Owens v. Commissioner of Social Security Administration

Filing 18

REPORT AND RECOMMENDATIONS that statement of errors be overruled and judgment be entered for defendant - objections to R&R due within fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 12/22/2014. (agm1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Richard Owens,

:

Plaintiff,

:

v.

:

:
Commissioner of Social Security,
Defendant.

Case No. 2:13-cv-1223
JUDGE GREGORY L. FROST
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Richard Owens, filed this action seeking review
of a decision of the Commissioner of Social Security denying his
application for disability insurance benefits.

That application

was filed on November 4, 2010, and alleged that Plaintiff became
disabled on October 2, 2008.
After initial administrative denials of his claim,
Plaintiff was given a video hearing before an Administrative Law
Judge on May 2, 2012.
ALJ denied benefits.

In a decision dated August 13, 2012, the
That became the Commissioner’s final

decision on October 11, 2013, when the Appeals Council denied
review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on February 7, 2014.

Plaintiff filed his

statement of specific errors on March 27, 2014, to which the
Commissioner responded on July 17, 2014.

No reply has been

filed, and the case is now ready to decide.
II.

Plaintiff’s Testimony at the Administrative Hearing

Plaintiff, who was 38 years old at the time of the
administrative hearing and who has a GED and an Associates
Degree, testified as follows.

His testimony appears at pages 37-

65 of the administrative record.
Plaintiff last worked in October, 2008, when he suffered a
job-related injury.

He was getting workers’ compensation

benefits at the time of the hearing.
fence installer.

He had been working as a

Other past jobs included day laborer,

construction worker, telephone solicitor, project director, and
cashier at a gas station.
The injury Plaintiff suffered was to his back, caused by a
roll of metal fencing falling on him.
injury at L4-5.

He experienced a crush

He also had permanent nerve damage in his left

leg.

These injuries affected his ability to sit, stand, and

walk.

He could not lift and carry objects because he used a

walker.

He underwent surgery in 2010, which involved a spinal

fusion, and had a second surgery in 2011, during which some
hardware was repaired and a build-up on the bone was removed.
His surgeon has recommended a third surgery to address the nerve
damage in his left leg.
Plaintiff testified that his surgeon, Dr. Todd, had
restricted his lifting to five to ten pounds.

Also, he was not

to stoop or bend and was not to stand for more than fifteen or
twenty minutes.

Plaintiff was also instructed to wear his back

brace at all times and to use either a walker or a cane, both of
which were doctor-prescribed.

Plaintiff said that his pain

medications helped somewhat and that he did not have side effects
from them.
In a typical day, Plaintiff got up early because he was
unable to sleep for more than two hours.

He took medication and

ate, and then watched television, either sitting or lying down.
He moved around from the living room to the bedroom and from
couch to recliner.

He had a caretaker living with him.

He was

not able to dress himself and needed help with showering, getting
up from a chair, and getting in and out of vehicles.
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Due to

muscle spasms, he was at risk of falling.

He did no cooking or

shopping and no household chores.
Plaintiff also testified to some psychological issues
including depression and not wanting to be around people.

He was

seeing a psychiatrist but could not take antidepressants due to
other medication he took.

He did not leave the house other than

for doctors’ appointments.
concentration.

His back pain interfered with his

He also had pain radiating into his left leg all

the way to his heel, and he also experienced coldness in his leg.
Walking, even with a walker, was painful.

He had tried other

methods to reduce his pain, like ice and heat, and they were
ineffective.
Plaintiff was asked how much total time he could spend
walking during an eight-hour workday in September, 2009.
estimated about 45 minutes.

He

He could also have stood for 30 to

45 minutes, but no more than three to five minutes at a time.

He

could not have sat for more than two hours total and could not
drive.
III.

The Medical Records

The medical records in this case are found beginning on page
277 of the administrative record.

The pertinent records - those

relating to Plaintiff’s physical condition, since that is the
only condition pertinent to his statement of errors can be
summarized as follows.
Plaintiff did obtain emergency room treatment at the Holzer
Medical Center when the industrial accident occurred (which was
in early October, 2008).

