Clemmons v. Commissioner of Social Security

Filing 14

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Suzanne Clemmons: that the decision of the Commissioner be REVERSED and REMANDED under sentence four of 42 USC 405(g) and this case CLOSED. Objections to R&R due by 2/13/2012. Signed by Magistrate Judge Stephanie K. Bowman on 1/25/12. (jl1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

SUZANNE CLEMMONS,

Case No. 1:10-cv-902

Plaintiff,

Spiegel, J.
Bowman, M.J.

v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff Suzanne Clemmons filed this Social Security appeal in order to challenge
the Defendant’s determination that she is not disabled.

See 42 U.S.C. §405(g).

Proceeding through counsel, Plaintiff presents three claims of error, all of which the
Defendant disputes. As explained below, I conclude that the ALJ’s finding of nondisability should be REVERSED because it is not supported by substantial evidence in
the administrative record.
I. Summary of Administrative Record
Plaintiff applied for Disability Insurance Benefits (“DIB”) in May 2007, alleging
disability due to a combination of mental and physical impairments, with an onset date
of May 7, 2005 (Tr. 13, 103). After Plaintiff’s application was denied initially and upon
reconsideration, she requested a hearing de novo before an Administrative Law Judge
(“ALJ”). An evidentiary hearing was held in September, 2009, at which Plaintiff was
represented by counsel.

At the hearing, Administrative Law Judge (“ALJ”) Donald

Becher heard testimony from Plaintiff, and from Mark Pinti, an impartial vocational
1

expert. (Tr. 23-70). On October 21, 2009, the ALJ denied Plaintiff’s application in a
written decision, concluding that Plaintiff is not disabled. (Tr. 11-22).
The record on which the ALJ’s decision is based reflects that Plaintiff was born in
1968 and was 36 years old on her alleged onset date. (Tr. 21). She injured her back in
a work-related accident on May 7, 2005, and received workers’ compensation benefits
until January 15, 2007. (Tr. 34-35, 104). Plaintiff graduated from high school, and
previously worked at Walgreen’s in the photo lab, as a cashier, and stocking shelves.
(Tr. 32). Based upon the record and testimony presented at the hearing, the ALJ found
that Plaintiff has the following severe impairments: degenerative disc disease at L5-S1;
plantar fasciitis, billaterally; pitting edema with venous insufficiency, bilaterally; calcaneal
spur, bilaterally; obesity; and depressive disorder. (Tr. 13).
The ALJ determined that none of Plaintiff’s impairments alone, or in combination,
met or medically equaled one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1, such that Plaintiff was entitled to a presumption of disability. (Id.). Rather,
the ALJ determined that Plaintiff retained the following residual functional capacity
(“RFC”) to perform a range of sedentary work, with the following additional limitations:
[A] medically required hand-held assistive device is necessary for
ambulation. She can never climb ladders, ropes, or scaffolds and can
occasionally balance, stoop, crouch and crawl. She must avoid heights,
hazardous machinery and uneven terrain. The claimant retains the ability
to understand, remember and carry out simple to moderately complex job
instructions and can adapt to routine work settings.
(Tr. 14-15). Based upon the record as a whole including testimony from the vocational
expert, and given Plaintiff’s age, education, work experience, and RFC, the ALJ
concluded that, while the Plaintiff is unable to perform her past relevant work, she can
nonetheless perform jobs that exist in significant numbers in the national economy. (Tr.
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20-21). Accordingly, the ALJ determined that Plaintiff is not under disability, as defined
in the Social Security Regulations, and is not entitled to DIB. (Tr. 22).
The Appeals Council denied Plaintiff’s request for review. Therefore, the ALJ’s
decision stands as the Defendant’s final determination. On appeal to this Court, Plaintiff
argues that the ALJ erred: (1) by failing to consider the effects of Plaintiff’s extreme
obesity and the requirement that she use a hand-held assistance device when
determining that she did not meet or equal Listing 1.04; (2) by failing to consider her
extreme obesity in determining her physical RFC; and (3) by rejecting the opinion of
treating physician, Dr. Simons, concerning the level of Plaintiff’s pain.
II. Analysis
A. Judicial Standard of Review
To be eligible for benefits, a claimant must be under a “disability” within the
definition of the Social Security Act.

