Jacobs v. Commissioner of Social Security
Memorandum Opinion & Order. The final decision of the Commissioner is vacated and the case remanded, pursuant to 42 U.S.C. § 405(g) sentence four, for further proceedings. Signed by Magistrate Judge Greg White on 2/10/2016. (Related document 1 ) (S,S)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
SAMUEL M. JACOBS,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security )
CASE NO. 5:15-cv-00376
MAGISTRATE JUDGE GREG WHITE
MEMORANDUM OPINION & ORDER
Plaintiff Samuel M. Jacobs (“Jacobs”) challenges the final decision of the Acting
Commissioner of Social Security, Carolyn W. Colvin (“Commissioner”), denying his claim for a
Period of Disability (“POD”), Disability Insurance Benefits (“DIB”), and Supplemental Security
Income (“SSI”) under Title(s) II and XVI of the Social Security Act (“Act”), 42 U.S.C. §§ 416(i),
423, 1381 et seq. This matter is before the Court pursuant to 42 U.S.C. § 405(g) and the consent
of the parties entered under the authority of 28 U.S.C. § 636(c)(2).
For the reasons set forth below, the final decision of the Commissioner is VACATED and
the case is REMANDED for further proceedings consistent with this opinion.
I. Procedural History
On February 24, 2012, Jacobs filed applications for POD, DIB, and SSI alleging a
disability onset date of October 15, 2011. (Tr. 20.) His application was denied both initially and
upon reconsideration. Id.
On May 30, 2014, an Administrative Law Judge (“ALJ”) held a hearing during which
Jacobs, represented by counsel, and an impartial vocational expert (“VE”) testified. (Tr. 20.) On
July 16, 2014, the ALJ found Jacobs was able to perform a significant number of jobs in the
national economy and, therefore, was not disabled. (Tr. 30.) The ALJ’s decision became final
when the Appeals Council denied further review.
Personal and Vocational Evidence
Age thirty-eight (38) at the time of his administrative hearing, Jacobs is a “younger”
person under social security regulations. See 20 C.F.R. §§ 404.1563(c) & 416.963(c). Jacobs
has at least a high school education and past relevant work as an assistant manager, tow motor
operator, and cook. (Tr. 29.)
Relevant Medical Evidence1
Prior to his October 15, 2011 alleged onset date, Jacobs underwent an MRI of the lumbar
spine on January 8, 2011 revealing mild to moderate disk degeneration and small disk extrusion
with S1 nerve root compression. (Tr. 460-61.)
Large portions of the transcript bear no page numbering. As such, the Court will utilize the
page numbers the Clerk’s Office superimposes on top of each page (i.e. __ of 581.) For the
sake of consistency, even where there is page numbering of the transcript, the Court will
continue to use the superimposed numbering. The lone exception is the ALJ’s decision, where
the Court uses the bold numbering in the bottom right corner of the page.
On January 30, 2011, a CT scan of the spine showed degenerative retrolisthesis at C6-C7,
diffuse idiopathic skeletal hyperostosis, and mild congenital narrowing of the central canal. (Tr.
On April 6, 2011, Jacobs began treatment with John Walker, M.D. (Tr. 451-55.) His gait
and spine range of motion were normal. (Tr. 454.) He was unable to walk on his toes or heels,
and had positive straight leg raise and left leg muscle atrophy. Id. He was prescribed Percocet
and Flexeril. Id.
At a follow-up on May 6, 2011, Dr. Walker noted joint pain, limitation of joint
movement, and muscle pain, as well as neurologic weakness, numbness, and paresthesia. (Tr.
447.) Dr. Walker observed Jacobs’s gait was abnormal, as he walked with a limp. (Tr. 448.) He
also observed muscle weakness and decreased muscle tone in the lower extremity. Id. Dr.
Walker assessed disc degeneration, chronic, not controlled; pain, chronic; and, sciatica, chronic,
not controlled. (Tr. 448.) Jacobs was switched from Percocet to Oxicodone and his prescription
for Neurontin was increased. Id. Diet, exercise, and regular physical activity were
recommended. (Tr. 449.) In a letter the same date, Dr. Walker indicated that Jacobs “would
benefit from lifting no more than 15 pounds as well as being able to sit down every 45 minutes to
ease the stress on his back and legs.” (Tr. 445.)
On June 6, 2011, Dr. Walker again noted limitation of joint movement, muscle pain, and
neurologic weakness, numbness, and paresthesia. (Tr. 441.) Dr. Walker observed Jacobs’s gait
was abnormal (walks with a limp), hip joint tenderness and muscle weakness in the left
extremity, 4/5 muscle strength, and abnormal knee reflex. (Tr. 442.) He prescribed Gabapentin,
Lyrica, and Oxycodone. (Tr. 442.) Dr. Walker continued to recommend diet, exercise, regular
physical activity, and balance and resistance training.2 Id.
On July 5, 2011, Dr. Walker noted Jacobs had no joint swelling, no joint or muscle pain,
and no neurologic weakness. (Tr. 437.) Jacobs did have limitation of joint movement, as well as
neurologic numbness and paresthesia. Id. Dr. Walker observed abnormal gait, and in the left
lower extremity, muscle weakness and decreased muscle tone. (Tr. 438.) Jacobs also had an
abnormal light touch sensation. Id. Dr. Walker prescribed Amitriptyline and Oxycodone. Id.
On August 4, 2011, Jacobs complained to Dr. Walker that his left leg is still the same, but
the medications really help him stand longer. (Tr. 430.) He tries not to use his cane too much.
Id. Jacobs’s muscle and joint pain and neurologic weakness returned. (Tr. 431.) Other
musculoskeletal and neurologic symptoms and examination results remained largely unchanged.
(Tr. 431-32.) Dr. Walker assessed sciatica, insomnia, and tobacco abuse. (Tr. 432.) Ambien
was added to Jacobs’s prescriptions. (Tr. 433.)
On August 19, 2011, Jacobs reported to the Wooster Community Hospital ER
complaining of increased lower back pain radiating down his left leg. (Tr. 357.) Jacobs had 5/5
grip strength, no signs of cauda equina, and normal knee jerk reflexes. Id. He did have pain on
palpation over his lumbar spine and left SI joint. Id. He had a positive straight leg raise on the
On September 2, 2011, Jacobs told Dr. Walker that his midday pain was a 6 of 10 as
compared to 4 of 10 with Oxycodone. (Tr. 425.) Jacobs also stated he was using a cane on a
regular basis. Id. Jacobs’s musculoskeletal and neurologic symptoms, examination results, and
Treatment notes also included the following: “Additional testing details: order for Cane.”