Shortly after the accident, Plaintiff

had an MRI done, based on his complaints of pain and weakness,
coupled with an episode of urinary incontinence.

The study

showed only mild or minimal changes in the lower back with mild
left L5-S1 neural foraminal stenosis.

At that time, Dr. Popper

indicated that Plaintiff was in a “no work status.”
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(Tr. 279-

80).
Plaintiff saw Dr. Mehta for pain management in January of
2009.

Dr. Mehta reported that Plaintiff’s “symptoms greatly

outweigh objective findings” and that although Plaintiff might
truly have pain, Dr. Mehta could not identify a specific cause.
The exam was described as “very inconsistent” and Dr. Mehta
thought some nonorganic factors might be present. (Tr. 376-77).
Dr. Holzapfel examined Plaintiff for the Bureau of Workers
Compensation in May, 2009.

Dr. Holzapfel concluded that

Plaintiff did not need more treatment for his industrial injury,
which he described as “sprains of the left shoulder, neck,
thoracic spine, and lumbar spine,” and he thought Plaintiff was
able to work at a sedentary occupation so long as he did not have
to stand for more than an hour at a time, lift above shoulder
height with his left arm, or do any stooping, squatting,
kneeling, or bending.

He also thought Plaintiff was ready for

vocational rehabilitation.

(Tr. 368-71).

Dr. Todd, who had been seeing Plaintiff for his back
condition, wrote a letter dated October 26, 2009, in which he
noted that injections and physical therapy had not afforded
Plaintiff any lasting relief.

During the October visit,

Plaintiff walked with a narrow-based gait.

Dr. Todd stated that

the physical examination was essentially unchanged from March,
when Plaintiff had range of motion restrictions, an inability to
toe or heel walk on the right side, and positive straight leg
raising on the right (but not on the left).

Dr. Todd’s

impressions included disc protrusion at L5-S1 and, to a lesser
degree, at L4-5, mild disc protrusion at C5-6, and cervical and
lumbar sprain.

The Bureau of Workers’ Compensation had approved

a discogram so that was going to be done.

Plaintiff did report

worsening symptoms since the last time he was seen by Dr. Todd.
(Tr. 329-30, 373-75).

After the discogram, Dr. Todd recommended
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surgery.
The records also include a report done by Dr. Bridger for
the BWC.

In that report, dated February 13, 2010, Dr. Bridger

stated that Plaintiff had been unable to work since the date of
his accident and that the discogram had been performed and
confirmed that Plaintiff’s neurologic pain was related to his
accident.

(Tr. 334-35).

Dr. Popper wrote a letter at about the

same time supporting a request for approval of lumbar fusion
surgery, also confirming that the discogram was “positive from L4
to S1" and that the bulging or degenerated discs were causing
pain.

(Tr. 337-38).

Shortly before that, Plaintiff was

evaluated by Dr. Rutherford for the BWC, who reported that
Plaintiff’s subjective claims included losing his balance all the
time and having a constant “electrical” pain radiating down both
legs but worse on the left.

Plaintiff also said he could not sit

for more than an hour and experienced difficulty in climbing the
three steps up to his house.

On examination, Plaintiff walked

with a cane and limped on the left side.
his toes or heels.

He could not stand on

He showed restriction on the range of motion

in his lower back and he had tenderness in the back and legs as
well as some sensory loss in the left leg.
was positive bilaterally.

Straight leg raising

Dr. Rutherford did not think that

Plaintiff had reached maximum medical improvement and said that
Plaintiff was still unable to return to work.

He was not, at

that time, a candidate for vocational rehabilitation.
42).

(Tr. 339-

However, an emergency room report from February 7, 2010,

showed Plaintiff walking normally and quickly, carrying his cane,
and getting on and off of an examination table without any
difficulty.

That occurred after Plaintiff reported pain so

severe he could barely move.
narcotic pain medication.

Plaintiff was not given any

(Tr. 392-94).