See 42 U.S.C. §1382c(a).

Narrowed to its

statutory meaning, a “disability” includes only physical or mental impairments that are
both “medically determinable” and severe enough to prevent the applicant from (1)
performing his or her past job and (2) engaging in “substantial gainful activity” that is
available in the regional or national economies. See Bowen v. City of New York, 476
U.S. 467, 469-70 (1986).
When a court is asked to review the Commissioner’s denial of benefits, the
court’s first inquiry is to determine whether the ALJ’s non-disability finding is supported
by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (additional citation and internal

3

quotation omitted). In conducting this review, the court should consider the record as a
whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence
supports the ALJ’s denial of benefits, then that finding must be affirmed, even if
substantial evidence also exists in the record to support a finding of disability. Felisky v.
Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). As the Sixth Circuit has explained:
The Secretary’s findings are not subject to reversal merely because
substantial evidence exists in the record to support a different conclusion .
. . . The substantial evidence standard presupposes that there is a ‘zone
of choice’ within which the Secretary may proceed without interference
from the courts. If the Secretary’s decision is supported by substantial
evidence, a reviewing court must affirm.
Id. (citations omitted).
In considering an application for disability benefits, the Social Security Agency is
guided by the following sequential benefits analysis: at Step 1, the Commissioner asks if
the claimant is still performing substantial gainful activity; at Step 2, the Commissioner
determines if one or more of the claimant’s impairments are “severe;” at Step 3, the
Commissioner analyzes whether the claimant’s impairments, singly or in combination,
meet or equal a Listing in the Listing of Impairments; at Step 4, the Commissioner
determines whether or not the claimant can still perform his or her past relevant work;
and finally, at Step 5, if it is established that claimant can no longer perform his or her
past relevant work, the burden of proof shifts to the agency to determine whether a
significant number of other jobs which the claimant can perform exist in the national
economy. See Combs v. Commissioner of Soc. Sec., 459 F.3d 640, 643 (6th Cir.
2006); 20 C.F.R. §§404.1520, 416.920.
A plaintiff bears the ultimate burden to prove by sufficient evidence that he or she
is entitled to disability benefits. 20 C.F.R. § 404.1512(a). A claimant seeking benefits
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must present sufficient evidence to show that, during the relevant time period, he or she
suffered an impairment, or combination of impairments, expected to last at least twelve
months, that left him or her unable to perform any job in the national economy. 42
U.S.C. § 423(d)(1)(A).
B. Specific Errors
1. Failure to Adequately Consider Obesity and Assistance Device at Step 3
and Failure to Consider Obesity at Step 4
Plaintiff’s first assertion of error focuses on Step 3 of the sequential analysis,
during which the ALJ must determine whether a claimant meets or medically equals a
Listing, thereby entitling her to a presumptive disability finding.

Plaintiff’s second

assertion of error focuses on Step 4 of the sequential analysis, but to the extent that
both claims of error relate to Plaintiff’s obesity, the Court will discuss them together.
The record reflects that Plaintiff is 5'2" and weighs 300 pounds. (Tr. 15, 28).
Plaintiff argued at the administrative level that she met or equaled Listing 1.04, based
upon her herniated disk, numbness, positive EMG, radiculopathy, and positive straight
leg raising test. (Tr. 69). The ALJ accurately described the criteria for that Listing as
follows:
Listing 1.04(A) requires the claimant to demonstrate evidence of nerve
root compression characterized by neuro-anatomic distribution of pain,
limitation of motion of the spine, motor loss (atrophy with associated
muscle weakness or muscle weakness) accompanied by sensory or reflex
loss, and, if there is involvement of the lower back, positive straight-leg
raising test (sitting and supine). Listing 1.04(B) requires a showing of
spinal arachnoiditis, and Listing 1.04(C) requires a showing of spinal
stenosis with pseudoclaudication.
(Tr. 13).

