Zernhel v. Commissioner of Social Security

Filing 20

Memorandum Opinion and Order. The Commissioner's final decision is reversed and remanded for proceedings consistent with this opinion. Magistrate Judge Nancy A. Vecchiarelli on 12/2/2013. (G,W)

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

COREENA M. ZERNHEL,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,

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CASE NO. 3:13-CV-00963

MAGISTRATE JUDGE
VECCHIARELLI

MEMORANDUM OPINION AND
ORDER

Defendant.
Plaintiff, Coreena M. Zernhel (“Plaintiff”), challenges the final decision of
Defendant, Carolyn W. Colvin, Acting Commissioner of Social Security
(“Commissioner”), denying her applications for a Period of Disability (“POD”), Disability
Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”) under Titles II
and XVI of the Social Security Act, 42 U.S.C. §§ 416(I), 423, 1381 et seq. (“Act”). This
case is before the undersigned United States Magistrate Judge pursuant to the consent
of the parties entered under the authority of 28 U.S.C. § 636(c)(2). For the reasons set
forth below, the Commissioner’s final decision is REVERSED and REMANDED for
proceedings consistent with this opinion.
I.

PROCEDURAL HISTORY

On October 27, 2009, Plaintiff filed applications for DIB, POD, and SSI and
alleged a disability onset date of September 26, 2009. (Transcript (“Tr.”) at 21.) The
applications were denied initially and upon reconsideration, and Plaintiff requested a
hearing before an administrative law judge (“ALJ”). (Id.) On September 13, 2011, an
ALJ held a video hearing. (Id.) Plaintiff participated in the hearing, was represented by

counsel, and testified. (Id.) A vocational expert (“VE”) also participated and testified.
(Id.) On October 18, 2011, the ALJ found Plaintiff not disabled. (Tr. 18.) On February
27, 2013, the Appeals Council declined to review the ALJ’s decision, and the ALJ’s
decision became the Commissioner’s final decision. (Tr. 1.) On April 29, 2013, Plaintiff
filed her complaint to challenge the Commissioner’s final decision. (Doc. No. 1.) The
parties have completed briefing in this case. (Doc. Nos. 17, 18, 19.)
Plaintiff asserts the following assignments of error: (1) the ALJ improperly
evaluated Plaintiff’s need for a walker; and (2) the ALJ’s residual functional capacity
finding does not adequately account for Plaintiff’s mental limitations.
II.
A.

EVIDENCE

Personal and Vocational Evidence
Plaintiff was born in July 1964 and was 45-years-old on her alleged disability

onset date. (Tr. 31.) She had a limited education and was able to communicate in
English. (Id.) She had past relevant work as a housekeeper and cashier. (Tr. 30.)
B.

Medical Evidence
1.

Mental Limitations
a.

Medical Reports

Plaintiff has a long history of mental health treatment dating back to at least
1993. (Tr. 436.) On July 22, 1993, Jaylata Patel, M.D., diagnosed Plaintiff with post
traumatic stress disorder, adjustment disorder with mixed emotional features versus
major depressive disorder, and a history of alcohol abuse. (Tr. 437.)
Plaintiff sought mental health treatment at Harbor Behavioral Healthcare, Inc.

2

On September 2, 2009, Chandan Nayak, M.D. diagnosed Plaintiff with dysthymic
disorder and assessed a Global Assessment of Functioning (GAF) score of 56.1 (Tr.
445.) On October 28, 2009, Dr. Nayak diagnosed dysthymic disorder, cocaine
dependence, and attention deficit hyperactivity disorder (ADHD), predominately
inattentive type. (Tr. 440.) A clinical progress note dated November 12, 2009,
described Plaintiff’s mood and affect as depressed, but noted “some improvement”
regarding her progress. (Tr. 438.) In October 2009, Dr. Nayak completed a mental
functional capacity assessment. (Tr. 721.) Dr. Nayak opined that Plaintiff did not have
any mental limitations and that she was employable. (Id.)
On December 3, 2009, Elizabeth Koenreich, LPCC, performed a diagnostic
assessment of Plaintiff. (Tr. 430.) Plaintiff reported symptoms of depression that
included feeling sad, overwhelmed, irritable, hopeless, increased tiredness and
decreased motivation. (Id.) She also had symptoms of ADHD that included an inability
to focus and being easily distracted. (Id.) Dr. Koenreich reported that Plaintiff’s mood
was depressed and her thought process was scattered, but that her thought content
was appropriate, her intellect was average, and her judgment and memory were
normal. (Tr. 431.) Dr. Koenreich diagnosed dysthymic disorder and ADHD. (Tr. 431.)
In late January 2010, Plaintiff sought mental health treatment from Pretap
Torsekar, M.D. (Tr. 695.) Dr. Torsekar reported that Plaintiff was alert, was

