Moreiras-Maczko v. Commissioner of Social Security

Filing 21

Memorandum Opinion and Order: The decision of the Commisioner of the Social Security Administration is reversed; this case is remanded for the Administrative Law Judge to request the medical file of Dr. Nanjundiah and to subpoena the medical file of Dr. Elsawy, and for further factfinding, analysis, and articulation by the Administrative Law Judge regarding the treating physician's rule consistent with this opinion. Signed by Magistrate Judge George J. Limbert on 11/4/11. (S,AA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

LISA MOREIRAS-MACZKO,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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CASE NO. 5:10CV1366
MAGISTRATE JUDGE GEORGE J.
LIMBERT
MEMORANDUM OPINION
AND ORDER

Lisa Moreiras-Maczko (“Plaintiff”) seeks judicial review of the final decision of Michael J.
Astrue (“Defendant”), Commissioner of the Social Security Administration (“SSA”), denying her
application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”).
ECF Dkt. #1. For the following reasons, the Court REVERSES the Commissioner’s decision and
remands the instant case for further proceedings:
I.

PROCEDURAL AND FACTUAL HISTORY
On June 28, 2006, Plaintiff filed applications for DIB and SSI, alleging disability beginning

September 26, 2003. ECF Dkt. #12-6 at 175-184.1 The SSA denied Plaintiff’s applications initially,
ECF Dkt. 12-4 at 144-145, and on reconsideration. Id. at 146-147. On April 17, 2007, Plaintiff filed
a request for an administrative hearing. Id. at 168. On May 27, 2009, an ALJ conducted an
administrative hearing where Plaintiff was represented by counsel. ECF Dkt. #12-3 at 94-142. At
the hearing, the ALJ heard testimony from Plaintiff and Kathleen L. Reis, a vocational expert
(“VE”). Id. On July 30, 2009, the ALJ issued a Decision (“Decision”) denying benefits. ECF Dkt.
#12-2 at 76-92. Plaintiff filed a request for review, ECF Dkt. #12-2 at 74-75, which the Appeals
Council denied. Id. at 65-69.

1

Page numbers refer to “Page ID” numbers in the electronic filing system.

On June 18, 2010, Plaintiff filed the instant suit seeking review of the ALJ’s decision. ECF
Dkt. #1. On January 4, 2011, Plaintiff filed a brief on the merits. ECF Dkt. #16. With leave of Court
on March 3, 2011, Defendant filed a brief on the merits. ECF Dkt. #18. With leave of Court on
March 30, 2011, Plaintiff filed a reply brief. ECF Dkt. #20.
II.

SUMMARY OF RELEVANT PORTIONS OF THE ALJ’S DECISION
The ALJ determined that Plaintiff suffered from postural orthostatic tachycardia syndrome

(“POTS”), a herniated L5-S1 disc and degenerative disc disease of the lumbar spine, myxoid
degeneration of the menisci and early degenerative arthritis of the left knee, a depressive disorder
v. bipolar II disorder, and panic disorder with agoraphobia, which qualified as severe impairments
under 20 C.F.R. §404.1520(c) and 416.920(c)). ECF Dkt. #12-2 at 81. The ALJ next determined
that Plaintiff did not have an impairment or combination of impairments that met or medically
equaled one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listings”). Id.
at 83-85. He ultimately concluded that, although Plaintiff can no longer perform her past relevant
work, she has the residual functional capacity to perform a range of sedentary work, as defined by
20 C.F.R. §404.1567(a) and 404.967(a). Id. at 85. Specifically, she can lift, carry, push and pull a
maximum of 10 pounds but must be able to sit or stand at will in 30-minute increments in an 8-hour
workday. She is limited to simple, routine, low-stress tasks that do not take place in public and that
involve no more than superficial interactions with supervisors, coworkers and the public. She is
precluded from tasks involving arbitration, negotiation, confrontation, directing the work of others,
and being responsible for the safety of others. Id.
III.

STEPS TO EVALUATE ENTITLEMENT TO SOCIAL SECURITY BENEFITS
An ALJ must proceed through the required sequential steps for evaluating entitlement to SSI

and DIB benefits. These steps are:
1.

