Adams v. Commissioner of Social Security

Filing 27

ORDER adopting Report and Recommendations re 20 Report and Recommendation affirming the decision by the Commissioner. Signed by Judge Michael R. Barrett on 3/31/14. (ba1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Kenneth Adams,
Plaintiff,
v.

Case No. 1:12cv823

Commissioner of Social Security

Judge Michael R. Barrett

Defendant.
ORDER
This matter is before the Court upon the Magistrate Judge=s January 10, 2014
Report and Recommendation (AR&R@) which recommends that the decision of the
Commissioner be affirmed and this matter be closed on the docket of the Court. (Doc.
20.)
Notice was given to the parties under 28 U.S.C. ' 636(b)(1)(c). Plaintiff filed
objections to the Magistrate Judge=s R&R (Doc. 22) and Defendant filed a Response to
those Objections (Doc. 26).
I.

BACKGROUND
The Magistrate Judge completed a comprehensive review of the record and the

same will not be repeated here except to the extent necessary to address Plaintiff’s
objections. The Magistrate Judge found that there was substantial evidence to support
the ALJ’s decision that Plaintiff was not disabled before June 30, 2006, the date his DIB
insured status expired. 1
At the hearing, Plaintiff amended his onset date to January 1, 2001 in order to account for
the work he performed for temporary services after his retirement. (Tr. 66). However, in several
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Plaintiff’s raises four objections. First, Plaintiff argues the ALJ did not properly
evaluate Plaintiff’s impairments under Listings 1.04 and 14.09. Second, Plaintiff argues
the ALJ did not properly evaluate whether Plaintiff equaled Listings 1.03, 1.04 or 1.09C
based on a combination of his impairments. Third, Plaintiff makes a related argument
that the ALJ’s RFC determination is not based on substantial evidence. Finally, Plaintiff
argues that the ALJ did not properly determine that Plaintiff’s testimony was only credible
as to his present, and not past, functional limitations and activities of daily living.
II.

ANALYSIS
A.

Meeting Listings 1.04 and 14.09

Plaintiff argues that the ALJ did not properly analyze whether Plaintiff’s ankylosing
spondylitis, flexion contracture in his hips and osteoarthritis in his knees met Listings 1.04
(disorders of the spine) and 14.09 (inflammatory arthritis).
The Sixth Circuit has made it clear that an ALJ errs by failing to analyze a
claimant’s physical condition in relation to the Listed Impairments. Reynolds v. Comm'r
of Soc. Sec., 424 F. App'x 411, 416 (6th Cir. 2011). As the court explained:
. . the ALJ needed to actually evaluate the evidence, compare it to
Section 1.00 of the Listing, and give an explained conclusion, in order to
facilitate meaningful judicial review. Without it, it is impossible to say that
the ALJ's decision at Step Three was supported by substantial evidence.
See Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996); Senne v. Apfel,
198 F.3d 1065, 1067 (8th Cir.1999); Burnett v. Comm'r of Soc. Sec., 220
F.3d 112, 120 (3d Cir.2000). As the Third Circuit explained, “[b]ecause we
have no way to review the ALJ's hopelessly inadequate step three ruling,
we will vacate and remand the case for a discussion of the evidence and an
explanation of reasoning” supporting the determination that Reynolds'
severe impairments do not meet or medically equal a listed impairment.
Burnett, 220 F.3d at 120.