(Tr. 444.) Jacobs’ brief asserts that this amounted to a prescription for a cane, though this is
disputable. (ECF No. 15-1 at 4.)
prescriptions remained largely unchanged. (Tr. 426-28.)
On September 5, 2011, Jacobs again went to the Wooster Community Hospital ER with
complaints of left sided back pain radiating down to his leg. (Tr. 348.) Examination revealed
some left-sided muscular tenderness and negative straight leg raise but with pain on the left at
about 40 degrees. He was instructed to follow up with his doctor. Id.
Shortly before his October 15, 2011 alleged onset date, Jacobs was seen by Dr. Walker on
October 4, 2011. (Tr. 420-24.) Jacobs stated that he was able to complete his job with
appropriate rest periods and his pain, though present, was “manageable.” (Tr. 420.) Jacobs
stated that he was concerned about anxiety, and had increased agitation and irritation. Id. Dr.
Walker noted that Jacobs had an abnormal gait (walked with a cane), no muscle weakness but
decreased muscle tone since previous visits, and no neurologic symptoms. (Tr. 423.) Anxiety
was added to Dr. Walker’s assessment and he prescribed Ativan and Paxil. (Tr. 423.)
On November 1, 2011, Jacobs reported to Dr. Walker that he was compliant with
medication and noticed improvement doing his exercises. (Tr. 416.) Jacobs stated that he is able
to work and perform his activities of daily living. Id. Jacobs also opined that the prescriptions
for Ativan and Paxil worked well for his anxiety. Id. Dr. Walker noted that Jacobs had an
abnormal gait, no muscle weakness but decreased muscle tone, back stiffness and pain, joint pain
(without swelling), muscle pain, limitation of joint movement, neurologic weakness but no
numbness or paresthesis, difficulty sleeping, and anxiety. (Tr. 416-418.) Jacobs’s prescriptions
remained unchanged. (Tr. 419.) Dr. Walker recommended that he quit smoking and exercise
regularly, to include flexibility exercises and resistance training. Id.
On November 14, 2011, Jacobs presented to the Wadsworth-Rittman Hospital ER stating
that he exacerbated his back while performing yard work. (Tr. 328.) Examination revealed
soreness of the left paraspinal lumbosacral musculature and left sided sciatica. (Tr. 329.) No
problems were detected in the extremities. Id. He was instructed to follow up with his primary
care physician. Id.
On November 22, 2011, Jacobs complained to Dr. Walker that he had pain in both
shoulders and that his hands go numb. (Tr. 410.) Dr. Walker noted neck pain/tenderness without
stiffness but with abnormal range of motion; limitation of joint movement but no joint pain;
neurologic weakness, numbness, and paresthesia; shoulder joint tenderness with abnormal range
of motion; tight shoulder pain; right hand cold to the touch; positive Spurling’s sign; and,
difficulty sleeping. (Tr. 411-12.) Dr. Walker recommended regular physical activity, flexibility
exercises, and resistance training. (Tr. 412.)
On December 12, 2011, x-rays of Joacobs’s cervical spine revealed degenerative changes
an a “rather large osteophyte arising from the anterior
inferior aspect of the C4 vertebral body.”
On February 7, 2012, Jacobs again went to the Wooster Community Hospital ER
complaining of pain radiating down his right arm. (Tr. 336.) Examination was largely
unremarkable except for some tenderness to palpation over the right trapezius at the base of the
neck. Id. Clinical notes indicated that the attending physician asked Jacobs when he was last
prescribed narcotics, to which Jacobs responded “several months” ago. Id. The attending
physician discovered Jacobs had filled a prescription for narcotics just ten days earlier and that a
30-day supply of Oxycodone (90 tablets) was gone in 10 days. (Tr. 336-37.) The doctor wrote,
“I do not feel he is being honest with me. I certainly will not write him a script for any narcotic
pain meds, certainly do not think he needs any radiographic studies as he has . . . nontraumatic
neck pain.” (Tr. 337.)
On February 20, 2012, an MRI revealed right paramedian posterior/caudal disk
protrusion, with mild mass effect on the ventral spinal cord, as well as multilevel degenerative
changes with foraminal stenosis. (Tr. 370.)
On February 21, 2012, Jacobs told Dr. Walker he was having “much more problems”
with his back and shoulders, had a pain level of 7 out of 10, and severe twitching in the back or
legs. (Tr. 400.) Dr. Walker noted chest pain, palpitations; abnormal memory function; pain in
left leg with all range of motion but otherwise no abnormalities in the lower extremities
regarding range of motion, muscle weakness, or muscle tone; and, abnormal light touch
sensation. (Tr. 400-402.) Dr. Walker assessed chronic pain, periodic limb movement disorder,
and sciatica. (Tr. 403.) Ropinirole was added to his prescriptions. Id.
On March 21, 2012, Jacobs reported his pain level was decreased. (Tr. 479.) Dr. Walker
noted back stiffness/pain, joint pain, limitation of joint movement, but no neck pain/stiffness or
joint swelling. (Tr. 480.) He also noted neurologic weakness but no paresthesia; muscle
weakness and decreased muscle tone in the lower left extremity; 4/5 strength; decreased calf
circumference; and, abnormal light touch sensation. (Tr. 480-81.)
In an undated Basic Medical form, Dr. Walker indicated that Jacobs suffers from “sciatica
724.3, degenerative disc disease 722.6, degenerative intervertebral disc-cervical 722.4 [and]
spinal stenosis 724.00.” (Tr. 365.) Dr. Walker indicated that Jacobs’s medical issues were stable
but still cause physical symptoms, and he did not anticipate much more improvement. Id.
He further opined that Jacobs could stand/walk five hours in an eight-hour workday (one hour
without interruption) and sit for eight hours (45 minutes without interruption).3 (Tr. 366.) He
stated that Jacobs could lift six to ten pounds occasionally, but left blank all the boxes indicating
the weight that could be lifted frequently.4 Id. Dr. Walker noted that Mr. Jacobs was extremely
limited in his ability to push/pull, bend, reach, and to perform repetitive foot movements. (Tr.
366.) Jacobs was noted to have markedly limited ability in handling, but no problems seeing,
hearing, or speaking. Id. Dr. Walker indicated that his opinion was supported by MRIs
performed on February 10, 2012 and April 7, 2011. Id. Finally, Dr. Walker indicated that the
aforementioned limitations were expected to last 12 months or more. Id.
