Matthews v. Commissioner of Social Security Administration

Filing 17

Memorandum Opinion and Order. Following review of the arguments presented, the record, and the applicable law, the undersigned finds the Commissioner's decision denying disability insurance benefits and supplemental security income not supported by substantial evidence and REVERSES and REMANDS that decision. Related document 1 . Magistrate Judge James R. Knepp, II on 3/6/2019. (S,JM)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

WILLIAM MATTHEWS,

Case No. 1:17 CV 2431

Plaintiff,
v.

Magistrate Judge James R. Knepp, II

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

MEMORANDUM OPINION AND ORDER

INTRODUCTION
Plaintiff William Matthews (“Plaintiff”) filed a Complaint against the Commissioner of
Social Security (“Commissioner”) seeking judicial review of the Commissioner’s decision to deny
disability insurance benefits (“DIB”) and supplemental security income (“SSI”). (Doc. 1). The
district court has jurisdiction under 42 U.S.C. §§ 1383(c) and 405(g). The parties consented to the
undersigned’s exercise of jurisdiction in accordance with 28 U.S.C. § 636(c) and Civil Rule 73.
(Doc. 11). For the reasons stated below, the undersigned reverses the decision of the Commissioner
and remands for further proceedings consistent with this opinion.
PROCEDURAL BACKGROUND
Plaintiff filed for DIB and SSI in April 2011, alleging a disability onset date of March 21,
2013. (Tr. 346-55).1 His claims were denied initially and upon reconsideration. (Tr. 301-09).
Plaintiff then requested a hearing before an administrative law judge (“ALJ”). (Tr. 313-14).
Plaintiff (represented by counsel), and a vocational expert (“VE”) testified at the hearing before

1. Plaintiff previously applied for, and was denied, DIB in a decision dated March 20, 2013. (Tr.
188-214).

the ALJ on May 3, 2016. (Tr. 84-124). On September 8, 2016, the ALJ found Plaintiff not disabled
in a written decision. (Tr. 23-34). The Appeals Council denied Plaintiff’s request for review,
making the hearing decision the final decision of the Commissioner. (Tr. 1-6); see 20 C.F.R. §§
404.955, 404.981, 416.1455, 416.1481. Plaintiff timely filed the instant action on November 21,
2017. (Doc. 1).
FACTUAL BACKGROUND
Personal Background and Testimony
Born in 1963, Plaintiff was 49 years old on his alleged onset date, and 52 at the time of the
ALJ hearing. See Tr. 222. He had a high school diploma and completed two years of college. See
Tr. 381. Plaintiff last worked in 2009 and left that job after being laid off. (Tr. 120).
Plaintiff testified he believed he was disabled because he could not perform the “general
motions of physical labor” due to his right arm, left leg, and left eye impairments. (Tr. 92). Plaintiff
had acute retinal necrosis, which destroyed the vision in his left eye and affected his depth
perception. (Tr. 92-93). Plaintiff’s leg and arm impairments stemmed from an accident in which
he was hit by a motorcycle. (Tr. 99). Plaintiff had nerve damage in his right arm (elbow to wrist),
limited range of motion, and numbness in his fingers. (Tr. 93-94). He testified this was ongoing,
and no worse or better, since 2008. (Tr. 95); see also Tr. 96-99 (discussing limitations).
Plaintiff also testified to functional limitations with his left leg. (Tr. 99-102). He had leg
pain he rated as five out of ten on an average day with medication, nine without. (Tr. 104-05). He
had “metal in there” from his knee to ankle after a fracture in three places; he also had nerve
damage. (Tr. 99). Plaintiff was unable to run or jump, and experienced weakness if he stood too
long. (Tr. 99-100). He estimated he could stand for fifteen minutes before having to sit, and walk
for fifteen to twenty minutes before having to rest. (Tr. 100-01). Plaintiff had a cane at the hearing,

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which he testified Dr. Judith Weiss prescribed approximately three years prior. (Tr. 101, 120-21).
He always used it outside the house, and sometimes inside. (Tr. 101-02). Plaintiff testified the cane
was to “relieve pressure”, rather than for balance; but, it also helped with his balance, which was
sometimes unsteady due to his eye impairment. (Tr. 102). Plaintiff estimated he could sit for
approximately forty-five minutes. (Tr. 102-03).
Plaintiff also testified that his anxiety, depression, and agoraphobia affected his ability to
work. (Tr. 107). By way of example, he explained that he had missed buses just to avoid getting
on if the bus was crowded. Id. Plaintiff testified he had experienced agoraphobia since he was
young. Id. He avoided going out in public and shopped at odd hours with his sister to avoid a
crowd at the grocery store. (Tr. 108). Plaintiff testified he previously picked jobs due where he did
not have to be around crowds, and left jobs in the past due to his agoraphobia. (Tr. 109) (“[I]t was
a . . . third shift job, but there [were] too many people in there. It was a good job but I just had to
get out[.]”). He had difficulty interacting even one-on-one with people. (Tr. 110).
Due to his depression, which was originally diagnosed in 1999, Plaintiff spent a few days
per week in bed. (Tr. 111). He saw both a psychiatrist and a therapist. (Tr. 112). Plaintiff’s anxiety
was triggered by interacting with others, crowds, and insomnia with racing thoughts. (Tr. 113).
At the time of the hearing, Plaintiff was taking (among other things) Naproxen for pain,
Viibryd for depression and anxiety, Lunesta for sleep, Trazodone for sleep, Seroquel for anxiety
and sleep, and Propranolol for a racing heart and anxiety. (Tr. 105-06).
The ALJ asked Plaintiff if things had worsened since March 2013, and Plaintiff responded:
“No, it just – there’s no solution for the pain. It just won’t go away. And from what I hear from
my doctors, pretty much all is done that they can do.” (Tr. 121).

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Relevant Medical Evidence
Physical Health2
Prior to the alleged onset date in this case, Plaintiff was in an accident where a motorcycle
hit him. See Tr. 100, 731. He fractured in his left leg and right arm, requiring surgical repair. (Tr.
99-100); see also Tr. 702.
In April 2013, Plaintiff complained of pain in his tibia if he walked more than fifteen
minutes. (Tr. 731). He used a cane. Id. Judith Weiss, M.D., assessed chronic left leg pain, and
ordered an x-ray and vascular studies. (Tr. 733-34).
Plaintiff returned to Dr. Weiss in May 2013. (Tr. 698-701, 714-18). Dr. Weiss again noted
Plaintiff had left leg pain after fifteen minutes of ambulation. (Tr. 714). Dr. Weiss thought Plaintiff
might have a vascular insufficiency, but she first referred him to orthopedics. Id.; Tr. 718. On
examination, Plaintiff’s gait was normal. (Tr. 717). Dr. Weiss assessed, inter alia, chronic leg pain.
(Tr. 718). She ordered x-rays and a repair for Plaintiff’s cane. (Tr. 698). X-rays showed intact
surgical hardware from surgeries with no acute fracture or dislocation. (Tr. 702). He had bony
deformities of the proximal tibia and fibula, related to the healed fracture. Id.
In May 2013, Plaintiff saw Michael Reich, M.D., in orthopedics. Plaintiff reported chronic
left leg pain, explaining that his leg did not bother him at rest, but he had shin pain after exertion.
(Tr. 708). Plaintiff also told Dr. Reich his pain was grossly unchanged since the acute post-injury
period; he did not require pain medication. Id. On examination, Dr. Reich noted Plaintiff had wellhealed surgical scars, mild tenderness to palpation over incisions, and painless knee range of