places the ALJ refers to his original onset date of October 1, 1999.
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Id. However, the difficulty in this case is that a remand would be a “formalistic matter of
procedure” because the record contains little evidence from the relevant time period
which shows that Plaintiff meets the criteria in Listings 1.04 or 14.09. Cf. Reynolds, 424
F. App'x at 416 (“[I]n this case, correction of such an error is not merely a formalistic
matter of procedure, for it is possible that the evidence Reynolds put forth could meet this
listing.”).
In July of 1992, Dr. Kahn noted that Plaintiff had “no motion in the spine what so
ever.” (Tr. 264.) Dr. Kahn diagnosed Plaintiff with ankylosing spondylitis with persistent
pseudoarthrosis. (Tr. 264.) In August of 1992, Plaintiff had fusion surgery. (Tr. 263.)
One month after the surgery, Dr. Kahn noted that Plaintiff “looked absolutely super” and
was functioning reasonably well after his spine fusion surgery. (Tr. 262.) In November
of 1992, Dr. Kahn noted Plaintiff was doing “quite well.” (Tr. 262.) Dr. Kahn allowed him
to return to work on April 13, 1993. (Tr. 261.)
In January of 1995, Plaintiff returned to see to Dr. Kahn for back pain which started
four months earlier. (Tr. 260.) While x-rays did not show a fracture, Dr. Kahn believed
that Plaintiff had a fracture through part of the ankylosing spine above the fusion. (Tr.
260.)
There are no other records from Dr. Kahn until 2009. Plaintiff acknowledges he
did not make regular visits to his physicians over the years, and that there is a gap in the
treatment records from Dr. Kahn from 1994 to 2009. (Tr. 258-264.) Unfortunately, this
gap coincides with Plaintiff’s alleged period of disability: January 1, 2001 to June 30,
2006. While Dr. Kahn rendered opinions in 2009 and 2011, the ALJ determined that his
opinions did not relate back to Plaintiff’s condition before June 30, 2006.

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The ALJ also rejected the opinion of Malcom A. Brahms, M.D. who testified as a
medical expert at the hearing. (Tr.) 2 In response to questioning from Plaintiff’s attorney,
the medical expert testified that Plaintiff’s ankylosing spondylitis is progressive since his
surgery in 1992. (Tr. 41.) When asked whether Plaintiff meets both the Listing of 1.04C
and 14.09C, the medical expert replied, “That’s correct.” (Id.) However, as support for
his opinion that Plaintiff met Listing 1.04(c), Dr. Brahms pointed to Dr. Kahn’s 2009
opinion. (Tr. 39.) Dr. Brahms did not provide any support for his opinion that Plaintiff
met Listing 14.09C.
The ALJ noted that in May of 2005, Plaintiff’s x-rays showed multiple right rib
fractures. (Tr. 281). However, the ALJ noted that there was no evidence of “arthritis,
nor the signs and findings needed to meet the criteria of Listing 1.04, 14.04, and 14.09.”
(Tr. 26.)
A claimant bears the responsibility of demonstrating that an impairment satisfies
the diagnostic description for the listed impairment in order to be found disabled
thereunder. Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001) (citing King v. Heckler,
742 F.2d 968, 973 (6th Cir. 1984) (holding that a lack of evidence to support the
requirements of Listing 1.05(C) provided substantial evidence that the claimant was not
disabled)). The record does not contain evidence which demonstrates that Plaintiff
meets Listings 1.04 or 14.09C.

Therefore, Plaintiff’s objections on this issue are

OVERRULED.
B.

Equaling Listings 1.03, 1.04 and 14.09C

Plaintiff argues that his combination of advanced ankylosing spondylitis,
osteaoarthritis in his knees and his obesity equals the Listings 1.03, 1.04 or 14.9C.
2

Dr. Brahms was incorrectly identified as “Dr. Brown” in several places in the transcript.
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However, the ALJ explained that no medical source has stated that the severity of the
claimant’s impairments medically equals the criteria of a listed impairment. (Tr. 26.)
Therefore, Plaintiff’s objections on this issue are OVERRULED.
C.

RFC determination

Plaintiff argues that the ALJ’s RFC determination is not supported by substantial
evidence. As explained above, the ALJ determined that Dr. Kahn’s 2009 and 2011
opinions do not relate back to Plaintiff’s alleged period of disability. As the Magistrate
Judge explained in great detail, the ALJ properly considered the medical evidence in the
record in determining Plaintiff’s RFC. Therefore, Plaintiff’s objections on this issue are
OVERRULED.
D.

Credibility

While the ALJ found Plaintiff credible, the ALJ explained that “[l]ittle, if any,
testimony was presented by the claimant that actually described his activities of daily
living and symptoms as they existed prior to the date last insured.” (Tr. 27.) Therefore,
the Court finds that the ALJ’s credibility finding is supported by substantial evidence.
Therefore, Plaintiff’s objections on this issue are OVERRULED.
III.

CONCLUSION
Based on the foregoing, the Court hereby ADOPTS the Magistrate Judge=s

January 10, 2014 R&R (Doc. 20) affirming the decision of the Commissioner. This
matter shall be CLOSED and TERMINATED from the docket of this Court.
IT IS SO ORDERED.
/s/ Michael R. Barrett
Michael R. Barrett, Judge
United States District Court

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