An individual who is working and engaging in substantial gainful activity will
not be found to be “disabled” regardless of medical findings (20 C.F.R. §§
404.1520(b) and 416.920(b) (1992));

2.

An individual who does not have a “severe impairment” will not be found to
be “disabled” (20 C.F.R. §§ 404.1520(c) and 416.920(c) (1992));

3.

If an individual is not working and is suffering from a severe impairment
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which meets the duration requirement, see 20 C.F.R. § 404.1509 and 416.909
(1992), and which meets or is equivalent to a listed impairment in 20 C.F.R.
Pt. 404, Subpt. P, App. 1, a finding of disabled will be made without
consideration of vocational factors (20 C.F.R. §§ 404.1520(d) and 416.920(d)
(1992));
4.

If an individual is capable of performing the kind of work he or she has done
in the past, a finding of “not disabled” must be made (20 C.F.R. §§
404.1520(e) and 416.920(e) (1992));

5.

If an individual’s impairment is so severe as to preclude the performance of
the kind of work he or she has done in the past, other factors including age,
education, past work experience and residual functional capacity must be
considered to determine if other work can be performed (20 C.F.R. §§
404.1520(f) and 416.920(f) (1992)).

Hogg v. Sullivan, 987 F.2d 328, 332 (6th Cir. 1992). The claimant has the burden to go forward with
the evidence in the first four steps and the Commissioner has the burden in the fifth step. Moon v.
Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990).
IV.

STANDARD OF REVIEW
Under the Social Security Act, the ALJ weighs the evidence, resolves any conflicts, and

makes a determination of disability. This Court’s review of such a determination is limited in scope
by § 205 of the Act, which states that the “findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). Therefore, this
Court’s scope of review is limited to determining whether substantial evidence supports the findings
of the Commissioner and whether the Commissioner applied the correct legal standards. Abbott v.
Sullivan, 905 F.2d 918, 922 (6th Cir. 1990).
The substantial-evidence standard requires the Court to affirm the Commissioner’s findings
if they are supported by “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Cole v. Astrue, __ F.3d __, 2011WL 274792, *3, citing Richardson v.
Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (citation omitted). An ALJ’s
failure to follow agency rules and regulations “denotes a lack of substantial evidence, even where
the conclusion of the ALJ may be justified based upon the record.” Cole, supra, citing Blakely v.
Comm’r of Soc. Sec., 581 F.3d 399, 407 (6th Cir.2009) (citations omitted). The Court cannot reverse
the decision of an ALJ, even if substantial evidence exists in the record that would have supported

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an opposite conclusion, so long as substantial evidence supports the ALJ’s conclusion. Walters v.
Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir.1997).
V.

ANALYSIS
At the hearing, Plaintiff testified that she first injured her back when milk crates fell on her