On June 12, 2012, State Agency physician William Bolz, M.D., opined that Jacobs could
lift up to ten pounds both occasionally and frequently (and push and pull within these
parameters); stand/walk a total of 2 hours and sit for six hours in an eight-hour workday;
occasionally climb ramps/stairs, balance, kneel, crouch, and crawl; never climb ladders, ropes, or
scaffolds; limited reaching and handling; unlimited fine manipulation; and, had no environmental
limitations except to avoid all exposure to hazards and heights. (Tr. 108-110.)
On July 12, 2012, Jacobs told Dr. Walker that he was doing better from a pain standpoint
and was not using his cane much. (Tr. 475.) On examination, Jacobs had neck tenderness and
abnormal range of motion, lumbar spine tenderness, and decreased muscle tone in the lower left
extremity. (Tr. 476.) He continued to recommend regular physical activity and flexibility
exercises. (Tr. 477.)
On September 13, 2012, State Agency physician Elizabeth Das, M.D., agreed with Dr.
The form indicates that Jacobs was last seen by Dr. Walker on May 14, 2012. (Tr. 366.)
“Up to 5 lbs.” was the lowest amount that could be checked on the form. (Tr. 366.)
Bolz’s assessment in its entirety. (Tr. 130-132.)
On September 16, 2012, Jacobs presented to the Wadsworth-Rittman Hospital ER
indicating that he fell down the steps after tripping over his shoe laces. (Tr. 391.) He hit his face
during the fall and was uncertain if he lost consciousness. Id. He denied bruising, neck pain, or
radicular symptoms, but did report pain in his lower back, right shoulder, and right first
metacarpal. Id. Jacobs had 5/5 muscle strength in both the upper and lower extremities and his
gait was within normal limits. Id. Jacobs was given Ibuprofen and Percocet for his pain. (Tr.
On September 25, 2012, Jacobs was seen by Dr. Walker and stated that he had fallen
down the stairs when his left leg gave out. (Tr. 472.) He complained of lingering pain in his face
and chest from the fall. Id. Dr. Walker noted chest pain, blurred vision, neck stiffness/pain, back
stiffness/pain, limitation of joint movement, but no neurologic symptoms. (Tr. 473.) Dr. Walker
also noted an abnormal gait. Id. The treatment plan included obtaining an x-ray of Jacobs’s ribs
to address fracture concerns. (Tr. 474.)
On October 15, 2012, Jacobs reported that he was doing better, but still experienced pain
in his ribs. (Tr. 468.) His facial pain had improved and was taking an increased dose of
Oxycodone, which he felt provided greater relief for his chronic pain. Id. Jacobs presented with
neck stiffness/pain, joint pain, tenderness over the left ribs. (Tr. 469.) Dr. Walker assessed
sciatica, closed fracture of one rib, and trauma to the face/neck. Id. The prescription for
Oxycodone was increased. Id.
On October 16, 2012, Dr. Walker completed a Residual Functional Capacity
Questionnaire. (Tr. 382-83.) Therein, Dr. Walker indicated that Jacobs suffers from chronic
pain, disc degeneration disease, and sciatica
all with a poor prognosis. (Tr. 382.) Dr. Walker
identified Jacobs’s symptoms as pain, weakness, parasthesius [sic], numbness, and poor
ambulation. Id. Jacobs also experienced the following side effects from his medications:
dizziness, drowsiness, upset stomach, itching, urinary hesitation, and mental status change. Id.
Dr. Walker indicated Jacobs could walk a one-half city block without rest or pain, and could
stand/walk fifteen minutes at one time and only fifteen minutes in an entire 8-hour work day. Id.
He similarly indicated that Jacobs could sit for fifteen minutes at a time for a total of fifteen
minutes in a workday. Id. Dr. Walker opined that a sit/stand option was necessary as well as
unscheduled breaks that would occur constantly. Id. Dr. Walker further opined Jacobs could
occasionally (up to 1/3 of an 8-hour workday) lift/carry ten pounds but never any more weight.
(Tr. 383.) Dr. Walker stated that Jacobs could perform gross manipulation for 60% of the
workday, fine manipulation for 90%, and reach with his arms 25% of the time. (Tr. 383.) He
also opined that Jacobs would be absent more than four times per month due to his impairments.
Id. Dr. Walker did not believe Jacobs was a malingerer and opined he could not work full-time
on a sustained basis. Id.
On October 28, 2012, Jacobs presented to the Wadsworth-Rittman Hospital ER again
stating that he fell down the steps after being struck in the face by another person. (Tr. 387.) He
complained of right knee and lower back pain. Id. Examination revealed some midline
tenderness over his mid to lower lumbar spine. (Tr. 388.) Pain was exacerbated by moving,
bending, and twisting. Id. Jacobs had 5/5 strength in his upper and lower extremities. Id.
Straight leg raising was negative. Id. Jacobs had a normal gait. Id. Hospital staff noted that
Jacobs failed to report that he was taking both Vicodin and Percocet. Id. He was given Percocet
at the hospital but was not sent home with any narcotic medication. Id.
On October 28, 2012, an x-ray of Jacob’s lumbar spine showed “moderately severe
degenerative disk disease at the lumbosacral junction,” but no subluxation or signs of acute
traumatic injury. (Tr. 389.)
On January 9, 2013, Jacobs reported to Dr. Walker that his pain was better controlled,
that he was applying for disability, and that he needed some assistance with activities of daily
living. (Tr. 497.) Examination revealed neck tenderness, tenderness directly over left ribs, and
decreased musculature of the left calf. (Tr. 498.) Dr. Walker advised Jacobs to quit smoking and
lose weight, and also recommended regular physical activity and flexibility exercises. (Tr. 499.)
On January 16, 2013, Dr. Walker completed another Residual Functional Capacity
Questionnaire. (Tr. 488-89.) Therein, Dr. Walker indicated that Jacobs suffers from chronic
pain syndrome and sciatica
both with a poor prognosis. (Tr. 488.) Dr. Walker identified
Jacobs’s symptoms as pain, numbness, weakness, parasthesias [sic], and poor ambulation. Id.
Dr. Walker stated that Jacobs’s symptoms would constantly interfere with his ability to
concentrate on simple work-related tasks. Id. Jacobs also experienced the following side effects
from his medications: dizziness, drowsiness, pruritis, and urinary retention. Id. Dr. Walker
indicated Jacobs could walk a one city block without rest or pain, and could stand/walk ten
minutes at one time for a total of two hours in an 8-hour work day. Id. He similarly indicated
that Jacobs could sit for ten minutes at a time for a total of two hours in a workday. Id. Dr.
