Secka v. Commissioner of Social Security Administration
Memorandum Opinion and Order: The Court REVERSES and REMANDS the Commissioner's decision for proceedings consistent with this Opinion. Magistrate Judge Kathleen B. Burke on 6/20/2017. (D,I)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
COMMISSIONER OF SOCIAL
CASE NO. 4:16-cv-01556
KATHLEEN B. BURKE
MEMORANDUM OPINION & ORDER
Plaintiff Kevin Secka (“Plaintiff” or “Secka”) seeks judicial review of the final decision
of Defendant Commissioner of Social Security (“Defendant” or “Commissioner”) denying his
application for social security disability benefits. Doc. 1. This Court has jurisdiction pursuant to
42 U.S.C. § 405(g). This case is before the undersigned Magistrate Judge pursuant to the
consent of the parties. Doc. 14. As explained more fully below, the Court is unable to assess
whether the decision of the Administrative Law Judge (“ALJ”) is supported by substantial
evidence because the ALJ’s finding that Secka did “not have any neurological deficits” appears,
in the absence of further explanation, to be contrary to the evidence of record. Accordingly, the
Court REVERSES and REMANDS the Commissioner’s decision for proceedings consistent
with this Opinion.
I. Procedural History
Secka protectively filed 1 an application for Disability Insurance Benefits (“DIB”) on
August 23, 2012. 2 Tr. 41, 119, 147, 255-256, 324. Secka alleged a disability onset date of June
1, 2010. Tr. 41, 119, 255, 324. Secka alleged disability due to disc degeneration, arthritis, nerve
damage, depression, back injury, and high blood pressure. Tr. 119, 167, 177, 328. Secka’s
application was denied initially (Tr. 167-175) and upon reconsideration by the state agency (Tr.
177-183). Thereafter, he requested an administrative hearing. Tr. 184-185.
On June 24, 2014, an administrative hearing was conducted by Administrative Law Judge
John C. Lyons (“ALJ”). Tr. 61-89. On January 14, 2015, the ALJ issued his decision. Tr. 3860. In his decision, the ALJ determined that Secka had not been under a disability within the
meaning of the Social Security Act from June 1, 2010, through the date of the decision. Tr. 42,
53. Secka requested review of the ALJ’s decision by the Appeals Council. Tr. 37. On May 2,
2016, the Appeals Council denied Secka’s request for review, making the ALJ’s decision the
final decision of the Commissioner. Tr. 1-6.
Personal, vocational and educational evidence
Secka was born in 1973. Tr. 255. He was 41 years old at the time of the hearing and
lived in a house with his fiancé, his fiancé’s adopted 2-year old son and 19 year-old daughter.
Tr. 63-64. Also, Secka’s fiancé’s 22-year old son lived with them while he was not attending
The Social Security Administration explains that “protective filing date” is “The date you first contact us about
filing for benefits. It may be used to establish an earlier application date than when we receive your signed
application.” http://www.socialsecurity.gov/agency/glossary/ (last visited 6/19/2017).
Prior to the August 23, 2012, application, Secka filed other applications of social security disability, which were
withdrawn or denied. Those prior applications are not at issue in this case but information regarding them is in the
record and is included herein for context. See e.g., Tr. 44, 71, 90-106, 148-164, 271-323.
college. Tr. 63. Secka’s minor daughter used to live with him but lived with her mother since
2013. Tr. 50, 63, 64. Secka graduated from high school and attended New Castle School of
Trade in New Castle, PA, where he earned an Associate’s Degree in Applied Sciences in Heating
and Cooling in 2001. Tr. 329, 613. Secka last worked in 2010. Tr. 65.
1. Treatment history
Secka has a history of back pain dating back to at least 2005 when he underwent a
bilateral L5-S1 lumbar microdiscectomy on November 22, 2005. Tr. 401-402, 409-410, 415416, 425. Dr. Parviz Baghai, M.D., a neurosurgeon associated with Allegheny General Hospital
performed the surgery. Tr. 409-410, 425. Following his surgery, Secka returned to work. Tr.
On October 23, 2006, Secka returned to see Dr. Baghai reporting he had been doing well
up until three weeks prior. Tr. 423. Secka had experienced low back pain when he moved
suddenly while in bed. Tr. 423. Following that, he was carrying a furnace and experienced an
increase in his symptoms. Tr. 423. He was able to continue work until a week prior to his visit
with Dr. Baghai when he fell at work. Tr. 423. Dr. Baghai’s examination showed a positive
straight leg raise at about 60 degrees bilaterally and some give-way weakness in both
dorsiflexors. Tr. 423. Dr. Baghai diagnosed recurrent lumbar radiculopathy and ordered an
EMG and MRI of the lumbar spine. 3 Tr. 423. On November 13, 2006, Secka saw his treating
physician Michael T. Guffey, M.D., regarding his back pain. Tr. 458.
An MRI was taken on October 30, 2006, showing findings compatible with postoperative scar of the epidural
space at L5-S1, enhancement of the posterior aspect of disc space at L5-S1 that could be related to postoperative
change, and demonstration of changes in the bone marrow signal at the anterior one-half of the L5 vertebral body,
possibly inflammatory. Tr. 480. An EMG Nerve Conduction study showed old damage. Tr. 439.
Secka continued to see Dr. Guffey in 2006 and in 2007 with reports of back pain with the
pain radiating down into his legs. Tr. 453-460. In March 2007, a lumbar spine MRI was
performed. Tr. 472-473. Dr. Guffey indicated that the MRI showed a moderate bilateral
foraminal stenosis and a mild spinal stenosis at the L5-S1 level, which is where Secka had his
prior microdiscectomy. Tr. 454. Dr. Guffey noted that Secka might require further surgery and
he referred Secka to Dr. Baghai for surgical evaluation. Tr. 454. Also, in early 2007, Secka saw
Dr. Michael R. Cozza, M.D., for pain management at Beaver Valley Rehabilitation Associates.