while she was an employee at Giant Eagle in 2003. ECF Dkt. #12-3, p. 100. She attributed her
continuing back pain to two herniated discs and some nerve damage. Id. at 110. She testified that
she can sit for thirty minutes, but that it feels as if her back is swollen, and that her legs fall asleep.
She has to walk around for approximately fifteen minutes in order to alleviate the tingling in her legs.
Id. at 111. She experiences increasing pain if she stands or sits too long. She lays down
approximately four or five times a day to alleviate her pain. Id. at 112. She also has arthritis in her
left knee, which makes walking and standing more difficult. Id. at 114. She was diagnosed with
POTS in 2003, however the problem became more pronounced in 2004 or 2005. Id. at 108.
According to her testimony, she is often able to recognize an oncoming attack, and ninety percent
of the time she can lay down before she faints. She weighs approximately 230 pounds. She testified
that she uses a cane for stability and that it was prescribed by Dr. Tarek Elsawy. Id. at 116.
She has struggled with depression for fourteen years. Id. at 119. She began having panic
attacks at work, which has progressed into agoraphobia. Id. at 116. She testified that she does not
like to be in a group of more than five or ten people, and that she does not like to be alone out in
public. Id. at 117. She suffers from panic attacks approximately eighty percent of the time that she
is in a public place. On December 23, 2008, she was admitted into a treatment center because she
was considering suicide. Id. at 116.
She currently lives with her mother and stepfather. Id. at 122. She testified that she is
productive for approximately one half hour each day performing light house work. Id. at 122-24.
She claimed that she was receiving psychological treatment at Coleman Professional Services at the
time of the hearing and that the treatment was starting to help. Id. at 124-25.
Plaintiff advances six arguments on appeal. First, Plaintiff contends that the ALJ did not give
sufficient weight to the opinions of her treating physicians. Second, Plaintiff argues that the ALJ
should have requested and/or subpoenaed the files of two of the treating physicians, which were not
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included in the record. Third, Plaintiff asserts that the RFC did not accurately portray her panic
disorder with agoraphobia limitation. Fourth, Plaintiff claims that the ALJ did not consider the fact
that Plaintiff’s impairments worsened over time. Fifth, Plaintiff argues that the ALJ did not consider
the fact that Plaintiff’s use of a cane disqualified her from performing sedendary work. Finally,
Plaintiff contends that the ALJ failed to inquire as to whether there were any conflicts between any
occupational evidence and information in the Dictionary of Occupational Titles (“DOT”), as required
by SSR 00-4p.
Plaintiff first contends that the ALJ did not give appropriate weight to the opinion of several
treating physicians in this case. An ALJ must adhere to certain standards when reviewing medical
evidence in support of a claim for social security. Most importantly, the ALJ must generally give
greater deference to the opinions of the claimant’s treating physicians than to those of non-treating
physicians. SSR 96-2p, 1996 WL 374188 (July 2, 1996); Wilson v. Commissioner of Social Security,
378 F.3d 541, 544 (6th Cir.2004.). A presumption exists that the opinion of a treating physician is
entitled to great deference. Id.; Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 243 (6th Cir.2007).
Accordingly, if that presumption is not rebutted, the ALJ must afford controlling weight to the
opinion of the treating physician if that opinion regarding the nature and severity of a claimant’s
conditions is “well-supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with other substantial evidence in [the] case record.” Wilson, 378 F.3d at 544.
However, “[t]he determination of disability is [ultimately] the prerogative of the
[Commissioner], not the treating physician.” Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th
Cir. 2004) quoting Harris v. Heckler, 756 F.2d 431, 435 (6th Cir.1985). When an ALJ determines
that a treating physician’s opinion is not entitled to controlling weight, he must consider the
following factors in determining the weight to give to that opinion: the length, frequency, nature,