2. Plaintiff’s argument about his physical limitations focuses solely on his use of a cane. (Doc. 14,
at 13-14). Therefore, although Plaintiff had treatment for other physical impairments—most
notably his arm/elbow—during the relevant period, the undersigned summarizes only the records
relevant to Plaintiff’s argument. See Kennedy v. Comm’r of Soc. Sec., 87 F. App’x 464, 466 (6th
Cir. 2003) (issues not raised in opening brief waived).
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motion. (Tr. 709). Dr. Reich noted Plaintiff had “[m]ild persistent pain in [his left lower extremity
. . . that is only a problem with moderate activity levels and does not cause discomfort/pain at rest.”
(Tr. 709-10). He thought Plaintiff would likely have persistent chronic pain and referred him to
physical therapy for strengthening. (Tr. 710); see also Tr. 697 (physical therapy referral).
Plaintiff began physical therapy in June 2013. (Tr. 755). Plaintiff reported chronic pain
since his injury, which increased with walking for more than ten to fifteen minutes. (Tr. 756). He
described pain of five to six out of ten, which was constant, but varied in intensity. (Tr. 757). He
took Neurontin with minimal relief. (Tr. 756). On examination, the therapist noted Plaintiff had
poor hip/core strength, poor hamstring and quadricep/hip flexor flexibility, and decreased
sensation over his proximal tibia. (Tr. 758). Plaintiff’s gait was: “Independent without an assistive
device (though ambulates carrying straight cane, decreased L stance time, slow and antalgic)”. Id.
The therapist recommended physical therapy once or twice per week for six to ten visits. Id.
At a June appointment, Charlotte Wagamon, M.D., in orthopedics noted Plaintiff walked
with a cane. (Tr. 742). At a later June physical therapy visit, Plaintiff reported using a straight cane
walking further than twenty feet but did not use it in the house. (Tr. 781). In July, the therapist
noted Plaintiff ambulated with a straight cane, and that he used it when he had to walk more than
twenty feet. (Tr. 863-64). Plaintiff started physical therapy with “mild” left lower extremity pain
and tolerated therapy. (Tr. 864).
In August, Plaintiff returned to orthopedics and saw Anna Wallace, M.D. (Tr. 936). Dr.
Wallace noted that Plaintiff had made “some progress” in physical therapy but reported little
symptom improvement. Id. On examination, Dr. Wallace found reduced range of motion, full
strength, and medial joint line tenderness. Id. Dr. Wallace suspected the tenderness stemmed from
osteoarthritis in the medial compartment of the knee. Id. She prescribed Naproxen and instructed

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Plaintiff to follow up in six weeks if he had no relief. Id. She stated she would “consider injection
versus advanced imaging at that time” and might refer Plaintiff to pain management. Id.
Plaintiff followed up with orthopedics in September, reporting minimal relief from
Naproxen. (Tr. 1009). Lorraine Stern, M.D., noted mild medial joint line tenderness, and that
Plaintiff was very tender to palpation on the medal tibial shaft. Id. She referred Plaintiff to pain
management. (Tr. 1010). At a September 2013 mental health visit, a provider noted Plaintiff had
a normal gait. (Tr. 1236).
In October 2013, Plaintiff saw pain management resident physician Vincent Desai, M.D.
(Tr. 1049-54). Plaintiff reported he could sit for more than an hour, stand for more than an hour,
and walk for twenty minutes. (Tr. 1050). Plaintiff had a normal neurologic examination, including
normal sensation, normal motor strength, and normal gait. (Tr. 1053). He had pain to the touch
and allodynia over his left leg scars. Id. Dr. Desai’s plan was smoking cessation, a bone scan,
Mobic, and continuing Neurontin. (Tr. 1053-54). Kutalba Tabbaa, M.D., oversaw Dr. Desai and
agreed with this plan. (Tr. 1054-55). Dr. Tabbaa noted Plaintiff had pain deep in his leg after two
minutes of walking, and that the pain sometimes interfered with sleep. (Tr. 1054).
Plaintiff underwent a bone scan of his left leg in December 2013. (Tr. 1092). It showed
some evidence of prior traumatic injuries and repair and degenerative change, but nothing “to
confirm a diagnosis of RSD.” Id.
In January 2014, Plaintiff saw Darlene Brown, R.N., in pain management, describing sharp,
crampy burning left leg pain, worse at night and with walking. (Tr. 1105-06). Plaintiff had normal
reflexes, sensation, motor strength, and gait. Id. Ms. Brown “[r]einforced [the] importance of [a]
regular program of improving strength and flexibility”, prescribed an increased dosage of Mobic,
and prescribed Trazodone. (Tr. 1106).

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At a February 2014 visit with Dr. Weiss, Plaintiff reported ongoing pain in his left tibia.
(Tr. 1182). Dr. Weiss discussed acupuncture and acupressure, but Plaintiff was not interested. Id.
On examination, Dr. Weiss noted Plaintiff had a “splinting” gait and used a cane. (Tr. 1185).
In June 2014, Plaintiff sought treatment for left lower leg pain with Eileen Coppola, C.N.P,
in pain management. (Tr. 1243-47, 1290-92). Plaintiff reported intermittent aching pain, worse at
night and with walking. (Tr. 1290). Ms. Coppola prescribed Diclofenac and Lidocaine (Tr. 1243,
1291-92), and instructed Plaintiff to stop taking Mobic, Naproxen, and Neurontin (Tr. 1243-44).
Later in June, Plaintiff returned to Dr. Weiss’s office, reporting his pain was not improved, but not
worse. (Tr. 1289). Christl Howze, P.A., assessed, inter alia, chronic leg pain. Id.
A December 2014 x-ray, performed due to pain, showed a healed tibia fracture “with some
residual fracture deformity”. (Tr. 1644).
Plaintiff returned to Dr. Patterson in orthopedics in April 2016. (Tr. 1832). Dr. Patterson
noted Plaintiff was “doing reasonably well” but that he reported pain in the medial aspect of the
left knee, worse with activity, somewhat better with Naproxen. Id. On examination, Dr. Patterson
noted Plaintiff walked “with a mild antalgic gait pattern favoring the left leg”. Id. Plaintiff’s knee
range of motion was 0-125 degrees, and he had no instability. Id. Dr. Patterson noted x-rays
showed “excellent osseous healing of the left tibial fracture” with no sign of hardware loosening.
Id. Dr. Patterson opined Plaintiff’s pain may be due to varicose veins, and prescribed TED hose.
Id.
Notes in Plaintiff’s mental health treatment records from November 2013 through January
2016 indicate Plaintiff had a “ha[d] cane for site [sic] with him” (Tr. 1224, 1225, 1227, 1229, 1231,
1233), “ha[d] cane with him” (Tr. 1452, 1454, 1457, 1723, 1725, 1727), and “ambulate[d] via
cane” (Tr. 1820).