Tr. 439-442. Physical therapy was attempted without improvement. Tr. 441.
In 2007, Secka filed applications for social security disability. Tr. 44, 90-92. However,
Secka received some relief from injections and, on June 12, 2008, he notified social security that
his condition had improved and he no longer wanted to pursue his social security disability
application. Tr. 44, 71, 159.
On June 1, 2010, Secka experienced an injury at work while lifting a bread machine. Tr.
574, 566. He experienced pain in his low back and up and down both legs. Tr. 574. Following
his work injury, on August 3, 2010, Secka started pain management treatment. Tr. 489-492. He
saw Dr. LoDico at Advanced Pain Medicine. Tr. 489-492. Secka reported pain across his entire
low back with radiation into the lateral and posterior aspects of bilateral lower extremities. Tr.
489. He reported numbness, tingling, and burning sensation in the same areas. Tr. 489. Secka
also reported weakness in his bilateral lower extremities but denied falling as a result of the
weakness. Tr. 489. Secka reported little relief obtained through the use of pain medication,
TENS unit, or physical therapy. Tr. 489. On physical examination, Dr. LoDico observed that
Secka was able to sit and converse comfortably with no demonstration of overt pain behaviors;
he rose from a seated position with the assistance of arms; his gait was nonantalgic; he walked
with his lumbar spine slightly flexed forward due to pain; he was able to heel walk, toe walk, and
squat with moderate difficulty secondary to pain; he had moderate tenderness to palpation in the
midline and bilateral lumbar paraspinal muscles; lower extremity strength evaluation showed 5
out of 5 muscle strength in bilateral hip flexion, knee flexion/extension, ankle
dorsiflexion/plantar flexion; he had decreased sensation to light touch in the lateral aspects of the
right lower leg distal to the knee; he had decreased sensation to temperature in the lateral aspects
of bilateral lower legs; straight leg raise was positive on the right and negative on the left; and
there were no palpable cords, muscle spasms or true trigger points. Tr. 490. Dr. LoDico’s
assessment was “Lumbar spinal pain secondary to discogenic syndrome versus facet arthropathy,
history of lumbar spine diskectomy in 2005[.] Lumbar extremity radicular syndrome.
Significant pain relief after lumbar epidural steroid injections in the past.” Tr. 490-491. Dr.
LoDico recommended lumbar epidural steroid injections as well as a lumbar MRI and possible
EMG nerve conduction studies of the bilateral lower extremities. Tr. 491.
Secka had injections administered on August 6 and August 20, 2010. Tr. 493-495, 496498. On September 15, 2010, Secka reported that, since the two injections, he was nearly 100%
improved. Tr. 499. Secka declined further injections at that time and Secka was advised to call
to schedule another injection if his symptoms increased. Tr. 499. About two weeks later, on
September 28, 2010, Secka reported that his lumbar spinal pain had increased significantly. Tr.
501. Secka was started on Hydrocodone, EMG nerve conduction studies of the bilateral lower
extremities were scheduled, and a referral to a neurosurgeon was made for evaluation of possible
surgical intervention. Tr. 501.
EMG nerve conduction studies were performed on October 1, 2010, which showed
bilateral L4 and right L5 radiculopathy without new or active denervation, bilateral tibial 4 motor
mononeuropathy, bilateral sural 5 sensory mononeuropathy. Tr. 504, 510, 560-562. On October
7, 2010, Secka continued to report increased pain and indicated that the Hydrocodone was not
helping. Tr. 504. Secka’s October 7, 2010, physical examination was generally normal aside
from his gait being slow, squatting with some discomfort, and rising from a seated position with
the assistance of his arms. Tr. 504. Hydrocodone was discontinued and Secka was prescribed
Opana, Lyrica, and Mobic. Tr. 505. On October 20, 2010, Secka reported increased pain in his
back, with improvement noted with flexing forward. Tr. 507. Secka reported no side effects
from the Opana but stated that it was not helping adequately with his pain. Tr. 507. He
requested an increase in the dosage. Tr. 507. Physical examination revealed that Secka was
uncomfortable but in no acute distress; he rose from a seated position slowly with the assistance
of his arms and walked in a forward flexed position; his gait was slow and antalgic; he was
tender over the bilateral lumbar paraspinal muscles, the right more than the left and over the
lumbar area midline; there were no palpable cords or muscle spasms seen; muscle strength
testing revealed 4 out of 5 strength in the bilateral quadriceps secondary to pain and 5 out of 5
strength in the balance of his bilateral lower extremities; straight leg raises were negative
bilaterally. Tr. 507. Secka’s Opana was increased from 5 mg to 7.5 mg. Tr. 507. A new Lyrica
prescription was provided because Secka indicated he could not fill the prior prescription
“The tibial nerve branches off from the sciatic nerve. It provides innervation to the muscles of the lower leg and
foot. The tibial nerve generally follows the course of the tibial artery through the body, which supplies blood to the
same areas.” http://www.healthline.com/human-body-maps/tibial-nerve (last visited 6/19/2017).
Sural nerve is “a sensory nerve in the lower leg that lies close to the small saphenous vein, situated in the calf. As
the bundle of fibers form a branch of the femoral nerve, it is also known as ‘short saphenous nerve.’”
http://www.knowyourbody.net/sural-nerve.html (last visited 6/19/2017).
because there was no diagnosis included with the initial prescription. Tr. 507. Also, Secka was
prescribed a Medrol dose pack to be taken for exacerbation of pain. Tr. 507.
Secka saw Dr. Baghai on October 29, 2010. Tr. 566, 571-576. Dr. Baghai observed that
Secka had tried physical therapy without relief; injections helped for about a week; Lyrica was
helping but Secka’s back pain was still significant; and the steroid dose pack was not helping.