Walker opined that a sit/stand option was necessary as well as unscheduled breaks every twenty
to thirty minutes and last for 15 to 20 minutes. Id. Dr. Walker further opined Jacobs could
occasionally (up to 1/3 of an 8-hour workday) lift/carry ten pounds but never any more weight.
(Tr. 489.) Dr. Walker checked the box indicating Jacobs had no limitations doing repetitive,
reaching, handling, and fingering. Id. He did opine that Jacobs would be absent more than four
times per month due to his impairments. Id. Dr. Walker did not believe Jacobs was a malingerer
and opined he could not work full-time on a sustained basis. Id.
On May 1, 2013, Jacobs reported to Dr. Walker that he had increased activity and
improved function. (Tr. 494.) Dr. Walker’s symptoms included back pain, joint pain, limitation
of joint movement, numbness, and paresthesia. (Tr. 495.) Physical examination revealed neck
tenderness and decreased musculature of the left calf. Id.
On July 31, 2013, Jacobs reported that his exercise was limited by chronic pain and
sciatica. (Tr. 558.) Back pain, joint pain, limitation of joint movement, and neurologic weakness
were all noted. (Tr. 559.)
On August 12, 2013, Dr. Walker completed a third Residual Functional Capacity
Questionnaire. (Tr. 509-511.) Therein, Dr. Walker indicated that Jacobs suffers from sciatica
with a poor prognosis. (Tr. 509.) Dr. Walker identified Jacobs’s symptoms as pain, numbness,
weakness, parasthesias, and decreased range of motion. Id. Dr. Walker stated that Jacobs’s
symptoms would constantly interfere with his ability to concentrate on simple work-related tasks.
Id. Jacobs also experienced the following side effects from his medications: itching, drowsiness,
weight gain, nausea, and urinary retention. Id. Dr. Walker indicated that Jacobs would need to
recline or lie down in excess of normally allotted breaks. Id. He indicated Jacobs could walk
zero city blocks without rest or pain, and could stand/walk fifteen minutes at one time for a total
of two hours in an 8-hour work day. Id. He similarly indicated that Jacobs could sit for twenty
minutes at a time for a total of three hours in a workday. Id. Dr. Walker opined that a sit/stand
option was necessary as well as unscheduled breaks every thirty to forty-five minutes and last for
at least ten to fifteen minutes. Id. Dr. Walker further opined Jacobs could occasionally (up to
1/3 of an 8-hour workday) lift/carry less than ten pounds but never any more weight. (Tr. 510.)
He stated that Jacobs could perform gross manipulation for 40% of the workday, fine
manipulation for 40%, and reach with his arms 40% of the time. Id. He again opined that
Jacobs would be absent more than four times per month due to his impairments. Id. Dr. Walker
did not believe Jacobs was a malingerer and opined he could not work full-time on a sustained
On October 22, 2013, Jacobs was seen by Dr. Walker. (Tr. 545-547.) The visit was
focused on Jacobs’s treatment for pneumonia and endocarditis; his musculoskeletal symptoms
were not discussed. Id.
On February 20, 2014, Jacobs reported to Dr. Walker that he has difficulty ambulating in
the winter; has some weakness in his legs; he requires some assistance with activities of daily
living; and, has numbness in his hands and fingers. (Tr. 572-575.) Jacobs’s symptoms included
back pain, joint pain, limitation of joint movement, and paresthesia. (Tr. 573.) Musculoskeletal
examination revealed neck tenderness, decreased muscle tone in the lower extremities, and
decreased musculature in the left calf. (Tr. 574.)
On April 25, 2014, Jacobs told Dr. Walker that his medication was effective but did not
last long enough. (Tr. 579.) He reported sometimes using a cane. Id. Dr. Walker’s observations
included back pain, joint pain, limitation of joint movement, paresthesia, neck tenderness,
decreased muscle time in the lower extremities, and decreased musculature in the left calf. (Tr.
580.) Dr. Walker increased Jacobs’s prescription for OxyContin to one pill four times a day.
(Tr. 581.) He indicated that Jacobs would be referred to pain management if Jacobs felt another
increase in pain medication was needed. Id.
Relevant Hearing Testimony
The ALJ posed the following hypothetical to the VE:
For purposes of the hypotheticals, please assume we’re dealing with an individual
the same age, education, work experience as the claimant. Our hypothetical
individual would be limited to sedentary as defined. They could occasionally
climb ramps, stairs, balance, stoop, kneel, crouch, crawl, never climb ladders,
ropes, or scaffolds, frequent reaching and handling bilaterally that’s reaching in
all directions, avoid concentrated exposure to temperature extremes, avoid all
exposure to hazards such as unprotected heights, further limited to unskilled work
consisting of routine, repetitive tasks in a static environment, no strict time or
strict fast paced I’m sorry, no strict time or strict high production quotas. No
past work. Any work you can cite?
The VE responded that such an individual could perform the work of an order clerk,
Dictionary of Occupational Titles (“DOT”) § 209.567-014; document preparer, DOT § 249.587018; polisher of eyeglass frames, DOT § 713.684-038.5 (Tr. 72-73.) When asked the impact of
two fifteen minute breaks (in addition to those normally allowed), the VE stated that such an
individual would be off task and there would be no jobs available. (Tr. 73.)
The ALJ posed a second hypothetical question adding to the first the restriction of
frequent reaching, handling, and fingering. (Tr. 73.) The VE replied that the previously
identified jobs would remain available. Id.
Finally, the ALJ posed a third hypothetical question again adding to the first the
restriction of occasional reaching, handling, and fingering. (Tr. 73-74.) The VE testified that
The VE stated that these jobs could be performed alternating between sitting and standing
every thirty minutes. (Tr. 73.)
there would be no jobs for such an individual. (Tr. 74.)
III. Standard for Disability
In order to establish entitlement to DIB under the Act, a claimant must be insured at the
time of disability and must prove an inability to engage “in substantial gainful activity by reason
of any medically determinable physical or mental impairment,” or combination of impairments,
that can be expected to “result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.” 20 C.F.R. §§ 404.130, 404.315 and 404.1505(a).6
A claimant is entitled to a POD only if: (1) he had a disability; (2) he was insured when
he became disabled; and (3) he filed while he was disabled or within twelve months of the date
the disability ended. 42 U.S.C. § 416(i)(2)(E); 20 C.F.R. § 404.320.