1

The GAF scale incorporates an individual’s psychological, social, and
occupational functioning on a hypothetical continuum of mental health
illness devised by the American Psychiatric Association. A GAF score
between 51 and 60 indicates moderate symptoms or moderate difficulty in
social, occupational, or school functioning.
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cooperative, and had good judgment. (Tr. 696.) Plaintiff denied suicidal or homicidal
ideation, paranoid delusions, or obsessions/compulsions. (Id.) Dr. Torsekar diagnosed
cocaine dependence, ADHD, predominately inattentive type, and dysthymic disorder.
(Tr. 696-697.) In an office visit note dated February 24, 2010, Dr. Torsekar noted that
Plaintiff was much calmer as compared to her last visit and was more agreeable with
his recommendations. (Tr. 699.) Progress notes from April 2010 indicate that Plaintiff
made “some improvement” regarding her progress. (Tr. 709.) On April 21, 2010, Dr.
Torsekar assessed Plaintiff with a GAF score of 52, consistent with a moderate
impairment in functioning. (Tr. 712.)
In April and June 2010, Plaintiff underwent intelligence testing by Melissa K.
Lanza, Ph.D. (Tr. 714-718.) The test results showed that Plaintiff was functioning in
the borderline range of intelligence. (Tr. 716.) Dr. Lanza noted Plaintiff’s diagnoses of
dysthymic disorder, ADHD, alcohol dependence (sustained remission), cannabis
disorder, and borderline intellectual functioning and assessed Plaintiff with a GAF score
of 55. (Tr. 716, 719.)
Plaintiff continued to seek mental health treatment by Dr. Torsekar
approximately once per month from July 2010 through December 2010 and intermittent
counseling (varying from one to five times per month) at that time. (Tr. 748-827.) In
January 2011, Plaintiff was hospitalized for psychiatric reasons for six days. (Tr. 727.)
Plaintiff was started on mood stabilizing and antidepressant medications. (Tr. 730.)
She was involved in individual supportive therapy and hospital milieu and responded
well to that treatment regimen. (Tr. 730-731.) Plaintiff’s discharge summary report
indicated that her mood improved significantly and her psychomotor activity had
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improved. (Tr. 731.) According to the report, Plaintiff “was making rational and realistic
plans for [the] future” and “[g]ained some insight into her substance abuse as well as
compliance with treatment.” (Id.)
On January 26, 2011, Plaintiff reported that she felt “fine” and described her
mood as stable. (Tr. 789.) Treatment notes from February 2011 reflect that Plaintiff’s
new medication was helping with her depression, that she had not smoked marijuana in
a month, and that she was attending Alcoholics Anonymous (AA) meetings. (Tr. 788.)
On February 9, 2011, Plaintiff’s memory, attention, and concentration were intact, she
denied any suicidal or homicidal thoughts, her thought content was at baseline, her
cognitive functions appeared to be at baseline and without existing deficits, her insight
was fair, and her judgment was good. (Tr. 786.)
On May 16, 2011, Plaintiff reported feeling good because she met a man on the
internet who was supposed to come visit her. (Tr. 768.) Plaintiff and Dr. Koenreich
discussed how Plaintiff’s positive thinking was reducing her symptoms of depression.
(Id.) Dr. Koenreich noted that Plaintiff was making some improvement. (Id.)
In July 2011, Plaintiff reported that she lacked energy and motivation. (Tr. 760.)
She had not been able to reduce or quit smoking cigarettes and she had not been
exercising. (Id.) Her affect was bright and she was talkative. (Id.)
b.