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While finding no fault with the description of the Listing, Plaintiff argues that the
ALJ erred by concluding without sufficient explanation at Step 3 of his sequential
analysis that the Plaintiff “has not demonstrated these findings.” (Id.). In addition,
Plaintiff contends that the ALJ erred by failing to apply Soc. Sec. Ruling 02-1p, by
considering the “additional and cumulative effects” of her morbid obesity in his analysis
of why Plaintiff did not medically equal Listing 1.04. See Listing 1.00(Q).
Plaintiff relies upon Diaz v. Comm’r, 577 F.3d 500 (3rd Cir. 2009), in which the
Third Circuit Court of Appeals remanded on similar facts. There, like the instant case,
the plaintiff had claimed that she met or medically equaled a Listing based in part upon
her morbid obesity. In Diaz as here, the ALJ agreed that the plaintiff’s morbid obesity
was a “severe” impairment, but the Court of Appeals remanded based upon ALJ’s
failure to comply with SSR 02-1p by considering - and explaining in his written analysisthe effects of morbid obesity at Step 3 and beyond.
Regrettably, the Defendant fails to discuss Diaz, and fails to offer any significant
discussion in opposition to this asserted error at Step 3. Instead, moving on to Plaintiff’s
second assertion of error at Step 4 of the sequential analysis (the determination of the
Plaintiff’s residual functional capacity), Defendant argues that “a close reading of the
ALJ’s decision shows that in his RFC assessment he addressed the additional
limitations imposed by Plaintiff’s obesity (Tr. 15-17).” (Doc. 12 at 8).
Other federal courts, like the Third Circuit in Diaz, have held that a blanket
statement that a claimant does not meet or medically equal any Listing is legally
insufficient to comply with Step 3 of the sequential analysis, in the absence of additional
analysis that provides a basis for that conclusion. See, e.g., Diaz, supra; Audler v.

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Astrue, 501 F.3d 446, 448 (5th Cir. 2007); Burnett v. Comm’r of Soc. Sec., 220 F.3d 112,
119-120 (3rd Cir. 2000). By contrast, to date, no published Sixth Circuit case requires
an ALJ to articulate in any particular detail the manner in which a claimant failed to meet
or equal a Listing.

To the contrary, historically the Sixth Circuit has required only

minimal articulation at Step 3 of the sequential analysis, see Price v. Heckler, 767 F.2d
281, 284 (6th Cir. 1985); Bledsoe v. Barnhart, 165 Fed. App’x 408, 412 (6th Cir.
2006)(stating in a case where obesity was not severe, that “[i]t is a mischaracterization
to suggest that Social Security Ruling 02-01p offers any particular procedural mode of
analysis for obese disability claimants.”). So long as the ALJ’s decision as a whole
articulates the basis for his or her conclusion, the decision may be affirmed. See Hurst
v. Sec’y of Health & Human Servs., 753 F.2d 517, 519 (6th Cir. 1985).
The problem in this case is that, as in Diaz, the ALJ’s analysis of the claimed
impact of Plaintiff’s morbid obesity on Listing 1.04 does not permit this Court to conduct
meaningful judicial review. The closest that the ALJ came to any explanation was the
conclusory statement that Plaintiff’s “severe impairments do not meet or equal any
applicable listing, even when the additional and cumulative effects of obesity are
considered (see SSR 02-1p).”

(Tr. 14, emphasis added).