Jacobs was insured on his alleged disability onset date, October 15, 2011, and remained
insured through the date of the ALJ’s decision, July 16, 2014. (Tr. 22.) Therefore, in order to be
entitled to POD and DIB, Jacobs must establish a continuous twelve month period of disability
commencing between these dates. Any discontinuity in the twelve month period precludes an
entitlement to benefits. See Mullis v. Bowen, 861 F.2d 991, 994 (6th Cir. 1988); Henry v.
The entire process entails a five-step analysis as follows: First, the claimant must not be
engaged in “substantial gainful activity.” Second, the claimant must suffer from a “severe
impairment.” A “severe impairment” is one which “significantly limits ... physical or mental
ability to do basic work activities.” 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, or combination of impairments, meets a required listing under 20 C.F.R. § 404,
Subpt. P, App. 1, 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)(2000). Fourth, if the claimant’s
impairment does not prevent the performance of past relevant work, the claimant is not
disabled. For the fifth and final step, even though the claimant’s impairment does prevent
performance of past relevant work, if other work exists in the national economy that can be
performed, the claimant is not disabled. Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990).
Gardner, 381 F. 2d 191, 195 (6th Cir. 1967).
A disabled claimant may also be entitled to receive SSI benefits. 20 C.F.R. § 416.905;
Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524 (6th Cir. 1981). To receive SSI benefits, a
claimant must meet certain income and resource limitations. 20 C.F.R. §§ 416.1100 and
IV. Summary of Commissioner’s Decision
The ALJ found Jacobs established medically determinable, severe impairments, due to
cervical and lumbar degenerative disc disease, cervical stenosis, depressive disorder, and
generalized anxiety disorder. (Tr. 22.) However, his impairments, either singularly or in
combination, did not meet or equal one listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1. (Tr. 23.)
Jacobs was found incapable of performing his past relevant work, but was determined to have a
Residual Functional Capacity (“RFC”) for a limited range of sedentary work. (Tr. 24, 29.) The
ALJ then used the Medical Vocational Guidelines (“the grid”) as a framework and VE testimony
to determine that Jacobs was not disabled. (Tr. 29-30.)
V. Standard of Review
This Court’s review is limited to determining whether there is substantial evidence in the
record to support the ALJ’s findings of fact and whether the correct legal standards were applied.
See Elam v. Comm’r of Soc. Sec., 348 F.3d 124, 125 (6th Cir. 2003) (“decision must be affirmed
if the administrative law judge’s findings and inferences are reasonably drawn from the record or
supported by substantial evidence, even if that evidence could support a contrary decision.”);
Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983). Substantial evidence has been
defined as “[e]vidence which a reasoning mind would accept as sufficient to support a particular
conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than
a preponderance.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966); see also Richardson v.
Perales, 402 U.S. 389 (1971).
The findings of the Commissioner are not subject to reversal merely because there exists in
the record substantial evidence to support a different conclusion. Buxton v. Halter, 246 F.3d 762,
772-3 (6th Cir. 2001) (citing Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)); see also Her v.
Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999) (“Even if the evidence could also
support another conclusion, the decision of the Administrative Law Judge must stand if the
evidence could reasonably support the conclusion reached. See Key v. Callahan, 109 F.3d 270,
273 (6th Cir. 1997).”) This is so because there is a “zone of choice” within which the
Commissioner can act, without the fear of court interference. Mullen, 800 F.2d at 545 (citing
Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)).
In addition to considering whether the Commissioner’s decision was supported by
substantial evidence, the Court must determine whether proper legal standards were applied.
Failure of the Commissioner to apply the correct legal standards as promulgated by the
regulations is grounds for reversal. See, e.g.,White v. Comm’r of Soc. Sec., 572 F.3d 272, 281 (6th
Cir. 2009); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2006) (“Even if supported
by substantial evidence, however, a decision of the Commissioner will not be upheld where the
SSA fails to follow its own regulations and where that error prejudices a claimant on the merits
or deprives the claimant of a substantial right.”)
Finally, a district 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 v. Astrue, 774 F.
Supp. 2d 875, 877 (N.D. Ohio 2011) (quoting Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir.1996);
accord Shrader v. Astrue, 2012 WL 5383120 (E.D. Mich. Nov. 1, 2012) (“If relevant evidence is
not mentioned, the Court cannot determine if it was discounted or merely overlooked.”);
McHugh v. Astrue, 2011 WL 6130824 (S.D. Ohio Nov. 15, 2011); Gilliam v. Astrue, 2010 WL
2837260 (E.D. Tenn. July 19, 2010); Hook v. Astrue, 2010 WL 2929562 (N.D. Ohio July 9,
Jacobs claims the ALJ erred by failing to provide good reasons for the weight ascribed to
his treating physician, John Walker, M.D. (ECF No. 15-1 at 11-18.) Conversely, the
Commissioner maintains that the ALJ properly assigned little weight to Dr. Walker’s opinions.
(ECF NO. 16 at 8-15.)
Under Social Security regulations, the opinion of a treating physician is entitled to
controlling weight if such opinion (1) “is well-supported by medically acceptable clinical and
laboratory diagnostic techniques” and (2) “is not inconsistent with the other substantial evidence
in [the] case record.” Meece v. Barnhart, 2006 WL 2271336 at * 4 (6th Cir. Aug. 8, 2006); 20
C.F.R. § 404.1527(c)(2). “[A] finding that a treating source medical opinion . . . is inconsistent
with the other substantial evidence in the case record means only that the opinion is not entitled
to ‘controlling weight,’ not that the opinion should be rejected.” Blakley v. Comm’r of Soc. Sec.,
581 F.3d 399 (6th Cir. 2009) (quoting Soc. Sec. Rul. 96-2p, 1996 SSR LEXIS 9 at *9); Meece,
2006 WL 2271336 at * 4 (Even if not entitled to controlling weight, the opinion of a treating
physician is generally entitled to more weight than other medical opinions.) Indeed, “[t]reating
source medical opinions are still entitled to deference and must be weighed using all of the
factors provided in 20 C.F.R. § 404.1527 and 416.927.” Blakley, 581 F.3d at 408.7
If the ALJ determines a treating source opinion is not entitled to controlling weight, “the
ALJ must provide ‘good reasons’ for discounting [the opinion], reasons that are ‘sufficiently
specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating
source’s medical opinion and the reasons for that weight.’” Rogers v. Comm’r of Soc. Sec., 486
F.3d 234 (6th Cir. Ohio 2007) (quoting Soc. Sec. Ruling 96-2p, 1996 SSR LEXIS 9 at * 5). The
purpose of this requirement is two-fold. First, a sufficiently clear explanation “‘let[s] claimants
understand the disposition of their cases,’ particularly where a claimant knows that his physician
has deemed him disabled and therefore ‘might be bewildered when told by an administrative
bureaucracy that she is not, unless some reason for the agency’s decision is supplied.’” Id.
