Sullivan v. Commissioner of Social Security

Filing 21

REPORT AND RECOMMENDATION it is recommended that the decision of the Commissioner be reversed and that the matter be remanded to the Commissioner re 4 Complaint. Objections to R&R due by 7/29/2013. Signed by Magistrate Judge Norah McCann King on 7/12/13. (rew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
KEITH R. SULLIVAN,
Plaintiff,
vs.

Civil Action 2:12-CV-785
Judge Graham
Magistrate Judge King

CAROLYN COLVIN, Commissioner
of Social Security,
Defendant.
REPORT AND RECOMMENDATION
This is an action instituted under the provisions of 42 U.S.C.
§§ 405(g), 1383(c), for review of a final decision of the Commissioner
of Social Security denying plaintiff’s applications for disability
insurance benefits and supplemental security income. This matter is
now before the Court on plaintiff’s Statement of Errors, Doc. No. 14,
the Commissioner’s Memorandum in Opposition, Doc. No. 19, and
plaintiff’s Reply, Doc. No. 20.
Plaintiff Keith R. Sullivan filed his applications for benefits
on December 31, 2008, alleging that he has been disabled since
November 1, 2008, as a result of a fractured and fused ankle, unequal
leg length, post traumatic degenerative arthropathy, lower back pain,
pelvis and joint pain and bulging discs. PAGEID 250. The applications
were denied initially and upon reconsideration, and plaintiff
requested a de novo hearing before an administrative law judge.
A video hearing was held on January 7, 2011, at which plaintiff,
represented by counsel, appeared and testified, as did Robin Cook,

who testified as a vocational expert.1 In a decision dated February
25, 2011, the administrative law judge concluded that plaintiff is
not disabled within the meaning of the Social Security Act. PAGEID
60-70. That decision became the final decision of the Commissioner
of Social Security when the Appeals Council declined review on July
13, 2012. PAGEID 53-56.
Plaintiff was 42 years old on his alleged disability onset date.
PAGEID 244. He has a high school education and past relevant work
experience as a laborer and residential and commercial painter.
PAGEID 136, 251, 254. He has not engaged in substantial gainful
activity since his alleged onset date of November 1, 2008. PAGEID 62.
His insured status for disability insurance purposes lapsed on
December 31, 2011.

PAGEID 60.

In May 1990, plaintiff suffered a fracture of the left medial
malleolus in an industrial accident. PAGEID 345. In April 1995, he
underwent a left ankle joint fusion, PAGEID 380-81, and in December
1995, he underwent a revision fusion for persistent non-union of the
fracture, PAGEID 374-5.

Fusion was still delayed in June 1996,

PAGEID 358, and in January 1997, plaintiff underwent a percutaneous
bone graft. PAGEID 362. In December 1998, hardware was removed from
his left ankle. PAGEID 355-56.

1

Because the resolution of the issues presented in this case do not turn on the
vocational expert’s testimony, the Court will not summarize that testimony.
Similarly, because plaintiff challenges only the Commissioner’s assessment of
plaintiff physical impairments, the Court will not address the evidence relating
to plaintiff’s mental impairments.

2

Terrence

Philbin,

D.O.,

an

orthopedist,

began

plaintiff on June 25, 2003 for left ankle pain.

treating

On clinical

examination, Dr. Philbin noted an obvious deformity, an antalgic
gait, decreased range of motion in the left hindfoot and a slight
plantar flexion in the resting position. Plaintiff was able to bear
weight only partially.

A July 2003 CT scan of the left lower

extremity documented status post arthrodesis of the tibiotalar joint
with severe degenerative changes involving the subtalar joint at the
posterior and middle facets. PAGEID 435-36. Dr. Philbin diagnosed
status post pilon fracture of the left ankle with subsequent fusion
of the tibiotalar joint, advanced degenerative arthritis in the
subtalar joint and moderate arthritis of the talonavicular joint.
PAGEID 438-39. Dr. Philbin recommended a triple arthrodesis. PAGEID
434.
In 2004, Plaintiff’s treating family physician, Teresa Quinlin,
M.D., diagnosed gait disturbance secondary to leg length discrepancy
producing a musculoskeletal strain of the lumbar and pelvic girdle.
PAGEID 405-15.
Martin Andrews, M.D., a pain specialist, treated plaintiff from
October 2005 to January 2011. PAGEID 403-04, 446-80, 487-88, 493,
538-39, 550-53, 591-606, 643-47, 658-64, 686, 701-02.