Agency Reports

On December 26, 2009, state agency psychologist Kristen Haskins, Psy.D.,
opined that Plaintiff was moderately limited in the following areas: understanding and
remembering detailed instructions; carrying out detailed instructions; maintaining

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attention and concentration for extended periods; sustaining an ordinary routine without
special supervision; completing a normal workday and workweek without interruptions
from psychologically based symptoms and performing at a consistent pace without an
unreasonable number and length of rest periods; and responding appropriately to
changes in the work setting. (Tr. 627-628.) Dr. Haskins concluded that Plaintiff would
be capable of performing one- to three-step tasks, maintain attention for simple tasks,
and interact with others on a superficial basis. (Tr. 629.) Dr. Haskins also opined that
Plaintiff could adapt to a workplace setting that is routine and predictable and does not
require a fast production pace or strict production demands. (Id.) She considered
Plaintiff’s statements to be partially credible. (Id.)
On February 5, 2010, Dr. Haskins opined that Plaintiff had the mental residual
functional capacity to understand, remember, and follow one- to three-step tasks;
maintain attention for simple tasks; interact with others on a superficial basis; and adapt
to a workplace setting that is routine and predictable and does not require a fast
production pace or strict production demands. (Tr. 678.)
2.

Physical Limitations
a.

Medical Reports

Plaintiff’s primary care physician, Judith Furlong, M.D., examined Plaintiff in
January 2010. Plaintiff reported pain in her arms, hips, back, legs, and feet when she
walks or stands. (Tr. 669.) She also reported that she walked for exercise. (Id.) She
had full range of motion of all extremities, her gait was normal, and her mood and affect
were pleasant and cooperative. (Tr. 670.) On May 10, 2010, Dr. Furlong prescribed a

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walker for Plaintiff due to pain with weight-bearing and ambulation. (Tr. 856-857.)
b.

Agency Reports

On January 22, 2010, Plaintiff underwent a physical evaluation by R. Scott
Lazzara, M.D. (Tr. 645.) Plaintiff reported a history of chronic obesity since 1993 and
stated that she has tried multiple weight reduction programs on her own mostly by trying
to stay active. (Id.) At the time of the examination, she weighed 339 pounds. (Id.)
She complained of pain in her feet and knees and chronic fatigue. (Id.) Dr. Lazzara
noted that Plaintiff could perform activities of daily living, including cooking and doing
household chores. (Id.) She could also use the computer and watch TV. (Id.) She
could sit for about 30 minutes, stand for about 5 minutes, and walk about a half block.
Id.) She could lift about 10 pounds. (Id.)
Dr. Lazzara noted that Plaintiff walked with a wide-based gait without the use of
an assistive device. (Tr. 646.) Plaintiff had no difficulty getting on and off the
examination table, mild difficulty heel and toe walking, moderate difficulty squatting, and
was unable to hop. (Id.) Dr. Lazzara diagnosed obesity. (Tr. 649.) He stated that
Plaintiff compensated with a wide-based gait but was relatively stable. (Id.) He noted
that she had some mild crepitance in both patellar joints but no real joint destruction.
(Id.) Dr. Lazzara concluded that Plaintiff should avoid exertional activities, working in
temperature extremes or at unprotected heights, but could tolerate standing up to six to
eight hours a day, as well as a sedentary position. (Id.)
On March 6, 2011, state agency reviewing physician W. Jerry McCloud, M.D.,
opined that Plaintiff had the physical residual functional capacity to perform medium

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work with occasional climbing of ladders, ropes, or scaffolds, and limited reaching in all
directions. (Tr. 680-685.) According to Dr. McCloud, the clinical records showed that
Plaintiff would be capable of performing far more than she alleged and that her
statements were partially credible. (Tr. 685.)
C.

Hearing Testimony
1.

Plaintiff’s Hearing Testimony

At the time of Plaintiff’s hearing, it had been four years since she last worked.
(Tr. 42.) She testified that she stopped working due to depression and the fact that she
had gained a lot of weight. (Tr. 43.) She stated that she was forgetful and easily
confused and became overwhelmed easily. (Id.) She had difficulty concentrating and
staying on tasks. (Id.) She did not watch movies, but she could watch a half-hour
television program. (Id.) She received treatment for her depression for several years.
(Tr. 44.) She took medication for her depression and mood swings. (Id.) The
medications made her drowsy and she took a couple naps per day. (Tr. 45.)
Plaintiff was using a walker at her hearing. (Id.) Due to her weight, she had
knee pain when walking or sitting. (Id.) “If I sit too long, like, there at my computer, I
get knee pain. My feet hurt. My ankles hurt. My legs hurt.” (Id.) She testified to using
a walker for the past two years. (Id.) The walker was prescribed by Dr. Furlong, her
primary care physician. (Id.) Without her walker, Plaintiff could stand for about five
minutes. (Tr. 46.) After five minutes, her knees would become sore and she would feel
like she was going to fall. (Id.) She could walk about a block without her walker. (Id.)
Plaintiff could sit for about twenty minutes before she would start to experience pains in