(quoting Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004)). Second, the
explanation “ensures that the ALJ applies the treating physician rule and permits meaningful
appellate review of the ALJ’s application of the rule.” Wilson, 378 F.3d at 544. Because of the
significance of this requirement, the Sixth Circuit has held that the failure to articulate “good
reasons” for discounting a treating physician’s opinion “denotes a lack of substantial evidence,
even where the conclusion of the ALJ may be justified based upon the record.” Rogers, 486 F.3d
Pursuant to 20 C.F.R. § 404.1527(c)(2), when not assigning controlling weight to a treating
physician’s opinion, the Commissioner should consider the length of the relationship and
frequency of examination, the nature and extent of the treatment relationship, how
well-supported the opinion is by medical signs and laboratory findings, its consistency with the
record as a whole, the treating source’s specialization, the source’s familiarity with the Social
Security program and understanding of its evidentiary requirements, and the extent to which
the source is familiar with other information in the case record relevant to the decision.
at 243. Nevertheless, the opinion of a treating physician must be based on sufficient medical
data, and upon detailed clinical and diagnostic test evidence. See Harris v. Heckler, 756 F.2d
431, 435 (6th Cir. 1985); Bogle v. Sullivan, 998 F.2d 342, 347-48 (6th Cir. 1993); Blakley, 581
F.3d at 406.
With respect to Dr. Walker’s opinions, the ALJ discussed them as follows:
Despite the typical findings on exam, the claimant’s treating physician, Dr. John
Walker, in March 2012 concluded that the claimant cannot work and, “should be
granted temporary disability.” In fact, the claimant reported to Dr. Walker on
March 21, that his pain level decreased on opiates. Indeed, the following July, the
claimant reported even greater improvement in his pain level (Exhibit 9F). Thus
controlling weight cannot be given to Dr. Walker’s statements. These are issues
reserved to the Commissioner and the objective medical evidence does not
support his conclusions. Considering the relatively normal findings in the record
I can give this opinion little weight. The claimant may have some issues with his
left leg, but not to the extent he could not perform any work-related activity, even
for a short period. Moreover, his activities of daily living exceed his subjective
complaints and even the objective findings. Moreover, in May 2013, the claimant
reported increased activity and improvement with his function
(Exhibit 11 F/4).
In February 2014, the claimant reported to Dr. Walker that he had some weakness
in his legs and required assistance with ADLs. He also complained of numbness
in his hands and fingers. Dr. Walker reviewed an MRI that showed cervical disc
protrusion with mild ventral mass effect as well as degenerative disc disease.
However, his symptoms and strength increased due to less frequent pain
symptoms. On examination, the claimant had normal neck range of motion but
some tenderness. He had normal range of motion in the upper and lower
extremities, though decreased muscle tone in the lower left extremity. He was
ordered to continue his current medication and remain compliant with his pain
medication contract (Exhibit 19F). The following April, the claimant complained
that the medication did not last long enough, though it is effective. Consequently,
Dr. Walker increased his Oxycodone dose to one pill, four times per day and
noted that a referral to pain management would be necessary for any further
medication increases (Exhibit 20F).
As far as the claimant’s mental impairments are concerned, the record does not
show any current or past treatment for anxiety and depression, though Dr. Walker
notes the claimant has both. He notes also that he treats the claimant with Paxil
and Ativan, which the record shows, but the claimant has little to no complaints
regarding ongoing symptoms. The claimant takes Ambien for insomnia, as
well (Exhibit 16F; 19F). Still, Dr. Walker notes that he never referred the
claimant to a mental health practitioner and the claimant has no functional
restrictions related to his mental impairments (Exhibit 3F). However, that was in
April 2012; and Dr. Walker has not made any conclusions regarding the
claimant’s mental health since that time.
As for the opinion evidence, Dr. Walker submitted several statements regarding
the claimant’s ability to perform work-related activity. I have reviewed these
statements but find that they are not entitled to controlling weight. The statements
are inconsistent with one another as well as the clinical findings contained in the
record. In May 2012, Dr. Walker submitted that the claimant could only perform
a limited range of work at the sedentary level of exertion. He could stand/walk
for 5 hours and sit for 8 hours. He could lift/carry up to 10 pounds occasionally.
He is markedly limited in handling and extremely limited in pushing/pulling,
bending, reaching, and repetitive foot movements (Exhibit 4F). The record does
not support these limitations; therefore, I give this opinion little weight. Records
from March of that year indicate that the claimant’s pain level as decreased. (9F/
15) The next visit notes that he continues to improve and is not using his cane as
Later, in October 2012, Dr. Walker noted that the claimant has pain, weakness,
numbness, tingling, and poor ambulation. He noted that these things interfere
with the claimant’s attention and concentration and that he needs to lay down at
times. He can walk 1h block, sit 15 minutes, stand/walk 15 minutes at a time,
stand/walk a total of 15 minutes, shift positions at will and take extra breaks,
occasionally lift 10 pounds, have limited fine manipulation, limited reaching,
limited gross handling, and absences at more than 4 per month (Exhibit 6F). I can
only give little weight to this opinion as it is confounding and simply not
supported by the objective medical evidence.
Later, in January 2013, Dr. Walker concluded the claimant has pain that interferes
with his concentration and attention. Also, he could only walk less than one
block, sit 10 minutes, stand/walk 10 minutes at a time, stand/walk a total of 2
hours, shift at will, break for 15 to 20 minutes, occasionally lift 10 pounds, and be
absent 4 or more times per month (Exhibit l0F). For the reasons stated above,
again, I give little weight to Dr. Walker’s opinion. The record shows the
claimant’s level of activity goes beyond what Dr. Walker determines and that he is
helped with medication use, as he reported to Dr. Walker on numerous occasions.