Tr. 566. Dr. Baghai’s physical examination showed positive straight leg raise at about 60
degrees bilaterally with pain in the back and legs. Tr. 566. A neurological examination showed
no focal deficits. Tr. 566. Dr. Baghai reviewed a lumbar MRI, noting that it showed evidence of
postoperative changes at L5-S1. Tr. 566. Dr. Baghai recommended that Secka continue with
conservative treatment, indicating that he believed that the majority of Secka’s symptoms were
the “result of stressor during the incident of June 1, 2010.” Tr. 566.
Secka continued treatment at Advanced Pain Medicine in November and December 2010
with continued reports of pain. Tr. 510-515. Secka indicated that Opana at 10 mg was not
helping. Tr. 514. His dosage was increased to 15 mg on December 8, 2010. Tr. 514. Lumbar
facet nerve blocks, lumbar facet rhizotomy and a lumbar diskopgraphy were discussed as
possible future procedures. Tr. 511, 514.
On January 7, 2011, Secka had bilateral lumbar facet nerve blocks. Tr. 516-518. On
January 11, 2011, Secka had a left lumbar facet rhizotomy. Tr. 519-522. Secka reported some
improvement from the procedures. Tr. 519 (80% relief for rest of the day from nerve block); Tr.
523 (less left lower extremity pain following the lumbar rhizotomy but increased cramping pain
and pressure on the left side and back).
During his January 17, 2011, visit at Advanced Pain Medicine, Secka reported that Opana
was not helping so he stopped taking after two weeks. Tr. 523. Also, while Lyrica was helping
his lower extremity pain, he discontinued because it was causing forgetfulness. Tr. 523. On
examination, Secka’s gait was antalgic, favoring the left lower extremity; and he was tender to
palpation of the lumbar paraspinal muscles bilaterally. Tr. 523. Dr. LoDico recommended a
right lumbar facet rhizotomy and that Secka restart Lyrica. Tr. 523. A week later, Secka
reported that his pain had worsened. Tr. 526. Dr. LoDico started Secka on MS Contin,
continued Secka on Lyrica, suggested Tylenol, and indicated that, once Secka’s pain settled, a
right lumbar facet rhizotomy should be considered. Tr. 526. At a February 10, 2011, follow-up
visit, Secka reported that the MS Contin was not working and caused vomiting. Tr. 529. He was
not taking Tylenol as suggested. Tr. 529. He was using Aleve. Tr. 529. On physical
examination, Secka appeared uncomfortable at times; he rose from a seated position slowly with
assistance of his arms; and his gait was slow but not antalgic. Tr. 529. Otherwise, his physical
examination was unremarkable. Tr. 529.
On February 28, 2011, Secka had a right lumbar facet rhizotomy. Tr. 536. Following the
procedure, on March 10, 2011, Secka reported a significant decrease in his lower extremity pain
but was not sure whether it was attributed to the rhizotomy procedure or changes in his
medication. Tr. 536. He was still having pain across his back and dorsal aspect of his feet as
well as intermittent mild pain in the lateral thigh. Tr. 536. Physical examination findings were
generally normal. Tr. 536.
Secka continued pain management treatment at Advanced Pain Medicine through
September 2011, receiving lumbar epidural injections on June 21, August 2, and August 22,
2011. Tr. 539-559. During a September 6, 2011, visit at Advanced Pain Medicine, it was noted
that Secka received some relief from the series of injections. Tr. 557. The first injection helped
for about a week but the back pain returned after Secka’s left leg fell through the floor at his
cabin. Tr. 548, 557. The second and third injections helped with lower extremity pain but his
pain was not completely relieved. Tr. 557. Secka reported that a worker’s compensation doctor
opined that Secka could return to full duty work. Tr. 557. Secka reported a new pain in his
groin and going into his bilateral lower extremities that he described as quick and intermittent –
sharp and burning like being electrocuted. Tr. 557. Secka’s physical examination was generally
normal. Tr. 557. Dr. Plowey of Advanced Pain Medicine recommended a lumbar diskography.
Tr. 557. Dr. Plowey noted that Secka last worked in a job requiring significant lifting, bending,
twisting and prolonged standing and it was unlikely that Secka could return to that type of work
at the time, stating that “we will have him remain off of full duty at this time. He is restricted to
sit, stand and walk ad lib. with no lifting greater than 10 pounds.” Tr. 557.
On October 10, 2011, Secka returned to see Dr. Baghai. Tr. 565. Secka reported that his
symptoms had been increasing over the prior year and Dr. Baghai indicated that an examination
showed “straight leg raising is positive on the left at about 60 degrees. The remainder of his
exam does not show any focal neurological deficit.” Tr. 565. Dr. Baghai recommended a
lumbar MRI and EMG and nerve conduction testing of both legs. Tr. 565.
A lumbar MRI was taken on October 12, 2011. Tr. 567. No significant changes were
seen from the prior June 2010 MRI. Tr. 567. There continued to be a mild diffuse bulge at L5S1 but no significant central canal narrowing was seen; mild bilateral neural foraminal and
narrowing and lateral recess narrowing was unchanged. Tr. 567. EMG nerve conduction studies
of the lower extremities were performed on October 17, 2011. Tr. 568-570. Physical
examination of the lower extremities showed hypoactive deep tendon reflexes; sensation
appeared preserved to pinprick, light touch and vibration sense with some patchy alteration noted
on both feet; pedal pulses were palpable; and no footdrop phenomenon was noted. Tr. 600. The
nerve conduction studies were abnormal, with the following findings noted:
Axonal impairment noted in the right tibial nerve, on the EMG studies diffuse
chronic partial denervation changes were seen in multiple myotomes. The
abnormalities noted are most consistent with a chronic lumbosacral
polyradiculopathy, no abnormalities suggestive of a recurrent acute lumbosacral
radiculopathy was noted.
Tr. 568, 600.