On clinical

examination, Dr. Andrews noted palpable tenderness over plaintiff's
left ankle, a positive straight leg raise on the left, and diffuse
lumbar tenderness throughout. Id. Dr. Andrews administered epidural

3

steroid injections. A January 2006 MRI of the lumbosacral spine showed
moderate broad based bulging at L5-S1 without objective stenoses,
minimal broad based bulging at L4-5, L3-4, and L2-3 without objective
stenoses, and a long thin epidural lipoma posteriorly. PAGEID 396-97.
In February 2006, Dr. Andrews commented that the shorter length of
plaintiff's left leg, a result of his numerous surgeries, caused an
altered gait. PAGEID 493.
In January 2011, Dr. Andrews completed a Chronic Pain Residual
Functional Capacity Questionnaire. PAGEID 696-700. Dr. Andrews
reported a reduced range of motion, positive straight leg raising,
tenderness,

muscle

spasm

and

abnormal

gait.

Plaintiff’s prognosis was fair. PAGEID 696.

PAGEID

696.

According to Dr.

Andrews, plaintiff could walk 1 city block without rest or severe
pain, could sit for more than 2 hours at a time and could stand for
30 minutes at a time. Plaintiff could stand or walk for a total of
2 hours and could sit for a total of 4 hours in an 8-hour workday.
Plaintiff would require the opportunity to walk and to change
positions at will. He would also need to lie down at unpredictable
intervals during a work shift. Plaintiff could never lift and carry
more than 20 pounds. PAGEID 699. He could not bend and twist at the
waist. Finally, Dr. Andrews opined that plaintiff would be absent from
work more than 3 times per month due to his impairments. Id.
Herbert Grodner, M.D., examined plaintiff on March 13, 2009 at
the request of the state agency. PAGEID 496-502. Plaintiff had an
4

antalgic gait, could not squat and could toe and heel walk only with
his right foot. X-rays of the left ankle revealed surgical changes
with screws and osteopenia and arthropathic changes. X-rays of the
lumbar

spine

revealed

no

evidence

of

compression

spondylosis or spondylolisthesis. PAGEID 497.

fracture,

Dr. Grodner also

referred to an MRI that revealed “some evidence of discogenic
disease.”

PAGEID 498.

There was a 2 inch discrepancy in the length

of plaintiff’s legs and atrophy of the left ankle. Range of motion
of the lumbar spine was mildly decreased.

PAGEID 497.

Dr. Grodner

diagnosed arthrodesis of left ankle and post-traumatic arthritis with
osteopenia. He commented that plaintiff had essentially no movement
of the left ankle and that the limb length discrepancy caused pain
and swelling in plaintiff’s ankle, lower back and left hip.
Characterizing chronic pain as “one of [plaintiff’s] major problems,”
PAGEID 498, Dr. Grodner opined that plaintiff would “have difficulty”
with any weight bearing activity, with walking or standing more than
20 or 30 minutes and with any climbing, kneeling, or squatting. Dr.
Grodner specifically stated, “He probably could perform some type of
sedentary activity but, because of his lower back pain, he may have
some difficulty.” Id. Plaintiff might also need to change positions
frequently. Id.
In May 2009, Myung Cho, M.D., a state agency physician, reviewed
the record and concluded that plaintiff’s subjective complaints of
pain were credible and not disproportionate to the objective
5

evidence.

PAGEID 526.

According to Dr. Cho, plaintiff can

lift

and carry up to 10 pounds occasionally, can stand or walk at least
2 hours, and can sit about 6 hours in an 8-hour workday.

He must

periodically alternate between sitting and standing to relieve pain.
He would be limited in his ability to use his legs. PAGEID 522.