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her knees, feet, and ankles. (Id.) Plaintiff took medication for her physical pains, and
the medication did not cause her to experience any side effects. (Tr. 47.) She had a
history of substance abuse. (Tr. 47-48.) At the time of her hearing, she had been
sober for eight months. (Tr. 48.)
Plaintiff visits with her friend about once a month, and sometimes her children
come to see her. (Id.) Her son helps her with her grocery shopping and cleaning. (Tr.
49, 51.) Plaintiff spends about twenty minutes at a time on her computer checking
Facebook or email. (Tr. 49.) She described her typical day as follows: “I get up and
wake up and I start cleaning, play on the computer, take a nap and get up and do some
more cleaning. More computer. Go to an AA meeting.” (Tr. 50.) It takes her about an
hour to do the dishes because she works for about five minutes at a time and then
takes a break. (Tr. 51.)
2.

Vocational Expert’s Hearing Testimony

Alena Patenick, a vocational expert, testified at Plaintiff’s hearing. (Tr. 51.) The
VE noted that Plaintiff had past relevant work as a housekeeper (unskilled, light) and a
cashier (unskilled, light). (Tr. 52.) The ALJ asked the VE to assume a hypothetical
individual with the same age, education, and work experience as Plaintiff. (Id.) The
individual is limited to sedentary work and may never climb ladders, ropes, or scaffolds,
and may never balance. (Id.) The individual could occasionally stoop, crouch, kneel, or
crawl and can frequently reach with both arms. (Id.) The individual can perform simple,
routine, repetitive tasks and have only occasional interactions with the public. (Id.) The
ALJ opined that the hypothetical individual could perform the following jobs: document

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preparer (unskilled, sedentary) (over 19,000 jobs in Ohio and 200,000 nationally);
ticket-checker (unskilled, sedentary) (over 14,000 jobs in Ohio and 150,000 nationally);
and small parts assembler (sedentary) (over 21,000 jobs in Ohio and 225,000
nationally). (Tr. 53.)
The ALJ then asked the VE to consider a hypothetical individual who was further
limited to only occasional interaction with co-workers. (Id.) The VE testified the
additional limitation would not erode the numbers she had previously given. (Id.)
The VE further testified that an individual who would have to take two breaks per
day lasting an hour and a half in addition to regularly scheduled breaks would not be
able to sustain employment. (Id.) She also testified that the individual in the ALJ’s first
hypothetical would not be able to perform her job duties with a walker. (Tr. 53-54.)
III.

STANDARD FOR DISABILITY

A claimant is entitled to receive benefits under the Social Security Act when she
establishes disability within the meaning of the Act. 20 C.F.R. § 416.905; Kirk v. Sec’y
of Health & Human Servs., 667 F.2d 524 (6th Cir. 1981). A claimant is considered
disabled when she cannot perform “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. § 416.905(a).
The Commissioner reaches a determination as to whether a claimant is disabled
by way of a five-stage process. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4); Abbott
v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). First, the claimant must demonstrate

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that she is not currently engaged in “substantial gainful activity” at the time she seeks
disability benefits. 20 C.F.R. §§ 404.1520(b) and 416.920(b). Second, the claimant
must show that she suffers from a “severe impairment” in order to warrant a finding of
disability. 20 C.F.R. §§ 404.1520(c) and 416.920(c). A “severe impairment” is one that
“significantly limits . . . physical or mental ability to do basic work activities.” Abbot, 905
F.2d at 923. Third, if the claimant is not performing substantial gainful activity, has a
severe impairment that is expected to last for at least twelve months, and the
impairment meets a listed impairment, the claimant is presumed to be disabled
regardless of age, education or work experience. 20 C.F.R. §§ 404.1520(d) and
416.920(d). Fourth, if the claimant’s impairment does not prevent her from doing her
past relevant work, the claimant is not disabled. 20 C.F.R. §§ 404.1520(e)-(f) and
416.920(e)-(f). For the fifth and final step, even if the claimant’s impairment does
prevent her from doing her past relevant work, if other work exists in the national
economy that the claimant can perform, the claimant is not disabled. 20 C.F.R. §§
404.1520(g), 404.1560(c), and 416.920(g).
IV.