Dr. Baghai saw Secka on October 24, 2011. Tr. 564. Secka reported continued left leg
numbness that was sharp, aching, stabbing, burning and tingling. Tr. 564. Dr. Baghai reviewed
the MRI and EMG and nerve conduction study results and recommended a spinal cord stimulator
and further evaluation. Tr. 564.
Secka left Advanced Pain Medicine due to a change in his insurance (Tr. 643), and,
beginning in April 2012, he started pain management treatment at Allied Pain Treatment Center
and continued with treatment there through 2013 (Tr. 587-595, 603-611, 623-642). In January
2014, Secka resumed treatment at Advanced Pain Medicine and continued treatment there
through at least April 2014. Tr. 643-664.
During his April 17, 2012, office visit at Allied Pain Treatment Centers with Dr. Thomas
Ranieri, M.D., physical examination findings included decreased range of motion; pain on
flexion, extension, rotation, side bend; positive straight leg testing; positive Patrick’s testing for
back; positive heel walk and toe walk; no motor or sensory deficits. Tr. 587. Dr. Ranieri
assessed post op lumbar laminectomy, lumbar spondylosis, lumbar facet syndrome, and noted a
re-injury in June 2011 that was not worker’s compensation. Tr. 587.
Secka returned to see Dr. Ranieri a month later on May 15, 2012, with continued reports
of low back pain into his legs. Tr. 588. Dr. Ranieri’s physical examination findings included
decreased range of motion in the lumbar spine; pain on flexion, extension, rotation and side
bend; decreased strength; positive straight leg testing bilaterally, left greater than the right;
positive Patrick’s testing for back pain; inability to heel walk and toe walk; antalgic gait;
decreased sensation in L5-S1 distribution in legs and median nerve distribution in hands; no
motor or sensory deficits. Tr. 588. Dr. Ranieri assessed neuropathic pain of the lumbar spine
area; lumbar spine neuritis; post op lumbar laminectomy 2005; median neuropathy; lumbar
spondylosis; lumbar facet syndrome; and noted a re-injury in June 2011 that was not worker’s
compensation. Tr. 588.
On June 13, 2012, spinal mapping of Secka’s left side of the lumbar spine was negative
for pain at the L3 area but positive at the L4 and L5 areas. Tr. 590. In July 2012, Secka saw Dr.
Secka and reported having fallen in a rabbit hole a couple weeks earlier. Tr. 603. On physical
examination, Secka continued to exhibit decreased lumbar spine range of motion, positive
Patrick’s testing and positive straight leg testing. Tr. 603. On August 21, 2012, Secka saw Dr.
Ranieri reporting that he had fallen into a hole that his dog dug out 6 and both of his legs were
hurting him. Tr. 605. Dr. Ranieri’s physical examination findings included decreased range of
motion, positive straight leg testing, positive Patrick’s testing for back pain, and positive heel
walk and toe walk. Tr. 605. Dr. Ranieri noted that Secka had had good results from lumbar
epidural steroid injections in the past and indicated that injections would be set during a
subsequent visit. Tr. 606. On October 17 and November 14, 2012, Secka received lumbar
epidural steroid injections. Tr. 610, 623-624, 625-626. On December 14, 2012, Secka saw Dr.
Ranieri reporting that the injections did not help. Tr. 627.
It is not clear whether the hole that Secka reported falling into was the rabbit hole that he previously reported
In January 2013, Secka reported falling when his dog got under his feet. Tr. 629. Dr.
Ranieri’s physical examination findings included decreased range of motion, positive straight leg
testing, positive Patrick’s testing for back pain, and positive heel walk and toe walk. Tr. 605.
On March 5, 2013, Secka saw Dr. Ranieri for his low back pain. Tr. 631-634. Physical
examination findings were generally normal with tenderness in the lumbar spine. Tr. 633. Dr.
Ranieri recommended that lumbar facet blocks and spinal lumbar mapping be scheduled. Tr.
On January 15, 2014, Secka returned to see Dr. LoDico at Advanced Pain Medicine. Tr.
643-645. Secka was wearing a lumbar brace. Tr. 643. On physical examination, Dr. LoDico
observed that Secka was uncomfortable at times and was frequently changing positions. Tr. 643.
Secka was unable to toe walk, heel walk, and squat. Tr. 643-644. There was mild tenderness to
palpation over the right and left paraspinal muscles. Tr. 644. Secka exhibited 5/5 muscle
strength with bilateral hip flexion, knee flexion/extension, ankle dorsiflexion/plantar flexion. Tr.
644. Straight leg raise testing for positive bilaterally. Tr. 644. Secka had normal sensation to
light touch and temperature throughout his lower extremities bilaterally. Tr. 644. There were no
palpable cords, muscle spasms, or true triggerpoints. Tr. 644. Dr. LoDico’s assessment was
“Lumbar spinal pain secondary to discogenic syndrome versus facet arthropathy lower extremity
radicular syndrome with a 4 and 5 radiculopathy.” Tr. 644. Dr. LoDico scheduled a left
transforaminal lumbar epidural steroid injection. Tr. 644. The epidural injection was
administered on January 17, 2014. Tr. 646.
On February 3, 2014, Secka reported some relief from the injection in his left lower
extremity but he was having pain that radiated into his lower extremities bilaterally into his feet.
Tr. 649. Physical examination findings included some mild tenderness to palpation over the
lumbar paraspinal muscles; 3/5 muscle strength with bilateral hip flexion, knee
flexion/extension, ankle dorsiflexion/plantar flexion; positive straight leg raise bilaterally; and
normal sensation to light touch and temperature throughout the lower extremities bilaterally. Tr.
649. Dr. LoDico recommended a provocative discography once insurance was obtained. Tr.
649. Dr. LoDico started Secka on Hydrocodone. Tr. 649. In March 2014, OxyContin was
prescribed in place of Hydrocodone because Secka now had the insurance to cover. Tr. 652.
On April 1, 2014, a provocative discography at L5-S1, L4-5, and L3-4 was performed.