Lastly, in August 2013, Dr. Walker made yet another confounding opinion
regarding the claimant’s ability to perform work-related activity. He concluded
that the claimant cannot walk an [sic] blocks, sit 20 minutes, stand/walk 15
minutes at a time, sit a total of 3 hours, stand/walk a total of 2 hours, take
unscheduled breaks every 30 to 45 minutes for 10-15 minutes at a time,
occasionally lift less than 10 pounds, and has limited use of hands for fine and
gross manipulation as well as reaching, and be absent for 4 or more times per
month (Exhibit 13F). Again, for reasons listed below, I must give this opinion
Dr. Walker never recommended the claimant see a specialist, despite his
obviously severe limitations-according to the doctor. He never recommended
surgery, nor is such treatment warranted. What he has recommended is regular
physical activity, aerobic activity and flexibility exercises (11F/6). He has only
treated the claimant with opiates and the claimant has not had any worsening
in his condition since the alleged onset date. In fact, he continues to report
improvement with pain and overall functioning (9F/ 15, 11; 11F/4). Exams do
routinely show decreased muscle tone over the lower left extremity along with
neck tenderness. However, other findings are variable at best. Many exams fail
to document any lumbar tenderness or issues with range of motion and describe
reflexes and sensation as intact (11F/5). Finally, I would note that the opinions
themselves are inconsistent with each other. For example, January 2013 claimant
reportedly can sit 10 minutes at a time but in August 2013 he can sit for 20. May
of 2012 he can stand/walk for a total of 5 hours but in October, he indicates he can
only stand/walk a total of 15 minutes. No explanation is given for these changes.
Consequently, I can give Dr. Walkers’ opinions little weight overall.
The bulk of the reasons given by the ALJ for rejecting the opinions of Dr. Walker are
poorly explained. The ALJ stated that Jacobs’s activities of daily living exceeded both the
subjective complaints and the objective findings (Tr. 26) and that his level of activity goes
beyond Dr. Walker’s assessed limitations. (Tr. 27.) These statements are entirely unexplained.
Earlier in the decision, the ALJ noted that Jacobs is independent in activities of daily living
(“ADLs”), performs activities around the house, and spends time with his girlfriend. (Tr. 23.)
The ALJ fails to cite any evidence of record corroborating these statements. Jacobs did testify
that he occasionally has problems dressing and his girlfriend sometimes helps him with his shirt
or tying his shoes.8 (Tr. 63.) In January of 2013, he reported difficulties with ADLs to Dr.
Walker (Tr. 497), though back in November of 2011 he told Dr. Walker he could perform ADLs.
In any event, the ALJ has failed to explain how an ability to perform ADLs
contradicts the limitations assessed by Dr. Walker. The ALJ also does not identify any activities
beyond ADLs that Jacobs performs which are inconsistent with Dr. Walker’s opinions.
The ALJ also maintains that the record contains “relatively normal findings;” that “[t]he
record does not support [the] limitations” assessed by Dr. Walker; and, that Dr. Walker’s opinion
is “not supported by the objective medical evidence” and is “confounding.” (Tr. 26-27.) These
blanket conclusory statements, without more, do not support the decision. The ALJ, however,
fails to explain or identify any inconsistencies between the limitations assessed by Dr. Walker
and the objective evidence. Such a terse and conclusory explanation does not, in and of itself,
constitute a “good reason” for rejecting a treating physician’s opinion. See, e.g., Rogers v.
Comm'r of Soc. Sec., 486 F.3d 234, 245-46 (6th Cir. 2007) (finding an ALJ failed to give “good
reasons” for rejecting the limitations contained in a treating source’s opinion where the ALJ
merely stated, without explanation, that the evidence of record did not support the severity of
said limitations); accord Dunlap v. Comm'r of Soc. Sec., 509 Fed. Appx. 472, 2012 U.S. App.
LEXIS 26483 (6th Cir. Dec. 27, 2012); Bartolome v. Comm'r of Soc. Sec., 2011 U.S. Dist. LEXIS
135918, 2011 WL 5920928 (W.D. Mich. Nov. 28, 2011) (noting that merely citing to “the
evidence” and referring to the appropriate regulation was insufficient to satisfy the “good
reasons” requirement); Beukema v. Comm'r of Soc. Sec., 2015 U.S. Dist. LEXIS 85253 (W.D.
Mich. July 1, 2015) (“Simply stating that the physician’s opinions ‘are not well-supported by any
The decision expressly acknowledges this testimony, but apparently rejects it. (Tr. 25.)
objective findings and are inconsistent with other credible evidence’ is, without more, too
‘ambiguous’ to permit meaningful review of the ALJ’s assessment.”) (quoting Gayheart v.
Comm’r of Soc. Sec., 710 F.3d 365, 376-77 (6th Cir. 2013)).
The ALJ does point to some examinations that were “normal” and the decision contains
occasional references to increased activity or improvement. (Tr. 26-27.) However, as this
Court’s own recitation of the medical evidence reveals, Dr. Walker’s treatment notes are replete
with abnormal findings. It is unclear how an isolated “normal” finding, “variable” findings, or
the ups and downs reported in Jacobs’s pain levels undermine Dr. Walker’s opinions. The ALJ
does not cite any medical opinions or experts supporting the medical judgment that normal neck
range of motion or normal range of motion in the extremities on one examination negates Dr.
Walker’s assessment as to Jacobs’s overall level of functioning. The ALJ is not a medical expert
and concomitantly cannot interpret medical evidence. Without any medical expertise, it is
unclear how the ALJ came to the conclusion that the isolated findings he identifies in his
decision contradict or undermine the functional limitations Dr. Walker ascribed to Jacobs. It is
well-established that an ALJ may not substitute his personal interpretation of the evidence for
those of medical professionals. See, e.g., Meece v. Barnhart, 192 Fed. App’x. 456, 465 (6th Cir.
2006) (“[T]he ALJ may not substitute his own medical judgment for that of the treating physician
where the opinion of the treating physician is supported by the medical evidence.”) (citing
McCain v. Dir., Office of Workers' Comp. Programs, 58 Fed. App’x 184, 193 (6th Cir. 2003)
(citation omitted); Pietrunti v. Director, Office of Workers' Comp. Programs, United States DOL,
119 F.3d 1035, 1044 (2d Cir. 1997); Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990) (“But
judges, including [ALJs] of the Social Security Administration, must be careful not to succumb
to the temptation to play doctor.”)); accord Winning v. Comm'r of Soc. Sec., 661 F. Supp.2d 807,
823-24 (N.D. Ohio 2009) (“Although the ALJ is charged with making credibility determinations,
an ALJ ‘does not have the expertise to make medical judgments.’”); Stallworth v. Astrue, 2009
U.S. Dist. LEXIS 131119, 2009 WL 2271336 at *9 (S.D. Ohio, Feb. 10, 2009) (“[A]n ALJ must
not substitute his own judgment for a physician’s opinion without relying on other evidence or
authority in the record.”) (quoting Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000)).