SUMMARY OF COMMISSIONER’S DECISION

The ALJ made the following findings of fact and conclusions of law:
1.

Plaintiff meets the insured status requirements of the Act through
June 30, 2010.

2.

Plaintiff has not engaged in substantial gainful activity since
September 26, 2009, the alleged onset date.

3.

Plaintiff has the following severe impairments: obesity; borderline
intellectual functioning; attention deficit hyperactivity disorder;
depression; and substance addiction disorder.

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4.

Plaintiff does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.

5.

After careful consideration of the entire record, I find that Plaintiff has
the residual functional capacity to perform sedentary work as defined
in 20 CFR 404.1567(a) and 416.967(a) except never climb ramps or
stairs; never climb ladders, ropes, or scaffolds; never balance;
occasional stoop, crouch, kneel, and crawl; frequent reaching and
overhead reaching with both arms; able to remember and carry out
one- to two-step instructions; able to perform simple, routine,
repetitive tasks; and only occasional interaction with the public.

6.

Plaintiff is unable to perform any past relevant work.

7.

Plaintiff was born in July 1964 and was 45-years-old, which is defined
as a younger individual age 18-49, on the alleged disability onset
date.

8.

Plaintiff has a limited education and is able to communicate in
English.

.....
10.

Considering Plaintiff’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in
the national economy that Plaintiff can perform.

11.

Plaintiff has not been under a disability, as defined in the Act, from
September 26, 2009, through the date of this decision.

(Tr. 23-32.)
V.
A.

LAW & ANALYSIS

Standard of Review

Judicial review of the Commissioner’s decision is limited to determining whether
the Commissioner's decision is supported by substantial evidence and was made
pursuant to proper legal standards. Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512
(6th Cir. 2010). Review must be based on the record as a whole. Heston v. Comm’r of

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Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The court may look into any evidence in
the record to determine if the ALJ’s decision is supported by substantial evidence,
regardless of whether it has actually been cited by the ALJ. Id. However, the court
does not review the evidence de novo, make credibility determinations, or weigh the
evidence. Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir.
1989).
The Commissioner’s conclusions must be affirmed absent a determination that
the ALJ failed to apply the correct legal standards or made findings of fact unsupported
by substantial evidence in the record. White v. Comm’r of Soc. Sec., 572 F.3d 272, 281
(6th Cir. 2009). 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. Brainard, 889 F.2d at 681. A decision supported by
substantial evidence will not be overturned even though substantial evidence supports
the opposite conclusion. Ealy, 594 F.3d at 512.
B.

Plaintiff’s Assignments of Error
1.

The ALJ Improperly Evaluated Plaintiff’s Need for a Walker.

Plaintiff argues that the ALJ erred by determining that Plaintiff did not require a
walker even though her treating physician prescribed one for her. The Commissioner
responds that the ALJ did not err, because other evidence in the record indicates that a
walker was not medically necessary. For the following reasons, Plaintiff’s argument is
well taken.
“The medical opinions and diagnoses of treating physicians are generally