Despite the conclusory

statement that obesity was considered at Step 3, the ALJ’s written decision offers no
clues as to how Plaintiff’s obesity was considered at either Step 3 or Step 4.
Although in Bledsoe the Sixth Circuit held that no particular type of analysis is
required to comply with SSR 02-1p, at least two unpublished Sixth Circuit cases, as well
as both unpublished and published cases from this district, support Plaintiff’s position
that greater analysis was required at Steps 3 and 4 in this case. See Reynolds v.

7

Comm’r of Soc. Sec., 424 Fed Appx. 411, 2011 WL 1228165 *4 (6th Cir. April 1,
2011)(agreeing with Third and Fifth Circuits and holding that an ALJ must in fact “give
an explained conclusion” as to why a claimant’s impairment does or does not meet a
potentially relevant Listing); Kennedy v. Astrue, 247 Fed. Appx. 761, 768 (6th Cir.
2007)(same); see also Norman v. Astrue, 694 F. Supp.2d 738, 741 (N.D. Ohio
2010)(where obesity is severe impairment, ALJ must do more than “mention the fact in
passing.”); Miller v. Comm’r of Soc. Sec., 181 F. Supp.2d 816, 820 (S.D. Ohio
2001)(directing remand where ALJ’s decision contained no discussion at all, and plaintiff
presented “evidence suggesting that he was disabled under Listing §11.03" based upon
objective EEG findings, and testimony concerning the frequency and severity of his
epileptic seizures); Motley v. Comm’r of Soc. Sec., Case No. 1:08-cv-418-SAS, 2009
WL 959876 (S.D. Ohio April 8, 2009)(remanding based upon failure to discuss evidence
in light of analytical framework of Listing, including effect of obesity).
The ALJ acknowledged medical evidence that Plaintiff’s obesity “severely
compromised her recovery and limited her treatment options,” including precluding her
from back surgery. (Tr. 15-16, 222). Plaintiff’s obesity also made it “difficult” for her to
undergo “full” nerve study testing. (Tr. 16-17). Numerous medical records refer to
Plaintiff’s obesity; her treating physician states flatly that her “overall pain syndrome is
complicated by her morbid obesity.” (Tr. 367; see also Tr. 397, noting that obesity
interferes “significantly” with pain and ambulation). In another record, Dr. Simons stated
“it is difficult for her to walk for any long periods of time due to her weight.” (Tr. 386).
Medical records also reflect symptoms such as “swelling of both legs attendant with
obesity.” (Tr. 221). Although a detailed Step 3 analysis and more detailed consideration

8

at Step 4 may not be required in every case, I conclude that additional analysis was
necessary on the facts of this case, where Plaintiff’s obesity was a “severe” impairment
which clearly had a significant impact on her pain level and functional limitations.
The Defendant’s brief argument that Plaintiff “has not presented evidence of any
functional limitations resulting specifically from her obesity” is unpersuasive. Plaintiff’s
contention is that her morbid obesity combined with other impairments is the medical
equivalent of Listing 1.04, and/or precludes her from all sedentary work. See Lowry v.
Astrue, 2008 WL 4372658 *6 (S.D. Ohio 2008)(where Plaintiff has asserted her obesity
in combination with other impairments precludes her from all sedentary work, argument
that she was required to identify additional specific limitation was a “red herring.”)
In addition to the error in failing to adequately consider her obesity at Steps 3 and
4, Plaintiff asserts that the ALJ failed to consider whether her use of a cane or other
ambulatory aid resulted in a medical equivalent to the Listing. Plaintiff points out that
Listing 1.00(J)(4) explicitly requires an ALJ to consider whether use of a hand-held
assistive device impacts an individual’s functional capacity “by virtue of the fact that one
or both upper extremities are not available for such activities as lifting, carrying,
pushing, and pulling.”
Defendant argues that Plaintiff’s argument is so perfunctory as to be waived. I
disagree. In addition to noting the same general error as Diaz, Plaintiff’s assertion with
respect to her use of a cane specifically points to functional limitations for lifting,
carrying, pushing, and pulling.
The record reflects that the ALJ made a finding that Plaintiff requires use of a
hand-held ambulatory aid, and that she could “never” climb ladders, ropes or