He

could never climb ladders, ropes or scaffolds, and could only
occasionally climb ramps or stairs, balance, stoop, kneel, crouch or
crawl.

PAGEID 523.

He should not work around unprotected heights.

PAGEID 525.
In June 2009, plaintiff underwent a consultative evaluation,
upon referral from Bureau of Workers' Compensation, by William Grant,
M.D. Plaintiff complained of constant pain, which he rated a 7 on a
10-point scale, involving his left ankle. Vicodin, which plaintiff
takes several times per day, diminishes the pain to a 5. Standing on
his left leg for more than 10 minutes at a time is unbearable.

He

also experiences edema of the left leg. Dr. Grant noted only limited
movement of the left foot and a two-inch discrepancy in leg lengths.
That discrepancy has caused herniated discs at L2-3, L-4, L4-5 and
L5-S1. PAGEID 548. According to Dr. Grant, plaintiff can stand no
longer than 10 minutes, can walk no farther than a few yards on a level
surface, cannot climb or descend stairs, cannot climb a ladder, cannot
stoop, squat, crawl or kneel, and cannot sit for longer than 20 minutes
without experiencing increasing pain. PAGEID 549. Plaintiff cannot
lift and carry any weight greater than 5 pounds. Id. Dr. Grant
6

expressly opined that plaintiff is permanently and totally disabled
and unable to perform sustained employment Id.
State agency physician, W. Jerry McCloud, M.D., evaluated
plaintiff's physical residual functional capacity on October 22,
2009. PAGEID 608-15. According to Dr. McCloud, plaintiff can lift 20
pounds only occasionally and 10 pounds frequently; he can stand or
walk at least 2 hours in an 8-hour workday, and can sit for a total
of 6 hours in an 8-hour work day. PAGEID 609.

Plaintiff can never

climb a ladder, rope or scaffolds and can only occasionally climb
ramps and stairs, balance, stoop, kneel, crouch and crawl. PAGEID 610.
Plaintiff should avoid all exposure to hazards.

PAGEID 612. Dr.

McCloud opined that plaintiff’s statements were credible. PAGEID 613.
William Bolz, M.D., another state agency physician, also
reviewed the record in November 2009 and opined that plaintiff could
occasionally lift 20 pounds and frequently lift 10 pounds, could stand
and/or walk at least 2 hours in an 8-hour workday, for no more than
30 minutes at a time, and could sit about 6 hours in an 8-hour workday.
PAGEID 617. Plaintiff could never climb ladders, ropes, or scaffolds,
nor could he kneel or crouch. PAGEID 618. Plaintiff should avoid all
exposure to hazards, especially uneven terrain and unprotected
heights. PAGEID 620. He should be permitted to change position as
needed.

PAGEID 618.

Plaintiff testified at the administrative hearing that he
experiences pain, which he rated as 8 on a 10-point scale. PAGEID 123.
7

Vicodin takes the edge off his pain.

PAGEID 123-24. He also has pain

in his left leg and left hip. PAGEID 124. His pain makes it difficult
to concentrate when he watches television and reads. PAGEID 127-28.
He lives in a second floor apartment but must use the handrail and
take a break when he climbs the stairs to his apartment. PAGEID 114-15.
He leaves his apartment twice a week to go to the grocery store and
the laundromat. PAGEID 116. He needs help carrying his groceries and
laundry up and down the stairs. Id. He relies on his girlfriend to
complete his household chores. PAGEID 125. Because of the unequal
length of his legs, he has difficulty with his back, particularly in
lifting any weight. PAGEID 117.

He must frequently change positions.

PAGEID 118-19.
Plaintiff estimated that he can walk for 10 minutes before
needing to sit. PAGEID 119. He can sit for 30 minutes at a time. PAGEID
120. He must lie down once or twice a day, for 15 to 20 minutes, because
of pain. PAGEID 122-23. He uses a cane occasionally, although a cane
has not been prescribed for him. PAGEID 139-40.