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accorded substantial deference, and if the opinions are uncontradicted, complete
deference.” Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 240 (6th Cir. 2002), citing
Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). Furthermore, it is well-established
that administrative law judges may not make medical judgments. See Meece v.
Barnhart, 192 F.App’x 456, 465 (6th Cir. 2006) (“But judges, including administrative
law judges of the Social Security Administration, must be careful not to succumb to the
temptation to play doctor.”) (quoting Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir.
1990)). Although an ALJ may not substitute his or her opinions for that of a physician,
“an ALJ does not improperly assume the role of a medical expert by assessing the
medical and non-medical evidence before rendering a residual functional capacity
finding.” Poe v. Comm’r of Soc. Sec., 342 F. App’x 149, 157 (6th Cir. 2009).
Here, the ALJ acknowledged that Dr. Furlong was Plaintiff’s treating physician.
(Tr. 27, 29.) In May 2010, Dr. Furlong prescribed Plaintiff a walker due to pain with
weight-bearing and ambulation. (Tr. 856-857.) Plaintiff testified that she used her
walker any time she had to walk, but that she could walk up to five minutes without it.
(Tr. 46-47.) The ALJ concluded that “the walker may not be medically necessary for the
claimant.” (Tr. 29.) In making this determination, the ALJ noted that four months
before Dr. Furlong prescribed the walker, Dr. Lazzara reported that Plaintiff walked with
a wide-based gait without the use of an assistive device, and Dr. Furlong reported that
Plaintiff’s gait was normal and her power and tone were strong. (Tr. 27, 646, 669.) The
ALJ also stated that almost a year after Dr. Furlong prescribed Plaintiff’s walker, Dr.
Furlong noted that Plaintiff’s gait was normal, her power and tone were strong, her

14

lumbosacral spine was non-tender to palpation, and she exhibited a full range of motion
in all extremities. (Tr. 29, 841.) Furthermore, the ALJ noted that at Plaintiff’s hearing,
she testified that without her walker, she could stand for five minutes and walk a city
block. (Tr. 27, 46.) Based on this evidence, the ALJ concluded that “the objective
signs and findings do not show that the walker is medically necessary.” (Tr. 27.)
While it was proper for the ALJ to evaluate Dr. Furlong’s findings in comparison
with the other evidence of record, the ALJ erred in finding that Dr. Furlong’s prescription
for Plaintiff’s walker was not medically necessary. This Court finds that under the facts
of the instant case, Dr. Furlong’s opinion that Plaintiff required a walker – as evidenced
in a prescription signed by Dr. Furlong and dated 5/10/10 – was a medical opinion that
the ALJ did not have the expertise or authority to override in the absence of medical
expert testimony to the contrary. The ALJ determined that Plaintiff did not require a
walker, because treatment notes from Dr. Furlong before and after he prescribed the
walker tended to show that Plaintiff did not require an assistive device. (Tr. 27, 29.)
The ALJ purports to assume that an individual with a normal or wide-based gait and
“strong power and tone” would not require an assistive device. (Tr. 27, 29.) The ALJ
does not address the idea that a walker could be used to relieve pain. This is especially
relevant here, because Dr. Furlong’s prescription specifically noted that he prescribed
the walker due to Plaintiff’s pain in her arms, hips, back, legs, and feet due to weightbearing and ambulation. (Tr. 857.)
Furthermore, the ALJ did not address the fact that when Dr. Furlong prescribed
the walker, Plaintiff weighed thirty pounds more than she did at the time Dr. Lazzara
reported that Plaintiff walked with a wide-based gait without the use of an assistive
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device. As Plaintiff addresses in her Brief on the Merits, “Social Security recognizes
that obesity can have a significant impact on a person’s ability to engage in work
activity.” (Plaintiff’s Brief (“Pl.’s Br.”) at 9.) The Social Security Administration (“SSA”)
considers obesity to be a medically determinable impairment. S.S.R. 02-1p,
Introduction, 2000 WL 628049, at *1 (S.S.A.).
Obesity can cause limitation of function. The functions likely to be limited
depend on many factors, including where the excess weight is carried. An
individual may have limitations in any of the exertional functions such as
sitting, standing, walking, lifting, carrying, pushing, and pulling. It may also
affect ability to do postural functions, such as climbing, balance, stooping,
and crouching. The ability to manipulate may be affected by the presence of
adipose (fatty) tissue in the hands and fingers. The ability to tolerate extreme
heat, humidity, or hazards may also be affected.
Id. at *6. As Plaintiff argues in her Brief, “[t]hat four months before the walker was
prescribed another examiner noted only a ‘wide-based’ gait does not undermine the
treating physician’s prescription. At the time the consultative examiner examined Ms.
Zernhel, she weighed 339 pounds. Tr. 646. Four months later, when Dr. Furlong
prescribed the walker, Ms. Zernhel weighed almost 30 pounds more than this. . . .” (Pl.’s
Br. 4.) Thus, the ALJ’s finding that “the objective signs and findings do not show that
the walker is medically necessary” is misplaced, as the ALJ did not consider Plaintiff’s
weight gain when comparing Dr. Furlong’s prescription for a walker with previous
medical evidence.
In finding that Plaintiff did not require a walker, the ALJ also considered Plaintiff’s
testimony that she could stand for five minutes and walk a city block without her walker.
(Tr. 27.) The ALJ purports to assume that because Plaintiff admitted to walking without
her walker at times, her walker was never necessary. The ALJ limited Plaintiff to
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sedentary work, which is defined as follows:
Sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small
tools. Although a sedentary job is defined as one which involves sitting, a
certain amount of walking and standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and standing are required occasionally2
and other sedentary criteria are met.
20 C.F.R. § 404.1567(a). While sedentary work involves only occasional walking or
standing, the ALJ does not explain how – or if – a limitation to sedentary work
accommodates Plaintiff’s ability to stand for only five minutes without her walker. Instead,
the ALJ assumes that because Plaintiff testified that she could stand for up to five minutes
and walk a city block without her walker, Plaintiff would be capable of performing sedentary
work without any additional restrictions on standing or walking. The ALJ fails to recognize
that Plaintiff’s ability to walk without her walker does not necessarily mean that the walker
is unnecessary.
It was inappropriate for the ALJ to substitute her opinion for the opinion of a medical
professional to find that a prescription signed by a physician – in this case a prescription
for a walker – was not medically necessary. For the ALJ to determine that Plaintiff did not
require a walker and therefore could perform sedentary work without any additional
limitations on standing or walking, she should have provided support from the testimony of
a medical expert qualified to render medical opinions. Not only did the ALJ inappropriately