Prior notes from

physical therapy reported that plaintiff was not particularly

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compliant with therapy and engaged in “symptom exaggeration
behavior.”

(Tr. 558-59).

Dr. Todd performed surgery on Plaintiff in June, 2010, which
involved a laminectomy and fusion with instrumentation from L4 to
S1.

Three months later, Plaintiff was still reporting

significant back and leg pain.

Dr. Todd recommended an epidural

injection to be followed by physical therapy.

He also noted that

during the surgery he observed severe neural encroachment.

(Tr.

997-98).
Plaintiff was still having problems nine months after
surgery, and another surgery was discussed.

(Tr. 1026-27).

At

14 months post surgery, some of the hardware had failed, causing
additional pain.

The failure may have been caused by a motor

vehicle accident which occurred in August, 2011.

Plaintiff

underwent a second surgery on November 1, 2011 to replace the
hardware and to repeat the fusion.

Later studies showed good

fusion and alignment of the hardware, but Plaintiff still
complained of uncontrolled pain.
There are quite a number of office notes from Dr. Popper,
and he also filled out monthly forms for BWC.

During the

relevant time frame, he consistently indicated that Plaintiff
could not work.

He did not specifically state whether Plaintiff

was unable to return to his past job or unable to perform any job
at all, and his reports did not include any specific limitations
of function.
Finally, state agency physicians reviewed Plaintiff’s claim.
Dr. McCloud, in an opinion dated February 2, 2011, stated that
through his last insured date, Plaintiff could do a full range of
medium work.

(Tr. 79).

McCloud’s findings,
work.

Dr. Perencevich, who reviewed Dr.

limited Plaintiff to a full range of light

(Tr. 87-88).
IV.

The Vocational Testimony

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Dr. Lanier was the vocational expert in this case.

His

testimony begins on page 65 of the administrative record.
Dr. Lanier categorized Plaintiff’s past work in terms of
skill and exertional level.

He said that the day laborer job was

heavy and semiskilled; the construction worker job was very heavy
and unskilled; the telephone solicitor position was sedentary and
semi-skilled; the tractor-trailer driver was medium and semiskilled; the project director job was skilled and sedentary; and
the gas station cashier job was semiskilled and light.
Dr. Lanier was first asked if someone who had the
limitations to which Plaintiff testified could work.
believe so.

He did not

He was then asked some questions about employee

absenteeism and breaks, and responded that for the first 30 days
of employment, no absences would be tolerated, and then one to
one-and-one-half days per month would be permissible.

In terms

of breaks, an unskilled worker would have to stay on task 90 to
95 percent of the time other than during lunch and regularlyscheduled work breaks.

Dr. Lanier was not asked to give any

other testimony.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 1125 of the administrative record.

The important findings in that

decision are as follows.
The Administrative Law Judge found, first, that Plaintiff
last met the insured status of the Social Security Act on
September 30, 2009.

Second, Plaintiff had not engaged in

substantial gainful activity from his onset date of October 2,
2008 through his last insured date.

As far as Plaintiff’s

impairments are concerned, the ALJ found that Plaintiff had
severe impairments including cervical and lumbar degenerative
disc disease, a history of left shoulder sprain/strain, and
obesity.

The ALJ also found that these impairments did not, at

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any time, meet or equal the requirements of any section of the
Listing of Impairments (20 C.F.R. Part 404, Subpart P, Appendix
1).
Moving to the next step of the sequential evaluation
process, the ALJ found that Plaintiff had the residual functional
capacity to perform work at the sedentary exertional level but he
could not lift above shoulder height on the left side and could
stoop, squat, kneel, and bend only occasionally.

The ALJ found

that, with these restrictions, Plaintiff could not perform his
past relevant work.

Under the medical-vocational guidelines, if

Plaintiff could do a full range of sedentary work, he would be
deemed not to be disabled.

The ALJ found that the restrictions

limiting Plaintiff’s ability to do sedentary work would not
significantly erode the sedentary work base, so that even though
Plaintiff’s condition did not exactly track the grid, he was
still able to do most sedentary work.