and extent of the treatment relationship; the supportability and consistency of the physician’s
conclusions; the specialization of the physician; and any other relevant factors. Id.
If an ALJ decides to discount or reject a treating physician’s opinion, he must provide “good
reasons” for doing so. SSR 96-2p. The ALJ must provide reasons that are “sufficiently specific to
make clear to any subsequent reviewers the weight the adjudicator gave to the treating source’s
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medical opinion and the reasons for that weight.” Id. This allows a claimant to understand how his
case is determined, especially when he knows that his treating physician has deemed him disabled
and he may therefore “ ‘be bewildered when told by an administrative bureaucracy that he is not,
unless some reason for the agency’s decision is supplied.’ ” Wilson, 378 F.3d at 544 quoting Snell
v. Apfel, 177 F.3d 128, 134 (2d Cir.1999).
Further, it “ensures that the ALJ applies the treating physician rule and permits meaningful
appellate review of the ALJ’s application of the rule.” Id. If an ALJ fails to explain why he rejected
or discounted the opinions and how those reasons affected the weight accorded the opinions, this
Court must find that substantial evidence is lacking, “even where the conclusion of the ALJ may be
justified based upon the record.” Rogers, 486 F.3d at 243, citing Wilson, 378 F.3d at 544.
However, “[w]hen a treating physician . . . submits an opinion on an issue reserved to the
Commissioner-such as whether the claimant is ‘disabled’ or ‘unable to work’- the opinion is not
entitled to any particular weight.” Turner v. Commissioner of Social Security, No. 09-5543, 2010
WL 2294531 at *4, (6th Cir. June 7, 2010), unreported; see also 20 C.F.R. §416.927(e)(1).
“Although the ALJ may not entirely ignore such an opinion, his decision need only explain the
consideration given to the treating source’s opinion.” Id. (internal quotation and citation omitted).
In Turner, a treating source opined that the claimant was “unable to work” and was not “currently
capable of a full-time 8-hour workload.” Id. at *5. The Sixth Circuit held that the ALJ adequately
addressed the opinion in stating that it was an opinion on an issue reserved to the Commissioner.
Id.
Plaintiff first contends that the ALJ did not give appropriate weight to the opinion of Dr.
Michael Kellis. Dr. Kellis was Plaintiff’s primary physician and his medical notes, dating from 2001
to 2009, are a part of the record. In a general medical source statement dated May 26, 2009, Dr.
Kellis concluded that Plaintiff is only capable of standing/walking for about two hours in an eight
hour workday, and sitting for about two hours in an eight hour workday, and that she must get up and
walk every thirty minutes for at least five or ten minutes. ECF Dkt. #12-16, p. 578. He further
opined that she would need to take unscheduled breaks during the work day, although he did not
commit to an estimated number of breaks .
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The ALJ wrote that, based upon Dr. Kellis’ general medical source statement, Plaintiff could
do sedentary work for eight hours a day provided she could sit or stand at will in 30-minute
increments. ECF Dkt. #12-2, p. 89. The ALJ further wrote that he “followed” Dr. Kellis’ opinion
because of his “long treating relationship with [Plaintiff] and because his opinion is supported by the
weight of the evidence.” Id.
Plaintiff contends that, if the ALJ adopted Dr. Kellis’s opinion as he claimed to have done
in the Decision, the ALJ should have concluded that she is disabled. However, it is clear from the
Decision that, although the ALJ credited portions of Dr. Kellis’s general medical source statement,
he also concluded that some of Dr. Kellis’s conclusions were not supported by the record. The ALJ
wrote:
In regards to [Plaintiff’s] spinal impairment, records from M.J. Kellis, D.O., her
primary treating source for her musculoskeletal complaints, show findings of
decreased range of motion, muscle spasm, positive straight leg raising signs in
addition to other pathology. However, these records fail to show that [Plaintiff] has
had persistent sensory or reflex loss or motor system loss with specific muscle
weakness. There is also no evidence of muscle atrophy in her lower extremities.
Indeed, his most recent outpatient record describes [Plaintiff] as neurologically intact.
ECF Dkt. #12-2, p. 87.