Plaintiff does not

believe that he can perform even sedentary or light work because of
his back pain. PAGEID 140-41.
In his decision, the administrative law judge found that
plaintiff’s severe impairments consist of history of left ankle
fracture; status post left ankle fusion with a history of surgical
procedures to correct nonunion; degenerative disc disease of the
lumbar spine; status post steroid injections; and a history of
8

generalized anxiety. PAGEID 62.

However,

plaintiff’s

severe

impairments neither meet nor equal a listed impairment. Id.
The administrative law judge found that plaintiff has the
residual functional capacity to perform a reduced range of sedentary
work:
[T]he claimant can lift and/or carry up to 10 pounds
occasionally and up to 5 pounds frequently, sit for up to
4 hours at a time, for a total of 6 hours during an 8-hour
workday, and can stand and/or walk for up to 30 minutes at
a time, for a total of 2 hours during an 8-hour workday.
The claimant requires the option to change positions every
30 minutes for up to 15 minutes at a time, cannot climb
ladders, ropes or scaffolds, is limited to only occasional
(up to one third of the day) balancing, stooping, kneeling,
crouching and crawling, and must avoid uneven surfaces.
Furthermore, the claimant is limited to performing simple,
unskilled, repetitive tasks with no more than occasional
(up to one third of the day) interaction with the
supervisors, co-workers and the public.
PAGEID 64.
Finding that this residual functional capacity precluded the
performance of plaintiff’s past relevant work, PAGEID 68, the
administrative law judge relied on the vocational expert’s testimony
to find that plaintiff is nevertheless able to perform other work that
exists in significant numbers in the national economy. PAGEID 69.
Accordingly, the administrative law judge concluded that plaintiff
is not disabled within the meaning of the Social Security Act.

PAGEID

70.
Pursuant

to

42

U.S.C.

§405(g),

judicial

review

of

the

Commissioner’s decision is limited to determining whether the
findings of the administrative law judge are supported by substantial
9

evidence and employed the proper legal standards. Richardson v.
Perales, 402 U.S. 389 (1971). Longworth v. Comm’r of Soc. Sec., 402
F.3d 591, 595 (6th Cir. 2005).

Substantial evidence is more than a

scintilla of evidence but less than a preponderance; it is such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475
(6th Cir. 2003); Kirk v. Secretary of Health & Human Servs., 667 F.2d
524, 535 (6th Cir. 1981). This Court does not try the case de novo,
nor does it resolve conflicts in the evidence or questions of
credibility. Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007).
In determining the existence of substantial evidence, this Court
must examine the administrative record as a whole. Kirk, 667 F.2d at
536. If the Commissioner’s decision is supported by substantial
evidence, it must be affirmed even if this Court would decide the
matter differently, Tyra v. Sec’y of Health & Human Servs., 896 F.2d
1024, 1028 (6th Cir. 1990)(citing Kinsella v. Schweiker, 708 F.2d
1058, 1059 (6th Cir. 1983)), and even if substantial evidence also
supports the opposite conclusion. Longworth, 402 F.3d at 595.
In his Statement of Errors, plaintiff contends that the
administrative law judge failed to properly evaluate the opinion of
Dr. Andrews, plaintiff’s treating pain specialist.

Statement of

Errors, Doc. No. 14 at PAGEID 717.
The opinion of a treating physician must be accorded controlling
weight if it is “well-supported by medically acceptable clinical and
10

laboratory diagnostic techniques” and not “inconsistent with the
other substantial evidence in [the] case record.”

20 C.F.R. §§

404.1527(d)(2), 416.927(d)(2); Gayheart v. Comm’r of Soc. Sec., 710
F.3d 365, 376 (6th Cir. 2013); Rogers v. Commissioner of Social
Security, 486 F.3d 234, 242 (6th Cir. 2007). If the administrative
law judge declines to accord controlling weight to the opinion of a
treating

physician,

the

administrative

law

judge

determine how much weight is appropriate. . . .”

“must

still

Blakley v.