Consequently, the ALJ

concluded that Plaintiff was not entitled to benefits.
VI.

Plaintiff’s Statement of Specific Errors

In his statement of specific errors, Plaintiff raises these
issues: (1) the ALJ did not properly evaluate the opinions of the
treating physician, Dr. Popper; (2) the ALJ did not properly
evaluate medical evidence about Plaintiff’s condition which postdated the expiration of his insured status; (3) the ALJ did not
consider all of Plaintiff’s severe impairments; (4) the ALJ did
not properly consider Section 1.04 of the Listing of Impairments;
and (5) the ALJ did not correctly utilize the vocational expert’s
testimony.

The Court analyzes these claims under the following

standard.
Standard of Review.

Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the
Commissioner] as to any fact, if supported by substantial
evidence, shall be conclusive. . . ."

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Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as
Richardson v. Perales, 402

adequate to support a conclusion'"

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.
NLRB, 305 U.S. 197, 229 (1938)).
scintilla.'" Id.
Cir. 1976).

It is "'more than a mere

LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

The Commissioner's findings of fact must be based

upon the record as a whole.

Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th
Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.
1984).

In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into
account whatever in the record fairly detracts from its weight.'"
Beavers v. Secretary of Health, Education and Welfare, 577 F.2d
383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human
Services, 755 F.2d 495, 497 (6th Cir. 1985).

Even if this Court

would reach contrary conclusions of fact, the Commissioner's
decision must be affirmed so long as that determination is
supported by substantial evidence.

Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).
A.

Dr. Popper’s Opinions

Plaintiff’s first argument is that the ALJ did not give
appropriate weight to Dr. Popper’s opinions.

In particular, he

identifies opinions about his ability to return to work, to which
the ALJ gave no weight, and his ambulatory limitations, which the
ALJ did not accept.

He contends that the ALJ had no basis for

concluding that Dr. Popper’s monthly disability reports were
limited to Plaintiff’s ability to return to his past work, and
that the ALJ disregarded significant evidence of gait
abnormalities in concluding that Dr. Popper’s prescription of a
cane was not based on any evidence of record.
It has long been the law in social security disability cases
that a treating physician's opinion is entitled to weight
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substantially greater than that of a nonexamining medical
advisor or a physician who saw plaintiff only once.

20 C.F.R.

§404.1527(c); see also Lashley v. Secretary of HHS, 708 F.2d
1048, 1054 (6th Cir. 1983); Estes v. Harris, 512 F.Supp. 1106,
1113 (S.D. Ohio 1981).

However, in evaluating a treating

physician’s opinion, the Commissioner may consider the extent to
which that physician’s own objective findings support or
contradict that opinion.

Moon v. Sullivan, 923 F.2d 1175 (6th

Cir. 1990); Loy v. Secretary of HHS, 901 F.2d 1306 (6th Cir.
1990).

The Commissioner may also evaluate other objective

medical evidence, including the results of tests or examinations
performed by non-treating medical sources, and may consider the
claimant’s activities of daily living.
HHS, 25 F.3d 284 (6th Cir. 1994).

Cutlip v. Secretary of

No matter how the issue of the

weight to be given to a treating physician’s opinion is finally
resolved, the ALJ is required to provide a reasoned explanation
so that both the claimant and a reviewing Court can determine why
the opinion was rejected (if it was) and whether the ALJ
considered only appropriate factors in making that decision.
Wilson v. Comm’r of Social Security, 378 F.3d 541, 544 (6th Cir.
2004).
Here, the ALJ provided this rationale for weighing Dr.
Popper’s opinions as he did.

First, he pointed out that in the

monthly forms which Dr. Popper completed for the BWC, “he
identified no specific functional limitations.”

(Tr. 22).

He

also determined that Dr. Popper’s statements could “be read to
mean that the claimant could not return to his past work as a
fence installer.”

Id.

The ALJ concluded by noting that Dr.