Tr. 655-658, 662. The discography showed an L5-Sl concentric tear pattern with degenerative
narrowing of disc and desiccation, borderline central stenosis, endplate marginal spur formation,
and significant hypertropic changes of facets especially on the right side with the bilateral
foraminal stenosis greater on the right. Tr. 662. During an April 11, 2014, visit with Dr.
LoDico, a physical examination revealed positive straight leg raise bilaterally and 5/5 muscle
strength with bilateral hip flexion, knee flexion/extension, ankle dorsiflexion/plantar flexion. Tr.
659. Secka was taking OxyContin with partial relief and no side effects but Secka did not feel
that it was lasting very long. Tr. 659. Dr. LoDico increased Secka’s OxyContin and discussed
the possibility of proceeding with a lumbar diskectomy at L5-S1. Tr. 659.
The record contains additional evidence submitted to the Appeals Council but not the
ALJ. Tr. 2, 5, 60, 709-719 (Exhibit 17F), 720-728 (Exhibit 18F). The additional documents are
records from neurological evaluations performed by Dr. Vincent J. Miele, M.D., of UPMC and
Dr. Jahangir Maleki, M.D., Ph.D., of the Cleveland Clinic Foundation Neurological Center for
Pain, in 2014. Tr. 709-711, 712-714, 720-722.
2. Opinion evidence
Examining physician James Cosgrove, M.D.
In connection with his worker’s compensation claim, on July 14, 2011, James L.
Cosgrove, M.D., evaluated Secka. Tr. 382-395. Dr. Cosgrove noted that Secka’s chief
complaint was back pain with intermittent leg pain, left worse than right. Tr. 383. As far as
Secka’s activities of daily living, Secka reported he did not do any grass cutting and did not do
any significant outdoor activities; he was independent in his self-care and dressing; he went to
his cabin along the Allegheny River and fished on occasion but did not do anything strenuous; he
would occasionally overdo his physical activities and have to lie down. Tr. 393, 394. He was
able to perform normal daily childcare. Tr. 394. Secka’s social activities included working on
his cabin, boating and fishing. Tr. 394. Secka drove a car and had driven as far as an hour and
15 minutes from his home to his work. Tr. 394. Dr. Cosgrove reviewed Secka’s treatment
history and conducted a physical examination. Tr. 383-391. Dr. Cosgrove’s assessment was:
Back pain - At present Mr. Secka complains bitterly of back pain which is of
unremitting nature. Subjectively he has severe pain but there is no objective
correlation to any specific anatomic structure or physiologic process. He has a
previous history of lumbar surgery with good resolution with surgery and
interventional treatment. Previous diagnostic studies have been performed but are
not available for review except through the radiographic reports.
interventiona1techniques have been done since over the last year with no
improvement in pain or function. Most recent injection done in the “center of my
back” approximately a week ago offered no benefit.
Based upon Dr. Cosgrove’s review of the record, it was his opinion that Mr. Secka could
return to full time active work duties without restriction. Tr. 392. Dr. Cosgrove also was of the
opinion that Secka should not undergo further treatment because objective findings were lacking
and pain persisted notwithstanding the intervention. Tr. 392. Dr. Cosgrove noted that Secka
was taking Cymbalta but found no evidence to suggest neuropathic pain or diabetic peripheral
neuropathy. Tr. 392. Therefore, Dr. Cosgrove could not support Secka’s continued use of
Cymbalta. Tr. 392. Dr. Cosgrove concluded that Secka’s prognosis was fair, finding no
objective reasons or anatomic abnormality to account for Secka’s ongoing pain complaints. Tr.
393. Thus, despite Secka’s continued complaints, Dr. Cosgrove felt that Secka had reached
maximal medical improvement. Tr. 393.
On October 10, 2012, state agency reviewing physician Eli Perencevich, D.O., completed
a Physical RFC Assessment. Tr. 114-116. Dr. Perencevich opined that Secka had the following
exertional limitations – could lift/carry 20 pounds occasionally and 10 pounds frequently;
stand/walk about 6 hours in an 8-hour workday; sit about 6 hours in an 8-hour workday; and
push/pull unlimitedly, except as shown for lift/carry. Tr. 114-115. Dr. Perencevich opined that
Secka had the following postural limitations – occasional climbing ramp/stairs; occasional
stooping, kneeling, crouching, and crawling; and no climbing ladder/ropes/scaffolds. Tr. 115.
Dr. Perencevich indicated that the postural limitations were due to lumbar degenerative disc
disease. Tr. 115. Dr. Perencevich opined that Secka had the following manipulative limitations
– limited reaching overhead on the right and left. Tr. 115. Dr. Perencevich explained that
Secka’s degenerative disc disease limited Secka’s overhead reaching to frequently due to limited
extension. Tr. 116. Dr. Perencevich also opined that Secka would have to avoid even moderate
exposure to unprotected heights. Tr. 116.
Upon reconsideration, on March 15, 2013, state agency reviewing physician Gerald
Klyop, M.D., completed a Physical RFC Assessment. Tr. 142-144. Dr. Kylop reached the same
opinions regarding Secka’s Physical RFC Assessment as Dr. Perencevich. Tr. 142-144.
The administrative hearing was held on June 24, 2014. Tr. 61. During the hearing, the
ALJ requested that Secka’s counsel obtain and submit additional records and left the hearing
open until July 8, 2014, for that purpose. Tr. 65-67, 73-76, 77, 80, 88. The ALJ also suggested
to Secka’s attorney that he discuss with Secka the possibility of amending the onset date. Tr. 7374.
Secka was represented and testified at the hearing. Tr. 63-80.
Secka indicated that his
fiancé was a cancer survivor and on disability but she was getting ready to attend college. Tr.
67-68. Secka discussed his activities of daily living, explaining that he does not do a lot during
the day. Tr. 67-80. He mainly lies around, watches television, and talks on the phone to friends.