9

scaffolding. In addition, the ALJ limited Plaintiff to sedentary work, with the additional
restriction that she can only “occasionally balance, stoop, crouch and crawl.” The social
security guidelines define “occasional” to be up to one third of the time, but the ALJ
does not appear to have considered the impact - if any- of Plaintiff’s obesity and her
need to use a cane on her ability to engage in such activities as stooping, crouching,
and crawling.1 Contrast Moody v. Comm’r of Soc. Sec., 2011 WL 3840217 (E.D. Mich.
July 15, 2011)(affirming where medical evidence reflected obesity, and ALJ found that
Plaintiff could not engage in any climbing, crawling, bending, kneeling, stooping or
crouching, could stand for no more than 10 minutes at a time, and required a sit/stand
option, all of which addressed mobility problems associated with obesity). In addition,
the record is completely silent regarding any effect of the ambulatory aid on Plaintiff’s
abilities to lift, carry, push or pull. A silent record on such relevant issues does not
permit meaningful judicial review.
2. Rejection of Opinions of Treating Specialist Dr. Simons
Plaintiff’s third claim of error, concerning the rejection of the opinions of her
treating physician, confirms the need for remand in this case. Plaintiff has been treated
by pain specialist, Dr. Mitchell Simons, nearly once per month for more than three
years.

Dr. Simons referred Plaintiff to Novacare Rehabilitation tor work-related

functional testing, which testing was completed on September 10, 2009. Dr. Simons
subsequently

affirmed

that

assessment,

which

included

functional

limitations

incompatible with any work, but which the ALJ declined to adopt. The assessment also
opines that Plaintiff is incapable of even sedentary work due in part to her pain level.

1

Non-exam ining physicians who com pleted RFC form s provide no indication at all that they
considered Plaintiff’s obesity - or even that they were aware of it. (See, e.g., Tr. 346-347, 379).

10

Applicable regulations require an ALJ to give “controlling weight” to the opinions
of a treating physician, so long as that opinion “is well-supported by medical 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); see also Jones
v. Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003). “If the ALJ declines to give a
treating source’s opinion controlling weight, he must then balance the following factors
to determine what weight to give it: ‘the length of the treatment relationship and the
frequency of examination, the nature and extent of the treatment relationship,
supportability of the opinion, consistency of the opinion with the record as a whole, and
specialization of the treating source.’” Cole v. Astrue, 661 F.3d 931, 937 (quoting Wilson
v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004)(additional citation omitted)).
The regulation also contains a specific duty to “always give good reasons...for the
weight we give [a] treating source’s opinion.” Id., quoting 20 C.F.R. §404.1527(d)(2).
The “good reasons” must “be sufficiently specific to make clear to any subsequent
reviewers the weight the adjudicator gave to the treating source’s medical opinion and
the reasons for that weight.” Id., quoting Soc. Sec. Rul. 96-2p. An ALJ’s failure to
provide an adequate explanation for according less than controlling weight to a treating
source may only be excused if the error is harmless or de minimis, such as where “a
treating source’s opinion is so patently deficient that the Commissioner could not
possibly credit it.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 409 (6th Cir.
2009)(quoting Wilson, 378 F.3d at 547).
In this case, the ALJ rejected the assessment completed by Novacare
Rehabilitation and adopted by Dr. Simons as “not consistent with the evidence,”

