremity was 5/5, there was no numbness of
tingling, and his neurological functions were intact. Additionally, examination notes from
July 2014 indicate that [Clark’s] muscle strength was equal in all four extremities.”53
Related to these findings, the ALJ found that the bullet wound over the left tibia and
fibula was confined to the soft tissue and did not destroy bone.54 She finally noted that “there
is no evidence of further medical treatment or complaints of pain” arising specifically from
Id. at 9 (citing record).
Id. (citing record0.
Tr. at 28 (citing record).
the wound, and that any other issues in that regard generally resolve themselves on their
A closer review of the post-operative notes of Dr. Daniel Callahan, M.D., made on
January 9, 2014, indicate that Clark was complaining of pain in his left lower extremity into
his hip and groin, and showing pain with palpation to the left knee and anterior thigh.56 Dr.
Callahan also documents that there was decreased range of motion with flesion.57 But, and
as the ALJ expressly observed, this report also there was no numbness or tingling in the left
lower extremity, that neurological function was intact, and that muscle strength was five out
The notes from Dr. Callahan’s physical examination in June 2014 disclose that Clark
stated that his knee pain was “8/10" and that the pain is aggravated by “sitting, standing and
walking.”59 Dr. Callahan prescribed a continuation of percoset and a series of left sacroiliac
joint injections.60 A follow-up visit with Dr. Callahan on July 24, 2014 records that Clark
had “80 % pain relief” from the injections, although new back pain had started.61 Clark
Tr. at 637.
Id. at 742-43.
Id. at 744.
Id. at 782.
reported being able to walk only “short distances,” and being unable to sleep at night because
he could not find a comfortable position.62 The care plan at that time included a cane, a back
brace, additional injections, and a TENS unit.63 At a ten day follow-up visit to the injections,
dated July 31, 2014, the treatment notes show, as the ALJ mentioned, that muscle strength
was “equal in all 4 extremities,” there was a mass on the left medial lower leg, positive sacral
spine tenderness to palpation and positive straight leg aggravation of back pain bilaterally.64
The specific pain notation was that “[Clark] still has left sacroiliac pain and radicular pain.”65
The treatment notes after the surgery consistently shows that Clark was complaining
of pain, and that the pain was only partially alleviated by medication and injections. Indeed,
the final treatment note from Dr. Callahan was even with the injections and pain medication
Clark still has left sacroiliac pain as well as radicular pain. Moreover, Clark has consistently
told Dr. Callahan that he was unable to walk more than short distances and that he needed
to frequently change positions to seek some relief from the pain.
The above discussion of Clark’s treatment since the knee replacement shows that it
has consistently focused on pain relief. That said, however, it is also clear that the
complained of pain has not been knee pain but back pain. As the ALJ points out, the
Id. at 789.
Id. at 790.
complaints of knee pain dating from 2012-2013 are not found in the record after the knee
replacement in 2014.66 Further, as the ALJ also observed, the pain complaints to Dr.
Callahan, while consistent, were not followed up with any clinical diagnostic tests, such as
x-rays.67 In such a situation, the ALJ granted only little weight to Dr. Callahan’s opinion as
to Clark’s limited ability to ambulate, and further found Clark to be less than fully credible.68
Clark maintains that the ALJ’s analysis of his subjective complaints of pain was
improper, noting that pain does not require objective evidence to support it.69 The relevant
standard in this regard was set out in my opinion in Cross70 and essentially requires the ALJ
to consider all the relevant evidence in light of the factors set forth in SSR 96-7p. The ALJ
here expressly cited to SSR 96-7p in undertaking an analysis of Clark’s complaints of pain.71
Here, the evidence is, as noted above, that Clark has been consistent in his complaints,
and that he has utilized multiple methods for pain relief with only sporadic relief. It also
shows, however, that these complaints have been of back pain, not knee pain. As such, and
as the ALJ points out, an MRI of the lumbar spine in 2015 showed only mild degeneration,
Tr. at 31.
Id. at 32.
ECF # 18 at 16 (citing Duncan v. Secy of HHS, 801 F.2d 847, 853 (6th Cir. 1986)).
Cross v. Commissioner of Social Security, 373 F.Supp.2d 724, 732-33 (N.D. Ohio
Tr. at 27.
while there have been no diagnostic tests to support a finding of sacroiliitis.72 Moreover, and
as stated above, there is substantial evidence to support the finding that any impairment to
Clark’s left knee does not meet a Listing. Further, and in that regard, the treatment notes
since the knee replacement surgery in 2014 clearly show that there is no loss of muscle
strength nor any neurological deficits of the lower left extremity. In addition, as the ALJ
also noted, Clark is able to drive, shop, prepare meals, do laundry and perform self-care.73
Finally, and as the ALJ also noted, Clark’s testimony contains inconsistencies
throughout the record, and as the ALJ expressly observed, even after the knee replacement
“the claimant’s specialist did not opine on work restrictions.”74
Taken together, the ALJ has adequately performed an analysis of Clark’s subjective
complaints of pain under the appropriate rubric. Further, I find, for the reason stated, that
substantial evidence supports the determination of the Commissioner that Clark’s complaints
of pain were not fully credible.
Accordingly, for the reasons stated, the decision of the Commissioner in this matter
to deny benefits to Howard Lee Clark is hereby affirmed.
Id. at 23. The ALJ did observe that a 2014 x-ray of the sacroiliac joint was done,
but was performed only to provide needle guidance for the injection and not for diagnostic
Id. at 31.
IT IS SO ORDERED.
Dated: September 21, 2017
s/ William H. Baughman, Jr.
United States Magistrate Judge
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