Tr. 67. He gets outside if he is having a good moment and able to get up and move. Tr. 68. In a
one-week period, Secka estimated having one good day, four moderate days, and two bad days.
Tr. 68-69. He is not able to pick up any of his children anymore because it is too painful. Tr. 68.
Secka is able to drive and has a commercial driver’s license. Tr. 69. His fiancé and her daughter
do most of the chores around the house and, if there is something big that needs taken care of,
Secka’s friends help out. Tr. 69. Secka had a worker’s compensation claim in 2010. Tr. 65-66,
Vocational Expert Linda Dezack (“VE”) testified at the hearing. Tr. 81-88. The VE
indicated she had reviewed the file, including Secka’s 15-year work history. Tr. 81-82. The VE
classified Secka’s various jobs as follows: (1) EMT – a low-skilled (SVP 5), 7 medium job, but
performed by Secka at heavy level; (2) metal fabricator, laborer – a mid-skilled (SVP 7), heavy
job; (3) maintenance building manager – mid-skilled (SVP 7), medium job, but performed by
Secka at heavy level; (4) maintenance person – high-skilled (SVP 8), heavy job; (5) tractor trailer
driver – high semi-skilled (SVP 4), medium job, but performed by Secka at heavy level; (6) van
driver – low semi-skilled (SVP 3), medium job, but performed by Secka at sedentary level; (7)
kitchen appliance repairer – mid-skilled (SVP 7), medium job, but performed by Secka at heavy
level. 8 Tr. 82-83. When classifying Secka’s past work, the VE asked the ALJ if he wanted
DOT numbers. Tr. 82. The ALJ responded, “No. We’ll save time by not going into the DOT
numbers. Give me the exertional capacity and skill level.” Tr. 82.
The ALJ asked whether there was transferability of any of the skills for the identified
jobs. Tr. 83. The VE responded that the driving skills were transferable to the light level,
identifying telephone directory distributor and a truck load checker. Tr. 83-84.
The ALJ then asked the VE to assume an individual Secka’s age and with his education
and work experience who was capable of lifting 20 pounds occasionally and 10 pounds
SVP refers to the DOT’s listing of a specific vocational preparation (SVP) time for each described occupation.
Social Security Ruling No. 00-4p, 2000 SSR LEXIS 8, *7-8 (Soc. Sec. Admin. December 4, 2000). Using the
skill level definitions in 20 CFR § 404.1568, unskilled work corresponds to an SVP of 1-2; semi-skilled work
corresponds to an SVP of 3-4; and skilled work corresponds to an SVP of 5-9 in the DOT. Id.
The record includes reference to another past job, i.e., boiler engineer at a veneer plant, but the VE indicated that
there was no description of the job so she had not classified the position. Tr. 82. Also, it appears that the VE
identified another past job but the transcript is not clear as to the title of the job. See Tr. 82-83 (“As an h back, skill
level . . .”).
frequently; standing or walking 6 out of 8 hours; sitting 6 out of 8 hours; unlimited pushing and
pulling; never climbing ladders, scaffolds, and unprotected heights; occasionally climbing stairs,
bending, kneeling, crouching and crawling; and reaching overhead bilaterally limited to less than
occasional. Tr. 84-85. The VE indicated that the described individual would be able to perform
Secka’s past work as a van driver as actually performed but not as customarily performed. Tr.
84-85. The VE indicated all other past work would be eliminated because the exertional level
would be exceeded. Tr. 85. The VE indicated that there would be other work available in the
national and regional economy, including (1) information clerk, a light, unskilled job; (2) laundry
worker, a light, unskilled job; and (3) flagger, a light, unskilled job. Tr. 85-86. The VE provided
national and regional job incidence data for the identified jobs as well as DOT numbers, which
the ALJ requested. Tr. 85-86.
The ALJ then asked the VE to assume the individual described in the first hypothetical
with the additional limitation of requiring 3-5 minutes of off-task time, possibly to change
positions or take a short walkabout break, every 2 hours in an 8-hour workday in addition to
standard breaks. Tr. 86. The VE indicated that the three jobs identified would remain available
to the individual because that amount of off-task time would be less than 10% of the time. Tr.
In response to questioning by Secka’s counsel, the VE indicated that a hypothetical
individual, who was limited to a sedentary RFC and who would be absent two or more days per
month on a regular basis, would be unable to maintain employment. Tr. 87. Also, The VE
indicated that, if the ALJ’s second hypothetical was modified such that the described individual
would be off task 15% of the time on a regular basis, the individual would be unable to maintain
employment. Tr. 87-88. Finally, the VE indicated that, if the ALJ’s first hypothetical was
modified to include the need for the individual to lie down at unscheduled random times
throughout the day, the individual would not be able to perform work without a special
accommodation from the employer. Tr. 88.
III. Standard for Disability
Under the Act, 42 U.S.C § 423(a), eligibility for benefit payments depends on the
existence of a disability. “Disability” is defined as the “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Furthermore:
[A]n individual shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable to
do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the
national economy9 . . . .
42 U.S.C. § 423(d)(2)(A).
In making a determination as to disability under this definition, an ALJ is required to
follow a five-step sequential analysis set out in agency regulations. The five steps can be
summarized as follows:
If claimant is doing substantial gainful activity, he is not disabled.
If claimant is not doing substantial gainful activity, his impairment must
be severe before he can be found to be disabled.
If claimant is not doing substantial gainful activity, is suffering from a
severe impairment that has lasted or is expected to last for a continuous
period of at least twelve months, and his impairment meets or equals a listed
impairment, 10 claimant is presumed disabled without further inquiry.
“’[W]ork which exists in the national economy’ means work which exists in significant numbers either in the
region where such individual lives or in several regions of the country.” 42 U.S.C. § 423(d)(2)(A).