Popper never said that Plaintiff could perform no work at all;
had he done so, the evidence - specifically Dr. Holzapfel’s
opinion, which was “[t]he only other medical opinion made during
the relevant period” - would not have supported that conclusion.
Finally, the ALJ relied on the objective findings made during Dr.
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Holzapfel’s examination, which were minimal, and other evidence
such as inconsistent examination findings and a strong suggestion
of non-organic factors causing Plaintiff to describe his symptoms
in the way that he did.

(Tr. 22-23).

The Commissioner correctly defends the ALJ’s conclusion that
the “opinions” expressed by Dr. Popper were either not medical
opinions at all or were opinions on an issue reserved to the
Commissioner.

20 C.F.R. §404.1527(a)(2) defines “medical

opinions” as “statements from physicians and psychologists or
other acceptable medical sources that reflect judgments about the
nature and severity of your impairment(s), including your
symptoms, diagnosis and prognosis, what you can still do despite
impairment(s), and your physical or mental restrictions.”

Simply

saying that someone “cannot work” or “is disabled” does not
satisfy this definition.

Further, “[t]he degree to which an

individual is capable of performing work is an issue reserved to
the Commissioner.”

Dixon v. Colvin, 2014 WL 3547378, *9 (S.D.

Ohio July 17, 2014), citing, inter alia, Bass v. McMahon, 499
F.3d 506, 511 (6th Cir. 2007).

Finally, given that Dr. Popper

was reporting his conclusions to the BWC, and the issue for that
entity was whether Plaintiff could return to his past work, a
reasonable person could have concluded, as did the Commissioner,
that Dr. Popper limited his views to that issue and expressed no
opinion about whether Plaintiff could perform some hypothetical
sedentary job.
On the separate issue of Dr. Popper’s decision to prescribe
a cane for Plaintiff, the Court also finds, for the reasons
advanced by the Commissioner, that the ALJ did not have to accept
the proposition that Plaintiff could not walk without one.
Again, there is sparse or conflicting medical evidence about his
ability to walk without assistance, and it is the ALJ’s job to
resolve such conflicts.

See, e.g., Swett v. Comm’r of Social

Security, 886 F.Supp.2d 656, 660–61 (S.D. Ohio 2012).
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Further,

as more fully discussed below, any error in this regard is
harmless given the ALJ’s residual functional capacity finding
limiting Plaintiff to sedentary work.

For all these reasons, the

Court finds no reversible error in the ALJ’s consideration of Dr.
Popper’s opinions.
B.

Medical Evidence after the Last Insured Date

Plaintiff’s second argument is that the ALJ improperly
discounted or ignored evidence of the treatment which Plaintiff
received after the expiration of his insured status.

Plaintiff

claims that nothing exacerbated his condition between his last
insured date and the date of later objective testing, including
Dr. Todd’s surgical findings, so that the later evidence was
probative of his condition on the last insured date.

Despite

that, he asserts that the ALJ reviewed it only briefly and that
the case should be remanded for further consideration of that
evidence.
The Commissioner responds by disputing the factual premise
of this argument.

In the opposing memorandum, the Commissioner

cites to various portions of the ALJ’s decision which refer to or
discuss the evidence relating to Plaintiff’s condition after his
last insured date.

The Commissioner is correct on this point;

the ALJ devoted more than a full page of his decision to a
detailed summary of this evidence.

What Plaintiff seems to argue

is that the ALJ did not give this evidence enough weight,
especially on the issue of whether there was objective medical
support for some of the symptoms Plaintiff was reporting during
the insured period.

This argument, again, asks the Court to

reweigh the evidence even though a reasonable person could have,
on the basis of the entire record - including the opinions of
state agency reviewers who had the benefit of some or all of the
post-2009 records - concluded that Plaintiff retained the ability
to work at some level.

The ALJ did not make a legal error here;

he did not decide, for example, that none of the post-2009
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evidence was relevant or that he could not take the relevant
portions of it into consideration.

Since this is simply a

disagreement about how much weight should be ascribed to these
records, it does not provide a basis for the Court to reverse the
ALJ’s decision.
C.