In fact, Dr. Kellis’ conclusion that Plaintiff could not sit for two hours a day or stand/walk
for two hours a day, which was predicated upon Plaintiff’s 2004 MRI that showed a herniated disc
ECF Dkt. #12-9, p. 301, conflicts with his medical notes. Three months after the MRI, Dr. Kellis’
notes indicate that Plaintiff’s back pain is “periodic” and that she treated it with Percocet. Id. at 300.
Dr. Kellis’ notes do not mention any back problems until March of 2006, when Plaintiff fell and reinjured her back. Id. at 295. The final appointment in Dr. Kellis’ medical notes is dated February
1, 2007. According to the entry, Plaintiff continued to suffer back pain. Although his notes indicate
that Plaintiff is “not able to work because standing causes her significant problems,” and that a
straight leg test caused her severe lower back pain, the notes also indicate that her neurovascular
examination was normal. ECF Dkt. #12-15, p. 507. Moreover, the ALJ relied upon the fact that
Plaintiff’s back and knee problems have been treated conservatively. Accordingly, to the extent that
the ALJ rejected portions of Dr. Kellis’ general medical source statement, he cited portions of the
record the support his conclusion.
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Plaintiff was also treated by an internist, Dr. Tarek Elsawy. The treating relationship began
in 2006, and, according to an assessment of ability to do work-related activities (mental) and a
general medical source statement on April 8, 2009, ECF Dkt. #12-16, p. 572-585, Plaintiff visited
his office every three or four months. Dr. Elsawy concurred with Dr. Kellis that Plaintiff was only
capable of sitting for two hours of and eight hour work day and standing/walking for two hours of
an eight hour workday. Id. at 583. He further opined that Plaintiff had marked restriction in her
ability to complete a normal work day and work week without interruption from psychologically
based symptoms and to perform work at a consistent pace, as well as a moderate to marked inability
to accept instructions and to respond appropriately to criticism. Id. at 573. However, with the
exception of the assessment of ability to do work-related activities (mental) and a general medical
source statement, Dr. Elsawy’s treatment records were not included in the record.
On January 12, 2009 Plaintiff began treating with Dr. Parvathi Nanjundiah and Johan
Buchanan, a case manager, at Coleman Professional Services, after being hospitalized for suicidal
ideation in late December of the previous year. Plaintiff was diagnosed with bipolar disorder type
II, recurrent episode, depression moderate with psychotic features, and panic disorder with
agoraphobia. ECF Dkt. #12-16, p. 545. In an assessment of ability to do work-related activities
(mental) completed by Buchanan on April 24, 2009, with which Dr. Nanjundiah concurred. ECF
Dkt. #12-16, p. 568-571, Buchanan and Dr. Nanjundiah concluded that Plaintiff had marked
limitations in her ability to work in proximity with others, to complete a normal workday and
workweek, to interact with the general public, to ask questions or request assistance, to accept
instructions and respond to criticism, and to respond to changes in the work setting. They concluded
that Plaintiff had an extreme limitation in her ability to travel in unfamiliar places and use public
transportation. ECF Dkt. #12-16, p. 568-69. According to Plaintiff’s brief, Dr. Nanjundiah treated
Plaintiff for five months, however, the office treatment records from Coleman Professional Services
only include Plaintiff’s initial diagnosis, the notes from one follow-up appointment on February 16,
2009, and the assessment of ability to do work-related activities (mental) completed by Buchanan
and Dr. Nanjundiah.
Plaintiff argues that the ALJ was required to recontact Drs. Elsawy and Nanjundiah because
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their medical files were not included in the record in this case. Sections 404.1512(e) and 416.912(e)
of Title 20 of the Code of Federal Regulations provide that:
(e) Recontacting medical sources. When the evidence we receive from your treating
physician or psychologist or other medical source is inadequate for us to determine
whether you are disabled, we will need additional information to reach a
determination or a decision. To obtain the information, we will take the following
actions.
(1) We will first recontact your treating physician or psychologist or