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Physical Health Opinion Evidence
In October 2014, state agency physician Maureen Gallagher, D.O., M.P.H., reviewed
Plaintiff’s records and opined he could perform the requirements of light work, with postural
limitations (never climbing ladders/ropes/scaffolds, occasional stooping, kneeling, crouching, and
crawling), limited left field of vision, and avoid exposure to hazards (no commercial driving or
unprotected heights). (Tr. 242-44). Dr. Gallagher noted “the RFC given is an adoption of the ALJ
RFC dated 3/20/13. The RFC is being adopted under AR 98-4.” (Tr. 244).
In February 2015, state agency physician Michael Delphia, M.D., reviewed Plaintiff’s
records and offered a similar opinion, but noted Plaintiff’s depth perception was limited, and he
should be precluded from jobs requiring binocular vision. (Tr. 258-60). He again noted the RFC
was an adoption of the prior RFC. (Tr. 260).
Mental Health
Plaintiff had regular mental health treatment through the Free Clinic of Cleveland during
the relevant period. See Tr. 1222-37, 1438-58, 1722-28). He also discussed these conditions with
his primary care providers. See, e.g., Tr. 717, 731.
In September 2013, Plaintiff complained of anxiety and insomnia to Elizabeth Baker, M.D.
(Tr. 1235-37). Dr. Baker noted Plaintiff avoided having to be around people because he “thinks
people are looking at him”, and was “hypervigilant about people wanting to hurt him”. (Tr. 1235).
He had a depressed mood (self-rated at five out of ten) and reported panic attacks. Id. Dr. Baker
noted Plaintiff’s mood was “[n]ot too good”, his affect restricted, and his thought content mildly
delusional. (Tr. 1236). She noted his appearance was neat, his behavior organized and cooperative,
his activity normal, his speech clear and distinct, and his though process linear and organized. Id.
His perception, cognition, insight, and judgment were intact. Id. Dr. Baker noted she would wean

8

Plaintiff off Remeron, continue Doxepin and Cymbalta, and start Seroquel. Id. Dr. Baker offered
a therapy referral but Plaintiff declined. (Tr. 1237) (“States he tried therapy and it did not work.”).
Plaintiff saw Dr. Baker twice more in 2013. See Tr. 1231-34. He continued to report
depression of five to seven out of ten. (Tr. 1231, 1233). He also continued to hear people calling
his name, though in December, no longer felt like people were out to get him or laughing at him
on the bus. Id. His affect was blunted (Tr. 1233) or constricted, with “constant negative thoughts
about everything” (Tr. 1231). His attitude was calm and cooperative, and he denied suicidal or
homicidal ideations. (Tr. 1231, 1233). In December his anxiety was “better”, and he was trying to
walk in the afternoon and listen to the radio; he reported difficulty concentrating. (Tr. 1231).
Medications included Seroquel, Cymbalta, and Abilify. (Tr. 1232, 1234).
During the first half of 2014, Plaintiff saw Dr. Baker four times. (Tr. 1223-30). He
continued to report depressed mood of five to seven out of ten, and had a constricted affect with
constant negative thoughts. (Tr. 1224, 1226, 1227, 1230). He experienced some increasing
paranoia, such as looking out the curtains at home to make sure no one was coming in, hearing
people call his name, and the return of thoughts that people on the bus were out to get him or
laughing at him. See Tr. 1223-30. In April, Plaintiff reported a panic attack on an overcrowded
bus, and passive thoughts of death. (Tr. 1225). In May, Plaintiff reported good concentration, the
ability to perform activities of daily living, and had enjoyed going to his mother’s house for half a
day. (Tr. 1223). At this visit, Dr. Baker noted Plaintiff “appear[ed] to have a brighter affect, moving
fast, and has more reactivity”. (Tr. 1224). She noted Plaintiff’s medication “seem[ed] to be helping
however, he doesn’t perceive it to be.” Id. In March, Plaintiff was taking Seroquel and Cymbalta,
but weaning Abilify. (Tr. 1228). In May, he continued Seroquel at an increased dose, and took
Effexor in place of Cymbalta. (Tr. 1224).

9

From July to December 2014, Plaintiff saw Sarah Engle, M.D. (Tr. 1449-58). During this
time, Plaintiff’s mood was depressed at a level of six out of ten (Tr. 1450, 1452), “terrible” (Tr.
1453-54), and dysthymic (Tr. 1457). He continued to have panic attacks around crowds (Tr. 1449),
and throughout this time period was noted to be hypervigilant in public places (Tr. 1449, 1452,
1454, 1457). His attitude was consistently calm (Tr. 1450, 1452, 1454, 1457), at times pleasant
and engaged (Tr. 1450, 1452), and at other times, irritable and frustrated at not getting better (Tr.
1454, 1457). In July, Plaintiff reported feeling like he “hit a wall” and returning to where he began
before he started feeling better. (Tr. 1449). In August, he reported things were “not getting better,
but not getting worse.” (Tr. 1451). In December, Dr. Engle noted Plaintiff had run out of
medication after missing his prior two appointments. (Tr. 1456). At that appointment, Dr. Engle
restarted Plaintiff on his medications (Effexor and Latuda), and discontinued Ambien, and started
Trazodone. (Tr. 1457). From September 2013 through May 2014, Plaintiff declined a referral to
therapy, stating he had tried it in the past and it did not help. See Tr. 1224, 1226, 1228, 1230, 1232,
1234. In July, he stated he was willing to try (Tr. 1450), and in September and December, he stated
he would like to start with “Dr. Bailey.” (Tr. 1455, 1458).
Plaintiff continued to treat with Dr. Engle in 2015. See Tr. 1722-28. In January 2015, Dr.
Engle noted Plaintiff was “brighter” as compared to previous visits, though his mood was still
constricted, with “constant negative thoughts.” (Tr. 1723). Plaintiff also reported that meeting with
Dr. Bailey was helpful. (Tr. 1722). Dr. Engle noted: “Objectively, his affect is brighter and he is
more talkative compared to previous sessions. I suspect the combination of initiating therapy and
restarting his meds has been helpful.” (Tr. 1723).
At three visits in 2015, Dr. Engle continued to note Plaintiff was hypervigilant in public
places. (Tr. 1723, 1725, 1727). In February, he reported an anxiety attack getting on a crowded