2

“‘Occasionally’ means occurring from very little up to one- third of the time,
and would generally total no more than about 2 hours of an 8-hour
workday. Sitting would generally total about 6 hours of an 8-hour
workday.” SSR 96-9P (S.S.A July 2, 1996).

17

substitute her own opinion for that of a physician, her stated reasons for finding that Plaintiff
did not require a walker were unpersuasive: The ALJ did not acknowledge the fact that Dr.
Furlong prescribed the walker due to Plaintiff’s pain rather than an inability to ambulate
effectively, nor did the ALJ address how Plaintiff’s obesity may have played a role in her
need for a walker. Furthermore, while Plaintiff indicated that she did not need her walker
one-hundred percent of the time, the ALJ mistook this to mean that Plaintiff did not require
the use of a walker at all. For the foregoing reasons, Plaintiff’s case is remanded to the
ALJ for further consideration of Plaintiff’s functional capabilities in relation to her use of a
walker. Since Plaintiff testified that she can stand or walk for a limited amount of time
without her walker, the main issue for the ALJ to address on remand is whether a more
restrictive RFC can accommodate Plaintiff’s use of a walker. In the alternative, should the
ALJ again opine that Plaintiff does not require a walker, she must find support for this
opinion from a medical expert.
2.

The ALJ’s Residual Functional Capacity Finding Does Not
Adequately Account for Plaintiff’s Mental Limitations.

Plaintiff argues that the ALJ inadequately accounted for her mental limitations.
Specifically, Plaintiff takes issue with the ALJ’s assessment of the opinions of the state
agency psychological consultants who found that Plaintiff was limited to interaction with
others on a superficial basis and to a workplace setting that does not require a fast
production pace or strict production demands.

For the following reasons, Plaintiff’s

argument is well taken.
State agency medical and psychological consultants are “highly qualified physicians,
psychologists, and other medical specialists who are also experts in Social Security
18