[I]t appears that [the ALJ] has attempted to circumvent the treating source rule by
giving greater weight to his own interpretation of the treatment notes. The ALJ’s
failure to identify other opinion evidence contained in the treatment notes leaves
the Court to determine whether the notes actually contain opinions that are
inconsistent with the formal treating source opinions or whether the ALJ has
simply formulated his own medical opinion as a layperson interpreting the
treatment notes. See Martin v. Commissioner of Social Sec., No.
1:08 CV 00301, 2009 WL 3110203 at *11 (S.D.Ohio Sept.24, 2009), unreported
(“An ALJ, as a layperson, may not substitute his own opinions for those of the
expert doctors.”) citing Brown v. Apfel, 174 F.3d 59 (2nd Cir.1999); Miller v.
Chater, 99 F.3d 972 (10th Cir.1996).
The undersigned recommends that the Court find an additional flaw in the ALJ’s
logic. The ALJ considered treatment notes inherently more reliable because they
are maintained in the course of treatment; however, his logic undermines his
conclusion. Treatment notes are maintained for the purpose of improving a
patient’s condition, and they . . . may often speak in terms of maladies, not
functional capacities. Cf. Griffeth, 2007 WL 444808 at *4 (“The RFC describes
‘the claimant's residual abilities or what a claimant can do, not what maladies a
claimant suffers from-though the maladies will certainly inform the ALJ’s
conclusion about the claimant’s abilities.’”) quoting Howard, 276 F.3d at 240.
Therefore, it is improper for the ALJ to assign greater weight to treatment notes,
which are in most instances not written with the intention of outlining functional
limitations. When the ALJ considered the treatment notes to be inherently more
reliable than treating source opinions, he simply chose to abandon the treating
source rule, which requires him to look at the treating sources opinions and afford
them controlling weight if they are “well supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in your case record.” 20 C.F.R. § 404.1527(d)(2);
416.927(d)(2). Here, the ALJ did not follow the regulations and implemented a
rule of logic that would always displace the treating source’s opinion and permit
the ALJ to substitute his own lay judgment on a review of the treatment notes.
Harmon v. Astrue, 2011 U.S. Dist. LEXIS 21939, 2011 WL 834138 (N.D. Ohio Feb. 8, 2011)
report and recommendation adopted, 2011 U.S. Dist. LEXIS 21945, 2011 WL 825710 (N.D.
Ohio Mar. 4, 2011). As such, the ALJ’s own interpretation of Dr. Walker’s treatment notes is an
insufficient basis for rejecting Dr. Walker’s assessment as to Jacobs’s functional limitations.
The ALJ also stated that Dr. Walker never recommended Jacobs see a specialist or
recommended surgery. (Tr. 27.) Such a statement itself is a medical judgment. It assumes,
without any basis in medical fact, that such modes of treatment are proper for an individual with
the same symptomology as Jacobs. In other words, it is indicative of a belief that a person with
the limitations assessed by Dr. Walker would have been referred to a specialist or a surgeon.
Because Dr. Walker did not do so, the ALJ appears to conclude that either Dr. Walker was not
exercising sound medical judgment, or conversely, that Dr. Walker’s assessment must overstate
Jacobs’s functional limitations. It is problematic, however, that these medical judgments do not
appear to be based on the opinion of a medical expert, a State Agency physician, or any other
physician of record, but rather the ALJ’s personal judgment.
In deciding to ascribe little weight to Dr. Walker’s opinions, the ALJ also points out that
his various opinions are inconsistent with one another. (Tr. 27.) The ALJ indicates that Dr.
Walker provided no explanation for the changes in levels of functioning. Id. Nonetheless, it
bears noting that the forms provided did not request the physician to explain any changes in
functioning from previous opinions rendered or provide any space for him to do so. With two
exceptions, discussed below, Dr. Walker’s opinions are not glaringly inconsistent. Moreover, the
that Jacobs’s functional limitations should remain static over a fifteen month
again strays into the impermissible area of medical judgment. There are, admittedly,
two major outliers contained in Dr. Walker’s opinions. One is specifically identified by the ALJ
an ability to sit and stand/walk for only fifteen minutes in an eight-hour workday contained in
the October 16, 2012 opinion. (Tr. 382.) The second, which the ALJ does not identify, is the
opinion that Jacobs had no limit in his ability to reach, handle, and finger.9
While the ALJ certainly had good reasons for rejecting these aforementioned outlying
opinions, the ALJ essentially rejected Dr. Walker’s opinions en masse. With respect to the
reaching and handling limitations in particular, the ALJ ultimately found that Jacobs could
frequently reach in all directions and handle bilaterally thereby rejecting Dr. Walker’s one
outlying opinion that Jacobs had zero limitations in this area. (Tr. 24.) There is, however, no
explanation as to why Dr. Walker’s more restrictive limitations from his other three opinions, at
least with respect to reaching and gross manipulation, were rejected. As evidenced by the VE’s
testimony, the issue of how much Jacobs could reach, handle, and finger were outcome
determinative. (Tr. 73-74.) Even if the Court were to find that the ALJ gave good reasons for
Dr. Walker’s three other opinions consistently opine that Jacobs’s ability to reach and
perform gross manipulation is less than frequent (i.e. 2/3 of the workday).
25% of workday
40% of workday
60% of workday
40% of workday
90% of workday
40% of workday
rejecting Dr. Walker’s opinions as it related to Jacobs’s ability to sit, stand, and walk, it remains
unclear why the ALJ agreed with three of Dr. Walker’s opinions that Jacobs required some
limitations in this area, particularly in reaching and gross manipulation, but disagreed with the
extent of those limitations. The ALJ’s failure to give good reasons for rejecting these more
restrictive limitations requires a remand.
Finally, the Court notes that the ALJ spent considerable time discussing Jacobs’s pattern of
seeking medical care at ERs, where he would often obtain narcotic pain medication. (Tr. 27-28.)
It appears that Jacobs, at times, concealed the existence or the extent of his prescriptions for
narcotic pain medication from ER medical personnel. The ALJ, however, does not tie any of this
behavior to the self reporting of his symptoms and limitations to Dr. Walker, nor does he explain
how this impacts the viability of Dr. Walker’s opinions.
For the foregoing reasons, the Court finds the decision of the Commissioner not supported
by substantial evidence. Accordingly, the decision is VACATED and the case is REMANDED,
pursuant to 42 U.S.C. § 405(g) sentence four, for further proceedings consistent with this
IT IS SO ORDERED.
/s/ Greg White
U.S. Magistrate Judge
Date: February 10, 2016
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