other medical source to determine whether the additional information
we need is readily available. We will seek additional evidence or
clarification from your medical source when the report from your
medical source contains a conflict or ambiguity that must be resolved,
the report does not contain all the necessary information, or does not
appear to be based on medically acceptable clinical and laboratory
diagnostic techniques. We may do this by requesting copies of your
medical source’s records, a new report, or a more detailed report from
your medical source, including your treating source, or by telephoning
your medical source. In every instance where medical evidence is
obtained over the telephone, the telephone report will be sent to the
source for review, signature and return.
(2) We may not seek additional evidence or clarification from a
medical source when we know from past experience that the source
either cannot or will not provide the necessary findings.
20 C.F.R. § 404.1512(e)(1); 20 C.F.R. § 416.912(e)(1).
In this case, the ALJ notes that “[t]here are no treatment records from Dr. Elsawy in evidence,
despite requests from the Administration.” ECF Dkt. #12-2, p. 89. To the extent that the
Administration requested medical records from Dr. Elsawy, and he did not produce them, the case
at bar presents an instance where the Administration was not required to make any further requests
where, from past experience, the source did not provide the information.
Plaintiff further argues that the ALJ had an affirmative duty to subpoena Dr. Elsawy’s
records, when Dr. Elsawy did not produce them voluntarily. The ALJ may issue a subpoena on his
or her own motion or at the request of a claimant. HALLEX I-2-5-78. A claimant has a right to
request issuance of a subpoena, but the regulations state that he or she must make the request at least
5 days before the hearing date. 20 CFR §§ 404.950(d)(2) and 416.1450(d)(2). No such request was
made in this case. The ALJ is authorized by law and regulation to issue subpoenas to require
production of documentary evidence or testimony when reasonably necessary for the full
presentation of the case. The issuance of a subpoena may be necessary when a person having
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knowledge of a material fact or possession of documentary evidence is reluctant or unwilling to
testify or provide the evidence.
Here, the ALJ relied upon the Dr. Kellis’ opinion and his medical records in assessing
Plaintiff’s physical limitations. Evidently, the ALJ did not conclude that Dr. Elsawy’s medical
records were reasonably necessary for the full presentation of the case. As a consequence, the fact
that the ALJ did not exercise his authority to subpoena Dr. Elsawy’s records does not constitute
error.
With respect to Plaintiff’s mental impairments, the ALJ relied exclusively upon a consultative
examination2 performed by G.J. Sipps, Ph.D. on February 22, 2007. Dr. Sipps diagnosed Plaintiff
with depressive disorder, NOS, in partial remission with medication and anxiety disorder, NOS, in
partial remission with medication. ECF Dkt. #12-16, p. 561-566. In rejecting Dr. Nanjundiah’s
opinion regarding Plaintiff’s mental impairments, the ALJ wrote that Dr. Nanjundiah’s opinion was
“inconsistent with his and Dr. Sipps’ opinions that [Plaintiff’s] mental heath problems are moderate
in severity. ECF. Dkt.#12-2, p. 89.
To the contrary, Dr. Nanjundiah’s opined that Plaintiff demonstrated a marked limitation in
her ability to complete a normal workday and workweek, to ask questions or request assistance, to
accept instructions and respond to criticism, and to respond to changes in the work setting.
Therefore, the ALJ mischaracterized Dr. Nanjundiah’s opinion in the Decision. Furthermore, there
is evidence in the record that Dr. Nanjundiah treated Plaintiff over the course of five months. Rather
than rely upon the single consultative examination performed by Dr. Sipps in early 2007, the ALJ
should have requested Dr. Nanjundiah’s complete medical file for the record. There is no indication
that such a request was made, and, insofar as Dr. Nanjundiah was the only physician treating
Plaintiff’s mental impairments, Dr. Nanjundiah’s medical file is essential to Plaintiff’s claim.
Like Dr. Nanjundiah, Dr. Elsawy opined that Plaintiff had marked restriction in her ability
to complete a normal work day and work week without interruption from psychologically based