Other Severe Impairments

Next, Plaintiff contends that the ALJ did not adequately
account for other severe impairments which the record
establishes.

He specifically cites to evidence of functional

limitations from his cervical sprain and strain which were not
factored into the ALJ’s residual functional capacity finding, as
well as such conditions as muscle spasms, disc pathology,
foraminal stenosis, disc protrusions, and pseudoarthrosis.

Since

these impairments caused additional limitations, he claims that
the ALJ erred by not finding that any of them were severe.
Plaintiff concedes that if the ALJ took limitations arising
from nonsevere impairments into account in crafting his residual
functional capacity finding, any error in determining that a
particular impairment was not severe is harmless.

See Statement

of Errors, at 27; see also Pompa v. Comm'r of Social Security, 73
Fed. Appx. 801, *1 (6th Cir. Aug. 11, 2003).

His argument is

that, in fact, the ALJ did not do so, based on his claim that
“the [ALJ’s} decision provides no discussion regarding the
severity of these impairments.”

Statement of Errors, supra.

The

question then becomes whether the ALJ adequately accounted for
Plaintiff’s various impairments in arriving at his conclusion
about Plaintiff’s residual functional capacity.
Most of the “impairments” which Plaintiff identifies are
actually associated with his low back disorder, and are not
really separate impairments at all.

Muscle spasms and disc

pathology, for example, are either symptoms of degenerative disc
disease or an alternate way to describe that condition.

Further,

Plaintiff is simply incorrect when he states that the ALJ
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considered no evidence beyond that which supported a finding of
degenerative disc disease.

The ALJ thoroughly recited the

findings from various diagnostic studies, and made specific
reference to matters like musculoskeletal spasms (Tr. 18), spinal
canal stenosis (Tr. 15), and mild canal and bilateral foraminal
narrowing (Tr. 18).

As the Commissioner notes, the ALJ also

discussed Plaintiff’s reports of pain consistently throughout his
decision.

Plaintiff has not actually identified what additional

restrictions, beyond those found by the ALJ, resulted from the
other impairments shown by the evidence; impairments by
themselves, of course, do not suggest any particular physical
limitations, and the task of formulating a residual functional
capacity finding is focused on limitations rather than
impairments.

Cf. Boston v. Astrue, 2011 WL 4914759,*9 (S.D. Ohio

Sept. 15, 2011)(an ALJ is required “to assess the medical
evidence to determine not whether Plaintiff has [a specific
impairment], but what limitations she suffers as a result and to
include those functional restrictions in the RFC assessment”),
adopted and affirmed 2011 WL 4914939 (S.D. Ohio Oct. 17, 2011).
For these reasons, the Court finds no merit in Plaintiff’s
argument on this point.
D.

Listing 1.04

As his fourth statement of error, Plaintiff argues that the
ALJ - although he found that Plaintiff’s impairments did not meet
or equal the requirements of any section of the Listing of
Impairments - did not actually perform that analysis.

Plaintiff

asserts that the ALJ “missed” the evidence showing that, before
the expiration of his insured status, Plaintiff had many of the
symptoms described in Section 1.04(A), including radiculitis,
weakness, impaired ambulation, positive straight-leg raising,
severe neural encroachment, disc bulging, foraminal stenosis, and
pseudoarthrosis.

Had the ALJ properly considered this evidence,

Plaintiff contends that a finding of “disabled” would have been
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made.
Section 1.04 of the Listing of Impairments relates to
various disorders of the spine.

It directs a finding of

disability if a claimant has one of those disorders - which
Plaintiff does - and if there is, in the words of subsection (A),
“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)....”

At Tr. 20, the ALJ

specifically referred to this section, finding that the medical
evidence did not show the presence of the symptoms required under
either subsection (A) or the other two subsections of Listing
1.04.

Plaintiff appears to be criticizing the ALJ for not

including, in that section of the administrative decision, his
rationale for reaching that conclusion.,
Again, as the Commissioner points out, the ALJ engaged in a
thorough discussion of the evidence in the section of his
decision immediately preceding his analysis of the Listing issue.
Clearly, he was aware of the extensive and sometimes conflicting
evidence as to various aspects of the requirements of Section
1.04(A), and, as the Commissioner argues, had a substantial basis
for finding that not all of these requirements were satisfied, at
least prior to the expiration of Plaintiff’s insured status.