Commissioner of Social Security, 581 F.3d 399, 406 (6th Cir. 2009).
In making this determination, the administrative law judge must
consider such factors as the length, nature and extent of the
treatment relationship, the frequency of examination, the medical
specialty of the treating physician, the opinion's supportability by
evidence, and its consistency with the record as a whole. 20 C.F.R.
§§ 404.1527(d)(2)-(6), 416.927(d)(2) - (6);

Wilson v. Commissioner

of Social Security, 378 F.3d 541, 544 (6th Cir. 2004).

Moreover, an

administrative law judge must provide “good reasons” for discounting
the opinions of a treating physician, i.e., “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.”

Gayheart, at 376; Rogers, at 242,

citing Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *5.
Here, the administrative law judge gave “little weight” to the
opinions of Drs. Andrews and Grant, characterizing their opinions as
11

“incompatible with the manifest weight of the evidence and . . . not
adequately account[ing] for the claimant’s activities of daily
living.”

PAGEID 68.

afforded

only

Specifically, the administrative law judge

“partial

weight”

to

Dr.

Andrews’

opinion,

characterizing that opinion as “inconsistent with the opinions of Dr.
Grodner

and

the

State

agency

acknowledged activities.”

consultants

PAGEID 66.

and

the

claimant’s

He gave “no significant

weight” to the opinions of Dr. Grant, the Workers’ Compensation
examiner who characterized plaintiff as totally disabled, because
that opinion “is completely irreconcilable” with the claimant’s own
statements and testimony.
In his function report [PAGEID 260-67], the claimant stated
that he could lift up to 15-20 pounds, could attend to
dishes and laundry, and could drive to the grocery store
and attend church weekly.
At the video hearing, the
claimant testified that he lives on the second floor and
has to climb stairs to reach his apartment, albeit with some
difficulty.
PAGEID 66. Instead, the administrative law judge gave “significant
evidentiary weight” to the opinion of Dr. Grodner, because it was
based on objective testing and observation and is “generally
consistent

with

the

overall

evidence

of

record.”

PAGEID

68.

Although the administrative law judge stated that he gave “moderate
weight” to the opinion of Dr. Cho, one of the state agency physicians
who reviewed the record, because it “is largely accurate, and is
consistent with the overall evidence of record,” the administrative
law judge also stated that plaintiff “is limited to a slightly greater

12

extent than that determined by Dr. Cho.”

Id.

This Court concludes that the administrative law judge failed
to properly evaluate the medical source opinions.

It is not apparent

that the opinions of Drs. Andrews and Grant are inconsistent with the
other substantial evidence of record.

All physicians who have

examined plaintiff, including Dr. Grodner, have noted the significant
disparity in the lengths of plaintiff’s legs and the resulting back
impairment and chronic pain.

Even Dr. Grodner opined that plaintiff

could not walk or stand more than 20 to 30 minutes.

PAGEID 498.

Moreover, the administrative law judge’s quote of Dr. Grodner’s
opinion, PAGEID 65 (“claimant ‘probably could perform some type of
sedentary activity.’” (emphasis in original)), was not entirely
accurate. Dr. Grodner actually stated that plaintiff “probably could
perform some type of sedentary activity but, because of his lower back
pain, he may have some difficulty.”
original).

PAGEID 498 (emphasis in

Under these circumstances, the Court concludes that the

decision of the Commissioner must be reversed and the matter must be
remanded for further consideration of the medical source opinions.
It

is

therefore

RECOMMENDED

that

the

decision

of

the

Commissioner be reversed and that the matter be remanded to the
Commissioner pursuant to Sentence 4 of 42 U.S.C. § 405(g) for further
consideration.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
13

and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto. 28
U.S.C. §636(b)(1); F.R. Civ. P. 72(b). Response to objections must
be filed within fourteen (14) days after being served with a copy
thereof. F.R. Civ. P. 72(b).
The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right
to de novo review by the District Judge and of the right to appeal
the

decision

of

the

District

Court

adopting

the

Report

and

Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v.
Detroit Federation of Teachers, Local 231 etc., 829 F.2d 1370 (6th
Cir. 1987); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
June 12, 2013

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

14