disability evaluation.” 20 C.F.R. § 404.1527. Administrative law judges are not bound by
any findings made by State agency medical or psychological consultants. Id. Unless the
ALJ gives a treating source’s opinion controlling weight, the ALJ must explain the weight
given to the opinions of state agency medical consultants. Id.
Here, the ALJ noted that she considered the opinions of the state agency
psychological consultants who concluded, inter alia, that Plaintiff could interact with others
only on a superficial basis and that Plaintiff could adapt to a workplace setting that did not
require a fast production pace or strict production demands. (Tr. 30, citing Tr. 629, 678.)
The ALJ afforded those opinions “some weight” and then noted that she accommodated
the opinions “by limiting the claimant to remembering and carrying out one- to two-step
instructions, performing simple, routine, repetitive tasks and only occasional interaction with
the public.” (Id.) Plaintiff argues that the ALJ’s RFC determination did not adequately
account for the limitations assessed by the state agency consultants, because the ALJ did
not limit Plaintiff to superficial interactions with the public and did not include a limitation
addressing pace and production demands in the workplace.
The ALJ erred by failing to include a limitation for time and production pressures in
Plaintiff’s RFC. State agency consultant Dr. Haskins opined in 2009 that Plaintiff “can
adapt to a workplace setting that is routine and predictable and does not require a fast
production pace or strict production demands.” (Tr. 629.) In 2010, Dr. Haskins offered the
same conclusions. (Tr. 678.) Thus, evidence in the record supports a finding that Plaintiff
could not perform jobs with strict time or production pressures. Restricting a claimant to
simple tasks and static work duties – as the ALJ did here – does not necessarily address
the claimant’s inability to perform jobs with strict time or production pressures. Plaintiff cites
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to Ealy v. Commissioner of Social Security, 594 F.3d 504 (6th Cir. 2010), to support her
contention that the ALJ’s RFC does not sufficiently address the speed- and pace-based
restrictions assessed by Dr. Haskins. In Ealy, the record showed that the claimant had a
limited ability to maintain attention over time, even when performing simple, repetitive tasks.
Ealy, 594 F.3d at 516. Specifically, a state agency psychological consultant limited the
claimant’s ability to sustain attention to complete simple repetitive tasks to “[two-hour]
segments over an eight-hour day where speed was not critical.” Id. The ALJ, however,
limited the claimant only to simple, repetitive tasks without any additional time-based
limitations. Accordingly, the Sixth Circuit found that the ALJ failed to adequately capture
the claimant’s limitations in concentration, persistence, and pace. Id.
Ealy undoubtedly stands for the proposition that an ALJ’s hypothetical to a VE must
adequately describe a claimant’s limitations in order to serve as substantial evidence in
support of the ALJ’s conclusions. Id. at 517. However, Ealy “does not require further
limitations in addition to limiting a claimant to ‘simple, repetitive tasks’ for every individual
found to have moderate difficulties in concentration, persistence, or pace.” Jackson v.
Comm’r of Soc. Sec., No. 1:10-cv-763, 2011 WL 4943966, at *4 (N.D. Ohio Oct. 18, 2011)
(Boyko, J.). Rather, “Ealy stands for a limited, fact-based ruling in which the claimant’s
particular moderate limitations required additional speed- and pace-based restrictions.” Id.
at 4.
Here, the record supports Plaintiff’s contention that the ALJ erred by failing to
incorporate speed- and pace-based restrictions into her RFC determination. Plaintiff has
pointed to evidence in the record from state agency consultant Dr. Haskins showing that

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Plaintiff requires restrictions relating to pace and production demands. The ALJ noted that
she gave such evidence “some weight,”3 but she did not explain why her RFC finding
omitted speed- and pace-based restrictions altogether. Instead, the ALJ purports to have
believed that she accommodated those restrictions by limiting Plaintiff to one- to two-step
instructions and simple, routine, repetitive tasks. (Tr. 30.) Because restricting a claimant
to simple tasks and static work duties does not necessarily address the claimant’s inability
to perform jobs with strict time or production pressures, Plaintiff’s argument that the ALJ’s
RFC did not adequately account for Plaintiff’s mental limitations presents a basis for
remand. On remand, if the ALJ concludes that Plaintiff does not require additional speedand pace-based restrictions, she must explain what evidence in the record she relies upon
to reject the state agency consultant opinions that found such a limitation. Furthermore,
the ALJ is directed to explain whether, in addition to being limited to only occasional
interaction with the public, Plaintiff must also be restricted to only superficial interaction with
the public.
VI.

CONCLUSION

For the foregoing reasons, the Commissioner’s final decision is REVERSED and
REMANDED for proceedings consistent with this opinion.
IT IS SO ORDERED.
s/ Nancy A. Vecchiarelli
U.S. Magistrate Judge
Date: December 2, 2013
3

The ALJ noted: “I afford these opinions some weight because they
account for the degree of limitation, which the claimant’s impairments
cause and are generally consistent with the medical evidence of record.”
(Tr. 30.)
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