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bus, and that he continued to self-isolate. (Tr. 1724). Dr. Engle continued, and increased dosages
of Effexor and Latuda during this time; she also prescribed, at various times, Ambien, Prazosin,
and Trazodone. See Tr. 1723, 1725, 1728.
The final mental health treatment note in the record is from January 2016. (Tr. 1819-21).
Anmol Tolani, M.D., noted Plaintiff was last seen by Dr. Engle in November, at which point his
Viibryd prescription was increased. (Tr. 1819). Plaintiff reported he was “doing a little better” with
his depression but continued to have difficulty sleeping and anxiety. (Tr. 1820). His anxiety
“remain[ed] an issue when he gets on the bus or is in a crowded place.” Id. He was calm and
cooperative, mildly depressed, with a restricted affect; his though process was linear and logical,
and he denied suicidal or homicidal ideations. Id. He denied hallucinations but continued to have
anxiety in public places. Id. Dr. Tolani noted Plaintiff’s inconsistent use of Seroquel and his CPAP
machine, and Dr. Tolani encouraged Plaintiff to do both nightly. (Tr. 1821). Her impression was
major depressive disorder, and panic disorder with agoraphobia. Id. She continued Plaintiff’s
medications (Vilazadone, Seroquel, and Propranolol (for panic attacks)). Id.
Mental Health Opinion Evidence
In August 2014, Dr. Engle completed a medical source statement form regarding Plaintiff’s
mental capacity. (Tr. 1436-37). She opined Plaintiff could only rarely3: deal with the public; work
with or in proximity to others without being distracted; complete a normal workday and workweek
without interruption from psychologically based symptoms and perform at a consistent pace
without an unreasonable number and length of rest periods; and socialize. Id. Plaintiff could
occasionally4: relate to co-workers; deal with work stress; behave in an emotionally stable manner;

3. The form defined “rare” as “activity cannot be performed for any appreciable time”. (Tr. 1436).
4. The form defined “occasional” as “ability for activity exists for up to 1/3 of a work day.” (Tr.
1436).
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relate predictably in social situations; manage funds/schedules; and leave home on his own. Id.
Plaintiff could frequently5: maintain attention and concentration for extended periods of 2-hour
segments; respond appropriately to changes in routine settings; maintain regular attendance and
be punctual within customary tolerance; function independently without redirection; work in
coordination with or proximity to others without being distracting; understand, remember, and
carry out simple, detailed, or complex job instructions; and maintain his appearance. Id. He could
constantly6 follow work rules or use judgment. (Tr. 1436). Finally, in the category of interacting
with supervisors, Dr. Engle wrote “unknown” in the “frequent” column. Id. She noted Plaintiff
had been in her practice’s care for four years, and had diagnoses of major depressive disorder and
panic disorder with agoraphobia. (Tr. 1437). Specifically, she noted he had “extreme difficulty
being around others due to these conditions.” Id.
In October 2014, state agency psychologist Aracelis Rivera, Psy.D., reviewed Plaintiff’s
records. (Tr. 244-45). Dr. Rivera opined Plaintiff was moderately limited in his ability: 1) to
interact with the general public; 2) accept instructions/respond appropriately to criticism from
supervisors; and 3) get along with coworkers or peers without distracting them or exhibiting
behavioral extremes. Id. Dr. Rivera also opined Plaintiff was not significantly limited in the ability
to ask simple questions, request assistance, or maintain socially appropriate behavior, or adhere to
basic standards of neatness and cleanliness. Id. Dr. Rivera noted this RFC was an adoption of the
prior RFC and was “being adopted under AR 98-4.” (Tr. 245).
In February 2015, state agency psychologist Deryck Richardson, Ph.D., reviewed
Plaintiff’s records and affirmed Dr. Rivera’s opinion. (Tr. 260-61).

5. The form defined “frequent” as “ability for activity exists for up to 2/3 of a work day.” (Tr.
1436).
6. The form defined “constant” as “ability to perform activity is unlimited. (Tr. 1436).
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ALJ Decision
In his written decision dated September 8, 2016, the ALJ found Plaintiff met the insured
status requirements for DIB through September 30, 2014, and had not engaged in substantial
gainful activity since March 21, 2013 (his alleged onset date). (Tr. 25). He found Plaintiff had
severe impairments of left eye blindness due to retinal necrosis; left eye cataract after surgery;
residual effects of fractures in the right radius and ulna after open reduction and internal fixation;
residual effects of an ankle fracture; residual effects of a right fifth metacarpal fracture; depressive
disorder, not otherwise specified; panic disorder; personality disorder; and alcohol abuse. Id.
However, none of these impairments – singly or in combination – met or medically equaled a listed
impairment. (Tr. 26). The ALJ then concluded Plaintiff had the residual functional capacity
(“RFC”):
to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b), with
restrictions. Specifically, he is able to lift, carry, push and pull up to 20 pounds
occasionally and 10 pounds frequently. In an 8-hour workday, he can sit, stand
and/or walk for 6 hours each, with normal breaks. He cannot use ladders, ropes or
scaffolds, but can occasionally use ramps and stairs. He can occasionally stoop,
kneel, crouch and crawl. He is precluded from jobs requiring binocular vision. He
must avoid all exposure to workplace hazards and is precluded from occupational
driving. He is limited to tasks that are low-stress, not in public, and that involve no
interaction with the public and no more than superficial interaction with co-workers
and supervisors. He is precluded from tasks involving arbitration, negotiation,
confrontation, directing the work of others, or being responsible for the safety of
others.
(Tr. 27). The ALJ explained this was an adoption of the RFC from Plaintiff’s prior disability claim
pursuant to Social Security Acquiescence Ruling 98-4(6) and Drummond v. Comm’r of Soc. Sec.,
126 F.3d 837 (6th Cir. 1997). See id. The ALJ then found Plaintiff was unable to perform any past
relevant work (Tr. 32), and considering his age, education, work experience, and RFC, there were
jobs that exist in significant numbers in the national economy that Plaintiff could perform (Tr. 33).
Therefore, the ALJ found Plaintiff was not disabled. (Tr. 34).
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STANDARD OF REVIEW
In reviewing the denial of Social Security benefits, the 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.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). “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). 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, the court cannot overturn
“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).
STANDARD FOR DISABILITY
Eligibility for benefits is predicated on the existence of a disability. 42 U.S.C. §§ 423(a),
1382(a). “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.” 20 C.F.R. §§ 404.1505(a) & 416.905(a); see also 42 U.S.C. § 1382c(a)(3)(A).
The Commissioner follows a five-step evaluation process—found at 20 C.F.R. §§ 404.1520 and
416.920—to determine if a claimant is disabled:
1.

Was claimant engaged in a substantial gainful activity?

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2.

Did claimant have a medically determinable impairment, or a combination
of impairments, that is “severe,” which is defined as one which substantially
limits an individual’s ability to perform basic work activities?

3.

Does the severe impairment meet one of the listed impairments?

4.

What is claimant’s residual functional capacity and can claimant perform
past relevant work?

5.

Can claimant do any other work considering his residual functional
capacity, age, education, and work experience?

Under this five-step sequential analysis, the claimant has the burden of proof in Steps One
through Four. Walters, 127 F.3d at 529. The burden shifts to the Commissioner at Step Five to
establish whether the claimant has the residual functional capacity to perform available work in
the national economy. Id. The ALJ considers the claimant’s residual functional capacity, age,
education, and past work experience to determine if the claimant could perform other work. Id.
Only if a claimant satisfies each element of the analysis, including inability to do other work, and
meets the duration requirements, is he determined to be disabled. 20 C.F.R. §§ 404.1520(b)-(f) &
416.920(b)-(f); see also Walters, 127 F.3d at 529.
DISCUSSION
Plaintiff argues the ALJ erred in two ways. First, he contends the ALJ erroneously applied
res judicata when he adopted a previous ALJ’s RFC determination. (Doc. 14, at 13-15). Second,
he contends the ALJ erred in his consideration of Dr. Engle’s opinion. Id. at 15-22. The
Commissioner responds that the ALJ’s decision is supported by substantial evidence and should
be affirmed. (Doc. 15, at 10-17).7 For the reasons discussed below, the undersigned reverses and
remands for further proceedings.