11

apparently based largely on the ALJ’s determination that Plaintiff’s pain complaints were
not credible, and that she “does not have consistently documented neurological or
radicular symptoms.” (Tr. 18). To the extent that the RFC reflected the opinions of
Plaintiff’s treating physician who approved it, the ALJ explained his rejection on the
basis that: “[h]er pain management doctor scrawled an obviously hurried signature on a
cover sheet indicating that he agreed with the evaluation, but did not evaluate her
himself and gave no indication why he agreed with the evaluation.” (Tr. 18).
Aside from his disparaging view of Dr. Simons’ signature,2 the ALJ’s analysis fails
to acknowledge the abundance of documentation of pain symptoms, and both
neurological and radicular symptoms, in virtually all of Dr. Simons’ extensive clinical
records. Dr. Simons reported a disc protrusion affecting the S1 nerve root, positive
straight leg raise test, antalgic gait with cane, tenderness, reduced range of motion, and
weakness in the left leg, all of which would have supported Plaintiff’s claim that she met
or medically equaled Listing 1.04, as well as her subjective complaints and a more
limited RFC.

The ALJ commented on Dr. Simons’ clinical findings including

radiculopathy, but never states that he is rejecting them. Instead, the ALJ states:
The undersigned does not dismiss these findings, but they are not
considered conclusive in light of Dr. Fundala’s [sic], Dr. Khan’s, and
hospital doctors’ findings to the contrary. It is noteworthy that Dr. Mitchell
[sic] relied on Dr. Geier’s EMG findings in diagnosing radiculopathy. But
when Dr. Simons sent the claimant for a repeat MRI in May 2008, it
showed the small paracentral herniated disc at L5-S1, but the interpreting
radiologist, Dr. Noh, stated unequivocally that “it does not compress on
the left S1 nerve root.”

2

The ALJ’s description im plies a lack of full review by Dr. Sim ons, but the Court confesses that it
has on m ore than one occasion “hurried” a signature on an opinion after painstaking review. In
any event, out of curiosity the undersigned m agistrate judge attem pted to review the “hurried”
signature, but was unable to locate it on the referenced form , portions of which are illegible in the
Court’s record.

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(Tr. 17). In declining to formally “dismiss” the findings, the ALJ seems to be attempting
to straddle the fence between accepting Dr. Simons’ controlling medical opinions
concerning Plaintiff’s radiculopathy and pain level, and rejecting those opinions.
However, when the ALJ’s decision is read in total, it is obvious that he rejected virtually
all of Dr. Simons’ opinions.
Unfortunately, the ALJ’s analysis is contrary to law. Not only does he fail to
clearly articulate whether he is rejecting all or just some of Dr. Simons’ opinions, but he
never explains what weight he is giving to those opinions. In addition, the ALJ fails to
articulate any of the factors he was legally required to consider when rejecting a treating
physician’s opinion, such as the length of the treating relationship, frequency of
examinations, and consistency with the record as a whole. Therefore, his analysis does
not satisfy the “good reasons” rule as applied in the Sixth Circuit. See Hensley v.
AStrue, 573 F.3d 263, 267 (6th Cir. 2009)(quoting Wilson, 378 F.3d at 545)(“We do not
hesitate to remand when the Commissioner has not provided ‘good reasons’ for the
weight given to a treating physician’s opinion and we will continue remanding when we
encounter opinions from ALJ’s that do not comprehensively set forth the reasons for the
weight assigned to a treating physician’s opinion.”).
To the extent that the ALJ rejected Dr. Simon’s findings of radiculopathy based
upon the lack of any supporting evidence, the ALJ’s analysis was incorrect. The ALJ
states that “examinations have shown no evidence of nerve root compromise,”
(emphasis added), when in fact multiple clinical records and objective tests reflect
evidence of radiculopathy. (See e.g., Tr. 214, 220, 223, 226, 240-41, 266, 287, 358362, 364-65, 368, 370-73, 407, 414, 416). In fact, only one objective test - a 2008