The

results of straight-leg testing varied, sometimes being positive
on one side, sometimes bilaterally, and sometimes only in one
position rather than another.

The evidence concerning motor loss

or atrophy and associated sensory or reflex loss was equivocal.
And there were diagnostic studies which did not show nerve root
compression.

The real question here is not the adequacy of the

ALJ’s articulation of a rationale in the section of his decision
devoted to Section 1.04, but whether the conclusion he reached
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was supported by substantial evidence and whether the record
supports an inference that the ALJ was aware of and considered
the pertinent evidence as part of his decision-making process.
It does, and the evidence allowed a reasonable person to find
that all of the requirements of Section 1.04(A) were not met.
That is sufficient to sustain the ALJ’s decision on this issue
even if the articulation of his rationale was less than optimal.
See Bledsoe v. Barnhart, 165 Fed.Appx. 408, 411 (6th Cir. Jan.
31, 2006)(noting that the “argument that the ALJ should spell out
the weight he gave to each factor in his step three analysis is
not supported by case law”); Lee v. Comm’r of Social Security,
2013 WL 6116814, *7 (N.D. Ohio Nov, 20, 2013)(“The court may look
to the ALJ's decision in its entirety to justify the ALJ's
step-three analysis”).
E.

The Vocational Testimony

Lastly, Plaintiff points out that the residual functional
capacity finding made by the ALJ was never incorporated into the
questions posed to the vocational expert.

He contends that it is

not clear from the record that, with the additional restrictions
found by the ALJ in addition to those inherent in limiting
Plaintiff to sedentary work, there would have been any jobs
Plaintiff was able to perform.

He also faults the ALJ for

accepting Dr. Holzapfel’s opinion about Plaintiff’s capabilities,
arguing that Dr. Holzapfel limited his statements to limitations
caused by Plaintiff’s allowed conditions and not his overall
physical condition, and that other evidence demonstrated more
substantial restrictions.
The primary thrust of this argument is that the ALJ did not
have a substantial basis for finding that Plaintiff could do a
wide range of sedentary work without testimony from a vocational
expert to that effect.

There are some cases where expert

testimony is mandatory and use of the Medical-Vocational
Guidelines (“grid”) is not permitted.
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That is, “the grid only

applies if the individual is capable of performing a wide range
of jobs at the designated level-i.e., sedentary, light or
medium.”
1981).

Kirk v. Secretary of HHS, 667 F.2d 524, 529 (6th Cir.

Nevertheless, vocational testimony is not required in

every case where a claimant’s functional restrictions do not
match the grid precisely; for a claimant “whose impairments do
not precisely match any specific rule, [the claimant’s] residual
functional capacity ... is used as the appropriate framework to
determine whether she is disabled.”
F.3d 611, 615 (6th Cir. 2003).

Wright v. Massanari, 321

However, when non-exertional

impairments are present which preclude the performance of a wide
range of work at any particular exertional level, the
Commissioner must use vocational testimony in order to satisfy
the step five burden of showing that jobs which the claimant can
perform exist in significant numbers in the economy; “if a
claimant suffers from a limitation not accounted for by the grid,
the Commissioner may use the grid as a framework for her
decision, but must rely on other evidence to carry her burden.”
Wilson v. Comm’r of Social Security, supra, at 548.
Here, the ALJ determined that Plaintiff could work at the
sedentary level but had restrictions in stooping, squatting,
kneeling, bending, and reaching above shoulder height on the left
side.

He then relied on certain Social Security Rulings for the

proposition that sedentary work typically does not involve more
than occasional stooping, bending, or crawling.

For example, SSR

85-15 states that “[i]f a person can stoop occasionally (from
very little up to one-third of the time) in order to lift
objects, the sedentary and light occupational base is virtually
intact” and “[t]his is also true for crouching.”