7. The Commissioner also filed a Notice of Additional Authority, contending that the Sixth
Circuit’s intervening decision in Earley v. Commissioner of Social Security, 126 F.3d 837 (6th Cir.
2018), does not change this analysis. 
15

Treating Physician Rule
Plaintiff argues the ALJ erred in his evaluation of Dr. Engle’s opinion. Specifically, he
contends the ALJ unreasonably rejected Dr. Engle’s opinion regarding Plaintiff’s social interaction
abilities. The Commissioner responds that the ALJ’s decision is supported by substantial evidence
and should be affirmed. For the reasons discussed below, the undersigned remands for further
consideration and explanation of the weight assigned to Dr. Engle’s opinion.
In general, medical opinions from a treating source are given more weight than those from
a non-treating source “since these sources are likely to be the medical professionals most able to
provide a detailed, longitudinal picture of [the claimant’s] medical impairment(s)[.]” 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2). Medical opinions are defined as “judgments about the nature and
severity of [the claimant’s] impairment(s), including . . . symptoms, diagnosis and prognosis, what
[the claimant] can still do despite impairment(s), and [his or her] physical or mental restrictions.”
20 C.F.R. §§ 404.1527(a)(1), 416.927(a)(1).
The treating physician rule requires the ALJ to assign a treating physician’s opinion
controlling weight if it is “well-supported by medically acceptable clinic and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [the claimant’s] case
record.” 20 C.F.R. §§ 404.1527(c), 416.927(c)8; Turk v. Comm’r of Soc. Sec., 647 F. App’x 638,
640 (6th Cir. 2016). Where an ALJ does not give controlling weight to a treating source opinion,
he weighs that opinion using the factors in 20 C.F.R. §§ 404.1527(c)(2)-(6); 416.927(c)(2)-(6).
This does not require an “exhaustive, step-by-step analysis,” but merely “good reasons” for the

8. Although recent revisions to the CFR have changed the rules regarding evaluation of treating
physician opinions, such changes apply to claims filed after March 27, 2017, and do not apply to
claims filed prior to that date. See Social Sec. Admin., Revisions to Rules Regarding the Evaluation
of Medical Evidence, 82 Fed. Reg. 5852-53, 2017 WL 168819. 
16

ALJ’s weighing of the opinion. Biestek v. Comm’r of Soc. Sec., 880 F.3d 778, 785 (6th Cir. 2017)
(citation omitted). These good reasons must be “sufficiently specific to make clear to any
subsequent reviewers the weight the adjudicator gave to the treating source’s medical opinion, and
the reasons for that weight.” SSR 96-2p, 1996 WL 174188, at *5.
As the Sixth Circuit explained in a recent decision:
* * * The justification for this requirement is two-fold: (1) it helps a claimant to
understand the disposition of her case, especially “where a claimant knows that
h[er] physician has deemed h[er] disabled,” and (2) it “permits meaningful review
of the ALJ’s application of the [treating-source] rule.” Wilson, 378 F.3d at 544. We
have been clear that we will remand “when the Commissioner has not provided
‘good reasons’ for the weight given to a treating physician’s opinion and [that] we
will continue remanding when we encounter opinions from ALJ’s that do not
comprehensively set forth the reasons for the weight assigned to a treating
physician’s opinion.” Hensley v. Astrue, 573 F.3d 263, 267 (6th Cir. 2009)
(emphasis added) (quoting Wilson, 378 F.3d at 545).
Remand is not necessary, however, if the ALJ’s failure to provide good reasons is
a “harmless de minimis procedural violation.” Blakley, 581 F.3d at 409. Although
we have yet to define “harmless error” in this context, we have identified three
situations in which it might occur: (1) where “a treating source’s opinion is so
patently deficient that the Commissioner could not possibly credit it,” (2) where
“the Commissioner adopts the opinion of the treating source or makes findings
consistent with the opinion,” and (3) “where the Commissioner has met the goal of
... the procedural safeguard of reasons.” Wilson, 378 F.3d at 547. With respect to
the last of these circumstances, “the procedural protections at the heart of the rule
may be met when the ‘supportability’ of a doctor’s opinion, or its consistency with
other evidence in the record, is indirectly attacked via an ALJ’s analysis of a
physician’s other opinions or his analysis of the claimant’s ailments.” Friend v.
Comm’r of Soc. Sec., 375 Fed.Appx. 543, 551 (6th Cir. 2010). That said, “[a]
procedural error is not made harmless simply because [the claimant] appears to
have ... little chance of success on the merits[,]” Wilson, 378 F.3d at 546 (quoting
Mazaleski v. Treusdell, 562 F.2d 701, 719 n.41 (D.C. Cir. 1977) ); and where the
error makes meaningful review impossible, the violation of the good-reasons rule
can never qualify as harmless error, Blakley, 581 F.3d at 409.
Shields v. Comm’r of Soc. Sec., 732 F. App’x 430, 438 (6th Cir. 2018).
Application of this standard dictates reversal in this case. Dr. Engle opined Plaintiff could
only “rarely”: deal with the public; work with or in proximity to others without being distracted;

17

complete a normal workday and workweek without interruption from psychologically based
symptoms; and socialize. (Tr. 1436-37). She opined Plaintiff could “occasionally”: relate to coworkers; deal with work stress; behave in an emotionally stable manner; relate predictably in social
situations; manage funds/schedules; and leave home on his own. Id. These findings conflict with
the ALJ’s RFC determination finding Plaintiff could complete a normal workday and workweek
and engage in superficial interaction with co-workers and supervisors. See Doc. 15, at 13
(Commissioner’s brief noting that Dr. Engle’s opinion “suggested disabling-level mental
impairments”).
In his opinion, the ALJ summarized Dr. Engle’s opinion, and then explained, in toto: “This
opinion is from a treating physician who saw the claimant for 4 years, however it is not supported
with explanation or evidence, and is given partial weight in the decision.” (Tr. 31). Although
analysis of a treating physician’s opinion can be brief and still satisfy the “good reasons”
requirement, see Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 651 (6th Cir. 2009), the Court finds
the ALJ’s explanation here insufficient because it is not “sufficiently specific to make clear to any
subsequent reviewers the weight the adjudicator gave to the treating source’s medical opinion, and
the reasons for that weight.” SSR 96-2p, 1996 WL 174188, at *5.
First, contrary to the ALJ’s determination, Dr. Engle’s opinion did offer some (albeit brief)
explanation for the opined restrictions. See Tr. 1437 (noting diagnoses of major depressive disorder
and panic disorder with agoraphobia and that Plaintiff “has extreme difficulty being around others
due to these conditions.”).
Second, the ALJ stated he assigned the opinion “partial” weight. (Tr. 31). That is, he
seemingly credited the opinion to some extent, despite his rationale that it was “not supported with