13

repeat MRI ordered by Dr. Simon- reported the lack of nerve root involvement. (Tr.
423). Although the 2008 MRI provides at least some minimal support for a finding that
Plaintiff does not have nerve root impingement, contrary to Dr. Simons’ medical opinion,
the ALJ’s analysis falls short of stating “good reasons.”
To the extent that the ALJ refers to “contrary” medical findings by Drs. Kahn,
Fudula, and “hospital doctors,” the ALJ’s analysis is clearly flawed. Dr. Kahn’s notes do
not reflect whether he ever reviewed the 2005 MRI that objectively showed nerve root
compression; a record dated October 7, 2005 wherein Dr. Kahn recommends that
Plaintiff “get an MRI” implies that he did not. (Tr. 263). Also, a number of Dr. Kahn’s
records are consistent with radicular symptoms. (See Tr. 266, noting “severe low back
pain” that “radiates to her lower extremities.”).
Dr. Fudula, whose opinion the ALJ also cited as “contrary” to Dr. Simons’ opinion
that Plaintiff suffers from radiculopathy, is a chiropractor. Ironically, the ALJ rejected
clinical records that provided consistent evidence of radiculapathy on grounds that
those records were from other chiropractors. (Tr. 18).

In any event, Dr. Fudula’s

records are not “contrary” to Dr. Simons’ opinions. Instead, Dr. Fudula’s records agree
that the 2005 MRI shows nerve root compression or displacement and he recorded
Plaintiff’s consistent complaints of left leg pain, numbness and tingling. (Tr. 220-222).
Although it is true that he found no “objective deficit to pin prick, touch or vibration in
either leg” during one examination, he noted other evidence of radicular symptoms and
opined that Plaintiff was precluded from any work involving any “lifting, bending or
twisting.” (Tr. 222).

14

The “hospital doctors” findings that the ALJ cited as “contrary” to Dr. Simons’
neuropathic findings consist of an emergency room record the day of Plaintiff’s 2005
work injury, where no neurological testing was performed and no findings were made.
Last but not least, Dr. Simons’ clinical findings were supported by what ordinarily would
be considered objective EMG and NCV studies, but which test results were rejected by
the ALJ solely due to the fact that they were performed and interpreted by a chiropractor
with a diplomate certification in neurology, rather than by an M.D. (Tr. 17). While a
chiropractor is not an “acceptable medical source” for purposes of the treating physician
rule, see 20 C.F.R. §§404.1513(a) and (d), that does not mean that an ALJ may reject
the results of objective tests or other clinical evidence solely because it comes from a
chiropractor. See Soc. Sec. Rul. 06-3p, 2006 WL 2329939 (providing that all medical
opinions should be considered under the factors set forth in 20 C.F.R. §404.1527(d)(2)).
3. Credibility Analysis
Plaintiff does not attack the ALJ’s credibility determination as a separate
assignment of error, but nonetheless challenges the evaluation.

In assessing

complaints of pain, an ALJ must review both objective medical evidence and other
evidence. 20 C.F.R. §404.1529(c). A fair reading of the ALJ’s opinion confirms that his
rejection of Dr. Simons’ medical opinions, including his neuropathic findings and finding
of radiculopathy, significantly impacted his assessment of Plaintiff’s subjective
complaints of pain and his formulation of her RFC.
A disability claim can be supported by a claimant’s subjective complaints, as long
as there is objective medical evidence of the underlying medical condition in the record.
Jones v. Comm’r of Soc. Sec., 336 F.3d at 475.

15

However, “an ALJ is not required to

accept a claimant's subjective complaints and may properly consider the credibility of a
claimant when making a determination of disability.” Id. at 476. (citations omitted). An
ALJ’s credibility assessment must be supported by substantial evidence, but “an ALJ’s
findings based on the credibility of the applicant are to be accorded great weight and
deference, particularly since an ALJ is charged with the duty of observing a witness’s
demeanor and credibility.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir.
1997). Further, a credibility determination cannot be disturbed “absent a compelling
reason.” Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001). Thus, it is proper for an
ALJ to discount the claimant’s testimony where there are contradictions among the
medical records, her testimony, and other evidence. Warner v. Comm’r of Soc. Sec.,
375 F.3d at 392.