Further,

“crawling on hands and knees and feet is a relatively rare
activity even in arduous work, and limitations on the ability to
crawl would be of little significance in the broad world or
work.”

Id.

SSR 96-9p states that “[p]ostural limitations or
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restrictions related to such activities as climbing ladders,
ropes, or scaffolds, balancing, kneeling, crouching, or crawling
would not usually erode the occupational base for a full range of
unskilled sedentary work significantly because those activities
are not usually required in sedentary work.”
Reliance on these regulations was permissible.

The findings

in SSRs have been deemed to be substantial evidence which
supports an ALJ’s conclusions about the extent to which certain
postural or other limitations erode the sedentary work base.
See, e.g., Edwards v. Comm’r of Social Security, 2012 WL 6962977,
*9 (E.D. Mich. Dec. 17, 2012), adopted and affirmed 2013 WL
363018 (E. D. Mich. Jan. 30, 2013); see also Riley v. Comm’r of
Social Security, 2013 WL 1278344, *9 (E.D. Mich. Feb. 22, 2013),
adopted and affirmed 2013 WL 1278492 (E.D. Mich. March 27, 2013)
(finding “no error in the ALJ's reliance on SSR 85–15 to conclude
that plaintiff's nonexertional limitations did not significantly
erode the occupational base”).

As the court said in Goble v.

Comm’r of Social Security, 2012 WL 832356 (N.D. Ohio March 9,
2012), a case which also involved reliance on SSR 85-15,

“the

ALJ's decision ... that [Plaintiff] did not suffer from any
nonexertional limitations that would significantly erode the
occupational base of unskilled light work and preclude the use of
the grid to determine disability are supported by the record and
in accordance with the proper legal standards.”

Thus, the ALJ

was not required to obtain vocational testimony in this case.
The ALJ also found that Plaintiff was not required to use a
cane - a finding which has substantial support in the record but even if he did, that would not significantly erode the
sedentary work base.

SSR 96-9p also discusses this issue,

stating that “if a medically required hand-held assistive device
is needed only for prolonged ambulation, walking on uneven
terrain, or ascending or descending slopes, the unskilled
sedentary occupational base will not ordinarily be significantly
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eroded” and noting that “[s]ince most unskilled sedentary work
requires only occasional lifting and carrying of light objects
such as ledgers and files and a maximum lifting capacity for only
10 pounds, an individual who uses a medically required hand-held
assistive device in one hand may still have the ability to
perform the minimal lifting and carrying requirements of many
sedentary unskilled occupations with the other hand.”

While this

does not completely answer the question of whether, if Plaintiff
did need a cane, he could still perform a substantial number of
jobs - SSR 96-9p says only that this “may” be the case - it does
provide some support for the ALJ’s decision.

If the evidence

more directly supported the need to use a cane whenever Plaintiff
was required to stand or walk, this might be a closer case, but
the evidence is not so one-sided.

Overall, the Court finds no

error in the ALJ’s use of the SSRs as opposed to vocational
testimony at step five, nor was the ALJ precluded from using Dr.
Holzapfel’s findings as a guide to determining Plaintiff’s
residual functional capacity.

Those findings were more

restrictive than the ones imposed by either state agency
physician, and the ALJ properly credited Dr. Holzapfel’s opinion
and certain aspects of Plaintiff’s testimony in determining that
Plaintiff was limited to a wide range of sedentary work.
Consequently, there is no merit in Plaintiff’s fifth claim of
error.
VII.

Recommended Decision

Based on the above discussion, it is recommended that the
Plaintiff’s statement of errors be overruled and that judgment be
entered in this case in favor of the Defendant Commissioner of
Social Security.
VIII.

Procedure on Objections

If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to those
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specific proposed findings or recommendations to which objection
is made, together with supporting authority for the objection(s).
A judge of this Court shall make a de novo determination of those
portions

of the report or specified proposed findings or

recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
waiver 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); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).

/s/ Terence P. Kemp
United States Magistrate Judge

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