18

explanation or evidence”. (Tr. 31). There is no explanation for why some of Dr. Engle’s restrictions
were adopted and others were not.  
Third, the Commissioner’s attempts to further translate and interpret the ALJ’s single
sentence explanation cross the line from applying the substantial evidence standard into the
prohibited territory of post hoc reasoning. See Williams v. Comm’r of Soc. Sec., 227 F. App’x 463,
464 (6th Cir. 2007) (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)) (a reviewing court,
in assessing the decision of an administrative agency, must judge its propriety solely by the
grounds invoked by the agency). Specifically, the Commissioner argues that “[i]n other words, the
ALJ concluded the opinion as not supported with medical evidence or consistent with other
evidence in the record.” (Doc. 15, at 14). But this is not what the ALJ said. The ALJ simply stated
the opinion itself was “not supported with explanation or evidence” (Tr. 31); he did not say it was
inconsistent with other evidence in the record. Perhaps in an attempt to remedy this apparent leap
of logic, the Commissioner points to the ALJ’s earlier discussion of Plaintiff’s mental impairments.
(Doc. 15, at 15). At step three, the ALJ summarized his consideration of Plaintiff’s mental
impairments:
Concerning the claimant’s mental impairments, medical records indicate consistent
treatment for depression, anxiety, and panic attacks, with generally moderate
symptoms (Exhibits B4F and B10F). Treatment notes from April 2014 report
depression rated by the claimant has 7 out of 10, but with some improvement in his
panic attacks (Exhibit B14F/2). Treatment notes from December 16, 2014 report
that the claimant has missed appointments for 2 months and had discontinued his
medication, and was reporting increased symptoms of anxiety and depression
(Exhibit B14F/12-13). Treatment notes from January 13, 2015 report that the
claimant has been compliant with his medication and reports improvement with his
depression, and presented with a brighter affect and more talkative than in previous
sessions (Exhibit B1F/16). Treatment notes from January 20, 2016 note the
claimant reports he is doing better with his depression, saying he has “feeling of
helplessness/hopelessness but reports they are decreased from last time,” and that
“he has not had any issues with his appetite or energy” (Exhibit B16F/3). The
claimant’s diagnosis and treatment for depression, anxiety, and agoraphobia is well
documented in the medical evidence of record, as are his symptoms, which appear
19

to be manageable when the claimant is complaint with his medications and engaged
in treatment.
(Tr. 30).
But the ALJ himself did not expressly refer to these treatment records in assigning Dr.
Engle’s opinion partial weight. See Tr. 31. Moreover, even if this analysis were tied to the ALJ’s
analysis of Dr. Engle’s opinion, the other problem with the Commissioner’s reliance on this earlier
summary to justify the ALJ’s treatment of Dr. Engle’s opinion is that the statement that Plaintiff’s
symptoms “appear to be manageable when the claimant is compliant with his medications and
engaged it treatment” (Tr. 30) is an overstatement of the record. From September 2013 through
September 2014, Plaintiff took medications at doses prescribed and adjusted by Drs. Baker and
Engle and continued to report paranoid thoughts, hypervigilance, anxiety and panic attacks in
crowds. (Tr. 1224, 1226, 1228, 1230, 1232, 1234, 1236,1450, 1452, 1454). The ALJ correctly
cited treatment records from December 2014 and January 2015 when Plaintiff was not medication
compliant and improved upon re-starting his medications. See Tr. 30 (citing Tr. 1719-20, 1723).
However, although Plaintiff was noted to be “brighter” at his January 2015 visit (Tr. 1723), Dr.
Engle also continued to note Plaintiff was “more irritable compared to previous visits, seems
frustrated that he is not getting better”, had a constricted affect, had “[c]onstant negative thoughts
about everything, and continued to be hypervigilant in public places. Id. And, in two subsequent
visits, Dr. Engle noted similar mental status exam findings (Tr. 1725, 1727), and that Plaintiff
“continue[d] to isolate in his house” and “had an anxiety attack when getting on the bus and saw
the crowds” (Tr. 1724). In February, Dr. Engle noted she would “[c]ontinue Latuda 20 mg daily
as adjunct to Effexor for treatment resistant anxiety and depression.” (Tr. 1725). In April, Plaintiff
had a dysthymic mood, and Dr. Engle continued to adjust his medications (“Increase Latuda to 40
mg daily as adjunct to Effexor for treatment resistant depression (vs. Bipolar depression.”). (Tr.
20

1728). Although it is for the ALJ and not this Court to weigh and resolve conflicts in the evidence,
the ALJ must be careful not to selectively parse the record. See Minor v. Comm’r of Soc. Sec., 513
F. App’x 417, 435 (6th Cir. 2013) (reversing where the ALJ “cherry-picked select portions of the
record”); Germany–Johnson v. Comm’r of Soc. Sec., 313 F. App’x 771, 777 (6th Cir. 2008)
(finding error where the ALJ was “selective in parsing the various medical reports”). The ALJ’s
broad statement that Plaintiff’s symptoms “appear manageable when the claimant is complaint
with his medications and engaged in treatment” (Tr. 30) is based upon a selective reading of the
medical record not supported by substantial evidence.
The undersigned finds the ALJ’s single-sentence statement about Dr. Engle’s opinion – in
light of the record as a whole in this case – is not “sufficiently specific to make clear to [this Court]
the weight the adjudicator gave to the treating source’s medical opinion, and the reasons for that
weight.” SSR 96-2p, 1996 WL 174188, at *5.9 There may well be good reasons for discounting
Dr. Engle’s opinion, but they were not provided by the ALJ here. As such, remand is required for
the Commissioner to more comprehensively address this treating source opinion.
Drummond/Earley
Plaintiff also contends the ALJ erred in applying res judicata principles. He contends there
was a deterioration of his physical health evidenced by the use of a cane, and a deterioration of

9. In her brief, the Commissioner offers additional rationales to support the ALJ’s decision. See
Doc. 15, at 14 (“There were no mental status reports, psychological inventory test results,
examples of difficulty getting along with others, or any other kind of evidence.”); Doc. 15, at 1213 ([W]hile not mentioned by the ALJ in the hearing decision, it is noteworthy that she specifically
asked him during his hearing whether he had the ‘same pain and the same problems’ he had for
the last three years, and she asked him if things had ‘gotten worse since say March 2013?’ Plaintiff
responded that there was no change, but he complained that his ongoing pain remained treatable.”)
(internal citations omitted). The undersigned offers no opinion on whether these rationales would
provide good reasons for the ALJ’s evaluation of Dr. Engle’s opinion because they were not
offered by the ALJ. See Williams, 227 F. App’x at 464 (citing Chenery Corp., 332 U.S. at 196).
21