As is often the case, the record here contains some evidence to

support the ALJ’s credibility determination. (See, e.g., Tr. 368, 382, 397, 418, evidence
of non-compliant and inconsistent narcotic use).
On the facts presented, however, re-evaluation of the Plaintiff’s credibility is
warranted. The errors concerning the ALJ’s failure to fully evaluate Plaintiff’s obesity at
Steps 3 and 4, and his failure to adequately consider her use of a cane at the same
sequential steps, likely impacted his assessment of Plaintiff’s credibility. Among other
reasons provided for discounting the Plaintiff’s credibility, the ALJ was troubled by the
fact that Plaintiff appeared for her functional evaluation at Novacare Rehabilitation with
a walker rather than a cane, implying that she was exaggerating her symptoms in order
to be assessed with greater functional limitations during that functional assessment. (Tr.
18). It is unclear whether the ALJ would interpret the same evidence in the same
manner after more complete consideration of the record. Similarly, the ALJ’s apparent

16

rejection of all of Dr. Simons’ opinions and failure to fully explain what weight he was
giving to those opinions likely adversely affected the assessment of Plaintiff’s credibility.
Because these issues are inseparable from the ALJ’s credibility assessment, the ALJ
should re-evaluate his prior assessment on remand.
Of course, the ALJ might reach the same credibility determination following
remand, and remains free to determine that Plaintiff is not disabled. Evidence that
Plaintiff suffers from one or more objective conditions expected to cause some pain
does not mean that the ALJ must find Plaintiff to be disabled. The Sixth Circuit has
upheld non-disability determinations based upon chronic pain complaints involving
similar complaints and medical diagnoses. See Blacha v. Secretary of Health and
Human Services, 927 F.2d 228, 230-231 (6th Cir. 1990)(affirming ALJ’s determination
that back pain from nerve root compression and herniated disc, coupled with
degenerative changes, was not disabling).
A sentence four remand under 42 U.S.C. §405(g) provides the required relief in
cases where there is insufficient evidence in the record to support the Commissioner's
conclusions and further fact-finding is necessary. See Faucher v. Secretary of Health
and Human Servs., 17 F.3d 171, 174 (6th Cir. 1994) (citations omitted). In a sentence
four remand, the Court makes a final judgment on the Commissioner's decision and
"may order the Secretary to consider additional evidence on remand to remedy a defect
in the original proceedings, a defect which caused the Secretary's misapplication of the
regulations in the first place." Faucher, 17 F.3d at 175.
III. Conclusion and Recommendation
For the reasons explained herein, IT IS RECOMMENDED THAT:

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1.

The decision of the Commissioner to deny Plaintiff DIB benefits be

REVERSED and this matter be REMANDED under sentence four of 42 U.S.C. §405(g);
2. Upon remand, the ALJ should be directed to reconsider: (a) whether Plaintiff
meets or medically equals Listing 1.04; (b) the effects of Plaintiff’s obesity and use of a
hand-held device for ambulation, both at Step 3 and in formulating Plaintiff’s residual
functional capacity at Step 4; (c) what weight to give to the RFC adopted by Plaintiff’s
treating physician, as well as the weight to be given to that physician’s medical opinion
that Plaintiff’s back impairment involves pain from nerve root impingement and
radiculopathy; and (d) the credibility of Plaintiff’s subjective complaints;
3. As no further matters remain pending for the Court’s review, this case be
CLOSED.

/s Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

SUZANNE CLEMMONS,

Case No. 1:10-cv-902

Plaintiff,

Spiegel, J.
Bowman, M.J.

v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s)
of the R&R objected to, and shall be accompanied by a memorandum of law in support
of the objections. A party shall respond to an opponent’s objections within FOURTEEN
(14) DAYS after being served with a copy of those objections.

Failure to make

objections in accordance with this procedure may forfeit rights on appeal. See Thomas
v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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