The Listing of Impairments (commonly referred to as Listing or Listings) is found in 20 C.F.R. pt. 404, Subpt. P,
App. 1, and describes impairments for each of the major body systems that the Social Security Administration
If the impairment does not meet or equal a listed impairment, the ALJ must
assess the claimant’s residual functional capacity and use it to determine if
claimant’s impairment prevents him from doing past relevant work. If
claimant’s impairment does not prevent him from doing his past relevant
work, he is not disabled.
If claimant is unable to perform past relevant work, he is not disabled if,
based on his vocational factors and residual functional capacity, he is
capable of performing other work that exists in significant numbers in the
20 C.F.R. § 404.1520; see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). Under this
sequential analysis, the claimant has the burden of proof at Steps One through Four. Walters v.
Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts to the Commissioner
at Step Five to establish whether the claimant has the RFC and vocational factors to perform
work available in the national economy. Id.
IV. The ALJ’s Decision
In his January 14, 2015, decision, the ALJ made the following findings: 11
Secka meets the insured status requirements through December 31, 2015.
Secka has not engaged in substantial gainful activity since June 1, 2010,
the alleged onset date. Tr. 43.
Secka has the following severe impairment: degenerative disc disease in
the lumbar spine. Tr. 43-49. Adjustment disorder was not a severe
impairment and overuse of narcotic pain medication was not a medically
determinable impairment. Tr. 47-49.
Secka does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments. Tr.
considers to be severe enough to prevent an individual from doing any gainful activity, regardless of his or her age,
education, or work experience. 20 C.F.R. § 404.1525.
The ALJ’s findings are summarized.
Secka has the RFC to perform a limited range of light work. He can
occasionally lift and carry 20 pounds and frequently lift and carry 10
pounds; stand/walk for 6 hours in an 8-hour workday; sit for 6 hours in an
8-hour workday; occasionally climb ramps and stairs, stoop, kneel, crouch,
and crawl but cannot climb ladders, ropes and scaffolds; can occasionally
reach overhead with both hands. Tr. 50-52.
Secka is capable of performing past relevant work as a van driver as
actually performed by Secka. Tr. 52.
The VE testified that Secka’s driver skills were transferrable to the jobs of
telephone directory delivery person and truckload checker. Tr. 52-53.
Thus, alternatively, considering Secka’s age, education, 12 work
experience, and RFC, there are other jobs in the national economy that
Secka can perform, including telephone directory delivery person and
truckload checker (both light, SVP 3 jobs). Tr. 52-53. Also, the VE
identified light, unskilled jobs that could be performed by an individual of
the same age and with the same education, work experience, and RFC as
Secka, including information clerk, flagger, and laundry worker. Tr. 53.
Based on the foregoing, the ALJ determined that Secka was not under a disability from
June 1, 2010, through the date of the decision. Tr. 53.
V. Parties’ Arguments
Secka argues that the ALJ erred at Step Four by finding that Secka could return to his
past relevant work as a van driver. Doc. 17, pp. 9-11. Also, Secka challenges the ALJ’s light
RFC finding arguing that the ALJ erred in assessing the evidence when he concluded that there
was an absence of neurological deficits and that the ALJ’s reliance upon state agency reviewing
physician Dr. Klyop’s opinion was misplaced. Doc. 17, pp. 11-14.
In response, the Commissioner contends that the ALJ properly relied upon the VE’s
testimony to support his determination that Secka could perform his past work as a van driver,
and, in any event, the ALJ alternatively found that there were other jobs existing in the national
Secka was born in 1973 and was 37 years old on the alleged disability onset date. Tr. 52. He has at least a high
school education and is able to communicate in English. Tr. 52.
economy that Secka could perform. Doc. 20, pp. 12-15. The Commissioner also contends that
substantial evidence supports the ALJ’s RFC finding. Doc. 20, pp. 8-12.
VI. Law & Analysis
Standard of review
A reviewing court must affirm the Commissioner’s conclusions absent a determination
that the Commissioner has failed to apply the correct legal standards or has made findings of fact
unsupported by substantial evidence in the record. 42 U.S.C. § 405(g); Wright v. Massanari, 321
F.3d 611, 614 (6th Cir. 2003). “Substantial evidence is more than a scintilla of evidence but less
than a preponderance and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Besaw v. Sec’y of Health & Human Servs., 966 F.2d 1028,
1030 (6th Cir. 1992) (quoting Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681
(6th Cir. 1989). The Commissioner’s findings “as to any fact if supported by substantial
evidence shall be conclusive.” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir.
2006) (citing 42 U.S.C. § 405(g)).
A court “may not try the case de novo, nor resolve conflicts in evidence, nor decide
questions of credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). Even if
substantial evidence or indeed a preponderance of the evidence supports a claimant’s position, a
reviewing court cannot overturn the Commissioner’s decision “so long as substantial evidence
also supports the conclusion reached by the ALJ.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469,
477 (6th Cir. 2003).
Nevertheless, even if there is substantial evidence to support a decision, the
Commissioner’s decision will not be affirmed where the Social Security Administration “fails to
follow its own regulations and where that error prejudices a claimant on the merits or deprives
the claimant of a substantial right.” Rabbers v. Comm’r of Soc. Sec. Adm., 582 F.3d 647, 651
(6th Cir. 2009) (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 741, 746 (6th Cir. 2007)); see
also Fleischer v. Astrue, 774 F.Supp.2d 875, 877 (N.D. Ohio 2011). Similarly, a court “cannot
uphold an ALJ’s decision, even if there ‘is enough evidence in the record to support the decision,
where the reasons given by the trier of fact do not build an accurate and logical bridge between
the evidence and the result.’” Fleischer, 774 F.Supp.2d at 877 (quoting Sarchet v. Chater, 78
F.3d 305, 307 (7th Cir. 1996) and relying on Wilson v. Comm. of Soc. Sec., 378 F.3d 541, 544546 (6th Cir. 2014)).