Plaintiff’s mental health evidenced by further social isolation, combined with Dr. Engle’s opinion
that Plaintiff would have social interaction difficulties. The Commissioner responds that the ALJ
was within his “zone of choice” in determining there was no new evidence or changed
circumstances to justify modifying Plaintiff’s RFC. Additionally, in her supplemental filing, the
Commissioner contends that the Sixth Circuit’s intervening decision in Earley v. Commissioner of
Social Security, 126 F.3d 837 (6th Cir. 2018), does not change this analysis because the ALJ
“properly considered the prior decision and considered all of the evidence at hand including newly
submitted evidence.” (Doc. 16, at 2).
In Drummond v. Commissioner of Social Security, the Sixth Circuit held that “[w]hen the
Commissioner has made a final decision concerning a claimant’s entitlement to benefits, the
Commissioner is bound by this determination absent changed circumstances.” 126 F.3d 837, 842
(6th Cir. 1997); Blankenship v. Comm’r of Soc. Sec., 624 F. App’x 419, 425 (6th Cir. 2015). In
that case, the claimant’s initial claim for SSI was denied when an ALJ found that the claimant
retained an RFC for sedentary work. Drummond, 126 F.3d. at 838. When the claimant later refiled her disability claim, a second ALJ found that the claimant retained an RFC suitable for
medium-level work—unlike the sedentary RFC finding of the first ALJ—and denied the re-filed
claim. Id. at 839. After explaining that “[r]es judicata applies in an administrative law context
following a trial type hearing,” the Sixth Circuit held that the second ALJ was bound to the
sedentary RFC determination of the first ALJ because there was no new or additional evidence of
an improvement in the claimant’s condition. Id. at 841-42. “Just as a social security claimant is
barred from relitigating an issue that has been previously determined, so is the Commissioner.” Id.
In response to Drummond, the Social Security Administration promulgated Acquiescence
Ruling 98–4(6), which explained:

22

This Ruling applies only to disability findings in cases involving claimants who
reside in Kentucky, Michigan, Ohio, or Tennessee at the time of the determination
or decision on the subsequent claim at the initial, reconsideration, ALJ hearing or
Appeals Council level. It applies only to a finding of a claimant’s residual
functional capacity or other finding required at a step in the sequential evaluation
process for determining disability provided under 20 CFR 404.1520, 416.920 or
416.924, as appropriate, which was made in a final decision by an ALJ or the
Appeals Council on a prior disability claim.
When adjudicating a subsequent disability claim with an unadjudicated period
arising under the same title of the Act as the prior claim, adjudicators must adopt
such a finding from the final decision by an ALJ or the Appeals Council on the
prior claim in determining whether the claimant is disabled with respect to the
unadjudicated period unless there is new and material evidence relating to such a
finding or there has been a change in the law, regulations or rulings affecting the
finding or the method for arriving at the finding.
1998 WL 283902, at *3 (footnote omitted).
Subsequent to Plaintiff’s appeal to this Court becoming decisional, the Sixth Circuit
clarified the scope of Drummond in Earley v. Commissioner of Social Security, 893 F.3d 929 (6th
Cir. 2018). In Earley, the Sixth Circuit clarified res judicata applies to subsequent applications for
“the same period of time [ ] rejected by the first application.” Id. at 933. The Sixth Circuit further
reasoned:
While we are at it, we should point out that issue preclusion, sometimes called
collateral estoppel, rarely would apply in this setting. That doctrine “foreclos[es]
successive litigation of an issue of fact or law actually litigated and resolved.” Id.
at 748-49, 121 S.Ct. 1808. But human health is rarely static. Sure as we’re born, we
age. Sometimes we become sick and sometimes we become better as time passes.
Any earlier proceeding that found or rejected the onset of a disability could rarely,
if ever, have “actually litigated and resolved” whether a person was disabled at
some later date.
All of this helps to explain why Drummond referred to “principles of res judicata”
– with an accent on the word “principles.” 126 F.3d at 841-843. What are those
principles? Finality, efficiency, and the consistent treatment of like cases. An
administrative law judge honors those principles by considering what an earlier
judge found with respect to a later application and by considering that earlier
record. Id. at 842, see Albright v. Comm’r of Soc. Sec., 174 F.3d 473, 478 (4th Cir.
1999). This is why it is fair for an administrative law judge to take the view that,

23

absent new and additional evidence, the first administrative law judge’s findings
are legitimate, albeit not binding, consideration in reviewing a second application.
Earley, 893 F.3d at 933. Only a few district courts have applied Earley. In so doing, one
summarized, and explained:
Courts applying Earley to ALJ decisions issued before that case have asked whether
the ALJ, despite purporting to follow Drummond, gave the new evidence a fresh
look. If so, then the ALJ’s decision satisfied Earley; if not, then remand was
appropriate. See Snyder v. Comm’r of Soc. Sec., No. 1:17-cv-486, 2018 WL
4658813, at *3 (W.D. Mich. 2018) (finding that the pre-Earley ALJ decision
satisfied Earely by “effectively re-open[ing]” the prior ALJ’s decision); Dunn v.
Comm’r of Soc. Sec., No. 1:17-cv-634, 2018 WL 4574831, at *3 (W.D. Mich. 2018)
(reversing where the ALJ did not satisfactorily review the evidence, but rather
focused on the prior RFC findings); Cassaday v. Comm’r of Soc. Sec., No. 1:17cv-630, 2018 WL 4519989, at *3 (W.D. Mich. 2018) (reversing where the ALJ’s
decision was not consistent with Earley’s requirement of independent review);
Brent v. Comm’r of Soc. Sec., Case No. 17-12654, 2018 WL 4403418, at *2–3 (E.D.
Mich. 2018) (holding that pre-Earley ALJ sufficiently conducted an independent
review of the evidence and did not simply adopt prior ALJ’s findings wholesale);
Kamphaus v. Comm’r of Soc. Sec., No. 2:17-cv-11828, 2018 WL 3800243, at *5
(E.D. Mich. 2018) (“It is clear to the Undersigned that ALJ Deming did not simply
apply res judicata principles and adopt ALJ Kalt’s findings ‘lock, stock and barrel,’
but instead gave new consideration and analysis” to the new evidence.), rep. & rec.
adopted by 2018 WL 3770045 (E.D. Mich. 2018); see also Kimball v. Comm’r of
Soc. Sec., Civil Action No. 17-12659, 2018 WL 4102845, at *5 n. 4 (E.D. Mich.
2018) (finding Earley did not change its analysis of pre-Earley ALJ decision
because ALJ had concluded she was not bound by the previous RFC due to new
and material evidence), rep. & rec. adopted by, 2018 WL 4095081 (E.D. Mich.,
2018).
Johnson v. Comm’r of Soc. Sec., 2018 WL 6440897, at *14-15 (E.D. Mich.), report and
recommendation adopted, 2018 WL 6434778.
The Commissioner’s supplemental filing addresses Earley, see Doc. 16, and Plaintiff did
not respond. But Plaintiff’s argument under Drummond is similar to one made under Earley – he
in essence argues the ALJ failed to properly evaluate the new evidence of record of both his
physical and mental impairments. The undersigned agrees, for the reasons stated below.
The ALJ here explained that, pursuant to Drummond:

24

[W]here a final decision on a prior disability claim contains a finding of a
claimant’s residual functional capacity (RFC), the agency may not make a different
finding in adjudicating a subsequent disability claim with an unadjudicated period
arising under the same title of the Act as the prior claim unless new and additional
evidence or changed circumstances provide a basis for a different finding of the
claimants’ RVC. It is found that there has been no additional evidence or changed
circumstances that would provide a basis for a different finding than the previous
finding and [the prior RFC] therefore adopted under Drummond.
(Tr. 27). In concluding his step four analysis, the ALJ stated that “[n]ew evidence fails to show the
claimant to be more limited than previously determined.” (Tr. 32). That is, the ALJ started from a
point of assuming the prior RFC was binding.
Physical Impairments
First, Plaintiff contends new evidence showed he required use of a cane, which the ALJ
failed to acknowledge. The Commissioner contends the ALJ’s decision not to modify the prior
RFC to include a cane in the RFC is supported by substantial evidence. For the reasons discussed
below, the undersigned also reverses and remands the Commissioner’s decision regarding
Plaintiff’s use of a cane for further consideration under Earley.
There is evidence in the record that Plaintiff used a cane. See Tr. 101, 120-21 (Plaintiff’s
testimony that cane was prescribed by Dr. Weiss); Tr. 698 (repair order); see also Tr. 731, 758,
742, 781, 1185 (physical health treatment records noting Plaintiff’s cane usage); (Tr. 1224, 1225,
1227, 1229, 1231, 1233, Tr. 1452, 1454, 1457, 1723, 1725, 1727, 1820) (mental health treatment
records noting Plaintiff’s cane usage). The ALJ did not address any of this evidence, nor, aside
from mentioning Plaintiff’s testimony about the cane, discuss it in his opinion. Plaintiff specifically
argues that the repair order “implies the device [was] medically necessary”. (Doc. 14, at 13) (citing
Tr. 698). The record to which Plaintiff points, from a May 2013 visit with Dr. Weiss, states, under
“Orders This Visit”: “DME/ MISCELLANEOUS/REPAIR”. (Tr. 698). Handwritten next to it is
the word “cane”. Id.
25

According to the Sixth Circuit, if a “cane [is] not a necessary device for claimant’s use, it
cannot be considered an exertional limitation that reduced her ability to work.” Carreon v.
Massanari, 51 F. App’x 571, 575 (6th Cir. 2002). For an ALJ to find a hand-held assistive device
is “medically required”, “there must be medical documentation establishing the need for a handheld assistive device to aid in walking or standing, and describing the circumstances for which it
is needed (i.e., whether all the time, periodically, or only in certain situations; distance and terrain;
and any other relevant information).” SSR 96-9p, 1996 WL 374185, at *7. Although SSR 96-9p
specifically addresses work in the sedentary range, courts have applied this definition in cases
involving light work. See, e.g., Ross v. Comm’r of Soc. Sec., 2018 WL 1406826, at *3 (S.D. Ohio);
Barton v. Comm’r of Soc. Sec., 2017 WL 6818345, at *17 (N.D. Ohio).
The ALJ in the previous case considered Plaintiff’s use of a cane and explained:
Mr. Matthews has also alleged that he uses a cane for ambulation. He testified that
this cane was not prescribed, but belonged to his father. There is no evidence that
Mr. Matthews’ treating physicians or physical therapists have recommended the
use of a cane following the period for healing of his lower extremity fractures. In
addition, I note that there is no evidence of reports of treating medical professionals
that Mr. Matthews ambulated with a cane during office visits. Therefore, the
residual functional capacity above does not contain an allowance for the use of a
cane in the workplace.
(Tr. 201). The ALJ in the instant case adopted the prior ALJ’s RFC because “there has been no
additional evidence or changed circumstances that would provide a basis for a different finding
than the previous finding and [it] is therefore adopted under Drummond[.]” (Tr. 27).
As summarized above, however, there appears to be additional evidence in the record
regarding Plaintiff’s cane usage that contradicts the prior ALJ’s findings. First, in contrast to his
original testimony that the cane was not prescribed, see Tr. 201, at the second hearing Plaintiff
testified it was prescribed by Dr. Weiss (Tr. 120-21), and presented evidence that a cane repair
was ordered in May 2013 (Tr. 698). Second, in finding the cane not medically necessary, the prior
26

ALJ noted that there was “no evidence of reports of treating medical professionals that [Plaintiff]
ambulated with a cane during office visit” (Tr. 201), whereas in the relevant time period here, such
notations were frequent (Tr. 731, 758, 742, 781, 1185) (physical health treatment records noting
Plaintiff’s cane usage); (Tr. 1224, 1225, 1227, 1229, 1231, 1233, Tr. 1452, 1454, 1457, 1723,
1725, 1727, 1820) (mental health treatment records noting Plaintiff’s cane usage).
The Commissioner contends that there was still no evidence that the cane was “medically
necessary.” But this is a determination for the ALJ to make (and explain), not this Court in the first
instance. Thus, while “it is fair for an administrative law judge to take the view that, absent new
and additional evidence, the first administrative law judge’s findings are legitimate, albeit not
binding, consideration in reviewing a second application”, Earley, 893 F.3d at 933, it is not clear
that it what happened here, because the ALJ did not discuss Plaintiff’s cane usage and any findings
related thereto. Without this discussion, it is unclear if the ALJ considered and rejected a cane
limitation, or simply adopted the prior ALJ’s RFC omitting cane usage without considering the
new records.10 An ALJ must say enough “to allow the appellate court to trace the path of his
reasoning.” Diaz v. Chater, 55 F.3d 300, 307 (7th Cir. 1995). The ALJ did not do so here, and
particularly given the intervening decision in Earley, requiring an ALJ give “a fresh look to a new
application containing new evidence”, 893 F.3d at 930, remand is required.

10. The Sixth Circuit has explained that “[n]either Drummond nor SSAR 98–4(6) require the ALJ
to make specific comparisons with the evidence supporting the prior final decision”, but rather
“the proper inquiry is whether ‘new and additional evidence or changed circumstances provide a
basis for a different finding of the claimant’s residual functional capacity.” Rudd v. Comm’r of
Soc. Sec., 531 F. App’x 719, 725–26 (6th Cir. 2013) (quoting SSAR 98-4(6), 1998 WL 283902, at
*3). Here, however, because the ALJ did not discuss any of the above new evidence regarding
cane usage, it is impossible for the Court to determine whether the ALJ considered or overlooked
this evidence.

27

Mental Impairments
Plaintiff similarly argues the ALJ erred in not finding evidence of a mental health
condition. Because remand is required to address the opinion of Dr. Engle, the undersigned finds
it unnecessary to separately address this argument. On remand, in considering Dr. Engle’s opinion,
the Commissioner should take care to ensure any subsequent analysis complies with the Sixth
Circuit’s recent pronouncement in Earley.
CONCLUSION
Following review of the arguments presented, the record, and the applicable law, the
undersigned finds the Commissioner’s decision denying DIB and SSI not supported by substantial
evidence and reverses and remands that decision pursuant to Sentence Four of 42 U.S.C. § 405(g)

s/James R. Knepp II
United States Magistrate Judge

28