2

In March, 2007, Dr. Alice Chambly, Psy.D. reviewed Plaintiff’s file. She concurred with Dr. Sipps
conclusions. ECF Dkt. #12-12, p. 414-427. Dr. Willa Caldwell, M.D., reviewed the file and concurred with
Dr. Sipps’ conclusions as well. Id. at 428-440.

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symptoms and to perform work at a consistent pace, as well as a moderate to marked inability to
accept instructions and to respond appropriately to criticism. ECF Dkt. #12-16, p. 573. According
to the record, Dr. Elsawy began treating Plaintiff in 2006, and Plaintiff visited his office every three
or four months. To the extent that Dr. Elsawy is a treating physician and that his notes may provide
additional support for Plaintiff’s claim based upon her mental impairments, the ALJ should have
subpoenaed Dr. Elsawy’s medical notes.
The Social Security Regulations provide additional support for obtaining records from a
treating source. Listing 12.00(d)(1) of the Introduction to the Listings for Mental Disorders provides
that “[w]e will make every reasonable effort to obtain all relevant and available medical evidence
about your mental impairment(s), including its history, and any records of mental status
examinations, psychological testing, and hospitalizations and treatment.”). 20 C.F.R. Part 404,
Subpart P, Appendix 1, Listing 12.00(d)(1). Section 404.1512(d) of Title 20 of the Code of Federal
Regulations also provides that the SSA has the responsibility to develop a claimant’s complete
medical history for at least the 12 months preceding the month in which a claimant files his
application. 20 C.F.R. § 404.1512(d). Because the only evidence relating to Plaintiff’s mental
impairments in the record was the consultative examination performed by Dr. Sipps, this matter must
be remanded to the ALJ to request the medical file of Dr. Nanjundiah and to subpoena the medical
file of Dr. Elsawy.
In her third argument, Plaintiff asserts that the ALJ did not consider her agoraphobia/panic
disorder in fashioning her RFC. To the contrary, the RFC limits Plaintiff to simple, routine, lowstress tasks that do not take place in public and that involve no more than superficial interactions
with supervisors, coworkers and the public. According to her testimony, Plaintiff is uncomfortable
in groups of larger than five to ten people and that she does not like to be alone in public. The ALJ
considered these limitations and included them in the RFC.
In her fourth argument, Plaintiff contends that the ALJ did not consider the fact that her
impairments worsened over time. Plaintiff writes, “Defense counsel also argued that contrary to
plaintiff’s position, the evidence shows that the ALJ properly considered plaintiff’s medical
impairments throughout the relevant time, and all diagnostic tests were normal or unremarkable. A
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closer look at the evidence is a mischaracterization at best [sic].” ECF Dkt. #20, p. 678. Plaintiff
then cites eight test results, four brain scans, a chest x-ray, an MRI, and two blood tests, included in
the record. However, none of the test results listed by Plaintiff reveal any abnormal results. In fact,
the ALJ considered the entire relevant time period and based his conclusions in the Decision on said
time period.
In her fifth argument, Plaintiff asserts that the ALJ erred when he concluded that Plaintiff
could perform sedentary work because she uses a cane. Plaintiff writes, “Under the POMS No DI
25020.005, medically necessary hand-held assistive devices, if needed for occasional standing or
walking can preclude the ability to perform most unskilled jobs including unskilled sedentary work.”
ECF Dkt. #16, p. 649. POMS DI 25020.005B.6, captioned “Medically-Necessary Hand-Held
Assistive Device” directs the reader’s attention to POMS DI 25015.020B.6, which reads, in pertinent
part:
To find that a hand-held assistive device is medically required, there must be medical
documentation establishing the need for a hand-held 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). The adjudicator must always consider the particular facts of
a case. For example, if a medically required hand-held assistive device is needed only
for prolonged ambulation, walking on uneven terrain, or ascending or descending
slopes, the unskilled sedentary occupational base will not ordinarily be significantly
eroded.
Since most unskilled sedentary work requires only occasional lifting and carrying of
light objects such as ledgers and files and a maximum lifting capacity for only 10
pounds, an individual who uses a medically required hand-held assistive device in
one hand may still have the ability to perform the minimal lifting and carrying
requirements of many sedentary unskilled occupations with the other hand. (Bilateral
manual dexterity is needed when sitting but is not generally necessary when
performing the standing and walking requirements of sedentary work.) For example,
an individual who must use a hand-held assistive device to aid in walking or standing
because of an impairment that affects one lower extremity (e.g., an unstable knee),
or to reduce pain when walking, who is limited to sedentary work because of the
impairment affecting the lower extremity, and who has no other functional limitations
or restrictions may still have the ability to make an adjustment to sedentary work that
exists in significant numbers. On the other hand, the occupational base for an
individual who must use such a device for balance because of significant involvement
of both lower extremities (e.g., because of a neurological impairment) may be
significantly eroded.
In these situations, too, it may be especially useful to consult a vocational resource
in order to make a judgment regarding the individual’s ability to make an adjustment
to other work.

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Consequently, Plaintiff mischaracterizes the content of the POMS section. Plaintiff stated at the
hearing that Dr. Elsawy prescribed the cane and that she needs it for stability when she walks.
Plaintiff relies upon Dr. Elsawy’s assessment of ability to do work-related activities (mental) and a
general medical source statement to further establish that the cane is a medically necessary assistive
device. However, according to Dr. Kellis’ general medical source statement, Plaintiff does not
require the use of a cane. ECF Dkt. #12-16, p. 578. Because Dr. Elsawy’s notes were not in the
record, the ALJ’s reliance upon Dr. Kellis’ notes is warranted.
Finally, Plaintiff contends that SSR 00-4p requires that an ALJ identify and obtain a
reasonable explanation for any conflicts between occupational evidence and the DOT. Here, the VE
stated that “no one collects the data according to the DOT code.” ECF Dkt. #12-3, p. 139. However,
Plaintiff failed to identify any conflict with the VE’s testimony and the DOT either at the hearing or
in this appeal. Merely stating that no one collects data according to the DOT code does not create
a conflict with the DOT. Moreover, the VE actually cited the DOT with respect to each of the jobs
that she concluded that the hypothetical worker with Plaintiff’s limitations could perform. Id. at 135.
Accordingly, Plaintiff’s fifth argument lacks merit.
For the foregoing reasons, the undersigned REVERSES the Commissioner’s decision and
REMANDS the case for the ALJ to request the medical file of Dr. Nanjundiah and to subpoena the
medical file of Dr. Elsawy, and for further factfinding, analysis, and articulation by the ALJ
regarding the treating physician’s rule consistent with this opinion.

DATE: November 4, 2011
/s/George J. Limbert
GEORGE J. LIMBERT
UNITED STATES MAGISTRATE JUDGE

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