In the absence of further explanation by the ALJ, the Court is unable to determine
whether the RFC is supported by substantial evidence
Secka challenges the ALJ’s light RFC finding arguing that the ALJ erred in assessing the
evidence when he concluded that there was an absence of neurological deficits. Doc. 17, pp. 1114.
A claimant’s RFC is an issue reserved to the Commissioner and the ALJ assesses a
claimant’s RFC “based on all of the relevant evidence” of record. 20 C.F.R. §§ 404.1545(a)(3),
404.1546(c). The ALJ, not a physician, is responsible for assessing a claimant’s RFC. See 20
C.F.R. § 404.1546 (c); Poe v. Comm'r of Soc. Sec., 342 Fed. Appx. 149, 157 (6th Cir.2009). In
assessing a claimant’s RFC, an ALJ “is not required to recite the medical opinion of a physician
verbatim in [her] residual functional capacity finding[ ] [and] an ALJ does not improperly
assume the role of a medical expert by assessing the medical and nonmedical evidence before
rendering a residual functional capacity finding.” Id.
The ALJ based the light RFC assessment on “the objective medical records and the
opinion of Dr. Klyop.” Tr. 52. In assessing and weighing the evidence, the ALJ concluded that
Secka “has low back pain but he does not have any neurological deficits.” Tr. 52; see also Tr. 45
(“The claimant’s physical exams did not shown any neurological deficits.”). Without a more
complete explanation, this conclusion, which the ALJ relied upon to support his RFC finding,
appears at odds with evidence of record.
For example, there is evidence that Secka was unable to walk on his heels and toes, had
an antalgic gait, had decreased sensation to light touch in the lateral aspect of the right lower leg
distal to the knee, had decreased sensation to temperature in the lateral aspects of bilateral lower
legs, had decreased sensation in the L5/S1 distribution in his legs, and had hypoactive deep
tendon reflexes in the lower extremities. Tr. 490 (8/3/10), Tr. 507 (10/20/10), Tr. 523 (1/17/11),
Tr. 588 (5/15/12), Tr. 590 (6/13/12), Tr. 600 (10/17/11). The ALJ acknowledged some of these
examination findings (Tr. 46) but nevertheless concluded that there was no evidence of
Further, based on his conclusion that physical examination findings showed no
neurological deficits, the ALJ dismissed objective EMG and nerve conduction studies from
October 1, 2010, that showed bilateral L4 and right L5 radiculopathy without new or active
denervation, bilateral tibial motor mononeuropathy, bilateral sural sensory mononeuropathy (Tr.
560-562). Tr. 45. Other objective medical tests included a provocative discography, performed
on April 1, 2014, which showed an L5-Sl concentric tear pattern with degenerative narrowing of
disc and desiccation, borderline central stenosis, endplate marginal spur formation, and
significant hypertropic changes of facets especially on the right side with the bilateral foraminal
stenosis greater on the right. Tr. 662. Even though the test results do not rule out abnormalities
on the left, the ALJ’s apparent reason for disregarding this objective test was because Secka
complained more about left leg pain than right leg pain. Tr. 47.
Also, on multiple occasions, Secka’s examinations showed positive straight leg-raising
test findings. See Tr. 490 (8/3/10), Tr. 566 (10/29/10), Tr. 565 (10/10/11), Tr. 587 (4/17/12), Tr.
588 (5/15/12), Tr. 590 (6/13/12), Tr. 603 (7/11/12), Tr. 605 (8/21/12), Tr. 644 (1/15/14); Tr. 659
(4/11/14). A straight leg-raising test revealing “pain in the lower extremity between 30 and 90
degrees of elevation indicates lumbar radiculopathy, with the distribution of the pain indicating
the nerve root involved.” See Dorland’s Illustrated Medical Dictionary, 32nd Edition, 2012, at
1900. Although the ALJ acknowledged evidence of positive straight leg-raising test findings
(Tr. 45-47), the ALJ concluded, without sufficient explanation, that there was no evidence of
neurological deficits. 13
The evidence also documents positive Patrick’s testing for back pain; decreased range of
motion in the lumbar spine; pain on flexion, extension rotation and side bend; and spinal
mapping testing of the left lumbar side that was negative for pain at the L3 area but positive at
the L4 and L5 areas. Tr. 587 (4/17/12), Tr. 588 (5/15/12), Tr. 590 (6/13/12).
Although it is the province of the ALJ to assess a claimant’s RFC, in this instance, the
ALJ failed to build a logical bridge connecting the evidence with his result. Thus, even if there
is substantial evidence to support the decision, this Court is unable to uphold it. See e.g.,
Fleischer, 774 F.Supp.2d at 877. Accordingly, remand is warranted for further explanation as to
how, in light of the various examination findings and objective tests, the ALJ concluded that
Secka did “not have any neurological deficits.” Tr. 52 (emphasis supplied).
For example, when summarizing Dr. Baghai’s October 29, 2010, and October 10, 2011, examination findings,
which included positive straight leg raising, the ALJ stated that there were no neurological deficits. Tr. 45, 46. Dr.
Baghai’s actual findings were that “Neurological examination does not show any focal deficits” (Tr. 566) and “. . .
straight leg raising is positive on the left at about 60 degrees. The remainder of his exam does not show any focal
neurological deficit.” (Tr. 565). (Emphasis supplied). Without explaining whether there is a distinction between
“neurological deficit” and “focal neurological deficit,” the ALJ dropped the reference to “focal” when referring to
Dr. Baghai’s findings.
Secka also challenges the ALJ’s reliance upon the state agency reviewer’s opinion and
the ALJ’s Step Four determination. Since further analysis and/or explanation of the evidence on
remand may impact subsequent steps in the evaluation process and/or the disability
determination analysis as a whole, the Court declines to address these alternative arguments.
For the reasons set forth herein, the Court REVERSES and REMANDS the
Commissioner’s decision for proceedings consistent with this Opinion.
Dated: June 20, 2017
Kathleen B. Burke
United States Magistrate Judge
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